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Saturday, October 3, 2009

Legal Analysis of ENDA: Section 3(a)(3) and 3(a)(4): Government Workers

The first subsection of ENDA's Section 3(a)(3) covers private workers. (I've discussed that in a previous post: click here.) In this post, I will discuss protection for government workers. This section of ENDA consolidates several statutes protecting government workers from discrimination based on race, national origin, sex and religion. I've included the definitions of "employee" and "employer" as found in ENDA's Section 3(a)(3) and (4) at the bottom of this post.

The number of government workers has grown a lot over time. How many government employees are there? It's 2.7 million for the feds, 3.7 million for the states, and 10.9 million for local governments. That's a total of 17.3 million government workers. That is a substantial chunk of the approximately 60 million people in the US workforce. What does ENDA say about these workers?


This post is not very exciting, unless you are a government employee wondering whether you are covered by this section. Or unless you're into confusing redundant language with lots of exceptions that are later unexcepted in hard-to-find places.

There are a lot of different categories of government workers included here. Let's take this one step at a time.

Subsection (i): General coverage clause for state and local government employees

This is a little confusing, (okay, a lot) but the bottom line is that state and local government employees are covered. Follow the bouncing ball: Subsection (i) says that ENDA covers "an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f)." Here is problem 1. Section 701(f) in Title VII is different from the current text of 42 USC 2000e(f).

Here's what Section 701(f) says:

(f) The term "employee" means an individual employed by an employer.


Here's what 42 U.S.C. 2000e(f) says, according to Westlaw:

(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.


The additional language was added in by the Civil Rights Act Amendments of 1972, which added government employees to Title VII. However, the Congressmembers didn't want Title VII to apply to elected or appointed public officials and their staffs, as they thought it would be too problematic.

I'm going to assume that ENDA is referring to the current version of the statute, not that originally enacted in Title VII. I don't have a good reason for doing that. Let's see how that works out.

There is one more wrinkle. ENDA says in Section 3(b) that, when reading Title VII for purposes of ENDA, one should not apply the definitions of "employee" and "employer" used in Title VII, but should use the definitions found in ENDA.

Application of Definitions- For purposes of this section, a reference in section 701 of the Civil Rights Act of 1964--

(1) to an employee or an employer shall be considered to refer to an employee (as defined in paragraph (3)) or an employer (as defined in paragraph (4)), respectively, except as provided in paragraph (2) below; and

(2) to an employer in subsection (f) of that section shall be considered to refer to an employer (as defined in paragraph (4)(A)).


So let's do all the substitutions. I will set it out below, including the words in the statute, but striking over the words to be substituted, and putting the new words in parentheses.

ENDA Section 3(a)(3):

(3) EMPLOYEE-

(A) IN GENERAL- the term `employee' means--

(i) an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f)) (an individual employed by an employer (a person engaged in an industry affecting commerce (as defined in section (701)(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h) [meaning] any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C.A. § 401 et seq.], and further includes any governmental industry, business, or activity.) [and that person] has 15 or more employees (as defined in subparagraphs (A)(i) and (B) of paragraph (3) employee[s] as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f))[ignore this infinite feedback loop] for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but does not include a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986;), except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.);

I think that's right. Not entirely sure.

So after all that, employee = private employees in an industry affecting commerce with 15 or more employees, and government employees, except for elected and appointed public officials and their staffs (unless they're civil service) and not private club employees.

I note that the staffs of elected and appointed officials are included in following subsections of the definitions. I should also note that the section specifically covers US citizens employed abroad by US employers.

Subsection (ii) - Executive Branch Employees

Subsection (ii) refers to "a Presidential appointee or State employee to which section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16(a)(1)) applies."

42 USC 2000e-16 includes the following employees and applicants:

>military departments as defined in section 102 of Title 5 (i.e., The Department of the Army, The Department of the Navy and The Department of the Air Force) (this is referring to civilian employees - members of the military are specifically exempted in Section 7 of ENDA, also discussed below under subsection iii)

>executive agencies as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds) (i.e. including any executive department, government corporation, and independent establishment)

>United States Postal Service and the Postal Regulatory Commission
units of the Government of the District of Columbia having positions in the competitive service

>units of the judicial branch of the Federal Government having positions in the competitive service

>the Smithsonian Institution, the Government Printing Office, the Government Accountability Office, and the Library of Congress


This section does not apply to aliens employed outside the limits of the United States.

Subsection (iii) - Legislative Branch and some Executive Branch employees

Subsection (iii) refers to "a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301) or section 411(c) of title 3, United States Code"

2 USC 1301(3) refers to the following employees:

the House of Representatives
the Senate
the Office of Congressional Accessibility Services
the Capitol Police
the Congressional Budget Office
the Office of the Architect of the Capitol
the Office of the Attending Physician
the Office of Compliance
the Office of Technology Assessment

The other section mentioned, 3 U.S.C. 411(c), includes the following employees:

any employee of a unit of the executive branch, including the Executive Office of the President, whether appointed by the President or by any other appointing authority in the executive branch, who is not otherwise entitled to bring an action under any of the statutes referred to in subsection (a), but does not include any individual--

(A) whose appointment is made by and with the advice and consent of the Senate;

(B) who is appointed to an advisory committee, as defined in section 3(2) of the Federal Advisory Committee Act; or

(C) who is a member of the uniformed services.


Although this section specifically exempts any member of the uniformed services, there is a specific exemption in ENDA in section 7. It reads as follows:

(a) Armed Forces-

(1) EMPLOYMENT- In this Act, the term `employment' does not apply to the relationship between the United States and members of the Armed Forces.

(2) ARMED FORCES- In paragraph (1) the term `Armed Forces' means the Army, Navy, Air Force, Marine Corps, and Coast Guard.



Subsection (iv) - State Officials, Political Appointees and Staff

(iv) an employee or applicant to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies. This is the part where the staffers of elected and appointed officials excepted from coverage in subsection (i) are added back in. The section that actually defines which employees are intended is 42 U.S.c. 2000e-16c(a):

>any individual chosen or appointed, by a person elected to public office in any State or political subdivision of any State by the qualified voters thereof--

>>(1) to be a member of the elected official's personal staff;

>>(2) to serve the elected official on the policymaking level; or

>>(3) to serve the elected official as an immediate advisor with respect to the exercise of the constitutional or legal powers of the office.


"Employment Agency" Definition Problem

There is another definitional problem. In ENDA's definition of "employment agency," it has the meaning given the term "in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(c))." However, section 701(c) is not the same as the current United States Code provision at 42 U.S.C. 2000e(c).

Here's how 701(c) reads (click here to see the full text of 701):

(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency of a State or political subdivision of a State, except that such term shall include the United States Employment Service and the system of State and local employment services receiving Federal assistance.


Here's how 42 U.S.C. 2000e(c) now reads as I obtained it from Westlaw:

(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.


If you use 701(c) as originally written, then "employment agency" does not include government unemployment offices or labor bureaus that attempt to secure employment for people. If you use the current 42 U.S.C. 2000e(c) text, then "employment agency" does include such government unemployment offices and labor bureaus. An example of these would include the One Stop Career Centers authorized by the Workforce Investment Act of 1998, that make all kinds of services available to unemployed workers, including offer free phones, internet, recruiting services, and job referrals.

I assume that the text of 42 U.S.C. 2000e(c) is the one that would control, as it makes more sense in the context of a statute that explicitly includes the government workers that the original subsection (c) had excluded. But I could see a persuasive argument on the other side.

Sovereign Immunity Issues

The Supreme Court has made important rulings about whether Congress may cover state and local government workers in light of the 11th Amendment's grant of sovereign immunity to States from being subject to suit in federal courts. There are a lot of cases on this, but the following spring to mind. My discussion here is very incomplete, and just intended to give an idea of the issues involved. A lot more digging is required on this subject.

First is EEOC v. Wyoming, 460 U.S. 226, wherein the Court held that the Age Discrimination in Employment Act constituted a valid exercise of Congress’ Article I Commerce Clause power. ENDA partly relies on Article I Commerce power. So that's good for ENDA. But not good is Seminole Tribe of Fla. v. Florida, 517 U.S. 44, in which the Court held that Congress’ powers under Article I do not include the power to subject States to suit at the hands of private individuals. Only government agencies like the EEOC can sue the States since the 11th Amendment doesn't apply to the government. However, ENDA specifically relies on the 14th Amendment, in addition to the Commerce Clause. Well, In Fitzpatrick v. Bitzer, 427 U.S. 445, the Court said that Section 5 of the Fourteenth Amendment does grant Congress the authority to abrogate the States’ sovereign immunity. So that's good for ENDA. But in Kimel v. Florida, the Court said that the Fourteenth Amendment couldn't be used to justify age discrimination suits by private individuals against States because Congress didn't point to any specific history of unconstitutional conduct, and because age is not a suspect classification under the Equal Protection Clause. That is not so good for ENDA.

This issue merits another discussion. I would guess that ENDA will someday be challenged on this issue, and the answer will hinge on whether discrimination based on sexual orientation and gender identity has a sufficient level of factual findings of historical discrimination by Congress, and whether these are considered suspect classes.

---------------------------------

(3) EMPLOYEE-

(A) IN GENERAL- the term `employee' means--

(i) an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f));

(ii) a Presidential appointee or State employee to which section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16(a)(1)) applies;

(iii) a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301) or section 411(c) of title 3, United States Code; or

(iv) an employee or applicant to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies.

(B) EXCEPTION- The provisions of this Act that apply to an employee or individual shall not apply to a volunteer who receives no compensation.

(4) EMPLOYER- The term `employer' means--

(A) a person engaged in an industry affecting commerce (as defined in section (701)(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or more employees (as defined in subparagraphs (A)(i) and (B) of paragraph (3)) for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but does not include a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986;

(B) an employing authority to which section 302(a)(1) of the Government Employee Rights Act of 1991 applies;

(C) an employing office, as defined in section 101 of the Congressional Accountability Act of 1995 or section 411(c) of title 3, United States Code; or

(D) an entity to which section 717(a) of the Civil Rights Act of 1964 applies.

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