National Employment Lawyers Association Supports Law to End Workplace Discrimination Based on Sexual Orientation or Gender Identity

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The National Employment Lawyers Association (NELA) strongly supports enactment of the Employment Non-Discrimination Act (ENDA), which will protect employees against discrimination on the basis of their sexual orientation and gender identity.

Discrimination Act (ENDA), which will protect employees against discrimination on the basis of their sexual orientation and gender identity.

The National Employment Lawyers Association advocates for employee rights and workplace fairness while promoting the highest standards of professionalism, ethics and judicial integrity. NELA was founded in 1985 to provide assistance and support to lawyers in protecting the rights of employees against the greater resources of their employers and the defense bar. NELA is the country's largest professional organization that is comprised exclusively of lawyers who represent individual employees in cases involving employment discrimination, wrongful termination, employee benefits, and other employment-related matters.

ENDA offers this Congress the opportunity to enhance workplace equality by protecting lesbians, gays, bisexuals, and gender non-conforming people from discrimination in employment. Congress should pass ENDA without delay. Although all arbitrary discrimination is wrong, it is especially egregious in the workplace. Employment discrimination takes a toll at the most basic level: income.

ENDA does not only protect lesbian, gay, bisexual, and transgendered employees from discrimination – it protects any employee, regardless of sexual orientation or gender identity, who is perceived to be lesbian, gay, bisexual, or transgender. It also bans discrimination against workers who associate with lesbian, gay, and gender-non-conforming co-workers, and prohibits retaliation against those who oppose unlawful practices.

As employment lawyers, we know that sexual orientation and gender identity discrimination is a serious problem. Every day, NELA members field calls from people who have lost or been denied jobs, or who have failed to receive promotions, because of their actual or perceived sexual orientation or gender identity. Unfortunately, we have to tell most of these people that the law does not protect them. As a result, hard working, qualified employees are denied opportunities for reasons unrelated to their ability to do the job. A few examples follow:

•    Robin Shahar – Attorney

State of Georgia Department of Law

Ms. Shahar graduated sixth in her class from Emory University Law School, was an editor of the Emory University Law Review, and clerked for the Georgia Department of Law. Despite those outstanding credentials, the Department withdrew its job offer after learning that Ms. Shahar is a lesbian. The United States Court of Appeals for the Eleventh Circuit decided that Ms. Shahar has no valid claim to fight the discrimination against her.

•    Peter Oiler – Supermarket truck driver

Winn-Dixie, Harahan, Louisiana

After twenty years of being rotated through progressively more responsible jobs in Winn-Dixie's shipping yards, in 1999 Oiler was driving a fifty-foot truck delivering grocery supplies throughout southeastern Louisiana – until Winn-Dixie learned that he called himself "transgendered." Oiler tried to explain that he simply wore women's clothes on the weekends: he wasn't going to become a woman nor did he want to wear makeup and heels on company time. In January 2000 Oiler was fired and told that his transgender identity could harm the company image.

•    Harry Kay – Product Analyst

Independence Blue Cross, Philadelphia, PA

Mr. Kay faced years of harassment at his job: co-workers pointed at him and bent their wrists; others told Kay he was not a "real man." This pervasive conduct caused him to leave his job. A Philadelphia federal district judge ruled in June 2003 that even though his co-workers engaged in gender stereotyping and harassment, Kay could not pursue a sex discrimination claim because the court found that the harassment could have only been because of his sexual orientation. In so holding, the court referred to a 3rd circuit decision, Bibby v. Philadelphia Coca-Cola Bottling Co., where the court explicitly stated that Title VII does not prohibit discrimination based on sexual orientation.

ENDA would provide much needed protection for employees like Robin Shahar, Peter Oiler and Harry Kay, in all aspects of employment, including hiring, firing, promotion, compensation, and most terms and conditions of employment. It would also clarify what should already be clear under present Title VII law: that job-related gender identity discrimination, like that which Harry Kay suffered – is unlawful.

There already exist some protections for lesbian, gay, bisexual and transgender employees. These protections have existed for years without causing major burdens on employers. Seventeen states, the District of Columbia and several local governments already ban discrimination based on sexual orientation, [California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, and Wisconsin have laws that currently prohibit sexual orientation discrimination in private employment. Some of these states also specifically prohibit discrimination based on gender identity. (In addition, six states have laws prohibiting sexual orientation discrimination in public workplaces only: Colorado, Delaware, Indiana, Michigan, Montana, and Pennsylvania.)] as do many corporations, [Corporations include General Motors, Proctor & Gamble, United Parcel Service, Halliburton, Bell South, General Electric, and Citigroup, to name only a few] schools, and universities. [There are over 500 colleges and universities with sexual orientation non-discrimination policies. They include Texas A&M, the California State University system, University of Florida, University of Connecticut, University of Massachusetts System, Harvard University, Yale University, Yeshiva University, and Southern Methodist.] In seven states, courts, commissions, and agencies have interpreted existing state laws to provide some protection for transgender individuals [Connecticut, Florida, Hawaii, Illinois, Massachusetts, New Jersey, and New York.] And Title VII prohibits discrimination on the basis of gender identity where the discrimination is based on gender stereotypes. These examples should confirm that ENDA’s protections are reasonable and consistent with public and corporate values.

Unfortunately, since neither state and local laws against sexual orientation and gender identity discrimination nor enlightened corporate policies provide American workers with adequate protection – federal legislation is necessary. Contrary to popular belief, the vast majority of American workers, in most states, have no such protection. Even in states with some legislation, weak remedies and procedures often make it illusory. Federal courts consistently rule that sexual orientation discrimination is not covered under Title VII, and often misinterpret Title VII to leave gender non-conforming people without protection. Corporate non-discrimination policies, while often progressive and well-intentioned, are essentially aspirational, as employees usually have no legal mechanism to enforce them. Without ENDA, therefore, many hard-working men and women will continue to have no protection against discrimination.

ENDA applies only to employers with 15 or more employees. ENDA explicitly does not require that fringe benefits be provided to the partners of lesbian and gay workers. ENDA also expressly forbids the use of quotas and does not permit "disparate impact" claims. In addition, ENDA does not apply to the armed forces and will have no effect on veterans' preference programs.

Just a few short decades ago, federal law tolerated, and many Americans accepted, employment discrimination based on race, religion, national origin, gender, and disability. We now look back with shame and embarrassment to a time when bigotry and stereotypes kept capable people out of the workplace or locked in dead-end jobs. NELA strongly urges you to sign on and support ENDA, and prohibit employers from allocating employment opportunities based on other non-work-related criteria: sexual orientation and gender identity.

Contact:

Rob Wiley, Attorney

Chair, Committee on Sexual Orientation and Gender Identity

National Employment Lawyers Association

rwiley @ robwiley.com

Law Office of Rob Wiley, P.C.

(214) 528-6500, (214) 202-5568

http://www.toxicworkplace.com

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