The Employment Nondiscrimination Act of 2009 has been introduced into Congress by Representative Barney Frank, and a host of cosponsors. The cosponsors include Representatives Elijah Cummings, Chris Van Hollen and Donna Edwards of Maryland. The bill would outlaw employment discrimination based on gender identity, 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.” In addition, discrimination based on the employee’s actual or perceived sexual orientation, including homosexuality, heterosexuality, or bisexuality, would be prohibited.
The wording of the bill tracks the Civil Rights Act of 1964 pretty closely, so that it applies to employers with at least 15 full-time employees engaged in interstate commerce (nearly every employer qualifies, but there are some exceptions), and state, local and federal government. It prohibits retaliation, using the same language as in the law protecting against race and sex discrimination, and provides for the same enforcement mechanisms by the Equal Employment Opportunity Commission (the EEOC). It is clearly attempting to incorporate the case law of the 1964 law, to avoid a case like the Gross case, in which the Supreme Court made it so difficult to prove age discrimination. (I commented last month on this case. )
The cause of gay rights has been slowly advancing, despite some dramatic setbacks. In the employment arena, though, it is difficult intellectually to separate discrimination based on gender with discrimination based on gender identity, or sexual orientation. In essence, the discriminator is inflicting on certain employees their antiquated attitudes of what a man or woman should be, and should do. In the most barbaric situations, these attitudes dictate that the woman should stay home, or should work and submit to the boss’s sexual advances. In the more subtle (and more commonly seen) instances, the attitudes may be more along the lines of: a woman is less serious about her job; a gay man is constantly desiring all the other men in the office; the senior people should all be athletic married men; the women should dress in a feminine manner and obsess over their appearance. None of these gender stereotypes is related to the ability to perform a job, and they often interfere, in the case of harassment, with the employee’s ability to function.
These similarities notwithstanding, gender equality has taken more root than gender orientation equality, and there are still some areas where rhetoric threatens to derail a perfectly reasonable bill. The pending bill therefore specifically addresses certain societal concerns that are brought up, whether legitimately or as scare tactics, when the question of equality on gender orientation or identity grounds arises. For example, the law would give special exemptions to church-related employers and the military – both still free to discriminate on the grounds of gender orientation. Secondly, the protections of this law cannot be used to argue that an unmarried couple be given the same rights as a married couple to employee benefits. In addition, the law specifically provides that a person accused of sexual harassment is not insulated from such an accusation by the anti-discrimination provisions. This should go without saying, therefore I suspect that the caveat was added to avoid opposition based on some argument that homosexual employees are likely to harass others. Of course, since the bill covers heterosexuals as well, maybe it’s just as well to short-circuit some sexual harasser’s cynical defense to liability based on his rampant heterosexuality. Finally, the law would prohibit the collection of statistics on the prevalence of gender orientation or identity by employers or the EEOC.
A more sensitive provision addresses the provision of facilities in which being unclothed is unavoidable, such as locker rooms. The employer would be required to provide “reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.” The employer need not provide new facilities under this law. This is similar to the expectation that a person chooses a gender identity for purposes of which restroom to use; if the employee is in transition from one sex to the other, then the employee chooses a point at which the identity has changed, and uses the other facilities.
I can’t predict whether a law will be passed; I’ve failed at that game too often. Still, the time seems right. The Maryland anti-discrimination law,
providing for access to state courts, in effect since October 2007, covers gender orientation. It is time for the federal government to make it nationwide.