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Posts Tagged ‘Employment Non-Discrimination Act’

Is ENDA Necessary? Or Will Title VII of the Civil Rights Act of 1964 Take Care of LGBT Discrimination

Posted on: April 4th, 2014 by Art Leonard No Comments

One of the major legislative goals of the LGBT rights movement is to get Congress to pass the Employment Non-Discrimination Act (ENDA), a measure that has been pending in Congress in one form or another since 1996 (with predecessor “gay rights” bills having been introduced since the mid-1970s). ENDA would prohibit employment discrimination because of a person’s sexual orientation, gender identity or expression, but would prohibit only intentional discrimination, not employer practices that are neutral on their face but have the effect of discriminating. It is narrowly drafted legislation, and has a big religious exemption that is controversial. And, although the current version was passed by a comfortable majority in the Senate last year, the Republican leadership in the House has refused to hold hearings or schedule a vote, and strategy for a “discharge petition” (a procedural floor vote to get the bill released from Committee and onto the floor for a vote on enactment) is at an early stage.

But what if ENDA is not needed? What if existing law already bans such discrimination? In 1964, Congress passed the Civil Rights Act, whose Title VII bans employment discrimination because of sex. For a long time, both the Equal Employment Opportunity Commission (EEOC) and the federal courts have ruled that discrimination against LGBT people is not prohibited, because in 1964 Congress did not intend to forbid such discrimination. In effect, Title VII was limited to cases where people were suffering discrimination because they are a man or a woman.

But the Supreme Court came to view “sex discrimination” more broadly, ruling in one case that a woman who suffered discrimination because she failed to conform to gender stereotypes (“too butch”) was a victim of sex discrimination, and in another case that a man who encountered a hostile environment in an all-male workplace (treated by his rougher, tougher co-workers as a sex toy) might also have a valid claim under Title VII. The EEOC and some lower federal courts have taken the next step in recent years, holding that discrimination because of gender identity is a kind of sex discrimination, because it is inspired by discomfort or disapproval with people defying conventional gender roles. There is a recent EEOC formal opinion to that effect, and a growing body of federal court decisions support this view.

But what about lesbians, gay men or bisexuals who are not gender-nonconforming in their appearance or conduct, but who encounter discrimination simply because their employer, co-workers or customers are biased against gay people? Before March 31, there were no court opinions suggesting that such a person might be protected from discrimination under Title VII, although some law review commentators had made the argument. On March 31, however, U.S. District Judge Colleen Kollar-Kotelly made history by issuing her opinion in Peter J. Terveer v. James H. Billington, Librarian, Library of Congress, 2014 Westlaw 1280301, 2014 U.S. Dist. LEXIS 43193 (U.S. District Ct., Dist. Columbia), holding that a man who suffered adverse treatment at the hands of an anti-gay supervisor could maintain a claim under Title VII, even though his only gender non-conforming characteristic is his sexual orientation.

According to the court’s opinion, Mr. Terveer was hired in February 2008 to be a Management Analyst in the Auditing Division of the Library of Congress. His first-level supervisor, John Mech, is described in the opinion as “a religious man who was accustomed to making his faith known in the workplace.” According to Terveer’s complaint, Mech said to him on June 24, 2009, that “putting you closer to God is my effort to encourage you to save your worldly behind.” According to the complaint, Terveer became close to Mech and Mech’s family, including his daughter. “In August 2009, Mech’s daughter learned that Plaintiff is homosexual,” wrote Judge Kollar-Kotelly. “Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline ‘Diversity: Let’s Celebrate It.'”

Things went downhill from there. According to the complaint, Mech subjected Terveer to “work-related conversation to the point where it became clear that Mech was targeting Terveer by imposing his conservative Catholic beliefs on Terveer throughout the workday.” Terveer claimed that Mech stopped giving him detailed instructions with his assignments, instead making ambiguous assignments that, in effect, set up Terveer to fail, and assignments that were clearly beyond Terveer’s experience level. Terveer claims he was given one huge assignment that would normally require the attention of half a dozen employees, and then Mech piled additional work on top of that.

Terveer alleged that on June 21, 2010, Mech called an unscheduled meeting that lasted more than an hour, “for the purpose of ‘educating’ Terveer on Hell and that it is a sin to be a homosexual, that homosexuality was wrong, and that Terveer would be going to Hell.” Mech recited Bible verses to Terveer and told him, “I hope you repent because the Bible is very clear about what God does to homosexuals.” A few days later, Terveer received his annual review from Mech, and felt it did not reflect the quality of his work. Terveer believed that the review “was motivated by Mech’s religious beliefs and sexual stereotyping.” Terveer confronted Mech about this unfair treatment, which got Mech angry, vehemently denying that he was partial, and he accused Terveer of trying to “bring down the library.”

Terveer next went to Mech’s supervisor and told him about what was happening. According to Mech’s account of that meeting with Nicholas Christopher, Christopher told him that, in his opinion, “employees do not have rights,” and Christopher took no action to remedy the problem or advise Terveer about appropriate complaint procedures. According to Terveer, Mech’s response to this was to put Terveer under “heightened scrutiny” supervision by Mech and to generate an evaluation of the project to which Terveer had been assigned, even though it wasn’t finished, that was “extremely negative.” Terveer got into an argument with Mech about this evaluation, and Mech told him that he was “damn angry” that Terveer had threatened to bring a claim for wrongful discrimination and harassment. According to Terveer, Mech ended his tirade with the statement, “You do not have rights, this is a dictatorship.”

Early in 2011 Mech issued another negative evaluation of Terveer and put him on 90-day written warning, which could lead to Terveer not receiving the pay increase he would ordinarily receive. Terveer then initiated a discrimination claim with the EEOC. An attempt by another agency officer to get him transferred away from Mech failed when Mech’s supervisor said that Terveer was “on track to be terminated within six months.” As things deteriorated further for Terveer, he finally filed a formal complaint on November 9, 2011, alleging discrimination because of religion and sex, sexual harassment, and reprisal. Terveer had been suffering emotional distress from the situation and ended up taking lots of leave time, ultimately claiming that he was constructively terminated on April 4, 2012, because he could not return to the workplace to confront Mech and Christopher. The Library formally terminated him, and his appeal within the Library’s grievance process was unsuccessful. The agency issued a decision on May 8, 2012, denying his discrimination claims. He filed suit on August 3, 2012, alleging violations of Title VII and the constitution, as well as Library of Congress regulations and policies.

The court faced a variety of legal issues in ruling on the defendants’ motion to dismiss the case, the most serious of which was the failure of Terveer to pursue various administrative remedies before he resorted to a lawsuit. But perhaps the most important part of the opinion addresses the Defendant’s claim that the facts alleged by Terveer would not suffice for a legal claim of discrimination under Title VII. At the time that the Defendants filed this motion, federal courts had limited protection against discrimination for gay men to situations where a supervisor’s discriminatory conduct was motivated by judgments about a plaintiff’s behavior, demeanor or appearance that failed to conform to sexual stereotypes, and Terveer was not alleging that his behavior or appearance failed to conform to stereotypes about “manly men.”

But Judge Kollar-Kotelly saw Title VII’s protection as broader than these traditional gender stereotyping cases. “Under Title VII,” she wrote, “allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim. Here, Plaintiff has alleged that he is ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,’ and that his ‘status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under Mech’s supervision or at the (Library of Congress),’ and that ‘his orientation as homosexual had removed him from Mech’s preconceived definition of male.'” This, found the judge, was sufficient to meet the burden under the Federal Rules of Civil Procedure to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Since Terveer had alleged that the Library had denied him promotions and created a hostile work environment because of his “nonconformity with male sex stereotypes,” Terveer could proceed with his claim.

The judge emphasized that the burden on the plaintiff to state a claim at this stage of the litigation is “relatively low” when a court is deciding a motion to dismiss, before there has been any discovery in the case. Interestingly, the judge found another basis for Terveer’s Title VII claim in the religiously-motivated bias of his supervisor, observing that past courts had allowed claims of discrimination in such cases. “The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual,” she wrote, refusing to dismiss Terveer’s religious discrimination claim under Title VII. The judge also found that Terveer’s factual allegations would be sufficient grounding for a claim of a “retaliatory hostile work environment.” However, she noted, having found that Terveer’s claims are covered, at least at this early stage in the case, under Title VII, the court would have to dismiss his constitutional due process and equal protection claims, as the Supreme Court has made clear that Title VII is the exclusive remedy for federal employees with discrimination claims that come within its scope.

The bottom line for this ruling was that although certain claims were dismissed for failure to exhaust administrative remedies, the court refused to dismiss the sex and religious discrimination claims, as well as the retaliation claim. In so doing, the court made history with its acceptance that a gay man who was not gender non-conforming in appearance or behavior could assert a sex discrimination claim when a supervisor’s own religiously-inspired stereotyped notions of proper sex roles motivated adverse treatment of the gay employee.

While such a ruling is most welcome, it would probably be premature to suggest that ENDA is not needed. This is one non-precedential ruling on a pre-trial dismissal motion by a single federal judge. However, it reflects the broadening trend of defining sex under Title VII reflected in the growing body of cases rejecting motions to dismiss such claims brought by transgender plaintiffs, and may portent more definitive rulings expanding Title VII’s sex discrimination ban to claims brought by otherwise-gender-conforming LGBT plaintiffs.

ENDA, Title VII, and Transgender Rights

Posted on: September 19th, 2013 by Art Leonard No Comments

With a new push to get a floor vote in the Senate on the Employment Non-Discrimination Act (ENDA)  which was approved in committee over the summer, it is timely to consider the potential interaction of ENDA with Title VII of the Civil Rights Act of 1964, the main federal employment discrimination statute signed into law by President Lyndon B. Johnson that went into effect in July 1965.   Title VII prohibits employment discrimination by companies with 15 or more employees because of an individual’s race or color, religion, national origin or sex.

From the earliest days after Title VII was passed, the Equal Employment Opportunity Commission (EEOC), the federal agency set up to enforce the law, and the federal courts, both ruled that the statute’s ban on discrimination because of sex did not forbid discrimination because of a person’s sexual orientation or gender identity.  Although the statute did not contain an explicit definition of sex, which would seem to leave open the possibility of a broad interpretation to encompass all discrimination based on sexuality, before the 1990s the courts uniformly gave the term a narrow definition, relying on the idea that statutes should be interpreted in light of what the legislators who enacted them intended to achieve.

In 1964, the issues of anti-gay and anti-transgender discrimination were not on the radar of members of Congress.  In fact, the version of Title VII that was approved in the House committee and sent to the floor for consideration did not even include “sex” as a prohibited ground of discrimination.  The House had investigated the issue of sex discrimination, but the bill’s sponsors feared that including sex would make the bill too controversial, so they decided to present a narrower, less inclusive bill.

Opponents of the bill concurred with this conclusion, and decided to propose an amendment on the floor of the House to add sex as a strategy to defeat the bill.  They thought that if the amendment passed, the more expansive bill would be voted down, if not in the House, then in subsequent consideration in the Senate where a Southern filibuster was widely anticipated.  As soon as Representative Howard Smith of Virginia, a conservative Democrat who opposed the bill, proposed the floor amendment, the word went out to progressives and liberals who streamed onto the House floor to support the amendment.  They were also capable of counting votes and they thought that the bill could pass both houses with sex included. There was no discussion during the debate about whether a ban on sex discrimination would protect “homosexuals” or other “sexual deviants,” as the discourse at that time would have identified us.  The amendment passed, the bill passed the House, and after one of the longest filibusters in the history of Congress, it also passed the Senate.

In light of this history the EEOC and the courts refused to entertain gay and transgender discrimination claims under Title VII, finding that the term “sex” should be construed narrowly as the drafters of Title VII presumably would have intended, since nobody at the time thought that Congress had agreed to ban discrimination against gay and transgender people.

Then in 1989 the Supreme Court ruled for the first time that the ban on sex discrimination could be more broadly interpreted.  The case, Hopkins v. Price Waterhouse, involved a straight woman who was denied a promotion to the partnership at a national accounting firm.  The evidence showed that some partners objected to her candidacy because she was not “feminine” enough to suit their image of a “lady partner,” of which the firm had few.  Her boss told her that she needed to wear makeup and jewelry, dress more femininely, and tone down her act.  She was infamous in the firm for swearing like a top sergeant and riding her subordinates really hard to get projects done, which was why clients loved her.  Justice William J. Brennan wrote that when an employer relied on gender stereotypes in evaluating an employee for promotion, that was evidence of discrimination because of sex.

After this decision, federal courts began to change their tune, interpreting Title VII and other federal statutes banning sex discrimination as providing protection for people who encounter difficulties because they fail to meet society’s stereotypes about how men and women are supposed to present themselves.  These “gender nonconformity” cases tended to arise amidst claims of sexual harassment, which was emerging as a major new area of coverage under Title VII during the 1990s, and gay and transgender employees who encountered difficulties in the workplace began to raise these claims.  After some initial hesitation, the courts and the EEOC began to rule in their favor.

Although a gay or transgender employee subjected to harassment did not necessarily have a valid discrimination claim under Title VII, according to these rulings, they might have a valid claim if they could show that the harassment was because of gender stereotyping.  By the turn of the century, this proposition was well established and some courts began to take the next step, presuming that a transgender employee’s discrimination complaint by necessity incorporates a gender stereotyping claim and is covered by Title VII.   The courts found that a desire to “change sex” was, by definition, a failure to comport with gender stereotypes.

The major breakthrough decision on this was Smith v. City of Salem, Ohio, decided by the 6th Circuit Court of Appeals in Cincinnati in 2004.  When Jimmie Smith, a city firefighter, let it be known that she was transitioning, city officials convened an emergency meeting to plot some way to get her to resign.  When she sued them, the district court dismissed her case on the ground that gender identity discrimination was not covered by Title VII.  On appeal, the 6th Circuit disagreed, finding that gender identity claims come within the theory of gender stereotyping as it had developed since the Hopkins case.   In another case from the 6th Circuit involving a transgender firefighter, the Supreme Court denied review of a similar court of appeals decision.

Since then there have been several other important breakthroughs establishing protection for transgender employees.  The federal court of appeals for the 11th Circuit in Atlanta ruled in the Brumby case, involving a public employee in Georgia, that discrimination based on gender identity by a government employer violates the 14th Amendment’s Equal Protection Clause.  Last year, the EECO ruled in the Macy case, involving an applicant for federal employment that such discrimination, if proven, violates Title VII, citing both the 6th Circuit and other federal court cases and the 11th Circuit’s constitutional case.  A few weeks ago, ruling on the merits in the Macy case, the Justice Department’s internal appellate body approved the EEOC’s reasoning and found that denial of the position to the transgender applicant violated federal law.

Which takes us back to ENDA, now pending in the Senate.  ENDA was first introduced in 1993, amidst the controversial enactment of the Don’t Ask, Don’t Tell military policy.  Prior federal gay rights bills, dating back to the mid-1970s, would have amended Title VII and other federal civil rights laws to add “sexual preference” to the list of prohibited grounds of discrimination.  Gay rights leaders in 1993 decided to narrow the focus and introduce a bill that would only deal with employment discrimination based on sexual orientation, ENDA.  They came within one vote of getting it passed in the Senate in 1996, when it was considered in tandem with the Defense of Marriage Act.  But Republicans controlled both houses of Congress for most of the following decade and the bill never got beyond a committee hearing.

In 2007, after the Democrats won control of the House, Rep. Barney Frank introduced for the first time an inclusive version of ENDA that would cover gender identity and expression as well as sexual orientation.  However, Frank concluded after canvassing his colleagues that a bill that included gender identity could not pass the House.  He decided to withdraw the inclusive version and to introduce the narrower version that had almost passed the Senate a decade earlier.  This set off a furious debate among advocates in the LGBT community, with some organizations opposing passage of this version of ENDA, committed to the view that the gay rights and transgender rights movements must be a united front to vindicate the rights of all sexual minorities to be free of employment discrimination.  But Rep. Frank stuck to his position, arguing that passage of the narrower bill would be an important symbolic step, as no bill banning sexual orientation discrimination had ever been passed by either house at that point, and the politics of the Senate made it virtually impossible to pass ENDA through that chamber anyway so the vote would only be symbolic.  The narrow bill passed.

The election of Barack Obama on a platform that included support for an inclusive version of ENDA in 2008 also brought in Democratic majorities in both houses of Congress.  Rep. Frank reintroduced the inclusive version of ENDA and committed to supporting it.  By then, of course, the 6th Circuit had ruled that gender identity discrimination was covered under Title VII, but the Supreme Court had not ruled on the merits of such a claim, and most other federal circuit courts had not issued rulings.  Also, at that time neither the EEOC nor the Justice Department had ruled in favor of coverage of such discrimination under Title VII.  It was clear that inclusion of gender identity in ENDA was important, as it would put this into statutory law rather than leaving it to interpretations that could be repudiated by later courts or administrations.

This is where things stand at present.  The Obama Administration ranked passage of ENDA below the Hate Crimes Law, repeal of Don’t Ask Don’t Tell, and elimination of the Defense of Marriage Act, on its priority list.  With those accomplished, ENDA rises to the top.  The EEOC, the Justice Department, and an increasing number of federal courts now take the view that gender identity discrimination is forbidden by Title VII under the ban on sex discrimination.  Employers need to know that they have an obligation under federal law to treat transgender job applicants and employees fairly.  But court and administrative interpretations can change over time, and inclusion of gender identity in ENDA remains important because it would place that protection into statutory law in a more permanent way that would be binding on courts and employers without question.

Furthermore, the inclusion of gender identity is much less controversial now than it was in 2007, in light of the subsequent developments. An increasing number of states and municipalities have banned gender identity discrimination in their statutes and ordinances. In some jurisdictions such bans have been in effect for more than a decade, providing information about the effect of such laws that can counter the arguments that opponents have made against passing them.  The sky doesn’t fall in, and there is no indication that public or workplace restrooms and locker rooms have become more dangerous for women in jurisdictions that have banned gender identity discrimination. This data can be helpful in persuading members of Congress (and state and local legislators) that gender identity and sexual orientation should be included together in any anti-discrimination measures under consideration.

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

Posted on: June 25th, 2013 by Art Leonard No Comments

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.