What's Happening On ENDA?

What's happening on ENDA? The House is practically on board, and the vote will happen in the next few weeks. My calculations, as shown in the Inclusive ENDA House spreadsheet, show 212 likely yes votes, with another 6 needed for passage. They are 98% of the way there.

The real fight on ENDA is in the Senate, where there are only 49 confirmed yes votes. That's only 82% of the way there. Another 7 are likely yes votes, but they're not saying. Even so, 4 more votes will be needed to get ENDA passed.

If you're interested in specifics, let me say that there are 16 Senators who are on the fence about ENDA. Political calculations and more after the jump at Bilerico.com.

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Arguments Against ENDA: Inquiries Into Employee Sexual Orientation

Some are concerned that ENDA will require employers to begin inquiring into their employee's sexual orientation and gender identity, in order to avoid lawsuits alleging discrimination if there are few LGBT employees in the workplace. This concern is misplaced for several reasons. However, it has led some legislators to express concern about ENDA, including Senator Richard Lugar of Indiana. Senator Lugar seemed supportive of ENDA in the past, but recently released a letter expressing his reservations. One of his concerns was that ENDA will lead employers to probe their workers.

ENDA Will Not Lead Employers To Probe Their Employees

Senator Lugar's letter said: "I also am concerned that ENDA would induce employers to probe the sexual orientation of their employees as a means of preparing for or preventing potential lawsuits or EEOC actions. Such a development would not be positive for employee privacy or workplace dynamics, and it could have unpredictable consequences for the fairness of hiring decisions. I understand that ENDA does not require such inquiries; however, many employers will see some degree of information about the sexual orientation of their employees as a vital element in dealing with potential litigation."

This argument is mistaken on two levels.

Most significantly, Senator Lugar's argument is that ENDA will cause employers to begin inquiring into people's sexual orientation and gender identity because they're afraid of being sued. The concern here appears to be that workers' right to privacy would be infringed by concerned employers, leading to more discrimination, rather than less. This argument assumes that employees' right to privacy of sexual orientation and gender identity has been protected in the past. In fact, as demonstrated by testimony at the recent Congressional hearing on September 23, 2009, and that of prior Congressional hearings in years past, there is already a great deal of discrimination against LGBT workers. The idea that workers are somehow now protected from discovery or suspicion of their sexual orientation or gender identity is a false notion. This argument seems to suggest that discriminatory employers will say: "We liked you before, LGBT employees, and never harassed or discriminated against you, but now that you're protected by ENDA, we're coming after you."

This argument makes the claim that the anti-discrimination law is the cause of discrimination. That is not a claim backed up by any evidence.

Secondly, the idea that employers should collect statistics on their employees' sexual orientation is rejected by ENDA itself. The text of the bill specifically prohibits the collection of statistics or the imposition of a "gay quota." (Sections 4(f) and 9) The bill also prohibits "disparate impact" lawsuits claiming that there are not enough gays in the workplace. (Section 4(g))

Senator Lugar's suggestion that ENDA will cause employers to start tracking their employee's sexual orientation and gender identity ignores what ENDA specifically says.

Thus, the argument that ENDA will hurt LGBT employees by imposing reporting requirements is mistaken.

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?

• This means only 0.1% of the 724,000 business firms in California were sued based on sexual orientation.


• If the same numbers hold true for the 8% of US businesses with between 20 and 99 employees, then there will be approximately 500 lawsuits for the half-million businesses under 100 employees.


• The California numbers show that sexual orientation lawsuits accounted for only 4% of the 18,785 discrimination cases in California that year.

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.

Arguments Against ENDA: The Bathroom (Part IV)

A major objection to gender identity protections in ENDA is that it will cover transgender people, and where will they go to the bathroom?

As odd as it might seem to argue that an entire class of people should go jobless because we can't figure out where they will go to the bathroom, the power of the objection should not be underestimated.

Its power is not so much based on the actual practicalities of figuring out "which bathroom?" -- which is a fairly simple problem with a fairly simple solution. It more directed to concerns rooted in the perpetuation of gender segregation and transphobia. Should these concerns dictate that transgender people cannot be employed? Clearly, the answer is no.

At one time, pretty much everything was largely sex segregrated. Men went out into the public marketplace to work and make purchases, and women stayed at home and worked in the company of other women. When the Industrial Revolution came, employers mostly employed men as workers, with the exception of a few industries, where the workers were all women. Men had their own private clubs and societies and bars where they could spend a pleasant evening, and women were not allowed as members. Since 1964, when it became illegal in this country to discriminate based on gender, some industries have become increasingly feminized, though there are relatively few women in the C-suite as leaders of industry. The idea that women should be segregated from men in public accommodations, in politics, in education, and in jobs has gone the way of the horse and buggy.

The only vestige of this sex segregation left is the public bathroom. While there are many places that no longer separate their public bathrooms by sex, as in some US colleges and in many places in Europe, it is a dear old tradition at this point, and a lot of people like it. But that shouldn't prevent me from getting a job.

There are a number of variations on the bathroom argument. The business-y "I'm-not-transphobic" ones refer to concerns about ambiguity of definitions and accommodation costs associated with building separate bathrooms for transgender workers. These, however, silently invoke far darker and nastier beasts thrashing about in our cultural subconscious, namely the fear that transgender people are crazed sex predators who will be unleashed against the helpless women of America. But let's deal with the easy objections first, shall we? It's already been a long day.

Accommodation Concerns

The bill itself specifically states in Section 8 the accommodation requirements of employers. It explicitly notes that nothing in the bill shall be construed to require the construction of new or additional facilities. Thus, employers will not have to undertake additional costs.

It should also be noted that the question of accommodating a transgender employee arises quite rarely. It is not as if millions of American employers are suddenly going to have to address thorny questions about bathroom accommodations when ENDA goes into effect. The number of openly transgender workers is very small, probably about 1 in 1000 workers at most in the large employer context, where transgender people have a higher degree of relative safety.

It's important to note that the bathroom issues have to be worked out regardless of whether there is a federal law like ENDA. 12 states have laws prohibiting discrimination against transgender workers, another dozen have court cases or executive orders prohibiting it, and about 100 cities have such laws as well. There's hasn't been a flood of litigation there over bathroom rules since the first law was put in place in 1975. In fact, there are four court opinions in the country on the subject to date. Four in 35 years. That's a pretty low track record.

I have worked with organizations that have particularly difficult issues involving showers and dressing rooms. These include major defense contractor Boeing, not the most hippy-dippy of environments, and The New York City Department of Homeless Services, which has sex-segregated facilities that accommodate men and women separately. A fairly easy and inexpensive solution has always been found. I have advocated the use of five criteria that allow employers to easily and quickly address situations that come up. These are outlined in my book, Transgender Workplace Diversity.

Transphobic Reactions

The more rarefied arguments depend, for their force, on the transphobia that often tinges the opposition to ENDA, and fear of violence against women. These fear-mongering arguments suggest that transgender people are sexual predators seeking to gain access to women's spaces. A slightly less virulent argument of this strain is that, while transgender people are not themselves sexual predators, there are others who will take advantage of the law. Sexual predators will "game the system," making a false claim of right to be present in the women's bathroom in order to prey on women and girls.

In an article several years ago, the following example was given by the Thomas More Law Center, a non-profit law firm working with the Gainesville group: "For example, Tampa Police arrested Robert Johnson in February 2008 for hanging out in the women's bathroom at 'Lifestyle Fitness' and watching women in an undressed state. The 'gender identity' category, which is unique to the City of Gainesville, would provide legal protection to a similar offender in Gainesville."

The Thomas More Law Center is mistaken in its assertion that the gender identity category is unique to Gainesville, as Key West, Monroe County, West Palm Beach and Largo have gender identity civil rights laws. More significantly, notably absent from the example given is any false claim of gender identity. The accused, a teenager, claimed that he had not realized that he had entered the women's room, and, afraid to be seen, had hidden until he worked up the courage to emerge, when he was spotted. He did not invent a new gender identity in order to work up a defense for being in a female dressing room.

The "Gaming the System" Argument

I saw this "gaming the system" argument when I trained 300 homeless shelter staff for the New York City Department of Homeless Services in 2007. In each training session of about 20 people, there were one or two staff members who loudly proclaimed that they were not prejudiced, but that they had long experience with the homeless, and some guys would do anything to get with the women. I patiently explained that there were several documented examples of transgender people being abused in the system, and no examples of women being abused by transgender people (or those falsely claiming to be). They had no information to the contrary, but refused to budge. After a while, I sensed that their arguments had nothing to do with logic, and were related to stereotypes and fears that I could not reach. Ultimately, I had to argue that I was there to inform them about the Department's policy, not to change their minds.

I have heard this objection about "gaming the system" not only in the homeless shelter environment, where violence and fears of violence are daily realities, but also in corporate and school settings in which violence had never occurred. I addressed this argument in my book:

"Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: what if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.

My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law.

Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not. "

The logic of the argument that allowing transgender people to use a bathroom consistent with their gender will create a risk to women's safety has rested, in some recent instances, upon a claim that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This claim is disproven by experience.

There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S.

How many cases involving transgender people in bathrooms have there been in any year? Zero. How many false claims of gender identity transition have there been in order to commit sexual assault in any year? Zero.

Enough said.

For more on these topics, see Part I, which discusses concerns about pedophilia, Part II, which discusses fear of loss of religious freedom, another post discussing the possibility of a sudden flood of litigation and concerns about gay quotas, and Part III, discussing the transphobic "business necessity" argument.

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.