ENDA Gay-Rights Bill Passes House

The Employment Non-Discrimination Act, which would outlaw private-sector (and some public-sector) discrimination based on sexual orientation, passed the House last week by a vote of 235-to-184.

I discuss some of the bill’s risks and ironies here. While the typical private employer has no reason to hire or fire based on sexual orientation (and few do), ENDA reaches beyond hiring and firing to vaguely-defined “terms, conditions, or privileges of employment,” meaning that a company would potentially be liable for a “hostile work environment” resulting from anti-gay things its employees say (even if those employees’ sentiments are at odds with company policy).

Moreover, ENDA may lead to employers settling even weak or dubious discrimination claims, especially those alleging wrongful termination or harassment, since ENDA incorporates the Christiansburg Garment standard for awarding attorneys fees — a sort of “heads I win, tails you lose” scheme under which the plaintiff gets his attorneys fees paid for by the other side if he wins, but the employer has to pay its own attorneys fees even if it wins (a win at trial typically costs an employer at least $250,000).

Law Professor Dale Carpenter, who supports ENDA, details some objections to ENDA, most of which he believes are weak.

Commenters at the Independent Gay Forum argued in favor of, and against, ENDA in comments you can find here. Some point out that although ENDA will come at a cost to business, it will be less costly for business than many other antidiscrimination statutes, because it has no “disparate impact” or “disproportionate impact” provisions. “Disparate impact” provisions ban job requirements that are neutral on their face, but which members of a particular minority group are more likely to fail to meet than job applicants in general. It is certainly true that ENDA will be cheaper for business than other pending employment legislation, like the extremely-costly ADA Restoration Act, which I discuss here.

Moreover, the version of ENDA which passed the House also omitted “transgender rights” provisions contained in an earlier version of ENDA (and in some states’ gay-rights laws), which create thorny and expensive legal dilemmas for employers. One common scenario pits a transgender employee with male DNA threatening to sue if denied permission to use the ladies room against female employees threatening to sue for sexual harassment if the transgender employee is allowed to use the ladies room. Another source of litigation risk involves a deliberately male-looking person with female DNA ejected from the ladies room after complaints from female customers.