Lawyers Tweak ENDA Language

A House committee vote on the Employment Non-Discrimination Act, originally scheduled for Wednesday, November 18, was postponed so that lawyers could adjust the legal language regarding issues of disparate impact, double recovery, and attorney’s fees.

“Our understanding is that the committee lawyers wanted a few more days to look at several of the outstanding issues,” said Allison Herwitt, legislative director for the Human Rights Campaign.

ENDA would prohibit employers from discriminating against workers on the basis of their sexual orientation or gender identity. The legal fine-tuning stands to push back the date of the committee vote by about two to three weeks. “Hopefully, we’ll be able to see a markup after Thanksgiving and before the end of the year,” Herwitt said.

Rep. Barney Frank of Massachusetts, lead sponsor of the bill, has suggested the full House vote might not take place until February of next year.

Disparate impact is a type of legal case filed against an employer with an employment practice that does not appear to be overtly discriminatory but is nonetheless discriminatory in practice. Herwitt said the lawyers are working to ensure that such cases will not be allowed under ENDA although they are allowed to be brought under Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color, gender, religion, or national origin.

The committee is also clarifying that if a plaintiff files a discrimination case under Title VII, they cannot also pursue an ENDA case under the same claim — a situation that would create the potential for “double recovery.”

“Some Title VII cases have been filed based on gender identity,” said Herwitt, explaining the potential for overlap.

In terms of attorney’s fees, the committee's goal is to restrict the latitude of the Equal Employment Opportunity Commission so it cannot assign the fees to defendants in successful discrimination cases.

“Granting attorney fees to the party that prevails is not something that will be available,” Herwitt explained.

Once committee lawyers have completed the adjustments, Herwitt said they would be sharing the solutions with stakeholders, including HRC, the U.S. Chamber of Commerce, and Camille Olson, an attorney and Republican witness who testified at both ENDA hearings about the pitfalls of the bill’s language in those three areas.

‹‹Previous Article in Category | Next Article in Category››

Reader Comments

Back to top Post a Comment Report Abuse
Name: Art Leonard
Date posted: 11/24/2009 2:48:00 PM
Hometown: New York City

Comment:
Disparate impact has NEVER been part of ENDA, dating back to the time when Barney Frank first introduced the bill back in the mid-1990s. I'm not sure what they are fussing about on this. The version of the bill that was introduced by Frank earlier in this session and that was the subject of committee hearings already excludes disparate impact claims. As for the attorney fee provision, I suggest that it should be the same as under title VII, and can see no reason why it should be different. Also, I see no reason why somebody who has experienced discrimination because they are a black lesbian should not be able to file simultaneously under ENDA (sexual orientation) and Title VII (sex, race), so long as it is made clear that the remedy provided for any discrimination shall be limited so as to avoid duplication.
Back to top Post a Comment Report Abuse
Name: Javier
Date posted: 11/17/2009 8:22:32 PM
Hometown: Houston

Comment:
Heterosexuals do not want gay people to be on a level playing field with them. That is why they are trying to make it so difficult for gay people to file suit with this legislation. Another thing, why can't gay rights groups stand up for us. Once again gay rights groups provide the weakest, most inadequate response.
Back to top Post a Comment Report Abuse
Name: Ben
Date posted: 11/17/2009 6:16:11 PM
Hometown: NY

Comment:
It's messed up that they are weakening the bill. The second provision makes sense, but the other two make it either difficult or impossible for gay people to bring a host of legitimate discrimination suits to court. If an employer is discriminating against you, why shouldn't you be able to recoup your attorney fees in case of a victory? Most working class Americans simply cannot afford to pay for these on their own, and damages awarded are supposed to be compensation for harm done to the victim. Ruling out disparate impact is even worse. If there is a policy in a company which has a pervasive, negative, unfair impact on its LGBT employees, why shouldn't we be able to sue, particularly when the right is granted to racial and religious minorities? Is there any legitimate reason given for this? Or is it just that they're worried about the deluge of lawsuits to come, since many if not most LGBTs are discriminated against at work as a matter of routine.

PREVIOUS 1 NEXT

Don't Miss

News Features WATCH: Son Defends Two Moms in Prop. 8 Case
Seventeen-year-old Spencer Perry is the latest of a number of young people who are standing up for their gay and lesbian parents and showing that the kids are all right, no matter what politicians might say.

Commentary Op-ed: Our Groups Need More Color in Their Rainbow

LGBT organizations need more racially diverse leaders, and there are a number of resolvable reasons why they are now lacking, argues Jimmy Nguyen.

News WATCH: Dustin Lance Black on Prop. 8, Election 2012
Dustin Lance Black, the screenwriter and founding board member for the American Foundation for Equal Rights, spoke to The Advocate after an appeals court called Prop. 8 unconstitutional.

Commentary Op-ed: Disliking Us Is No Longer a Legal Rationale

What the appeals court judges said in their ruling on Proposition 8’s constitutionality will have far-reaching consequences, and that has our opponents freaking out.

Television World’s First Openly Gay Royal Is on Fairy Tale Search for Love
India's gay Prince Manvendra Singh Gohil was burned in effigy when he surprised his countrymen and came out. Now he's going undercover to find love on a new reality show on TLC.

News Features Filmmakers Work for Marriage Equality
Instead of the typical campaign commercials advocating against antigay ballot initiatives like North Carolina's Amendment 1, Working Films is going deeper to show how these laws harm families.

Commentary Op-ed: Why We Are Fighting Meth

The executive producers for the Hollywood Rush witnessed a friend’s struggle with the drug and are trying to do something about it.

Music The Advocate Editors' Personal Madonna Moments
In honor of our March cover subject, we're sharing our own Madonna recollections, including getting nearly trampled by her fans and receiving correspondence from the lady herself.

Commentary Advice: Two Weddings, Two Sets of Gifts?
One groom-to-be asks what to do if you've already been married once before, but not "gay-married." Is it taboo to ask friends for wedding gifts again?

Television Housewives' Kyle Loves You, But Hands Off Her Mauricio
The Real Housewives of Beverly Hills' Kyle Richards tells us about fending off gay advances toward her husband and receiving come-ons from lesbians.

News Quinn to Christie: Stop “Playing Games” With Marriage
New York City Council speaker Christine Quinn said that Gov. Chris Christie appears to be playing a “political game” with his call for a marriage equality referendum in New Jersey.

News Prop. 8 Recordings Could Still Be Made Public ... in 2020
Court rules mandate that documents filed under seal become public 10 years after a decision in the case — unless a legal party shows “good cause” as to why they should remain out of the public’s hands.

Best of Broadway Smash: Why You Will Love It
Craig Zadan and Neil Meron, two of the producers of NBC’s new critically acclaimed musical series, explain why the backstage drama of creating a musical about Marilyn Monroe has mass appeal and why big stars like Anjelica Huston, Uma Thurman, Bernadette Peters, and Nick Jonas were eager to appear in it.

Best of Broadway The Advocate Staff Remembers: Best of Broadway
The staff of The Advocate turns back the pages of time and shares their favorite Broadway memories. We asked for yours earlier so it only seemed fair that we share, too.

Best of Broadway Sometimes a Hat Makes a Big Difference
Who has the best Easter bonnet? It's just another of the unexpected ways that Broadway Cares/Equity Fights AIDS raises money for the cause.

News Psychedelic Queen of Pop (Art)
The March 2012 issue of The Advocate kicks off our 45th anniversary by paying homage to its birth year, 1967.

Best of Broadway Dressing Felicia: Priscilla's Costume Designer Talks Shop
Costume designer Tim Chappel shares private sketches with The Advocate of his work on The Adventures of Priscilla, Queen of the Desert and gives the behind-the-scenes scoop on that flip-flop dress.

Best of Broadway How Broadway Does a Flea Market
Find out why actress Kathleen Chalfant calls the annual Flea Market and Grand Auction in Times Square "the most glamorous flea market you've ever seen." It raised half a million dollars to fight HIV/AIDS.

Best of Broadway Especially for You, It All Goes Backwards on Broadway
Here's your chance to hear the best of Broadway sung with you in mind at the annual Broadway Backwards event.

Best of Broadway You Picked: Broadway's Best Moments
We asked for your most loved and loathed moments from the Broadway stage. Here are eight of our reader's favorite musical moments, plus two that were not so well received.

Travel Gayest Cities in America, 2012
It's no secret that megalopolises New York City, Chicago, and Los Angeles have robust LGBT life — and we've even heard tell of little queer hoods like the Castro and P-Town. This isn't that list.

Business Best Companies List: Who Is on Your Side?
The Human Rights Campaign released its newly updated Corporate Equality Index today. Here's the complete list of companies that scored 100% for being LGBT-friendly.