January 13, 2008

ENDA and the insufficiency of disparate impact

by Craig

I'm going to begin this post apologising for the inarticulateness of my previous post. It was completed at 3:30 am, so I claim a good excuse :p Since then, I have realised that the Sherman Act has been quite authoritative on the issues that the Court outlines, but nonetheless, I fear the new precedent the Court has set. One will see what happens when the First Circuit announces their decision in Cook later this year...

Continuing, in a way, from where I left off, another area in which notions of equality must be reexamined is in Title VII jurisprudence. Congress is in the process of passing (though of course, a filibuster and veto may yet derail it) ENDA, which would prohibit discrimination based on sexuality (the House has already passed the bill). This may be dangerous-the Court has already rapped Congress's collective knuckles for attempting to prohibit age and disability discrimination in employment. Without going into the issue in yawn inducing detail, the Court said that Congress was forcing the states to give these groups too much protection - under the Court's interpretation of the Fourteenth Amendment these groups could only challenge irrational discrimination, but Congress was instead providing them a level of protection reserved for suspect/quasi-suspect classes in the Court's jurisprudence. Since Congress could not modify the 'substance' of Art 1 of the 14th Am (i.e. modify the Court's constitutional jurisprudence ) when enforcing it under Art 5, the legislation was invalid.

Yet, Congress claims that this would fall within its Section 5 power of prohibiting sex discrimination in employment. The Court has suggested that in such issues congress has greater latitude as sex discrimination receives a higher form of scrutiny, which Congress may consider. In Hibbs, moreover, Rehnquist reasoned that Congress could infer discrimination from the sexes being disparately impacted, allowing it to enact the FMLA, which prohibited such disparate effects. Similarly, Congress appears to be reasoning, sexuality discrimination is sex discrimination: while Eve may sleep with Steve, Adam is being discriminated against because he too sleeps with Steve, because Adam is a man. There is also loads of evidence (which, unfortunately, I am told, Congress has not really placed on record) suggesting that the origins of homophobia lie in notions of gender propriety and hierarchy. (See Andrew Koppelman, "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination," 69 N.Y.U. L. Rev. 197 (1994), which, in 2000 was listed as one of the 25 most influential articles to appear in the N.Y.U. L. Rev.)

The problem of course, is that Title VII jurisprudence does not allow us to take into account the underlying motivation of discrimination, unless one can specifically produce evidence in that particular case of sex discrimination. Broader social dynamics are not considered. Accordingly, courts have noted that since there is no disparate impact - i.e. since gay men and gay women are affected equally by discrimination based on sexuality, no inference of discrimination can take place.

The Court could similarly opine that Congress therefore had no grounds to consider this sex discrimination, and strike down ENDA. Notions of equality must therefore themselves evolve to allow for arguments explaining broader historical trends - explaining how discrimination based on sexuality was specifically discussed in terms of gender roles, how opponents of the ERA articulated fears of gay marriage, how other arguments began to take stronger root ONLY as it began to be more and more unfashionable to speak of gender roles in that manner (I believe that it is no coincidence that the Anita Bryant's Save Our Children campaign emphasised the predatoriness of homosexuality rather than the gender roles just as gender role justifications were becoming less fashionable-Craig v. Boren had been decided the previous year.) One can only suggest that broader notions of sex equality would have to be permitted that extend beyond the 'disparate impact' of a given case. However, a judge who may examine a brief without allowing the entry of further evidence may well (and indeed understandably) deny that a factual claim of sexuality discrimination legally constitutes sex discrimination and under the Twombley rule, may well dismiss a claim for lack of a factual basis to support a legal claim. On the other hand, through greater explanation and examination of issues through a trial, she may understand the issues involved, and may be more willing to consider such novel arguments.

January 13, 2008 11:45 PM | TrackBack
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