The road to passing federal legislation can be long and arduous, and to some extent this is simply the nature of the beast – the beast, in this case, being our national legislature. We do well to remember, however, that while we are waiting and working to overcome this or that procedural hurdle in Congress, transgender Americans are facing blatant discrimination right now.
Case in point: today the New York-based Transgender Legal Defense and Education Fund filed a complaint with the Florida Human Relations Commission on behalf of Zikerria Bellamy, a young trans woman in Orlando. Zikerria applied for a job at a local McDonald’s in July, but she never got an interview. Instead, she got a vicious transphobic voice mail message from a McDonald’s manager, stating that they would never hire someone like her.
Legislation to protect transgender workers from this kind of discrimination has been proposed, but not yet passed, in both the city of Orlando and the Florida legislature. The state’s Human Relations Commission has permitted transgender workers to bring complaints under the state’s sex discrimination law in the past, and Zikerria is seeking protection under that law.
What’s unambiguously clear, however, is that Zikerria would have been protected by ENDA if it had been on the books. Right now, Congressional leaders are preparing to rush through a package of measures intended to create and preserve jobs, which they hope to pass before the end of the month. Yet whatever Congress does to address the current unemployment crisis will be incomplete so long as transgender people remain unemployed at twice the rate of the general population. Until ENDA is passed, transgender people face a kind of permanent recession. With each delay on ENDA, more LGBT people will lose or be denied jobs because of ignorance and bias. We need to mobilize for this bill like our lives, or at least our livelihoods, depend on it – because they do.
Showing posts with label Congress. Show all posts
Showing posts with label Congress. Show all posts
Monday, December 07, 2009
Wednesday, September 30, 2009
The Disparate Impact Non-Issue
At last week’s House Education and Labor Committee hearing on ENDA, witness Camille Olsen, an attorney who represents employers, raised several questions about what she characterized as ambiguities in the bill. Among the points Olson raised was the question of “disparate impact” claims under ENDA. Olson’s technical arguments were potentially confusing even for an attorney like myself, so it’s worth trying to explain them in plain English.
Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so. For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.
The law of disparate impact has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new antidiscrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?) So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.
Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.
Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so. For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.
The law of disparate impact has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new antidiscrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?) So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.
Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.
Thursday, June 25, 2009
Live webcast of Senate Hate Crimes hearing
The Senate Judiciary Committee holds a hearing today at 10 a.m. on the Matthew Shepard Hate Crimes Prevention Act of 2009. Witnesses will include Attorney General Eric Holder and U.S. Civil Rights Commissioner Gail Heriot, among others. The hearing will be webcast live from the committee's website. Hearing video is also typically archived for later viewing.
Tuesday, November 06, 2007
Frustation about ENDA
On our daily conference call about ENDA today, one of the members of our community expressed a frustration that I’ve been feeling for some time. We hear from members of Congress that transgender people have not yet done as much work educating them and their colleagues on issues of gender identity as gay and lesbian people have around sexual orientation. Therefore, they argue, they just aren’t ready to vote for civil rights for transgender people. This seems to me to be a way of passing the buck, of blaming the disenfranchised for their lack of rights.
Those of us who have called our legislators, who have met with them and who have worked hard on educating them are rightfully frustrated. It may feel like our best efforts have been in vain. We’ve told our stories of friends and loved ones killed, of jobs we didn’t get or being fired for no other reason than who we are. It is incredibly painful to think it hasn’t been enough. Yet.
However, we need to remember that our work to educate members of Congress—and members of the LGBT community—have actually made an enormous difference. I truly believe that we would not be having this conversation at all, that we wouldn’t be on anyone’s agenda, if we had not been diligent in the work we have done so far. Nor would the House of Representatives passed a transgender inclusive hate crimes bill this session without the work we’ve done to educate them.
Thinking about this today has led to two conclusions. First, we absolutely must continue to do the work we are doing. We need to redouble our efforts to get people to Washington for our annual lobby day. We must continue to visit our legislators when they are in the home offices, sharing our stories, letting them know exactly why we need civil rights protections and what the stakes are for transgender people, our loved ones and families. We have to encourage each other to come out and speak up for our rights. We need each and every voice to be heard.
Second, we also need to remember that role of Congress isn’t to award rights to those who make the most noise, have the largest cadre of lobbyists or are the biggest group. Their job is to enact laws in keeping with the Constitution and the Bill of Rights. For transgender people, that means working for a country where we too have life, liberty and the pursuit of happiness. In order to achieve that, we need to be free of violence and discrimination. Passing a transgender-inclusive ENDA wouldn’t fix that overnight, but it would be a step along the way.
Those of us who have called our legislators, who have met with them and who have worked hard on educating them are rightfully frustrated. It may feel like our best efforts have been in vain. We’ve told our stories of friends and loved ones killed, of jobs we didn’t get or being fired for no other reason than who we are. It is incredibly painful to think it hasn’t been enough. Yet.
However, we need to remember that our work to educate members of Congress—and members of the LGBT community—have actually made an enormous difference. I truly believe that we would not be having this conversation at all, that we wouldn’t be on anyone’s agenda, if we had not been diligent in the work we have done so far. Nor would the House of Representatives passed a transgender inclusive hate crimes bill this session without the work we’ve done to educate them.
Thinking about this today has led to two conclusions. First, we absolutely must continue to do the work we are doing. We need to redouble our efforts to get people to Washington for our annual lobby day. We must continue to visit our legislators when they are in the home offices, sharing our stories, letting them know exactly why we need civil rights protections and what the stakes are for transgender people, our loved ones and families. We have to encourage each other to come out and speak up for our rights. We need each and every voice to be heard.
Second, we also need to remember that role of Congress isn’t to award rights to those who make the most noise, have the largest cadre of lobbyists or are the biggest group. Their job is to enact laws in keeping with the Constitution and the Bill of Rights. For transgender people, that means working for a country where we too have life, liberty and the pursuit of happiness. In order to achieve that, we need to be free of violence and discrimination. Passing a transgender-inclusive ENDA wouldn’t fix that overnight, but it would be a step along the way.
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