Jottings By An Employer's Lawyer

Monday, November 04, 2013

ENDA Half-way Home?

For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, Bill on Workplace Bias Appears Set to Clear Senate Hurdle.

However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.

In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.

I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.

Back in the mid 80’s, at the height of the AIDS epidemic breakout, an employee in a Woolworth store filed a claim with the NYC Human Rights Commission alleging that he was gay and had been discriminated against on a perceived handicap as the store thought he had AIDS because of his orientation. (He was fired for refusing to obey the directives of his black supervisor, saying he "won’t work for N#%&*%s!”)
Undaunted the Commission set the matter for a hearing, and invited the local TV stations to video the hearing.
Before the hearing, I had filed an answer that, inter alia, denied having knowledge sufficient to form a belief for the allegation that the CP was gay. You’d have thought it was the day a cake of Ivory Soap sank at P & G!
When pressured as to why I would not admit the obvious, my reply was Gay discrimination was one area of the law where the plaintiff can self identify his or herself as a member of the protected class without actually being Gay, and it should be incumbent upon the CP to prove his or her orientation as a condition of proceeding further. No one had an answer to my contention, nor have they given me one since.
As to the case, discretion being the better part of valor, I settled the case for $2500.00 with a non admission and, more important, a gag order on the CP and the Commission as to publicity.
I have often wondered how the hearing would have been had it gone forward.
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