At last week’s House hearing on ENDA, not just one but two witnesses testified specifically to the existence of longstanding and widespread discrimination on the basis of sexual orientation and gender identity by state governments. Yale Law Professor William Eskridge recounted the historical campaigns of exposure and exclusion of LGBT public employees. And UCLA Law Professor Brad Sears summarized an extensive new report by the Williams Institute on the past and present extent of state employment discrimination. Why so much attention to state employees, who make up less than 5% of the American workforce are currently more likely to be protected under state law than private-sector workers?
The answer lies in a peculiar series of U.S. Supreme Court rulings over the last fifteen years. Those cases have sharply limited the compensation available to public employees under federal civil rights laws, on the theory that state governments possess “sovereign immunity” from employees’ claims. For example, the high court held in 1991 that state workers fired because of a disability could not obtain back pay, even though it was specifically guaranteed by the Americans with Disabilities Act. The justices reasoned that Congress did not muster sufficient evidence that discrimination against state employees in particular was a widespread problem that would justify subjecting states to lawsuits. While Congress, civil rights advocates and most legal scholars were incensed, this special requirement has hung over many civil rights laws ever since, threatening to create a substantial hole in legal protections. (An article I wrote in my previous job discusses these legal doctrines in more depth.)
Because much of the discrimination suffered by LGBT workers occurs in the public sector – such as the blatantly discriminatory firing of Vandy Beth Glenn by the Georgia legislature – ENDA’s drafters and supporters have taken great pains to ensure that state workers are fully protected. This is being done by two methods. First, ENDA specifically requires that state governments waive any immunity from lawsuits as a condition of continuing to receive federal program funds – an approach that has been effective under a number of other laws. Second, the Williams Institute lays the foundation for what may be the most extensive congressional record ever concerning employment discrimination by states.
If this sounds like a lot of technical hoops to jump through, that’s because it is: these legal doctrines, invented by a narrow majority of the Supreme Court, create rigid and artificial barriers to protecting the civil and constitutional rights of LGBT employees – and indeed, of all employees. But for the moment, these are the rules of the game, and it is a testament to the dedication of our Congressional allies, and the researchers at the Williams Institute, that no stone is being left unturned to ensure that no transgender worker is left unprotected.