The Disparate Impact Non-Issue

At last week’s House Education and Labor Committee hearing on ENDA, witness Camille Olsen, an attorney who represents employers, raised several questions about what she characterized as ambiguities in the bill. Among the points Olson raised was the question of “disparate impact” claims under ENDA. Olson’s technical arguments were potentially confusing even for an attorney like myself, so it’s worth trying to explain them in plain English.

Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so. For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.

The law of disparate impact has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new antidiscrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?) So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.

Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.

ENDA: Why state discrimination matters

At last week's House hearing on ENDA, not just one but two witnesses testified specifically to the existence of longstanding and widespread discrimination on the basis of sexual orientation and gender identity by state governments. Yale Law Professor William Eskridge recounted the historical campaigns of exposure and exclusion of LGBT public employees. And UCLA Law Professor Brad Sears summarized an extensive new report by the Williams Institute on the past and present extent of state employment discrimination. Why so much attention to state employees, who make up less than 5% of the American workforce are currently more likely to be protected under state law than private-sector workers?

The answer lies in a peculiar series of U.S. Supreme Court rulings over the last fifteen years. Those cases have sharply limited the compensation available to public employees under federal civil rights laws, on the theory that state governments possess "sovereign immunity" from employees' claims. For example, the high court held in 1991 that state workers fired because of a disability could not obtain back pay, even though it was specifically guaranteed by the Americans with Disabilities Act. The justices reasoned that Congress did not muster sufficient evidence that discrimination against state employees in particular was a widespread problem that would justify subjecting states to lawsuits. While Congress, civil rights advocates and most legal scholars were incensed, this special requirement has hung over many civil rights laws ever since, threatening to create a substantial hole in legal protections. (An article I wrote in my previous job discusses these legal doctrines in more depth.)

Because much of the discrimination suffered by LGBT workers occurs in the public sector - such as the blatantly discriminatory firing of Vandy Beth Glenn by the Georgia legislature - ENDA's drafters and supporters have taken great pains to ensure that state workers are fully protected. This is being done by two methods. First, ENDA specifically requires that state governments waive any immunity from lawsuits as a condition of continuing to receive federal program funds - an approach that has been effective under a number of other laws. Second, the Williams Institute lays the foundation for what may be the most extensive congressional record ever concerning employment discrimination by states.

If this sounds like a lot of technical hoops to jump through, that's because it is: these legal doctrines, invented by a narrow majority of the Supreme Court, create rigid and artificial barriers to protecting the civil and constitutional rights of LGBT employees - and indeed, of all employees. But for the moment, these are the rules of the game, and it is a testament to the dedication of our Congressional allies, and the researchers at the Williams Institute, that no stone is being left unturned to ensure that no transgender worker is left unprotected.

Ending Discrimination in All its Forms

Yesterday I had the honor of meeting Congressman John Lewis when I went with 3 of his constituents--Vandy Beth Glenn, who had just testified about her experience being fired for being transgender; her attorney from Lambda Legal, Cole Thaler; and her friend, David Deriso.

It was an amazing experience to meet this incredible hero of the civil rights movement, who knows so very personally the violence that is directed at those who challenge oppression and seek basic human rights. Yesterday, he told us that he had learned long, long ago that discrimination is discrimination, and that all of its forms are wrong.

This is, of course, a powerful statement, but even more moving coming from him, and in the midst of a conversation about the Employment Non-Discrimination Act (ENDA) and the challenges that transgender people face. He told us that he would fight discrimination as long as he had breath in his body.

He and his staff were warm and personal. His office felt like a safe haven for that period of time from the struggles we face, and a reminder of the role of elected officials to make our country a better, safer place for all of us. We have a long way to go, but even in the halls of power, there are sanctuaries and allies, and it is good to remember that from time to time.

Another powerful moment for me yesterday was sitting in the hearing room, listening to the testimony before the House Committee on Education and Labor. I realized that I was surrounded by incredible trans advocates and allies--like Babs Caspar, Lisa Mottet, Shannon Minter and dozens of others--many of whom had been working over the last two decades to bring us to the day when we will pass employment protections that include sexual orientation and gender identity.

But we're not done yet and I hope you'll join us in doing all we can to make that day a reality.

Labor Day and Transgender Workers

It is quite fitting that our final push for the Employment Non-Discrimination Act (ENDA) begins at the time that we as Americans celebrate Labor Day. This is our moment to say that transgender people have the right to be employed, to be judged on the quality of the work we do, and not on who we are. It is a time to stand up with dignity and assert our equality in the workplace.

As stories of discrimination have been coming in, I’ve been struck by the power of people being willing to tell the truth about what happened to them. By speaking out, we send a message that these acts of discrimination are not acceptable to us as individuals or as Americans. Each story says, in its own way, that the pain of what happened when someone was fired or treated badly is an outrage. And we need to say that over and over again.

The Labor Day holiday was born out of the labor unrest in the 19th century, when workers spoke out for better pay, safer working conditions, and the end of company control of their lives. When the Pullman workers went on strike in 1894, President Grover Cleveland sent 12,000 troops to break the strike, resulting in violence and the death of two strikers. In an attempt to win back some labor votes that election year, Cleveland established Labor Day as a gesture to American workers.

A few years after the holiday was established, the head of the American Federation of Labor, Samuel Gompers, declared it "the day for which the toilers in past centuries looked forward, when their rights and their wrongs would be discussed...that the workers of our day may not only lay down their tools of labor for a holiday, but upon which they may touch shoulders in marching phalanx and feel the stronger for it."

This is our time to stand shoulder to shoulder, to demand that discrimination against transgender people in the workplace must end and must end now. Will you take a stand and work to pass ENDA with us? We will all feel stronger for it.

Join us tonight, September 8, for our conference call to get updated on ENDA. Click for more info and free registration is available here.

If you have experienced workplace discrimination, please consider telling us your story. It is valuable information as we talk with members of Congress about why this bill is so important. You can choose whether or not we will disclose your name.