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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Thursday, October 8, 2009

Arguments Against ENDA: Flood of Litigation

An often used argument against proposed legislation is that it would unleash a flood of litigation that will overwhelm courts and businesses. This argument has been raised against ENDA. However, the available evidence suggests that ENDA is unlikely to cause a flood of litigation.

The argument has nonetheless caused some concern among legislators. Senator Richard Lugar of Indiana has released a letter in which he raises this issue as a potential point of contention. A letter from Senator Lugar argues that ENDA would unduly increase litigation.

Point I: ENDA Would Not Unduly Increase Litigation

Senator Lugar says: "However, I remain concerned that ENDA would unduly increase litigation, create momentum for additional contentious protected employee classifications, and adversely affect the enormous number of small businesses not covered by the bill's 15-employee exemption."

The available evidence suggests that ENDA is not likely to unduly increase litigation.

In 2001, the Senate Committee on Health, Education, Labor and Pensions issued a report on ENDA. It noted that "the EEOC expects that implementing S. 1284 would increase its annual caseload (currently about 80,000 cases) by 5-to-7 percent." That's not an undue increase in litigation.

Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows also shows that there is not likely to be an undue increase in litigation.

California had only 821 sexual orientation discrimination lawsuits last year for a population of 37 million. What does this mean for the idea that ENDA will cause a lot of litigation?

Thus, Senator Lugar's concern about small businesses with over 15 employees is misplaced. The evidence shows a trickle, not a flood. There is no reason to expect an undue amount of litigation from ENDA.

1 comment:

Tina said...

Another excellent commentary, thank you for all your efforts...

it's important to note that Sen. Lugar's comment about -

"...additional contentious protected employee classifications..."

reinforces the erroneous but oft repeated idea that ENDA creates "employee classifications" or "protected classes"...when in reality it simply expands the list of characteristics deemed unlawful as a grounds for job discrimination.

"actual or perceived sexual orientation or gender identity" is no more a "class" than "skin color" is a "class".

I suppose that it could be accurately said that ENDA's passage might encourage those who would like to see other characteristics added to those already protected to work to that end...but that would be a matter of proposing additional legislation, not something that could be achieved by a legal challenge based on ENDA.

And more importantly- no matter how worthy or unworthy such characteristics might be for inclusion in employment discrimination laws, the act of requesting that such legislation be proposed and voted on by Congress is a fundamental right guaranteed by the 1st amendment.

Perhaps that is why the senator chose that particular terminology- to essentially say, "if ENDA passes, other people might be encouraged to petition for redress of their grievances too!" as if that was a bad thing might not play too well to those who understand and respect the Bill of Rights...