Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Employment Non-Discrimination Act (ENDA)’

First-Ever Trans Senate Witness: ‘To Be Unemployed Is Very Devastating, Demeaning, And Demoralizing’

Wednesday, June 13th, 2012

Zack FordThis morning, the Senate Health, Education, Labor & Pensions Committee held a hearing on the Employment Non-Discrimination Act (ENDA), which would extend employment protections based on sexual orientation and gender identity. For the first time in the Senate’s history, a transgender witness testified on behalf of the bill. Kylar Broadus, founder of the Trans People of Color Coalition, discussed his experiences coming out trans, including mistreatment by police, workplace harassment, and employment discrimination:

BROADUS: When I used female restrooms, police would accost me. I would have to strip and then they still told me, “Sir, get out of the bathroom,” when I would use the ladies’ room. It’s just humiliating and dehumanizing to say the least.[…]

Prior also to the physical transition, I was working in the financial industry, which is actually a high-paying industry. But again, when I shifted or transitioned, that’s when all the trouble began. And it’s still emotional to me, because it impacted me emotionally — I suffer from post-traumatic stress as a result of the harassment that I encountered in the workplace from my employer.[…]

To be unemployed is very devastating, also demeaning and demoralizing. And then the recovery time — there is no limit on it. I still have not financially recovered. I’m underemployed. When I do talks, I tell people I’m not employable. I was lucky to be where I am and I’m happy to be where I am, but I’m one of the fortunate people that is employed. There are many more people like me that are not employed as a result of just being who they are — being good workers, but being transgender or transsexual. So I think it’s extremely important that this bill be passed to protect workers like me.

Sen. Tom Harkin (D-IA) expressed pride in the committee for inviting Broadus to speak. Watch his full testimony:

No opponents of the bill attended the hearing, so the panel and questions were mostly positive. One witness, Craig Parshall of the National Religious Broadcasters Association, testified against ENDA, arguing that religious businesses should be able to discriminate against gay and trans employees according to their beliefs. Largely the committee ignored Parshall during the questioning, and when he did express concern, Samuel Bagenstos of the University of Michigan Law School countered the technicalities of his claims, pointing out that ENDA actually has broad religious exemptions.

ENDA has been stalled in Congress for decades. Though Republican control of the House may prevent its advance yet again in 2012, today’s Senate hearing was nonetheless historic. The fact that most of the discussion at today’s hearing was supportive and non-confrontational demonstrates how significantly overdue these employment protections are.

This Blog originally appeared in Think Progress on June 12, 2012. Reprinted with Permission.

About the Author: Zack Ford is an LGBT researcher/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Prior to joining ThinkProgress, Zack blogged for two years at ZackFordBlogs.com with occasional cross-posts at Pam’s House Blend. He also co-hosts a popular LGBT-issues podcast called Queer and Queerer with activist and performance artist Peterson Toscano. Zack has a bachelor’s in Music Education from Ithaca College, where we served as student body president, a Master’s in Higher Education Student Affairs from Iowa State University, and also helped found the Central Pennsylvania LGBT Aging Network. Zack holds a B.M. in music education from Ithaca College and an M.Ed. in higher education (student affairs) from Iowa State University, but he’s originally (and proudly) from rural central Pennsylvania.

Federal LGBT Employment Rights On The Move

Thursday, October 1st, 2009

Image: Dr. Jillian T. WeissThere is no federal statute prohibiting job discrimination based on sexual orientation or gender identity. A bill is on the horizon to change that, with a very good chance of passage. The Employment Non-Discrimination Act of 2009 (HR3017/S1584), introduced in various forms since 1974, would prohibit job discrimination based on sexual orientation or gender identity. It has 179 House co-sponsors and 40 Senate co-sponsors, and many more expected to support the bill.

Despite the arguments of opponents, the bill’s text is unremarkable in many ways. Similar to Title VII of the Civil Rights Act of 1964, the current job discrimination law, it also contains language to deal with issues specific to LGBT workers. As in Title VII, it covers employers with 15 or more employees and most government offices. It prohibits discharge, refusal to hire, and other discrimination based on “sexual orientation” or “gender identity,” as well as discrimination based on association with gay people.

The terms “sexual orientation” and “gender identity” are clearly defined, despite the concerns of opponents. “Sexual orientation” is defined in the bill as “homosexuality, heterosexuality, or bisexuality.” It’s specifically used in distinction to the more ambiguous term “sexual preference.” Opponents argue it could protect pedophiles, base on the false idea that pedophilia is a “sexual preference.” Since the term “sexual preference” is not used, and the term “sexual orientation” is very clearly defined, that argument is incorrect. Unfortunately, this been used as a fear-mongering tactic.

The term “gender identity” is defined as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This refers to the social, psychological and behavior stereotypes of our sex at birth. It protects workers from discrimination or harassment based on conformity with stereotypes of gender. For example, if someone born male expresses their gender in a manner stereotypically considered feminine, whether it be in mannerisms, appearance or, on the extreme end, identification with the opposite sex as a transsexual, they are protected from dismissal or harassment because of this. In other words, gender is removed as a job performance criterion.

Some are concerned that allowing transsexuals to have jobs will cause a burden on employers by requiring them to build separate shower and dressing facilities for transsexuals. However, the Act does not require employers to permit access to shared shower or dressing facilities where nudity is unavoidable. It specifically disavows the idea that construction of additional facilities are required.

Both terms, “sexual orientation” and “gender identity” have been used in many state and local laws since 1975, and are considered by legal experts to be well-understood in the legal context at this point.

Concerns about a “gay quota,” and a flood of lawsuits are equally unfounded. The Act explicitly bans any preferential treatment or quotas. The government may not require collection of statistics on sexual orientation or gender identity. “Disparate impact” lawsuits, often seen in the Title VII context, are not permitted under ENDA. Such claims are based on the allegation that employer actions have indirectly resulted in a reduced number of LGBT employees. Only the direct harm of “disparate treatment” lawsuits would be permitted.

Religious freedom is also addressed in the bill. The Act does not apply to organizations exempt from the religious discrimination provisions of Title VII. In his testimony at the Congressional hearing on September 23, 2009, Acting EEOC Stuart Ishimura stated his belief that this would exempt such religious organizations not only from penalties for discrimination on the basis of religion, as in Title VII, but also from all penalties under ENDA for any discrimination based on sexual orientation or gender identity.

The Act does not apply to members of the Armed Forces, and does not change special rights for veterans. It explicitly states that it will not invalidate other federal, state or local laws.

A hearing was held before the Committee on Labor and Education on September 23, at which many illustrious witnesses testified to the widespread extent of serious harm the current situation has caused for gay, lesbian, bisexual and transgender (LGBT) employees. The bill is expected to be voted on in the House in the next few weeks, where it is expected to pass. It will then go to the Senate, and a vote is expected there before year-end. President Obama has vowed to sign the bill.

About the Author: Dr. Jillian T. Weiss is Associate Professor of Law and Society at Ramapo College of New Jersey, and has consulted with many organizations on issues of transgender workplace diversity, including Boeing, Harvard and New York City.  She may be reached at jweiss@ramapo.edu

Developments in Workplace Protections for LGBT Employees

Monday, September 22nd, 2008

A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees–those whose internal sense of themselves as male or female (their “gender identity”) and/or the way they express that gender identity through their appearance, clothing, or behavior (their “gender expression”) differs from the anatomical sex they were designated at birth.

As described in Phil Duran’s excellent recent blog post, we may see similar protections enacted in federal law in the near future. LGBT advocacy organizations and others are currently lobbying members of Congress to support a version of the proposed Employment Non-Discrimination Act (ENDA) that would prohibit discrimination based on both sexual orientation and gender identity and expression.

In the meantime, though, courts have been increasingly open to claims brought on behalf of LGBT employees who face discrimination, using what may seem like an unexpected theory: sex discrimination. In 1989 the U.S. Supreme Court held, in a case called Price Waterhouse v. Hopkins, that federal sex discrimination laws protect employees who are discriminated against because of their perceived failure to conform with gender stereotypes–that is, women who are perceived as too masculine, or men who are perceived as too feminine. Price Waterhouse was a case brought by a woman who was denied a promotion at an accounting firm, despite her excellent performance, because her supervisors considered her too “macho.” They suggested that she ought to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that discrimination based on that kind of gender stereotyping was a form of sex discrimination.

Even though no federal law currently prohibits employment discrimination based on sexual orientation or gender identity and expression, some LGBT employees have been able to successfully use gender-stereotyping arguments to bring sex discrimination claims when they are targeted because of their actual or perceived gender nonconformity. For instance, a sex discrimination claim may be viable when a gay man is harassed because of his co-workers’ perception that he is too feminine or when a lesbian is fired because she is seen as too masculine. Sex discrimination cases brought by lesbian, gay, or bisexual employees can be challenging to win, though, because some courts have expressed concern that the gender-stereotyping theory could be used as a back door means of recognizing what are “really” sexual orientation discrimination claims.  Unfairly, even when an LGBT employee is discriminated against because of gender stereotypes, some courts have denied relief simply because the plaintiff is gay or lesbian or because the discrimination appeared to be additionally motivated by anti-gay animus.

Interestingly, courts have been somewhat more receptive to gender-stereotyping claims brought by transgender employees.  In a groundbreaking decision just issued on September 19, 2008, Schroer v. Billington, a Washington, D.C. federal district court found that a transsexual job applicant had been discriminated against based on “sex.”  She had initially applied for the position–and been offered the job–while presenting as a man, but when she informed the employer of her intention to change her sex to female, the employer withdrew the offer.  The court not only found that gender stereotypes played an unlawful role in her hiring, à la Price Waterhouse, but also held that discrimination because a person changes their sex is “literally” sex discrimination – just as discrimination against those who convert from one religion to another would plainly constitute religious discrimination.  While no other court has yet recognized a sex discrimination claim based on transgender status per se, a number of other decisions have upheld sex discrimination claims brought by transgender employees where the employee can show some evidence that stereotypes played a role in the employee’s negative treatment.

The gender stereotyping theory of sex discrimination can provide valuable protection for lesbian, gay, bisexual, and transgender workers who face discrimination because of their perceived gender nonconformity, although some courts still fixate on the employee’s status as LGBT as a justification for denying an otherwise valid sex discrimination claim. That’s why it’s imperative to pass a fully inclusive version of ENDA: to make it clear to everyone, employers and employees alike, that it’s unlawful to mistreat employees because of traits like sexual orientation or gender identity and expression that have absolutely nothing to do with job performance.

About the Author: Ilona Turner is a staff attorney at the National Center for Lesbian Rights, a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.  Prior to law school, she was the lobbyist for Equality California, the state’s leading LGBT political organization, where she helped win the passage of groundbreaking legislation that significantly expanded the rights of domestic partners under California law and prohibited discrimination based on gender identity and expression in employment and housing.  She received her J.D. from the University of California, Berkeley.

Sharing Labor Day with Transgender Workers

Tuesday, September 16th, 2008

In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. After the House voted to approve ENDA as written, a House committee held a first-ever hearing on the issue of gender-identity/expression discrimination. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

For purposes of this article, “transgender” is an umbrella term describing people who present to the world a gender identity different from the one they were assigned to at birth. The typical transgender person, in their “mind’s eye,” firmly and sincerely sees their gender in a way that does not match their anatomy; this divergence can appear at a very early age and is not usually thought of as a choice any more than is one’s sexual orientation. Transgender people may or may not attempt to change their bodies (“transition”) to align with this gender expression (those who do are often referred to as “transsexuals”). While most transgender people use the pronouns associated with the gender they present, some avoid the use of traditional, gendered pronouns altogether.

A person who comes out as transgender and changes their gender expression often puts him- or herself at significant risk for rejection, discrimination, harassment, or even violence. There are countless transgender people who, having transitioned later in life, have difficulty finding a fulfilling job even though they have advanced degrees and years of relevant experience – somehow, exchanging pants for a skirt magically negates an MBA and professional accomplishment.

The American workplace is slowly but inexorably recognizing that transgender employees have much to offer, and deserve fair and equitable treatment. Increasingly, labor advocates are leading the way by persuading American employers to amend existing non-discrimination and anti-harassment policies to extend their protection to transgender workers. According to the Human Rights Campaign, 153 of the Fortune 500 companies have taken such a step. Clearly, there is progress yet to be made – and labor advocates are likely to be successful.

Beyond basic non-discrimination/anti-harassment policies, forward-thinking employers are also contemplating issues related to employment benefits. Most fundamentally, does an employer’s health plan, assuming there is one, cover services related to gender transition? These usually fall into three basic categories: counseling, hormones, and surgery. The vast majority of plans that cover mental-health treatment don’t draw a line around gender-identity counseling and attempt to exclude it, nor should they. This is important, because counseling is often the initial step that opens the next doors in the transition process. Some employer plans contain gender-related provisions that specifically exclude surgery, while other go further and also exclude hormones as well. More and more, however, health plans (and related plans, such as short-term disability policies) are eliminating these restrictions as employers realize that covering gender-related care significantly benefits affected employees while adding relatively little to their insurance premium. In June 2008, the American Medical Association issued a statement calling exclusions of gender-related care a form of discrimination. Workplace advocates will continue to press for change in this area, which, in turn, could positively affect the future conversation about universal health care and its scope.

Additional complexities may arise regarding a transgender employee’s partner, and their access to dependent health benefits. For example, if a married male employee transitions to female and adopts a female name, but does not divorce, does the spouse remain the employee’s wife, and therefore the employee’s dependent? Or does the spouse, in effect, become a domestic partner? (Hint: pick door number one.) This matters, because if the dependent is seen as a spouse, the benefits are a tax-free fringe benefit. On the other hand, if the dependent is characterized as a domestic partner, the benefits incur tax liability for the employee and deductions by the employer. On one level, this distinction would be immaterial if not for the tax difference, and here, labor and employers are speaking out together in favor of federal legislation that would treat spousal and partner benefits equally for tax purposes.

Taking back Labor Day means, among other things, sharing Labor Day with transgender workers, and committing oneself to learning about the issues they face, educating others, and advocating for workplace fairness for all.

About the Author: Phil Duran is the Staff Attorney at OutFront Minnesota, the state’s leading advocacy, direct service, and public policy agency for gay, lesbian, bisexual, and transgender (GLBT) Minnesotans and their allies. His work at OutFront Minnesota focuses on legal information, referral, and education; state legislative research and analysis; state administrative agency and local government public policy; school-related issues; and direct representation in selected public-assistance and human rights matters. Additionally, Duran serves on the board of the Minnesota Lavender Bar Association, which raises GLBT issues within the legal profession in Minnesota. He also is a past member of the executive council of the Minnesota State Bar Association (MSBA), and served on the steering committee of the MSBA’s Diversity in the Legal Profession Task Force. He currently serves on the MSBA Diversity Committee, MSBA Task Force on the Rights of Unmarried Couples, and Minnesota Supreme Court’s Gender Fairness Implementation Committee. Phil is a graduate of the University of Minnesota Law School.

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