ENDA Delayed Again, Activists Grumble

The Employment Non-Discrimination Act’s journey through Congress has been delayed again, according to an Advocate.com report. The Advocate story was e-mailed to this reporter by the Human Rights Campaign in response to a request for an ENDA update.

The story said “lawyers” need to “adjust the legal language regarding issues of disparate impact, double recovery, and attorney’s fees.”

“Disparate impact” is when a policy or practice has the effect of being discriminatory even if that was not the intention. The article provided by HRC said the latest ENDA modifications will explicitly block disparate-impact cases on the basis of sexual orientation and gender identity — even as they will remain possible on the basis of race, color, gender, religion and national origin.

“Double recovery” would involve the filing of two similar discrimination cases under both ENDA and Title VII of the 1964 Civil Rights Act. Some courts have ruled that Title VII’s ban on gender-based discrimination extends to discrimination against transgender people.

Finally, the lawyers plan to prevent the Equal Employment Opportunity Commission and other administrative agencies from awarding attorney fees to the winning side in cases based on ENDA. The EEOC does not award attorney fees in other types of discrimination cases; that is done by courts.

Some activists are unhappy with the new delay and the details of what’s being reworked.

“Gay Americans have never had protections from discrimination in the workplace,” activist and political consultant Steve Hildebrand said in an interview. “Year after year the LGBT community asks Congress to pass ENDA so we have the same protection from discrimination that every other American has had. Now we see staff attorneys weakening the bill and causing unfortunate delays. We need to generate tens of thousands of calls to members of Congress and demand full equality under the law now.”

Hildebrand served as Barack Obama’s deputy national campaign director and still has the president’s ear.

Former National Gay and Lesbian Task Force Executive Director Matt Foreman commented, “Every word of ENDA has been vetted to death for years on end and any of these minor issues could and should have been addressed in an afternoon.”

Foreman spoke as an individual, not as an employee of the Evelyn and Walter Haas, Jr. Fund.

Asked for comment on the delays and rewriting, HRC spokesman Trevor Thomas e-mailed the Advocate story and some links on HRC’s Web site that are older than the Advocate story. When asked for more information, Thomas accused this reporter of being out of touch with HRC’s ENDA-related efforts.

He later wrote: “After speaking with our legislative team I can tell you that the entire coalition is working closely with the (congressional) committee. It is our understanding that the legal issues the committee wants to address before markup will continue to keep ENDA on a parallel track with Title VII.”

A high-placed, longtime source alleged that the House “committee staff aren’t talking to HRC at all and HRC is in the dark about what’s going on.” Thomas said that is false “and I’ve reconfirmed we are talking with committee staff.”

ENDA would ban employment discrimination on the basis of sexual orientation or gender identity — protecting gays, lesbians, bisexuals, heterosexuals and transgender people.

By Rex Wockner