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ENDA delay sparks fear, speculation
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ENDA delay sparks fear, speculation

by Mike Andrew - SGN Staff Writer

When the US House of Representatives Education and Labor Committee postponed its scheduled markup of the Employment Non-Discrimination Act (ENDA) on November 18, it also sparked fear and speculation among LGBT activists.

ENDA would expand the protections of Title VII of the 1964 Civil Rights Act - which prohibits discrimination by employers based on race, gender and religion - by extending similar protections to sexual orientation and gender identity.

In part, activists' concerns arise because the committee did not follow usual procedure and set a new date for the ENDA hearing. Committee Chair George Miller (D-Calif.) reportedly hopes to reschedule the markup in December, but is offering no guarantees.

The House committee also offered very little by way of explanation for the postponement. The House website merely noted, "This markup has been postponed."

Some House sources told reporters that ENDA was being held up for unspecified "technical amendments," and the lack of specificity itself has given rise to speculation on what might be cut from the bill.

The worst case could be that Transgender workers will once again be excluded from federal protections. A version of ENDA without protection for gender identity passed the House in 2007, but was not introduced in the US Senate.

Disparate impact, double recovery, and attorney fees
The Advocate reported the delay came so that lawyers could "tweak" the bill's language on disparate impact, double recovery, and attorney's fees.

There are two grounds for alleging discrimination in the workplace: disparate treatment and disparate impact.

"Disparate treatment" means the employer treats an employee differently because of their identity. "Disparate impact," on the other hand, is, means the employer is charged with labor practices that may not appear to be overtly discriminatory, but are nevertheless discriminatory in practice.

Part of the legislative compromise under which ENDA is going forward is that it will cover only "disparate treatment" cases, not "disparate impact." ENDA Section 4(g) already rules out disparate impact cases.

"Double recovery" refers to the fear that, since a plaintiff is allowed to sue based on more than one cause of action, he or she could receive damages under more than one cause of action. For example, someone could sue under ENDA, and under another federal law, such as Title VII, and potentially recover damages under both.

However, the law has a long-standing doctrine called "election of remedies," under which courts routinely ensure that double recovery does not occur.

ENDA does expand the right to attorney fees beyond that awardable under Title VII, the current federal discrimination statute.

Title VII says that attorney fees can be awarded by the court to the winning party in "an action or proceeding," in other words, 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.

The solution does not seem to require much "tweaking" however. Instead of referring to "an action or administrative proceeding" in the attorney fees section, it could read "an action or proceeding," the same as in Title VII.

Republican delaying tactics
The decision to delay ENDA in the House may have more to do with the tactics of passing legislation in the Senate than it does with either the bill's language or the wishes of its House-side sponsors.

Rep. Barney Frank (D-Mass.), the longest-serving openly Gay member of the House and ENDA prime sponsor, said in an interview with the now-defunct Washington Blade that ENDA might not come up for a vote in the House till February 2010.

Frank spoke to the Blade in early November, the week before the House markup was postponed.

"So I say," Frank said, "the schedule is the federal domestic partner benefits anytime in the next few months, ENDA out of the House in December or in February with the Senate voting in the spring, [and] 'Don't Ask, Don't Tell' part of the military authorization, which means into the summer."

"[Domestic partner benefits for federal employees is the bill] I'm the most confident is going to become law because I think you have Senate support for it - enough to get to the 60," Frank said, referring to the number of Senate votes needed to overcome a filibuster.

Democratic Senators have complained that Republican delaying tactics have pushed their legislative agenda off-track.

Even if ENDA passes the House, which is still considered likely, it will have to wait till the pileup of pending Senate legislation - starting with healthcare reform - is cleared out.

Pres. Obama had wanted healthcare reform passed before Congress' August recess. It now seems unlikely to happen before the end of the year

"Over and over again, we are seeing tactics to simply slow the Senate down," said Senator Debbie Stabenow (D-Mich.). She added that after initial procedural hurdles were surmounted, "people have been confirmed overwhelmingly, if not unanimously, and the same is true for legislation."

Aides to Senate Majority Leader Harry Reid (D-Nev.) have reported that when he was told that the House took less than an hour to pass an unemployment extension that had languished in the Senate for a month, he didn't know whether to laugh or cry.

"It has been a very difficult year on the Democratic side," Sen. Richard Durbin (D-Ill.), said last week. "We have faced, again, this onslaught of filibusters and delaying tactics by the Republicans. That it would take four weeks for us to extend unemployment benefits in the worst recession since our Great Depression is an indication of the extremes that the Republican Senate leadership has gone to."

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