Is ENDA Necessary?
BY ARTHUR S. LEONARD | Even with the marriage equality movement appearing to gain unstoppable momentum, the LGBT community has not yet won simple employment nondiscrimination protections at the federal level. The Employment Non-Discrimination Act (ENDA), a measure barring bias in the workplace based on sexual orientation and gender identity –– which has been kicking around for two decades, after the abandonment of earlier efforts to push a broader non-discrimination measure –– won bipartisan support in the Senate last year, but Republican Speaker John Boehner has made clear he opposes any action in the House this year.
And advocates for ENDA remain divided by what legal experts see as an overly broad religious exemption in the version adopted by the Senate.
But what if ENDA is not needed? What if Title VII of the 1964 Civil Rights Act, which bans employment discrimination because of sex, were construed as protecting gay people? One federal judge is now suggesting that might in fact be possible.
One federal judge suggests sex discrimination provision in 1964 Civil Rights Act may suffice
For a long time, both the Equal Employment Opportunity Commission (EEOC) and the federal courts have ruled that discrimination against LGBT people is not prohibited because Congress had no such intention when it enacted the 1964 law. In effect, Title VII was for decades limited rather narrowly to cases where people were suffering discrimination strictly because they were a man or a woman.
However, as early as 1989, the Supreme Court came to view “sex discrimination” more broadly, ruling in a case involving a woman denied a partnership at the accounting giant Price Waterhouse that she suffered sex discrimination because she failed to conform to feminine gender stereotypes. Nine years later, the high court ruled that that a man employed on an oil rig owned by Sundowner Offshore Service who encountered a hostile environment in an all-male workplace –– making claims he was sodomized with a bar of soap and threatened with rape –– could also pursue a claim under Title VII.
More recently, the EEOC and some lower federal courts have taken the next step, holding that discrimination because of gender identity is a form of sex discrimination, because it is inspired by discomfort or disapproval with people defying conventional gender roles. In 2012, the EEOC, in a case involving a transgender woman denied a job at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, formally stated that discrimination based on gender identity is sex discrimination.
But what about lesbians, gay men, or bisexuals who are not gender-nonconforming in their appearance or conduct but encounter discrimination simply because their employer, co-workers, or customers are biased against gay people? Before March 31, there were no court opinions suggesting that such a person might be protected under Title VII. DC District Judge Colleen Kollar-Kotelly, however, made history that day by issuing her opinion in Peter J. TerVeer’s lawsuit against the Library of Congress, holding that a man who suffered adverse treatment from an anti-gay supervisor could bring a claim under Title VII, even though his only gender non-conforming characteristic is his sexual orientation.
TerVeer began working as a management analyst in the Library of Congress’ auditing division in early 2008, and his supervisor, John Mech, is described in the court’s opinion as “a religious man who was accustomed to making his faith known in the workplace.” TerVeer became close to Mech and his family, and in August 2009, Mech’s daughter learned he was gay. “Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline ‘Diversity: Let’s Celebrate It,’” Judge Kollar-Kotelly wrote.
Things went downhill from there. TerVeer alleges Mech subjected him to “work-related conversation to the point where it became clear that Mech was targeting TerVeer by imposing his conservative Catholic beliefs on TerVeer throughout the workday.” TerVeer also claimed his supervisor stopped giving him detailed instructions for increasingly difficult assignments, effectively setting TerVeer up to fail. One huge assignment he was given, TerVeer alleges, would normally require the attention of half a dozen employees.
One day in June 2010, the complaint alleges, Mech subjected him to more than an hour of “‘educating’ TerVeer on Hell and that it is a sin to be a homosexual, that homosexuality was wrong, and that TerVeer would be going to Hell.” Mech recited Bible verses to TerVeer and told him, “I hope you repent because the Bible is very clear about what God does to homosexuals.”
A few days later, TerVeer received an annual review from Mech that did not reflect the quality of his work, the plaintiff claims –– one he said “was motivated by Mech’s religious beliefs and sexual stereotyping.” When TerVeer confronted Mech about his treatment, the supervisor angrily accused him of trying to “bring down the library.”
When TerVeer appealed to Mech’s supervisor, Nicholas Christopher, he was allegedly told, “Employees do not have rights,” and offered no help or advice. According to TerVeer, Mech then put him under “heightened scrutiny” supervision and gave him an “extremely negative” review on a project he had not yet finished. According to TerVeer, when he threatened to lodge a wrongful discrimination and harassment claim, Mech launched into a tirade that ended with him saying, “You do not have rights, this is a dictatorship.”
By 2011, TerVeer was “on track to be terminated within six months,” according to the court’s opinion, and, in November, he filed a formal complaint with the EEOC alleging discrimination because of religion and sex, sexual harassment, and reprisal. After taking leave time due to emotional stress, TerVeer claims, he was “constructively terminated’ in April 2012 because he was unable to return to work to confront Mech and Christopher. The Library then fired him, and his internal grievance appeal was unsuccessful.
TerVeer filed suit claiming violations of Title VII, the US Constitution, and the Library of Congress’ internal regulations.
In her ruling, Judge Kollar-Kotelly saw Title VII’s protection as broader than simply prohibiting discrimination based on the type of gender stereotyping previously found illegal.
She wrote, “Plaintiff has alleged that he is ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,’ and that his ‘status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under Mech’s supervision or at the (Library of Congress),’ and that ‘his orientation as homosexual had removed him from Mech’s preconceived definition of male.’”
This, Kollar-Kotelly found, was sufficient to meet TerVeer’s burden of setting forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Since TerVeer alleged the Library denied him promotions and created a hostile work environment because of his “nonconformity with male sex stereotypes,” TerVeer could proceed with his claim.
The judge noted the limits of TerVeer’s victory so far, emphasizing that the plaintiff’s burden in rebutting the Library of Congress’ motion to dismiss the case is “relatively low.” There has not yet been any factual discovery in the case.
Kollar-Kotelly also found that TerVeer could sustain a Title VII claim based on the religiously-motivated bias of his supervisor.
“The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual,” she wrote.
The judge also found that TerVeer’s factual allegations would be sufficient grounding for a claim of a “retaliatory hostile work environment.”
Since the Supreme Court has made clear that Title VII is the exclusive remedy for federal employees with discrimination claims that come within its scope, Kollar-Kotelly dismissed TerVeer’s constitutional claims.
So, for the first time, a federal court has said a gay man who is not gender non-conforming except for his sexual orientation can assert a sex discrimination claim when a supervisor’s own religiously-inspired stereotyped notions of proper sex roles motivated adverse treatment against him.
Still, it’s premature to predict that ENDA is not needed. This is only one pre-trial ruling from a single federal judge that has established no precedent. It does reflect, however, a steady broadening in the definition of sex discrimination under Title VII. Whether Kollar-Kotelly’s ruling is a harbinger or a one-off remains to be seen.