hunter of justice

ENDA chugging along

Both publicly and behind the scenes, things are moving on ENDA.

Tomorrow at 10 a.m., the Senate Health Education Labor and Pensions (HELP) Committee will conduct a hearing on this year's (trans inclusive) version of ENDA. You can watch it here; Beltway denizens can show up in person at the Dirksen Senate Office Building, Room 430.

The Republican witnesses in the Senate will be the same two who testified on the House side: management side lawyer Camille Olson and Religious Broadcasters Association official Craig Parshall.  Representing the Obama administration will be Tom Perez, the head of DoJ's Civil Rights Division.  Other Dem witnesses will be Illinois Attorney General Lisa Madigan, University of Colorado Law Professor Helen Norton, a Nike Corporation respresentative, and a Massachusetts police officer.

Behind the scenes, House members are hoping to schedule a mark-up (a session during which Education and Labor Committee members will offer amendments to the bill) soon. At that point, there will be a "chairman's mark" that will include any modifications that the sponsors wish to make before the bill moves to the House floor.  The chairman's mark effectively substitutes for the version of the bill as originally introduced. The floor vote on ENDA in the House will probably occur about a week after the mark-up.

German registered partners entitled to same pension rights as spouses

Germany's constitutional court (the equivalent to the U.S. Supreme Court) ruled late last week that surviving partners in a registered civil partnership have a right to collect under the occupational pension scheme for civil service employees. The court found that affording such payments to surviving spouses in a marriage but excluding civil partners violated the equal treatment provision in Article 3.1 of Germany's Basic Law (the rough equivalent of the Constitution), and was not  justified by the rationale underlying the pension system. The complaint was brought by a civil servant in a registered partnership after being denied the same premium rates as married persons - a classification that also would deny his partner the right to collect on the pension in the event of his death. 

Coincidentally, the Williams Institute has just published an analysis of the discrepancies between same-sex partners and married couples in their access to employer-sponsored retirement benefits in the U.S.

An English language version of the German court's summary of the new decision is after the jump -->

European Commission warns of lgbt rights deficiencies in nations seeking EU admission

The European Commission has published its 2009 "Progress Reports" on the countries now or potentially seeking EU membership: Croatia, the former Yugoslav Republic of Macedonia, Turkey, Albania, Bosnia and Herzegovina, Montenegro, Serbia and Kosovo.

According to ILGA-Europe:

LGBT issues are covered in all reports and stronger language is used by the Commission when referring to the human rights violations of LGBT people and to the non-compliance of the states to their human rights obligations under European/Accession partnerships. It is also positive to notice that the reports give specific recommendations to the states to introduce anti-discrimination laws and policies that are in line with the EU requirements. The Reports also emphasise the need to level up ‘the protection against discrimination in practice’ in the countries where the laws were adopted (Croatia, Serbia). In particular, the Commission has criticised the governments for failing to provide adequate protection to Belgrade Pride participants which led to cancellation of the event, and for the violation of freedom of expression and association in the infamous case of Lambda Istanbul in Turkey.

ILGA-Europe's compilation of specific references to lgbt issues follows the jump -->

The disparate impact non-issue in ENDA

By Guest Contributor Harper Jean Tobin

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 disparate impact approach 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 anti-discrimination 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.

-- Cross-posted at the Transgender Equality blog

ENDA - how the hearing went

To cut to the chase: yesterday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. Special cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears.

The Committee staff did a superb job of preparing the Democratic members for the discussion. There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor.

A few comments on the two Republican witnesses:

> Virtually all of the discussion on possible problems with the bill centered on the testimony given by Camille Olson,a management side attorney with Seyfarth Shaw and a member of the policy subcommittee on equal employment opportunity of the Chamber of Commerce. In other words, she was representing employers. Her testimony was neither in support of or in opposition to ENDA, but was focused on raising potential objections to specific provisions in the bill. The main point of her testimony was that there is "ambiguity and uncertainty" in the bill at multiple points. Her issues included: whether ENDA will duplicate Title VII's cause of action for sex stereotyping, what changes employers will have to make regarding restroom use policies in order to avoid discriminating based on gender identity, whether ENDA will generate more attorneys fees awards for plaintiffs than Title VII does, and whether the explicit limitation of ENDA to disparate treatment claims really means that disparate impact claims are excluded. Acting EEOC Chair Stuart Ishimaru, testifying on behalf of the Obama administration, answered the last point by saying that, yes, there really is an exclusion, and I would direct the EEOC to not pursue any claims brought to it which fall into the category of disparate impact theories. But the other points generated a fair amount of discussion, and may show up in later phases of the legislative consideration of ENDA.

> The second witness sponsored by the R members was Craig Parshall, general counsel for the National Religious Broadcasters. He and Olson pretty much embodied the two wings of the Republican Party - the religious/social conservative wing and the business wing. By contrast to Olson, Parshall's testimony did not get much take-up or generate much discussion. This may be a result of so few Rs being there to pick up those themes. The tone of the committee and floor debates could well be very different from the tone of the hearing.  But it also struck me as perhaps auguring a new general attitude toward ENDA, of - more or less - morality, schmorality, let's keep our eyes on what's really important: insuring that this law doesn't cost employers too much.

OPM proposes new regs on same-sex partner benefits for federal employees

Proposed regulations published in the Federal Register on Monday would clarify or expand same-sex partner benefits for federal employees.

The first proposed rule deals with leave issues such as family and medical leave and funeral leave. Existing law (dating from 1994) encompasses "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." OPM's proposal would make explicit that same-sex and opposite-sex domestic partners are covered, to "ensure more consistent application of policy across the Federal Government." According to OPM, the details of implementation differ in agency-level policies, and some agencies have no written policies.

The second proposal deals with eligibility to apply for coverage under the Federal Long Term Care insurance Program, and expands the definition of "qualified relative" to include same-sex domestic partners.

Public comments on both of the proposed regs will be accepted until November 13, after which OPM will consider the commentary and then publish final regulations.

Feldblum to become first openly gay EEOC Commissioner

The White House announced today that Georgetown Law Professor (and partner of yours truly) Chai Feldblum will become the first openly gay Commissioner on the Equal Employment Opportunity Commission. After confirmation, Chai will begin a five-year term as one of five commissioners. The EEOC is responsible for issuing regulations to enforce federal anti-discrimination laws and for authorizing the initiation of major test case litigation by the Commission's legal staff.

And yes, probably the most important effect of this will be when ENDA passes. The EEOC will be the agency responsible for issuing regulations for its enforcement. Having Chai there to set the framework for the initial regulatory response to ENDA is important beyond words. Mazel tov!

What is the difference between sexual orientation discrimination and gender stereotyping?

For most people, much of the time, the association between homosexuality and gender nonconformity is pretty strong, common sense, a no-brainer.  Professor Jeffrey Hirsch (Tennessee Law) noted on the Workplace Law blog that he, like the author of the Wall Street Journal Law Blog, was puzzled by a new Third Circuit decision that drew a sharp line between the two, when in reality the difference is often fuzzy. As the WSJ phrased it:

We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.

But if you keep up with Title VII law, the latest ruling is simply another in what is becoming a long line of courts that allow gay (or trans) plaintiffs to assert a claim for discrimination based on sex - which of course is covered by Title VII - when the adverse action turned on the individual's failure to adhere to gendered standards of conduct and appearance.

In Prowel v. Wise Business Forms, Inc., 2009 WL 2634646, the Third Circuit reversed the trial court's dismissal of the gay plaintiff's sex discrimination claim on the ground that Title VII does not cover sexual orientation discrimination.  The facts showed that he had been verbally harassed at work over a significant period of time, including having been repeatedly called "rosebud," "princess" and "fag." The Court of Appeals reasoned that the plaintiff had

adduced evidence of harassment based on gender stereotypes...[I]t is possible that the harassment of Prowel was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes...Because both scenarios are possible, the case presents a question of fact for the jury...

Yes, the reasoning is tortured, even silly, but that's the result of there being no explicit prohibition against discrimination based on sexual orientation. A lot of time, energy and money get wasted in cases like Prowel's - of which there are many - because litigants and judges have to weave their way through this logical maze.  The increasing willingness of courts to let these cases proceed to trial is another signal to Congress that it might as well pass ENDA - just make the law what it obviously should be and allow this kind of dispute to be resolved much more efficiently.

6th Circuit upholds religious group's firing of gay employee, but ACLU may have the last laugh

The Sixth Circuit ruled yesterday that firing an employee based on a religiously-inspired conduct rule is not discrimination based on religion. Instead, the court affirmed the dismissal of the openly lesbian plaintiff because it found that she could not show that it was the religious aspect of her conduct that triggered the firing. Pedreira v. Kentucky Baptist Homes for Children, 2009 WL 2707226 (6th Cir.)

There was no question that Alicia Pedreira was fired because of her sexual orientation; the defendant declared that a "homosexual lifestyle is contrary to [its] core values." Pedreira asserted that the KBHC had discriminated against her based on religion, i.e. because she failed to comply with its religious beliefs. The Sixth Circuit rejected that argument, relying on a nominalist understanding of religion as a possible basis for discrimination. "Plaintiff has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion or ... her religious differences with KBHC. ... Furthermore, Pedreira does not allege that her sexual orientation is based on her religious beliefs or her lack thereof..."

KBHC's "core values" defense may turn out to be a pyrrhic victory, however.  The ACLU, which represents Pedreira, also included an Establishment Clause claim in the case, alleging that KBHC used Kentucky state funds to promote religion. Although it shot down the religious discrimination claim, the Sixth Circuit found that the plaintiffs had state taxpayer standing in light of the $12.5 million annual state funding of KBHC for the last 10 years.  Several state officials had sought to terminate the contract with KBHC because of concerns about the use of state funds for religious activity, but the legislature responded with a special citation of appreciation for the group/s work.  Meanwhile, the report of an independent reviewer of the program included nearly 300 complaints from youth that KBHC's religious practices were coercive. In a final note, the court ruled that evidence concerning KBHC's employment policies would be relevant to the determination of whether it was using public funds to promote religion.

The upshot of the case (so far, since the Establishment Clause portion of it will continue on remand) is that a religiously-identified social services organization can fire lgbt employees, an outcome that ENDA - with its broad religious exemption - likely will not change. Although it relates to a different branch of law, the decision essentially leaves KBHC-like groups in the same posture as the Boy Scouts vis-a-vis anti-discrimination issues. In my view, the Establishment Clause questions raised by Pedreira are at least equally important, although that claim will provide no job remedy for the plaintiff.

British group issues guide to balancing religion and gay equality in the workplace

The Stonewall Foundation has published a report on "Religion and Sexual Orientation: How to manage relations in the workplace" that Congress ought to read in advance of its consideration of ENDA. Aside from some platitudinous guidelines ("treat everyone with respect"), the core of the document is a series of case studies, including a local clerk who refused to conduct civil partnership ceremonies, a counselor who balked at providing psychosexual counseling to same-sex couples, and a senior employee who constantly quoted Bible passages to a junior employee. The rule in Britain is that religious organizations can discriminate only if the job position or activity in question is directly associated with the doctrine of the faith group.  By contrast, the religious exemption in ENDA would grant religious organizations essentially a blanket waiver of ENDA's requirements. As this report documents, the British system is workable and fair.

LDF's Jackie Berrien to chair EEOC

Great news for progressive law folks - NAACP LDF Associate Director Jackie Berrien will be the next chair of the EEOC.  I knew Jackie when she and I were both lawyers at the ACLU. After the ACLU, Jackie worked at the Ford Foundation for a stint, then returned to LDF, where she had been a staff lawyer, as Associate Director. Another great appointment!

Hearing today on federal employee benefits for same-sex partners

The Subcommittee on Federal Workforce of the House Oversight Committee will hold a hearing today at 2 pm on HR 2517, the Domestic Partnership Benefits and Obligations Act. This is the bill introduced by Rep. Tammy Baldwin that would treat same-sex domestic partners the same as married couples for purposes of the law governing federal employees.

Witnesses will include Congresswoman Baldwin, OPM Director John Berry and Williams Institute Research Director Lee Badgett.

UPDATE - A video of the hearing is now available on the subcommittee web page.

DoJ gets one right, decides not to appeal Schroer decision

In a good but overdetermined move, the Justice Department has announced that it will not appeal a district court's ruling that discrimination based on gender identity is sex discrimination and therefore invalid under Title VII. The case, litigated by the ACLU LGBT Rights Project, is Schroer v. Billington, 577 F.Supp.2d 293. For more background, see the ACLU's information page about the case and previous posts.

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike cases involving DoMA, it does not call into question the validity of any federal statute. From the defendant's point of view, it finds that a particular employment decision was unlawful, and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise. And the community outrage over the Smelt brief surely eliminated whatever doubt there may have been about pursuing the appeal. So, good for the Justice Department; they did the right thing.

On transgender federal employees and legal history

I've gotten so many questions about legal issues related to federal employees in the past week of Obummer-ness that I thought it might be useful to provide a bit of historical context. In my post about the memorandum that the President signed on Wednesday night, I briefly described the history of the "unrelated to job performance" law that the new memorandum cites, and the potential it holds to protect federal employees against discrimination based on gender identity. The full story goes all the way back to the mid-sixties.

The "lavender scare" and the purges of government workers who were gay or thought be gay dominated the 1950s and 1960s.  In DC, where the greatest attention was focused on federal employees, police regularly entrapped gay men in Lafayette Park (across the street from the White House) and then shared the information about their arrests with government agencies that employed them. So an arrest, even on a minor charge, was not simply an arrest but also, effectively, a job termination. That started to change when some of the men began to fight back in court.

At that time, the Civil Service law provided that employees could be fired for "immoral conduct" that rendered them "unsuitable for government employment." In 1969, the U.S. Court of Appeals in D.C. ruled in Norton v. Macy, 417 F.2d 1161, that it was unconstitutional for the government to fire someone for "immoral conduct" unless "a specific connection," or nexus, could be shown between the conduct at issue and the employee's ability to do his job. This decision triggered a series of official responses: a Civil Service bulletin (1973), then a formal regulation (1975), and finally a statutory change (1978).  All of these provided protection for conduct that did not affect the workplace, a framing that grew out of the arrest cases.

Soon, issues arose that did not involve specific sexual conduct, but related to homosexuality more generally. By the 1970's, some brave folks were starting to come out on the job. In the final months of the Carter administration in 1980, OPM issued a memorandum stating that employees were protected against adverse actions based upon "non-job-related conduct, such as ... sexual orientation." The Reagan and Bush I administrations neither revoked nor reaffirmed the 1980 memorandum.  In 1994, the Clinton OPM Director explicitly reaffirmed it.  Then in 1998, President Clinton upped the protection to the maximum level short of a statute by adding sexual orientation to the Executive Order that specifies the protected characteristics for federal workers.

Paragragh 3 of the Obama memorandum authorizing OPM to provide guidance to agencies based on the "factors not related to job performance" standard (which OPM was fully empowered to do without this memorandum, btw) builds on this history. What will it do? I think we can expect the new OPM guidance to state that, without a demonstration of a nexus between gender identity and ability to perform the job in question, federal agencies are prohibited from discriminating on that basis. This is what is called a "sub-regulatory" rule because, unlike a formal regulation covered by the Administrative Procedures Act, it does not have to go through publication in the Federal Register and consideration of public comments before it is promulgated.  It is simply an internal management policy for federal workplaces.

What is its legal status? Its major power is probably educative and preventive. Also,  because it states the formal policy of the government, it would enormously strengthen any claim of discrimination brought by a transgender person. It is less formal and less binding on future administrations than an Executive Order, although the Carter-era memorandum stayed in place despite Republican presidents. In rough terms, Executive Orders trump memoranda. And as the memorandum itself states in Section 4 (c), it creates no "right or benefit." That includes a right to bring a court action, meaning that it does not by itself create the basis for a lawsuit if an agency violates it. It is certainly a way to keep gender identity issues backburnered and obscure while simultaneously improving the law, just as the earlier Civil Service and OPM documents did for sexual orientation issues.

So, bottom line? As I said in the earlier post, it's not as good as an Executive Order but it's better than nothing. It's certainly good news for Diane Schroer - there's no way that the government will be appealing the ruling for her from a federal district court (577 F.Supp.2d 293) last year. Best case scenario is that it will serve the same function as an executive order in the upcoming debates over ENDA, by which I mean that ENDA proponents can argue that the federal government has taken the lead and bound itself to a policy of non-discrimination based on gender identity, so it is not unreasonable (or at least not hypocritical) to require private sector employers to be bound by that same policy. With luck, the forthcoming "guidance" will sway enough members of Congress to allow ENDA to go through intact, which apparently now is far from certain.

The federal employee benefits memo as anti-climax

The President's Memorandum for the Heads of Executive Departments and Agencies is out. Criticizing it is, to be honest, too easy - like shooting fish in a barrel. It is so obviously a thrown-together document - it basically directs the agencies to identify benefits that can be extended to domestic partners without congressional action. The only Cabinet-level department already to have taken any initiative whatever appears to be the State Department, which announced its reforms several weeks ago.

In his remarks, the President also restated his support for legislation granting benefits to partners of federal employees that cannot be achieved administratively, and for repeal of DoMA.

A few observations on the hype and the real possibilities:

* Although the President claimed in his oral remarks (see below) that it is the product of a "long and thorough review," the memorandum itself reads much more like a directive to senior management to assess what can be done quickly. It really is the kind of memorandum that should go out in the first weeks of an administration, and easily could have, if anyone had been on top of these issues during the transition. This same memorandum could have been drafted in December and issued by the end of January. And if it had been, the lgbt community would have been thrilled.

It's clear from the specific examples that the White House identified in supporting materials that the administration has done some research, although at least one benefit they claim credit for is old news. But the absence of specifics from the memorandum itself strongly suggests that this project was interrupted to create an event before all the work was done. OPM is directed to effectuate the new benefits it has identified, but all the other departments (except for State) seem to be getting the message to start looking now.

The main problem, of course, is that there are statutes that curb who is eligible for certain benefits. A federal statute explicitly limits enrollment for health insurance and pension benefits to an employee and members of his/her family, 5 USC 8905(a); and another section defines "member of family" to include only a spouse and unmarried dependant children under 22, 5 USC 8901(5). The first of those provisions eliminates the option of creating a new category for domestic partners (which DoMA would not prohibit). And when you combine the latter provision with DoMA' s limitation on "spouse" to different-sex marriages, there's not much space for action.  

* There is also a section of the memorandum that directs OPM to issue guidance within 90 days to insure "compliance with and implementation of" a longstanding federal law that prohibits discrimination against federal employees based on factors "not related to job performance." Who knows where this will lead, but it seems to invite OPM to "guide" federal agencies not to discriminate based on gender identity.

This section of the federal civil service law is the backdoor path used by lgbt advocates in the 1970s, who obtained a "clarification" from the Civil Service Commission that this general standard - not related to job performance - covered discrimination based on sexual orientation.  In the 1990s, President Clinton brought the rule out of the closet by explicitly adding sexual orientation to the Executive Order prohibiting discrimination against federal employees based on race, sex and religion. Adding gender identity to that Executive Order is what President Obama should have done tonight. So maybe this step will get gender identity to where sexual orientation was 30 years ago. Which is to say, it's better than nothing.

* Lastly, I couldn't help but note the stark contrast between the language of the memorandum and that of the non-binding comments of the President when he signed it. (Full text of his remarks is after the jump.) The operative document, to be published in the Federal Register, frames the problem as the federal government's inability to match private sector employee benefits. Its introduction concludes: "Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and brightest employees." How inspiring.

The President's remarks, by contrast, open with a reference to the "the long overdue progress in our nation's pursuit of equality," and he isn't talking about equality with the private sector. No, it's about people being "denied basic rights [because] the people that they love are of the same sex." That's nice.  Too bad more of that kind of equality didn't make it into the only document that matters.

OPM Director John Berry and OPM General Counsel Elaine Kaplan are good people. I wish them the best of luck in moving forward. Reforming the nation's largest employer is incredibly important. And it won't be easy.