Thursday, November 8, 2007

Kudos to Barney Frank for ENDA, from Dale Carpenter at The Volokh Conspiracy Blog

The Volokh Conspiracy - Barney Frank's ENDA:: "Barney Frank's ENDA" November 8, 2007 Post in The Volokh Conspiracy Blog, by Constitutional Law Professor Dale Carpenter.

Let's join with Con Law Prof Dale Carpenter in giving kudos to Massachusetts' own Barney Frank for helping to get this historic, gay civil rights legislation passed in the US House. On to the Senate, with Ted Kennedy introducing the bill there. Yes, it's still Massachusetts leading the way on this important issue.

"Barney Frank's ENDA:
Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.

Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment...."


Mark Seecof said...

I suggest caution in joining Prof. Dale Carpenter's other comments on ENDA. Whether because he dislikes criticism of any kind, or because he wishes to conceal the true import of ENDA bill from readers, he reacts to any criticism of the legislation by accusing the critic of failing to read the bill.

Carpenter also tries to mislead his readers on the likelihood of "statistical" enforcement of ENDA. Whenever someone brings it up, pointing out that employers will question applicants and employees about their sexual orientations, Carpenter just reiterates that ENDA repeats Title VII's anti-quota language. He points out that Section 9 of the bill limits EEOC's ability to collect statistical data on employee's sexual orientation, and he points out that Section 4(g) of the bill limits "disparate-impact" lawsuits.

However, Carpenter suppresses the facts about statistical enforcement of ENDA. Section 9 would not restrict the Department of Justice requiring Federal, State, and local government agencies and their contractors to submit data on applicant and employee sexual preferences using Title VII Section 707 and 709 authority, nor would Section 9 restrict private litigants from issuing subpoenas for sexual-preference data nor courts from enforcing them. In fact, ENDA Section 10 extends DOJ's Title VII enforcement methods to ENDA, so arguably requires-- and certainly permits-- DOJ to amend EEO-4 Forms for government agencies and contractors to ask about applicants' and employees' sexual orientations. (Some government employers require applicants to answer EEO-4 questions under penalty of perjury!)

ENDA Section 4(g) would not restrict statistical "pattern and practice" enforcement (authorized by Title VII Section 707, extended to ENDA by its Section 10). Approved by the Supreme Court in Hazelwood School District v. United States, 433 U.S. 299 (1977) and Teamsters v. United States, 431 U.S. 324 (1977), this involves filing pattern and practice lawsuits based on statistical information supplemented with "examples" of disparate treatment. Even one complaint by a aggrieved employee counts as an "example."

If enacted, ENDA would likely impose hiring quotas for gays and lesbians through DOJ enforcement guidelines. To a DOJ bureaucrat with a hammer shaped by decades of regulatory practice and precedent every civil-rights problem looks like a nail. If the ENDA bill is enacted, the DOJ will establish enforcement threshold quotas for gays and lesbians in government jobs. Agencies and contractors will then base actual hiring and promotion quotas for gays and lesbians on DOJ's requirements. We can expect this because Title VII enforcement already works this way. (The Department of Justice Employment Litigation Section relies on "statistical targeting" using EEO-4 and census data to find "irregularities in employee selection" at agencies or contractors, which means deviations from DOJ's quotas. If ELS can turn up any example of discrimination (including any complaint from a disgruntled worker) it will file a pattern and practice lawsuit. The burden of proof is then reversed-- the employer must prove that it had a lawful reason to reject every single individual applicant or potential(!) applicant during the statute of limitations period or be found liable to all of them.

Under ENDA job applicants and employees of private businesses would probably have to answer sexual-orientation questions as well. Though ENDA Section 9 would forbid EEOC to "collect" or "compel the collection" of sexual-orientation statistics, EEOC might give Section 9 a narrow construction. For example, EEOC might rule that employers could submit sexual-orientation data "voluntarily" to dispute an ENDA complaint. In any event, many businesses threatened with "pattern and practice" lawsuits (which ENDA Section 4(g) doesn't limit) would decide to compile sexual-orientation data themselves for defensive purposes. Some other laws might limit employers asking about sexual orientation, but ENDA does not.

(ENDA purports to forbid sexual-orientation quotas. However, ENDA's anti-quota language is cribbed from Title VII, where it is famously a dead letter. Title VII enforcement has taught everyone that quotas are the only way to avert DOJ Title VII lawsuits, though the word "quota" should not used. Whether we say "goals and timetables," or say nothing at all (having been taught to manage all quotas orally to make them easier to deny, as the Supreme Court sanctioned in Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger 539 U.S. 306 (2003)), DOJ won't tolerate any hiring standards which do not result in quotas.

(It's true that DOJ usually makes easier-to-prove "disparate impact" allegations in statistical cases like the New York Firefighters Exam litigation. But DOJ has not completely forgotten how to file a Teamsters disparate-treatment statistical case... Just look at the City of Gallup complaint and settlement announcement or the March 2007 New York Bridge Painters complaint.

Steven Ballard said...

You make some good points, I think, about the potential problem that, despite the language in the proposed law itself, ENDA may indeed indirectly lead to the use of quotas, in the way Title VII enforcement methods already have. Having done plaintiff's employment discrimination cases in Massachusetts (including sexual orientation discrimination cases), however, I am aware that: 1) there is in fact this kind of employment discrimination and there is a real need for this kind of protection in Massachusetts, so I imagine it has to be necessary in other states as well, and 2) we have not seen the parade of horribles you describe. Of course, I realize you are speculating about a different kind of problem if the national legislation is passed. It would indeed be a shame, I agree with you, if ENDA indirectly leads to quotas and some of the other absurd results you fear. But I think you are probably overestimating the potential risks and costs, and you don't mention any of the obvious benefits. We will have to wait and see, and perhaps you won't have to worry, as this bill may not become law. I still hope it does though.