Q: What's ENDA?
A: It's the "Employment Non-Discrimination Act." It's a bill currently before Congress.
Q: What would ENDA do?
A: Extend the protections of title VII to gays, transgendered people and the disabled.
Q: What's title VII?
A: Title VII was the "Equal Pay Act of 1963." It has been subsequently amended, and mostly in liberal directions by the Civil Rights Act of 1991 and the Lily Ledbetter Fair Pay Act of 2009. Here's what the US Code looks like now.
Q: What does it say?
A: Very briefly, it says that you cannot fire, refuse to hire, or generally mistreat employees because of their gender.
Q: Bitchin'. I'm a woman and I've always wanted to be a Catholic priest. I'll start calling lawyers.
A. Not so fast...er...Sister. Religious institutions are exempted.
Q: But what about a Catholic-owned bookstore?
A: They aren't exempted at all. They cannot refuse to hire you based on your gender. Or your not being a Catholic, which would legally get in the way of the priest thing, too, by the way. Or because you're black. Or because you're French.
Q: We even have to hire the French?
A: If they are the most qualified person for the job. Sucks, don't it?
Q: What will happen if ENDA passes?
A: As far as I can tell, it will simply add sexual orientation, gender identity and disability to the list of protected traits. The church won't have to hire gay people, but the bookstore still will if they are the most qualified for the job. Also, it will not allow for "disparate impact" claims, though frankly I don't really see those being relevant to sexuality or gender identity. My guess is that it has some implications for the disability part, though I will have to think that one through.
Q: What's a disparate impact claim?
A: It's a claim that a hiring practice not directly mentioning a protected class still functionally excludes many members of a protected class. For example, if you have a company rule that all employees have to be at least 5"8' then you will exclude many, many women and relatively few men. The Ricci case made famous in the Sotomayor hearings (the one about the firefighter exam that few black people passed) would be an example. The more common firefighter disparate impact case is when firefighters require people to have a high amount of upper body strength, higher than most women have. That's a fun one because it really makes sense to have that.
Q: Can you get fired for "acting Gay"?
A: Oddly enough, that is pretty much already protected as long as you can define "acting gay" as "acting like the opposite gender." Back in 1989, Price Waterhouse denied a woman a partnership, stating that she wasn't "feminine enough" and the SCOTUS made it illegal to discriminate against someone for "not conforming to gender stereotyping." Here's an example of that ruling protecting a flamboyant gay hairdresser.
Q: Do you think "not feminine enough" was code for "lesbian" in that case?
A: I don't know, the SCOTUS didn't seem to take it that way, but I know at least one hairdresser who was protected anyway because of the way they wrote the ruling.
Q: Anyway, what does Title VII mean for religious freedom?
A: It means that Congress has not defined "the freedom to hire, fire and mistreat people based on your religion" as part of religious freedom since at least 1968.
Q: So people who are complaining that ENDA will reduce religious freedom should not be believed?
A: I don't see how anything they are saying is accurate.
Q: Will this get rid of "Don't ask, don't tell"?
A: Nope. The military is exempted.
Q: This is interesting stuff. I want to read more about it.
A: Well, this post is pretty cool.
ADDITIONAL QUESTIONS I WAS ASKED IN THE COMMENTS:
Q: Does it apply to Congress? Many of these kinds of laws don't.
A: As for members of congress themselves, I don't think a claim that one wasn't ELECTED because of a protected trait would fly with the courts.
As for congressional staffers, they are federal employees as far as I know, and sexual orientation has been protected since the Clinton administration and Obama has extended that to gender identity.
As far as people with disabilities are concerned, they are covered by the ADA and the Sections 501 and 505 of the Rehabilitation Act of 1973.
Q: Do you understand what the term "gender identity" means? The definition seems very broad. Are the only possible identities "male" and "female"? How about, "drag queen", "all of the above", or "depends on what time of day we are talking about"?
I was struck by the contrast with the definition of "sexual orientation", which says that you have to be gay, straight, or bi for the law to matter.
"Gender identity" seems much more open ended. If "all of the above" isn't an acceptable identity, why not? And if "all of the above" is an acceptable answer, how does one make sense of the facilities clauses, which seem to assume only two possible "gender identities". (Edited for length, full version is in the comments.)
A: The non-binary genders thing is an excellent question, albeit one that's a little rudely phrased at the beginning. My impression is that a large number of local areas have non-discrimination laws that include transgender folks. I don't recall that the bathroom issue has resulted in a need for transgender bathrooms which is not to say that they don't effectively exist all over the place labeled as "family bathrooms" and usually used by parents and opposite gender children.
Indeed, as I have a husband, I have three bathrooms in my very own house that are not limited to one gender and we have considered putting in a fourth with a Japanese soaking tub.
As for public areas, due to the existence of stalls, I don't care and am not sure what non-discriminatory reason other people have for caring who else is in the bathroom with them, what their philosophy of gender is and least of all what their physical equipment is.
Seems both polite and practical not to speculate on such things.
CC
13 comments:
Does it apply to Congress? Many of these kinds of laws don't.
As for members of congress themselves, I don't think a claim that one wasn't ELECTED because of a protected trait would fly with the courts.
As for congressional staffers, they are federal employees as far as I know, and sexual orientation has been protected since the Clinton administration and Obama has extended that to gender identity. Would have to look up the rules on disability separately.
Will try to do that today.
One of the first things the GOP did when taking control of Congress in 1995 was pass the Congressional Accountability Act (CAA) to enforce labor laws on Congress. Up until then Congress had exempted itself from most labor laws.
I just wondered with Democrats back in control if they've taken to exempting Legislative employees from the rules; like this one.
Much as they plan on keeping their FEHB for health insurance and avoiding the Gov Plan for health care.
(((I just wondered with Democrats back in control if they've taken to exempting Legislative employees from the rules; like this one.)))
I'm not sure why you're asking again, but again, no. If you don't believe me, go look at the law. No congressional exemption is there.
CC
*thumbs up* to this post.
CC,
Do you understand what the term "gender identity" means? The definition seems very broad. Are the only possible identities "male" and "female"? How about, "drag queen", "all of the above", or "depends on what time of day we are talking about"?
I was struck by the contrast with the definition of "sexual orientation", which says that you have to be gay, straight, or bi for the law to matter.
"Gender identity" seems much more open ended. If "all of the above" isn't an acceptable identity, why not? And if "all of the above" is an acceptable answer, how does one make sense of the facilities clauses, which seem to assume only two possible "gender identities".
It seems that their is a contradiction between LGBT activists, who want people to be free to define their own gender identity, and the practical application of the law, which seeks to divide people into two groups, one for each locker room.
(This is not a criticism of the law. But I am concerned that the issue of the which bathroom the drag queens use will somehow prevent the legislation being passed. (I suppose I should also note that the term "drag queen" is not derisive but a standard term for men who sometimes like to dress as women. In polite society they are addressed as "he" or she" depending on their current attire.))
Hi Tom,
The non-binary genders thing is an excellent question, albeit one that's a little rudely phrased at the beginning. My impression is that a large number of local areas have non-discrimination laws that include transgender folks. I don't recall that the bathroom issue has resulted in a need for transgender bathrooms which is not to say that they don't effectively exist all over the place labeled as "family bathrooms" and usually used by parents and opposite gender children.
Indeed, as I have a husband, I have three bathrooms in my very own house that are not limited to one gender and have considered putting in a fourth with a Japanese soaking tub.
As for public areas, due to the existence of stalls, I don't care and am not sure what non-discriminatory reason other people have for caring who else is in the bathroom with them, what their philosophy of gender is and least of all what their physical equipment is.
Seems both polite and practical not to speculate on such things.
CC
Bill,
Since no one else is required to use the "Gov Plan for health care," why should federal employees be required to do so?
I don't understand why the concept of the public option's being an option is so opaque to some folks.
Indeed, the ENDA bills in the House and Senate both reference the Congressional Accountability Act of 1995 in their definition of employer, to make it clear that Congressional offices are included.
CC-
Thanks for the response. The bathroom gender issue came up at a recent church board meeting in connection with our bulding program. Folks who had been mothers to teenage girls, felt strongly that teenage girls would want a bathroom where there would not be men in the next stall.
Those of us who have never been teenage girls weren't disposed to argue. So we went with one multi-stall "women's room" and three single-user non-gendered facilities. That's not stricly legal, but we are pretty sure we can get away with it.
In the 1970s the push for the federal ERA died in 1975 when voters in both New Jersey and New York rejected it in referenda. People were shocked that it would lose in the liberal heartland. Press reports at the time suggested that a major reason women voted against it was fear of losing access to women's only bathrooms.
I think it highly probable that opponents of ENDA will try to make preserving women's rooms a central issue. This is why HRC was willing to drop the transgendered clause last year. I hope we have a better answer than saying that teenage girls are discriminatory.
UU teenage girls are pretty cool with transsexuality. I find it telling that no actual teenage girl voiced that issue, only parents. My guess is that this is example of the "A social conservative is a liberal with a teenage daughter" principle in action.
Though I know the bathroom thing has been an issue in the past, it seems like something that it would take a few years to get used to then nobody would think anything of it, not even the teenage girls.
Our church has three sets of gender-divided bathrooms plus a couple of family bathrooms. As far as I know, everybody's cool with that.
As a response to ENDA or other equality legislation, the whole bathroom thing seems so fundamentally irrational that I don't even really know how I want proponents of ENDA to respond.
CC
Folks who had been mothers to teenage girls, felt strongly that teenage girls would want a bathroom where there would not be men in the next stall.
And who did these mothers consider to be men? Are trans women excluded from your church's "women's room"?
From what I understand, women who voted against ERA were more anxious about being drafted to serve in a war (having just watched the men in their lives undergo that) than they were anxious about having a dude in the stall next to them.
CC-
Nobody I know is at all bothered about transsexuals. The issue was men/teenage boys in the next stall. It came up in response to the suggestion that we should just make all the bathrooms unisex. No teenage girls are on the board so they did not have a chance to comment. Anyway, I agree with everything you and PG say about practical matters.
I am still confused about how section 8 works with non-binary gender identity. But this is a legal question, no an argument about bathrooms.
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