It was a surprise to most people that the markup of ENDA, scheduled for last Wednesday morning at 10 am, was abruptly postponed on Monday night at 6:30 pm, heralded by a terse red notice on the House Committee on Education and Labor website. After all, ENDA had been touted for months as the next promise to be kept to our community, with LGBT House leaders embracing a vote in September or October.
But in a city like DC, where reading tea leaves is a high art, it really shouldn't have been much of a surprise. Rumors of an ENDA postponement appeared two weeks ago. Congressman Frank told a reporter that ENDA could be voted on "in February," and that the Domestic Partnership Benefits and Obligations bill (DPBO) is first in line before ENDA. When I wrote about these rumors, and the major concerns about pushing ENDA into a midterm election campaign timeframe, my politico friends took me to task. I was told to "calm down and listen up." "There's no delay on ENDA in the House," he said. Another one said "Barney just made a mistake. Don't make too much of it. You're panicking. It's not time to panic yet."
Barney Frank is many things, but he did not become the most powerful U.S. Representative in DC because he has messy accidents in public in front of news reporters.
Fast forward two weeks, to today, and we now know that the rumors were absolutely correct. The ENDA markup was postponed a week ago for "technical amendments." Instead of the usual procedure of setting a date a week or two later to give enough time to address the issues, no date has been set for the markup. The Committee on Education and Labor is saying it hopes to reschedule the markup in December, but no guarantees. But it's full speed ahead on DPBO, which had its markup on time last week, and which the Advocate reports will be voted on by the end of the year and rushed off to the Senate.
And now Congress is out of session until next week. Chairman George Miller should never have postponed this, but now that he has, he needs to move ENDA first thing next week. But there's more bad news after the jump.
A Narrow Window for ENDA
The ENDA delay is ominous, and likely to be long. As The New York Times reported yesterday, a massive legislative logjam is building up in the Senate.. Once the Senate is done debating health care, there will be dozens of priority bills.
At the same time, House Speaker Nancy Pelosi is setting a new legislative priority: the immediate creation of a jobs bill from scratch in the House, and Senator Reid has said the same for the Senate. Jobs are, of course, very important, but that effort will likely suck all the oxygen from the room for quite a while. Delaying ENDA puts it behind everything else. And then midterm elections will hit. And DADT is scheduled for next year, and DADT could easily supercede ENDA.
This delay is also giving the fundies more time to heat up their branding irons. In addition, the more delay, the more that the Committee doing the "tweaks" is going to start getting pressure to tinker with the "gender identity" provisions, as suggested by The Advocate in an article last week: "The Gender (Identity) Divide."
If you ask me, I see a narrow window for ENDA to get through, and yet ENDA is being held back for no good reason in the House Education and Labor Committee.
When I read the tea leaves, what I see is "NO ENDA." Let me say this as delicately as I can: It's f*cking time to f*cking panic.
When should we panic if not now? When it's too late to do anything about it?
No Further Delay Is Needed
The ostensible reasons given for the delay don't add up, and the amount of delay is unconscionable. The Advocate said it was so that lawyers could "tweak" language on disparate impact, double recovery and attorney's fees.
What tweaking is really needed? What have they been doing since June when this bill was introduced?
Let's examine this. The first ostensible reason for delay was the issue of "disparate impact." There are two types of employment discrimination cases: 1) disparate treatment and 2) disparate impact. "Disparate treatment" means the employer treats an employee disparately, or differently, because of their identity. Disparate impact," on the other hand, is, as the Advocate explained:
Disparate impact is a type of legal case filed against an employer with an employment practice that does not appear to be overtly discriminatory but is nonetheless discriminatory in practice. Herwitt said the lawyers are working to ensure that such cases will not be allowed under ENDA...
Part of the legislative compromise under which ENDA is going forward is that it will cover "disparate treatment" cases, but not "disparate impact." So, let see if we understand this. The lawyers are worried that ENDA will cover both types of cases, and they want to "tweak" that.
But wait....what's this? ENDA Section 4(g) already says this:
(g) Disparate Impact- Only disparate treatment claims may be brought under this Act.
So...it seems that ENDA's language doesn't need any tweaking. It only allows disparate treatment claims, and not disparate impact claims. It has been this way since it was introduced in June. One can always change a comma or two, but it should have been done before June, or at latest after the House hearings in September, when a witness, Camille Olson, brought them up. Why wait until the end of November the day before the markup? (More on this available at the National Center for Transgender Equality's blog, "The Disparate Impact Non-Issue," by Harper Jean Tobin, one of the smartest young lawyers I know.)
Another item brought up is "double recovery." This refers to the fear that, since one is allowed in federal court to sue based on more than one cause of action, one could receive damages under more than one cause of action. Someone could sue under ENDA, and under another federal law, such as Title VII. Would they get twice the monetary award for doing so? It is ridiculous to think they could. This is not a new issue, and such a fear is groundless. The law has a long-standing doctrine called "election of remedies," under which courts routinely ensure that double recovery does not occur. As the Supreme Court has long noted, it "goes without saying that the courts can and should preclude double recovery by an individual." See, for example, General Telephone v. EEOC, 446 U.S. 318, 333 (1980).
So, we don't really need language to prevent double recovery.
The last item mentioned is "attorney fees." ENDA expands the right to attorney fees beyond that awardable under Title VII, the current federal discrimination statute. Title VII says that attorney fees can only be awarded by the court to the winning party in "an action or proceeding," i.e., a lawsuit in court. By contrast, if someone merely files an complaint with the EEOC, which is an administrative agency, and it never goes to a federal court, then no attorney fees can be awarded. But ENDA would allow attorney fees in that situation.
I can understand the objection to giving greater rights under ENDA than under Title VII. The solution? Omit one word from ENDA. Instead of referring to "an action
or administrative proceeding" in the attorney fees section, the language should read "an action or proceeding," the same as in Title VII.
It doesn't take weeks or months to remove one word, does it?
The idea that some major postponement was necessary to "tweak" the language of ENDA -- at least for these items -- is ridiculous. I don't lay this postponement at the feet of Chairman George Miller. I have no doubt he is taking cues from his LGBT allies in the House: Congressman Barney Frank, Congresswoman Tammy Baldwin, and Congressman Jared Polis. (If that's not true, then it says our community is even more out of touch, so I prefer to believe that Barney Frank blessed this arrangement.)
What are our leaders in DC doing? Why are they giving us such lame excuses for delay? If there is some real strategic reason for delay, let's have it.
Going Nowhere Fast
Normally, a Committee would announce a date a week or two hence if a short postponement were needed. They wouldn't just postpone it with "no clear date for rescheduling" as I was told when I called the Committee last week. They wouldn't be telling callers that there are "no guarantees" that it will be rescheduled in December.
There's only a month left before the end of the year. Clearly, they're buying time for some reason, and it's not about the tweaks mentioned.
As much as I know they have our interests at heart, I also know that our leaders are politicians and subject to many other pressures. Their timing on ENDA is a mistake. It will increasingly lose momentum as time drags on, and then it will hit the midterm elections.
And then there will suddenly be many reasons why ENDA can't be done this year, or ever. Let's brainstorm to figure out how to get ENDA moving again. If you have action suggestions, please do comment. I'm starting to lose steam.