Op-ed: Why We Still Need a Fully Inclusive ENDA
The Equal Employment Opportunity Commission ruled that transgender people are protected from discrimination by federal law, recognizing the trend from courts finding they have protections under “sex” of Title VII of the Civil Rights Act of 1964. The case involved Mia Macy, a transgender woman who lost her house to foreclosure after a federal agency rescinded a job offer when hiring officers learned she planned to undergo gender transition. The EEOC recognized that Macy could challenge this action as illegal sex discrimination.
This landmark ruling formally opens the doors of the 53 field offices of the EEOC to transgender people who have suffered job discrimination to bring their claims, have them investigated, and potentially resolved favorably. We know from our groundbreaking study, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, that transgender people suffer employment discrimination at astonishing levels: 26% have lost jobs, while 78% report mistreatment or discrimination at the workplace, forcing many to hide who they are to avoid workplace abuse and to keep their jobs. The ruling is welcome relief for transgender people who have faced harassment and discrimination or who worry every day, hiding who they are, trying to avoid discrimination.
But what of ENDA, the Employment Non-Discrimination Act, still pending in Congress, that would ban sexual orientation and gender identity discrimination in the workplace? Is it still necessary? The EEOC opinion is a strong and clarion call for action on ENDA. As important as the EEOC ruling is, we need ENDA to ensure equal opportunity in employment for lesbian, gay, bisexual, and yes, still, transgender people.
The first and most obvious reason is that the EEOC’s determination is vulnerable to being overturned by the U.S. Supreme Court. The legal battle on this question is not yet over.
But also interestingly, this case could have just as easily been a case about a lesbian, gay or bisexual person based on their sexual orientation. Many may not realize that the EEOC has issued non-precedent setting decisions in two cases recognizing the potential validity of sex discrimination claims against LGB people as sex discrimination as well.
In 2011, a gay man was physically threatened at a Connecticut post office after his wedding announcement appeared in a Hartford newspaper. The EEOC determined that the allegations are sufficient for a plausible claim of hostile work environment based on sex, because he is a man marrying a man. In a second instance, a lesbian was harassed on the basis of her sexual orientation and was found to have a “plausible sex stereotyping” case.
These rulings are less precedential than the Macy case because they were not issued by the full commission. But we can certainly hope that a sexual orientation case will reach the full commission at some point and will be decided with the same reasoning that made Mia Macy’s case a winner.
Yet, despite all of these rulings, discrimination against LGBT people will continue to persist. This is in large part because the EEOC enforcement process kicks in after an employee has been fired or an applicant has been denied a job. Conversely, ENDA would be proactive and would put in place a clear, comprehensive law banning discrimination against LGBT people.
The changes brought about by passage of a federal anti-discrimination law can’t be overstated. Right now, it remains legal to fire or refuse to hire people based on their sexual orientation in 29 states; the same is true for gender identity in 34 states. A federal law will protect us all.
ENDA would send employers the unequivocal message from the federal government that discrimination on the basis of gender identity and sexual orientation is explicitly banned.
Employers would update their own policies and conduct human resource trainings to conform to the law. The anti-discrimination posters we see in breakrooms at work would include sexual orientation and gender identity. If harassed at work, LGBT people could go to a supervisor, aware that a federal law backs them up. Think about how the Americans with Disabilities Act changed forever how this country understands people with disabilities. ENDA could do the same for LGBT people. There is no substitute for explicit protections.
Let’s be clear about two important action items: LGBT workers or job applicants facing discrimination should go to an EEOC office and file a complaint; and we need an Employment Non-Discrimination Act that includes all of us, every one of us.
Ultimately, the EEOC opinions bolster our arguments that both gender identity and sexual orientation should be included in federal law because they recognize the problem that many LGBT people know firsthand: Too many of us still head to work each day terrified it may be our last, simply because of who we are or who we love.
REA CAREY is executive director for the National Gay and Lesbian Task Force.