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Moving forward on employment with or without ENDA | Hunter of Justice

Moving forward on employment with or without ENDA

by on February 1, 2010  •  In Employment law, ENDA, Transgender

One implicit message of President Obama's State of the Union address last week lies in what he did not say. He promised to move ahead with prioritizing a repeal of Don't Ask Don't Tell; he did not mention ENDA. While a vote on ENDA in the House is probably still likely sometime in 2010, prospects in the Senate are very tough.  The harsh truth is that because the bill includes protection for gender identity – which I believe it should – it may take considerably longer to enact.  If Dems lose a significant number of seats in either chamber, it will be an even bigger lift next year. On the other hand, if the 2010 elections go well for the Dems, there will be more momentum to move ENDA through both chambers in 2011. We'll know in about 10 months how that will turn out.

The uncertainty over ENDA is no reason to slow down on employment issues, however. No issue has greater material importance than jobs – some of us marry, some of us don't, but we all work, or want to. And in a time of massive economic anxiety, the right to fair treatment for lgbt people in the workplace is critical.

Here are three goals that advocates could prioritize immediately:

1) President Obama could issue an Executive Order adding gender identity to the list of characteristics which are prohibited as the bases for discrimination for federal government workers. (Governor Paterson did this for New York state employees in December.) The federal government is the nation's largest employer and a model for private employers. When ENDA moves forward, it will be a powerful argument if advocates can point to the federal government as a workforce where such discrimination is already prohibited. I know that OPM has issued guidelines designed to achieve the same result, while still flying below the radar. But the advantage and disadvantage of flying beneath the radar is the same: no one knows what you are doing. Having an Executive Order, unlike the current guidelines, not only has an educative effect, it also sets the stage for future actions by the federal government. It's time for the administration to do the right thing.

2) State laws prohibiting employment discrimination still do not exist in a majority of states, and that too makes passing ENDA more difficult.  Take this quiz:

Which of the following states lacks an anti-discrimination law covering lgbt (or any subgroup thereof) workers: Ohio? Pennsylvania? Michigan?

Answer: All of the above.

A couple of years ago, a big chunk of gay money went into New York state legislative races, and the state senate turned Dem for the first time that anyone can remember. The goal was eventual enactment of a marriage statute. The same kind of savvy targeted effort should be undertaken to win an anti-discrimination law in these key states and others like them, where success is within reach.

3) Federal courts have increasingly been willing to extend anti-discrimination protection to trans workers through the prohibition against sex discrimination in Title VII, usually using a sex stereotyping theory. Gender expression as well as gender identity has also been covered. The trend isn't universal; there are still bad decisions happening. But the comparison to how courts were ruling 10 years ago is dramatic.

I have no doubt that the legal groups will continue to litigate carefully selected cases that can extend this principle. But the Obama administration could contribute to this strategy as well, with many more resources than any lgbt group has. During the Clinton administration, a task force within the Justice Department sought to identify good cases in which to litigate a sex stereotyping theory. Now that same kind of effort has begun again. In mid-January, DoJ moved to intervene in JL v. Mohawk School District, on behalf of a student who had been subjected to severe harassment because of his gender expression. DoJ should actively look for employment discrimination cases as well in which it can play a role.

In sum – with a nod to the upcoming Chinese year of the tiger – let's make 2010 the year of employment issues.

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