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Tuesday, August 25, 2009

Legal Analysis of ENDA, Sections 1-2

In about two weeks, Congress will go back into session, and a vote on ENDA, the Employment Non-Discrimination Act, will probably follow shortly thereafter. Known as HR3017 in the U.S. House of Representatives, and S1584 in the Senate, it appears poised for passage. (You can view the legislative spreadsheets here and here.) The bill contains a number of provisions that require interpretation. This is the first in a series of posts designed to explore the bill.

The Employment Non-Discrimination Act of 2009, HR 3017, would prohibit employment discrimination on the basis of sexual orientation or gender identity. It introduce While the protection of these categories is new in the federal employment context, the bill itself introduces no concepts currently unknown to the law. Unfamiliar, perhaps, though they may seem, the requirements of the Act would codify and unify legal principles and local law that have been in process for many decades now.

Here are the text of Sections 1 and 2, which can be found at thomas.loc.gov.


This Act may be cited as the `Employment Non-Discrimination Act of 2009'.


The purposes of this Act are--

(1) to address the history and widespread pattern of discrimination on the basis of sexual orientation or gender identity by private sector employers and local, State, and Federal Government employers;

(2) to provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity, including meaningful and effective remedies for any such discrimination; and

(3) to invoke congressional powers, including the powers to enforce the 14th amendment to the Constitution, and to regulate interstate commerce and provide for the general welfare pursuant to section 8 of article I of the Constitution, in order to prohibit employment discrimination on the basis of sexual orientation or gender identity.


Section 1
This section gives the bill its popular name: The Employment Non-Discrimination Act of 2009, also known as ENDA.

Section 2
This section begins with a statement of purposes. While this may seem relatively unimportant for purposes of determining what the law requires, they are important when attempting to apply the law in particular cases. This is also important in any constitutional challenge to the law.

When a law is alleged to violate the US Constitution, the government is required to demonstrate that the law has a proper basis as found in the powers granted to Congress by the Constitution. These powers are generally found in Article I, section 8, and in various Amendments. Section 2 of the bill spells out these power bases, noting that Congress has made a finding that there is history and widespread pattern of discrimination on the basis of sexual orientation and gender identity by both private and public employers. This implies that the law is grounded in the need to redress past discrimination. permits invocation of Congressional concerns about interstate commerce as stated in Article I, and equal protection of the law as stated in the 14th Amendment.

This is important, as a constitutional challenge to ENDA would likely be based on the case of U.S. v. Morrison, 529 U.S. 598 (2000), a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution. which struck down the Gender-Motivated Violence Act.

The Congressional powers are explicitly referred to in subsection (3), and I view this as an attempt to avoid the Morrison doctrine. I think this attempt will likely succeed, because Morrison involved an attempt to regulate crime under the Commerce Clause and the 14th Amendment. Thus, Morrison fell under the rubric of U.S. v. Lopez, 514 U.S. 549 (1995), which basically said that Congress can't regulate crime under the guise of the Commerce Clause unless there's an economic nexus. However, regulation of racial discrimination has long been upheld by the Supreme Court on both Commerce Clause and 14th Amendment grounds. (And the statute that Lopez struck down is back on the books with slight revisions. See U.S. v. Danks
221 F.3d 1037 (8th Cir. 1999))

ENDA also states here that the bill is intended to create a "comprehensive" prohibition of these practices, along with "meaningful and effective" remedies. This implies that a court interpreting the law should do so as to give effect to Congressional intent to be comprehensive and effective in prohibiting such discrimination. That would suggest a broad interpretation of the law oriented toward creating more robust protection, rather than a cramped or narrow construction. That could be an important point, because the courts have been continually narrowing the provisions of Title VII.

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