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ENDA’s Promise vs. Reality

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BY DUNCAN OSBORNE | While the queer community is pressing Congress to enact legislation that would ban employment discrimination based on sexual orientation and gender identity, the federal courts have grown increasingly hostile to plaintiffs who bring employment discrimination cases.

Patricia A. Barasch, a partner at Schall & Barasch, a New Jersey law firm, and the president of the National Employment Lawyers Association.

“The reality for plaintiffs in federal court is not necessarily a good one,” said Patricia A. Barasch, a partner at Schall & Barasch, a New Jersey law firm, and the president of the National Employment Lawyers Association. “A lot of cases get thrown out by judges in summary judgment motions before a plaintiff has an opportunity to have his or her case heard by a jury of his or her peers.”

Soon after the Stonewall riots, the 1969 event that is seen as launching the modern gay rights movement, the lesbian, gay, bisexual, and transgender community pursued federal legislation that would give its members the sort of anti-discrimination protections that most Americans have. That goal is embodied in the Employment Non-Discrimination Act (ENDA), a bill that would ban employment discrimination based on sexual orientation and gender identity.

ENDA passed the House in 2007 in a 235 to 184 vote. It has never received a vote in the Senate. With Republicans currently in charge of the House, the legislation is unlikely to get a vote. If ENDA was enacted, lawsuits brought under its provisions would be heard in the federal courts. Those courts generally do not like employment discrimination plaintiffs though there is “variability across the country in terms of the success of plaintiffs pursuing employment discrimination cases,” Barasch said.

In a 2009 article in the journal, Harvard Law & Policy Review, Kevin M. Clermont and Stewart J. Schwab, two Cornell University law professors, surveyed federal courts data and concluded that from 1979 through 2006, “the plaintiff win rate for jobs cases (15%) was much lower than that for non-jobs cases (51%).” Typically in such cases, an employee is the plaintiff and an employer is the defendant.

They also found that defendants in employment discrimination cases won appeals of “pre-trial adjudication” losses 30 percent of the time versus plaintiffs’ 11 percent, and defendants won appeals of trial losses 41 percent of the time versus nine percent for plaintiffs.

“For a plaintiff victorious at trial in an employment discrimination case, the appellate process offers a chance of retaining victory that cannot meaningfully be distinguished from a coin flip,” the authors wrote. “In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.”

Some transgender employees have been successful in the federal courts when charging discrimination based on sex stereotyping, but there is no reason to believe that gay, lesbian, bisexual, and transgender employees would succeed in the federal courts where so many other employees have lost.

Barasch most often brings cases in state courts, which are far more hospitable to employment discrimination cases.

“I am more often in state court than I am in federal court because the protections for employees under state law are so much better than they are under federal law,” she said.

Currently, 21 states and Washington, DC ban discrimination based on sexual orientation in employment, housing, and public accommodations and 16 of those 21 also include gender identity as a protected class. The first of those laws was passed in 1982 and, more recently, states have been adding gender identity. Cities in some states without such laws have enacted anti-discrimination ordinances. At best, the state and local anti-discrimination provisions offer incomplete protection.

Ann C. McGinley, a law professor at the University of Nevada, Las Vegas.

“Many lawyers are going to state courts to bring claims because procedurally claimants have a better opportunity in state courts, but many states lack protection under state law and even where there is protection, many state laws lack remedies that make claimants whole,” wrote Ann C. McGinley, a law professor at the University of Nevada, Las Vegas, in an email. “A new federal law is necessary precisely because of the uneven patchwork of protection in the states.”

The other federal route for handling discrimination claims, the Equal Employment Opportunity Commission (EEOC), is dealing with the aftermath of Bush-era budget cuts that reduced its staff by 30 percent and grew its caseload. At the close of the 2011 federal fiscal year, which ended on September 30, the EEOC had a backlog of 86,921 complaints brought against private sector employers.

Barasch and McGinley said that passing ENDA would be valuable, the obstacles to enforcement in the federal courts notwithstanding. Enacting ENDA would put employers on notice that they cannot discriminate based on sexual orientation or gender identity. It might also encourage employers to adopt explicit policies banning such discrimination. And some complaints would succeed in the federal courts.

“While federal courts have become more hostile to employment discrimination claims and this hostility is particularly obvious when combined with new efforts to dismiss cases early, an explicit law forbidding discrimination against LGBT people will make a difference,” McGinley wrote. “The courts would not be able to dismiss the clear-cut cases of LGBT discrimination that they dismiss now.”

Updated 5:17 pm, July 20, 2018
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