Fixing Problems Before They Occur – The Need to Redraft ENDA (the Employment Non-Discrimination Act).

The Employment Non-Discrimination Act (ENDA), a bill now pending in Congress, would make it an unlawful employment practice for employers that are now covered by Title VII of the Civil Rights Act of 1964 to discriminate in hiring, firing and terms and conditions of employment because of the sexual orientation or gender identity or expression of an individual.  The version of the bill introduced in Congress this year uses language almost identical to that found in Title VII in its operative provisions, and of course also incorporates protection of employees against employer retaliation for opposing discrimination prohibited by the statute or for filing charges or participating in an enforcement proceeding.

Two decisions issued by the Supreme Court yesterday interpreting Title VII suggest that some changes need to be made to ENDA before it is pushed to a vote in Congress.  In Vance v. Ball State University, No. 11-556, the Court narrowed employer vicarious liability for discriminatory workplace harassment.  In University of Texas Southwestern Medical Center v. Nassar, No. 12-48, the Court made it more difficult for employees to prevail on retaliation claims.  Both cases were based on an interpretation of the statutory language in Title VII, which means that Congress could amend Title VII if it disagreed with the Court.  Since both rulings favor employers, it seems unlikely that the Republican-controlled House would approve such amendments, and they would even be a hard sell in the Senate, where Republicans have more than 40 votes and thus can block legislation they dislike through the filibuster.  Indeed, the current political balance in Congress is such that enactment of ENDA in this session looks pretty much impossible.

Which means that we have time to go back to the drawing board and make revisions to the ENDA bill to take care of the problems created by the Vance and Nassar decisions.

As presently worded, ENDA forbids discrimination because of an individual’s sexual orientation or gender identity.  In a case called Price Waterhouse, the Supreme Court interpreted such “because of” language as meaning that a plaintiff in a “status discrimination” case has to show that the sole reason for the adverse action against them (refusal to hire, demotion, discharge, disparity in treatment) was their sex, for example, or their race.  If the employer could show that there was some non-discriminatory justification that would independently justify its action, it would win the case.  Such a case is called a “mixed motive” case, because there are more than one motivation involved in the challenged employer action.

Congress partially overruled Price Waterhouse on this point by adding an amendment to Title VII, Section 703(m), providing that in such cases, if the plaintiff proved that their protected status was a motivation for the employer’s action, then the employer would be found to have violated the act, regardless whether the employer had an independent, non-discriminatory reason for its actions; however, in an amendment to the remedial provision of the statute, Congress provided that the remedy for the violation would be limited in such cases.  If an employer had an independent non-discriminatory justification for discharging the employee, for example, the remedy would not include reinstatement or damages.  However, the plaintiff could get a declaration of rights, injunctive relief, and an award of attorney’s fees.  In a subsequent ruling under the Age Discrimination in Employment Act, the Supreme Court said that because the amendment to Title VII only  applied by its terms to status discrimination cases arising under Title VII, it did not apply to age discrimination cases, so the Court’s interpretation of the “because of” language in Title VII still applied to age discrimination claims.   In yesterday’s ruling, the Court went further, to hold that because the amendment only applied to status discrimination claims, it did not apply to retaliation claims brought under Title VII.

In the case, Dr. Nassar, who had quit the medical school faculty over discrimination issues, claimed that the school’s head retaliated against him for raising the discrimination issue by blocking his appointment to the staff at the hospital.  The school showed that under its working agreement with the hospital, only members of school’s faculty could be appointed to the staff, so that Nassar’s appointment could be blocked on that basis.  Thus, this was potentially a “mixed motive” case.  But the Supreme Court ruled that the mixed motive theory of Section 703(m) would not apply to a retaliation case.  Thus, even if retaliation was one of the motivations for blocking Nassar’s appointment, the working agreement served as an independent, non-discriminatory justification and would require dismissal of Nassar’s retaliation claim.

Because ENDA uses the same “because of” language found in ADEA, we need to redraft it to incorporate the concept of Section 703(m) if we want to allow gay and transgender plaintiffs under ENDA to be able to benefit from the mixed motivation theory.  Otherwise, ENDA would be construed by the Court to allow employers to defeat discrimination (and retaliation) claims under ENDA by showing independent, non-discriminatory reasons for taking the challenged actions.

Vance deals with the issue of discriminatory harassment under Title VII.  Title VII does not by its own terms forbid workplace harassment, as such, but it has been interpreted by the Supreme Court to prohibit severe or pervasive harassment because of the sex of the victim.  Congress has not amended Title VII to address the various evidentiary and liability issues of workplace harassment, leaving the Court to fill the void.  One issue is whether an employer can be held liable for harassment by co-workers of the employee.  The Court has ruled that an employer can be liable for co-worker harassment when the employer is informed about the harassment and does not take reasonable steps to end it, that is, when the employer is “negligent” for allowing harassment to continue.  If the harassing co-worker is a supervisor, however, the Court has held that the employer can be vicariously liable (that is, liable without its own negligence or other fault), because a supervisor is the agent of the employer, unless, the Court goes on, the employer succeeds in proving an affirmative defense that it had adopted a policy against harassment and provided an appropriate mechanism for its enforcement, which the victim failed to use.  If the harassment actually culminated in a tangible employment action, however, the employer would be held strictly liable.

The Vance case concerned the definition of “supervisor” for this purpose.  Title VII does not define that term.  Vance argued that she was being harassed by a supervisor and thus could hold the University liable, but the University argued that the harasser in this case was not a supervisor because that individual did not have the ability to take tangible employment actions against Vance.  The Supreme Court sided with the employer, finding that low-level “supervisors” who have authority to direct the activities of workers but not the ability to affect such “tangible” things as pay or promotions, would be treated as mere co-workers, not supervisors, for purposes of employer liability for harassment.

Workplace harassment is one of the foremost problems confronted by LGBT employees, and a major reason why we need ENDA.  At present, employees who suffer workplace harassment due to their gender non-conformity may find protection under Title VII because of another aspect of the Price Waterhouse case: the Court’s acceptance of the argument that “gender stereotyping” may be evidence of sexist attitudes and thus of discrimination “because of” the sex of the victim.  Some lower federal courts and the EEOC have built on this theory to find a fair amount of protection against workplace discrimination for transgender individuals, and some protection for gay or bisexual people who are in some respect perceived by other employees as failing to meet the stereotypes of appearance or conduct for their gender.  But gay people whose victimization is clearly due to their sexual orientation, as such, are not protected.  Adoption of ENDA would replace the stereotyping theory with straightforward protection. 

However, as a result of Vance, such protection would be less effective when harassment is perpetrated by low-level supervisors, because the victim would have to prove employer negligence and could not rely on the vicarious liability theory.  Thus, it would be a good idea to include in ENDA (and to amend Title VII to include) a broad definition of “supervisor” and specific language applying the vicarious liability theory to cases where supervisors harass employees because of their sexual orientation, gender identity, or other protected characteristic.

Actually, it would be ideal were ENDA to go a step beyond Title VII and expressly incorporate the discriminatory harassment theory.  Indeed, some critics of Title VII have even suggested that perhaps we could use a separate federal statute dealing with workplace harassment, but passage of such a law does not seem to be in the cards at present.  The best we can do, for now, is to anticipate the problems created by the Vance and Nassar opinions and amend the ENDA bill to anticipate these issues.

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