Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at the boutique law firm of Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. From 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives.
Some advocates within the lesbian, gay, bisexual and transgender (LGBT) community have presented a false choice between advocating for marriage equality and the proposed Employment Non-Discrimination Act (ENDA), which would outlaw workplace discrimination based on sexual orientation and gender identity. The truth is that the steps we take toward one goal also bring us closer to the other goal. Equality begets equality.
In fact, this week's much-celebrated announcement by U.S. Attorney General Eric Holder in the litigation challenging the so-called Defense of Marriage Act (DOMA) will likely bolster efforts to secure equal rights both in civil marriage and in employment. Because of President Obama's still-evolving position on marriage equality for gay and lesbian couples, we are one step closer to a federal ENDA statute that can survive an attack by conservatives who will surely challenge that statute's constitutionality in federal court sometime shortly after we have enacted ENDA into law.
For starters, the Obama Administration deserves credit for refusing to defend the constitutionality of the clearly discriminatory Section 3 of DOMA. According to Yale Law School professor Jack Balkin, the Obama Administration's new position likely increases the chances that at least some portions of DOMA will be struck down by the federal courts, including eventually the U.S. Supreme Court. Professor Balkin is right, and I would add that the legal briefs submitted by the U.S. Department of Justice (DOJ) in the DOMA cases will also increase the long-term chances that LGBT victims of workplace discrimination and harassment will one day have the opportunity to hold accountable their discriminatory employers in federal court.
That's because of the following key portion of the announcement by U.S. Attorney General Holder:
"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny."
Quite simply, this statement is historic. It is the first time ever that the government of the United States has embraced this pro-equality position. If President Obama's DOJ can successfully convince the federal courts that statutes, regulations or government practices that address or affect sexual orientation should be given what is called "heightened scrutiny," then gays and lesbians would be raised up to the at least the same level of constitutional protection already granted to women facing discrimination. With that kind of strengthened constitutional wind at our backs, gay and lesbian workers will gain some new workplace protections even before ENDA passes, and will benefit once again after ENDA is signed into law - perhaps by President Obama if and when he wins a second term.
How Obama's DOMA Position Will Help Gay and Lesbian Workers Even Before ENDA Passes
First, consider the hypothetical examples of a lesbian employee of the Alabama State Department of Agriculture, a gay male employee of the Arizona State Department of Transportation, and a bisexual employee of the Alaska State Department of Tourism. These three states have more in common than alphabetical privilege. Alabama, Arizona, and Alaska each currently lacks a state ENDA statute that protects against discrimination based on sexual orientation. As noted, there is no federal ENDA statute either.
As of today, the lesbian employee in Alabama can be fired just because she is a lesbian. The gay employee in Arizona can receive lower pay and fewer promotions just because he is gay. The bisexual employee in Alaska can be severely harassed and subjected to hostility just because he is bisexual. Without a state ENDA statute or the proposed federal ENDA, these three employees would have very little to absolutely no legal recourse for sexual orientation discrimination in either state or federal court.
Now imagine that the U.S. Supreme Court eventually agrees with President Obama and Attorney General Holder that gays and lesbians deserve "heightened scrutiny." At that point, the lesbian employee in Alabama, the gay employee in Arizona, and the bisexual employee in Alaska have a far greater chance of successfully arguing in federal court that the discrimination by their employers - each one a state government actor - was a violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
Under current constitutional law, it is possible, though sadly unlikely, that a gay or lesbian employee of a state government could win this type of constitutional case based on the lower level of constitutional protection called "rational basis review." Some plaintiffs have won cases at this lower level of protection, but it is such an uphill climb that victory is the exception and not the rule. The spillover effect of the Obama Administration's decision to argue for "heightened scrutiny" in the DOMA cases is that these three hypothetical employees would have a far greater chance than they currently do of winning their lawsuit based on sexual orientation discrimination and securing justice in the workplace - even if neither a state ENDA nor the proposed federal ENDA has passed yet.
Many readers have probably noticed by now that my series of three hypotheticals did not include a transgender employee. However, what many people in the LGBT and broader communities do not realize is that under current constitutional law, transgender employees actually have stronger constitutional protections and greater chances of winning workplace discrimination cases than gay and lesbian employees who also work for state government employers. For example, the attorneys at Lambda Legal recently won an important case in federal court in Georgia on behalf of a transgender woman named Vandy Beth Glenn, who was fired by the government of Georgia immediately upon telling her supervisor that she planned to transition from male to female. Last year, a federal court ruled that when Georgia fired Ms. Glenn, the State acted in violation of the federal constitutional protections against gender discrimination.
In contrast, if the state of Georgia had fired a gay man simply because he told his supervisor that he is gay, he would not have benefitted from the same constitutional protections. That is why the Obama Administration's new position that "heightened scrutiny" should apply to laws addressing sexual orientation will provide some new workplace rights for gays and lesbians, who deserve the same constitutional protections against irrational and unjust firings such as the one experienced by Vandy Beth Glenn.
How Obama's DOMA Position Will Help Gay and Lesbian Workers After ENDA Passes
It is probable that within the first year after ENDA is passed by Congress and signed by the President, a conservative state Attorney General will file a motion as a defense to an ENDA lawsuit in federal court contending that ENDA is unconstitutional as applied to state government employers. Imagine a Republican Attorney General of Texas or Oklahoma, up for re-election, and seeking to prove to voters his anti-gay and pro-states-rights bona fides by pushing a case to the U.S. Supreme Court to get ENDA declared unconstitutional as it applies to Texas, Oklahoma and the other states. I first raised my concern about a right-wing constitutional challenge to ENDA with the Democratic Leadership of the U.S. House of Representatives in September of 2007 when I was hired to serve as Labor Counsel to Congressman George Miller (D-CA), who was at that time the Chairman of the House labor committee.
A few months later, once I was working as lead counsel on ENDA in the U.S. House, we partnered closely with the Williams Institute at UCLA Law School, which is the legal research center on LGBT rights that has provided invaluable scholarship in venues ranging from the Proposition 8 trial in California to the legislature of Rhode Island. For the next two years, the Institute's Executive Director Brad Sears, Professor Nan Hunter, and a talented researcher named Christy Mallory led an exhaustive effort to help the House labor committee collect the research needed to demonstrate ENDA's constitutionality. Mr. Sears then skillfully presented that research to the House labor committee as a Democratic witness at the hearing on ENDA in September 2009.
Mr. Sears' testimony demonstrates just how important "heightened scrutiny" could be to the LGBT community and to the long-term success of ENDA. When the constitutionality of ENDA is eventually considered by the U.S. Supreme Court - perhaps five or ten years from now - the Justices are going weigh at least two factors:
- the level of constitutional protection afforded to members of the LGBT community; and
- the amount of evidence of discrimination by state governments that was collected and documented by the U.S. Congress.
Under Supreme Court precedent, there is an inverse relationship between the two factors. The higher the level of scrutiny afforded to a group (in this case, LGBT individuals), the smaller the necessary evidence from Congress regarding existing evidence of discrimination.
Congressman Miller and his House colleagues put thousands of examples of anti-LGBT workplace discrimination by state government employers into the Congressional record through live testimony in September 2009. It would have been nice if the Senate labor committee had also called Mr. Sears or one of his colleagues from the Williams Institute during their November 2009 ENDA hearing to present live testimony of the Williams Institute's voluminous report. I am hopeful that Senator Tom Harkin (D-Iowa) - a progressive champion who chairs the Senate labor committee - will correct that oversight in the upcoming session of Congress.
Senator Harkin would also do well to correct a significant mistake from his 2009 Senate hearing on ENDA, which did not include a single transgender person among the seven witnesses who were called to testify. The failure to include a voice from the transgender community was rightly and highly criticized at the time. As Diego Sanchez, a Policy Advisor to Congressman Barney Frank (D-MA), eloquently explained to a reporter from the Advocate magazine, the problem with excluding transgender witnesses is that it sends a "signal that [transgender people like Sanchez] are disposable." Transgender employees deserve the same workplace anti-discrimination rights as the rest of us, and while gender discrimination laws offer some protection, the transgender community should not be left behind with ENDA. Accordingly, I made sure that the 2009 ENDA hearing in the House of Representatives did feature a transgender victim of discrimination.
Returning to the constitutionality of ENDA, the Williams Institute's report significantly increases the chances that ENDA will survive the Supreme Court's eventual review, but it does not guarantee a victory for ENDA. Some judicial activists like Justice Antonin Scalia will likely vote to strike down ENDA no matter how many thousands of examples of discrimination we put into the Congressional record. But some of the swing votes on the Court are very much in play, and those swing votes are more likely to give ENDA a fair chance if LGBT workers are viewed through the lens of "heightened scrutiny" rather than the current "rational basis review."
Simply put, President Obama's announcement earlier this week that his Administration will spend at least the next two years working in the courts to improve the constitutional standing of gays and lesbians in the marriage context means that we will also be in a much stronger position when ENDA is signed into law and is subjected to constitutional challenge.
Our advances towards marriage equality will lead to advances in the context of employment equality, and visa versa. As noted above, equality begets equality. The Obama Administration has taken an important step toward securing equal rights for the LGBT community, both in our marriages and in our workplaces. And that's the kind of change I can believe in.