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.