Thursday, September 20, 2007

Without a paddle

Today my friend Jake sent me this post about the hostile (towards gay people and it sounds like towards women too) work environment at the New York Post. This sent me digging around on the current state of federal discrimination laws.

The Employment Non-Discrimination Act of 2007 (ENDA) (which would include sexual orientation and gender identity in the categories that the government protects from work place discrimination) was introduced to the House in late April of 2007. A couple weeks ago, the House held subcommittee hearings on ENDA; supporters of the bill are hoping to pass the ENDA before the end of the year.

The ENDA is intended to protect gays/lesbians/transgendered people from workplace discrimination in the same way that the the Civil Rights Act of 1964 (CRA) protects workers from discrimination based on race, color, religion, or sex. The CRA also created the U.S. Equal Employment Opportunity Commission (EEOC), which identifies harassment in the work place as a form of discrimination that violates the CRA. The EEOC says,

Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.


Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

The Federal Communications Commissions breaks it down for us a little more, with examples of harassment here.

However, the CRA does not explicitly state that harassment is a form of discrimination (and neither does the ENDA). In Meritor Savings Bank v. Vinson, the Supreme Court held

A claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII [of the CDA]

(Sidenote: I really think that it should be a requirement that every Supreme Court opinion has a numbered list right at the beginning of whatever the Court is holding in that case. It would save us a lot of trouble.)

Although I think that were the question to come up (and were the court to follow precedent and legislative intent), courts would be forced to hold that the ENDA protects gays/lesbians/transgendered people from a hostile work environment, I think we can't be sure because it's not explicitly stated in the legislation. (If there are any lawyers/law students out there who think/know otherwise, please correct me.)

I hope it passes. And I hope gays/lesbians/transgendered people are protected from a hostile work environment. In other words, I hope New York Post winds up floating up shit creek.


Greg Dwyer said...

So how would your opinion on how
ENDA should apply coincide with the First Amendment's protection of freedom of speech and freedom of the press?

Anonymous said...

Hi Greg,

I recommend reading up on the limitations of Freedom of Speech and Freedom of press. Here are some places to start: and