Will ENDA discriminate?

If there really was such a thing as The Gay Agenda™, then the top item on it would be passage of the Employment Non-Discrimination Act (ENDA). If passed into law and signed by the president (who has pledged to sign it), ENDA would ban discrimination against GLB and T people in employment. Naturally, there are exceptions—neither state nor federal governments can get away with making GLBT people fully equal citizens.

GLBT Americans have gotten used to having an asterisk attached to their rights. But now there are indications that the very bill designed to end discrimination against gay and lesbian people may, in fact, ensrhine it.

According to The Advocate online, lawyers are now going over the language of ENDA to make it acceptable to Republicans and business elites (as if they’d ever support it, anyway). Specifically, they’re looking at three areas:

1. Disparate Impact: This is a type of case filed against an employer who doesn’t appear to have specifically discriminatory policies, but which nevertheless discriminates. Lawyers want to deny GLBT people the right to file such a case. By contrast, Title VII of the 1964 Civil Rights Act allows such cases to be brought in the event of discrimination on the basis of race, colour, gender, religion or national origin.

2. Attorney’s Fees: The move is to forbid GLBT people from collecting attorney’s fees as part of the settlement in a successful case by restricting the Equal Employment Opportunity Commission from awarding it; discrimination victims under Title VII face no such restriction.

3. Ban double recovery. The lawyers want to make sure that discrimination victims cannot sue under both Title VII and ENDA (as could be the case, for example, with gender discrimination) because filing two claims could lead to two judgements (double recovery). Of the three, this is the only one that seems like it may be reasonable.

If people who are the victims of discrimination based on their race, colour, gender, religion or national origin are able to file a claim of disparate impact, how can preventing GLBT people from doing so be justified? Where is the justice in that?

Denying attorney’s fees is an especially bad move: Poor and working people often rely on that to be able to bring their cases. If the fees have to be paid out of their award, they’re likely to get little or nothing in the end (contrary to rightwing myth, such judgements are generally not very big). That means that potentially only the wealthy will be able to bring cases.

Added up, at least two out of three of these seem like efforts to prevent GLBT people from actually bringing successful suits. It’s like the politicians are saying to GLBT people, with a wink and nod to the corporate elites, “we’ll ban discrimination, but good luck actually enforcing that.”

If Barney Frank allows that to happen, we should expel him from the gay community. That, and force him to return his copy of the The Gay Agenda™.