ARTHUR S. LEONARD Professor of Law
NEW YORK LAW SCHOOL
185 West Broadway New York, New York 10013
arthur.leonard@nyls.edu
212-431-2156
September 14, 2009
The Honorable Tom Harkin, Chairman
Committee on Health, Education, Labor &
Pensions, United States Senate
The Honorable Mike Enzi, Ranking Member
Committee on Health, Education, Labor & Pensions,
United States Senate
Re: S. 1584 (Employment Non-Discrimination Act of 2009)
Dear Chairman Harkin and Ranking Member Enzi:
I am writing to provide you with information that may be useful in determining the factual basis for
Congressional authority to enact a federal ban on employment discrimination on the basis of sexual
orientation or gender identity and to apply that ban, including the authorization for monetary relief in
meritorious cases, to state and local governments.
The private sector application of such a ban on discrimination can be premised on Congress’s
enumerated power under article I of the Constitution to regulate commerce, and the courts have sustained
such federal laws prohibiting private sector employment discrimination on that basis in the past. The
authority to establish and apply a federal anti-discrimination policy to the public sector, however, relies on
section 5 of the 14 amendment, which provides that “The Congress shall have power to enforce, by
appropriate legislation, the provision of this article.” The relevant provision of the 14 amendment is section
1, which provides, in pertinent part, “nor shall any State deprive any person of life, liberty, or property,
without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
The Supreme Court has made clear in Evans v. Romer (1996) that discrimination based on sexual orientation
may be found to violate this provision, and in Lawrence v. Texas (2003) the Court found unconstitutional a
state penal law against same-sex anal or oral sex, on the ground that it unconstitutionally burdened the liberty
of same-sex couples. After Romer and Lawrence, it seems clear that employment discrimination against
sexual minorities would raise 14 Amendment issues, both as a violation of Equal Protection and as a burden
on constitutionally protected relationships.
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The Supreme Court has held that federal laws against discrimination can be applied to state public
employment when Congress finds that such laws are necessary to enforce the constitutional protections of
the 14 Amendment. Because of concerns about federalism and state immunity, such laws have been
upheld when Congress has made credible factual findings that discrimination of the type it seeks to
prohibit actually exists and continues to deprive individuals of their constitutional rights. In particular, the
11 Amendment barrier to damage actions against states may be overcome based on a well-supported
Congressional finding that widespread patterns of discrimination justify such a solution.
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Since 1980, I have been editing a newsletter on legal developments affecting sexual minorities, a
broad term that encompasses gay men, lesbians, bisexuals, and transsexuals. While I cannot claim that my
efforts have uncovered absolutely every reported legal proceeding since then involving these groups, I have
sought to be as comprehensive as possible, by closely reviewing reporting services and, for the past two
decades, by searching the database of Westlaw on a regular basis seeking to uncover new court opinions that
deal with issues of sexual orientation and gender identity. The newsletter, titled “Lesbian/Gay Law Notes,” is
archived by the Justice Action Center of New York Law School and freely available on-line. All monthly
issues dating back to 2000 can be found, supplemented by a published cumulation in the New York Law
School Journal of Human Rights covering highlights from the years 1980-1999, also available on-line
through the Justice Action Center.
Reviewing this cumulation of information, it is clear that there has been and continues to be a
widespread pattern of unconstitutional discrimination by state and local governments against sexual
minorities. There has undoubtedly been important progress in combating such discrimination over the
course of this time period, as states and localities have enacted their own laws banning sexual orientation
and/or gender identity discrimination. However, a majority of the states have not passed such laws, and the
laws that have been passed vary in their effectiveness in terms of enforcement mechanisms, coverage and
remedies. In some jurisdictions, passage of the laws has seemed illusory in light of their uneven application
by administrators and courts.
The road to passage of these laws has not been easy, and over the period in question there have been
failed attempts to pass anti-discrimination laws in many jurisdictions, as well as initiatives and referenda to
repeal them. One such initiative, in Colorado in 1992, led to the Supreme Court’s 1996 decision in Romer v.
Evans, finding that Amendment 2 was unconstitutional due to its extraordinarily broad sweep, as it both
prohibited enforcing existing state and local bans on sexual orientation discrimination where gay people were
the plaintiffs, but also banned the enactment of future protection for “homosexuals.” The Supreme Court
could not find any legitimate justification for such a broad deprivation of equal citizenship, thus confirming
that disapproval, bias or prejudice against sexual minorities, when translated into state policy, violated the
equal protection rights guaranteed by the 14 amendment.
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A spread-sheet that accompanies this letter provides a detailed listing of cases showing the pattern of
discrimination that has occurred. In this letter, I will provide an overview of the data and a few examples
pointing up the particular need for federal legislation on this subject to provide a more certain basis for
addressing such discrimination than is afforded through direct constitutional litigation.
Overview of the Pattern of Discrimination Against Sexual Minorities by State and Local
Governments
Because only a small proportion of those who experience employment discrimination actually file
charges or bring suit, and because the overwhelming majority of employment discrimination claims that are
filed get dismissed or settled in the administrative process, reported lawsuits involving employment
discrimination represent the tip of an iceberg. In addition, most published opinions involve appellate rulings,
as few jurisdictions officially publish opinions by trial judges, and there is rarely a published opinion after a
jury trial. Thus, the cases that come to my attention through formal court opinions being reported on Westlaw
or through newspaper accounts of trial verdicts or settlements of lawsuits constitute only a glimpse of the
actual situation. In addition, because most jurisdictions in the United States provide no express protection
against employment discrimination for gay or transsexual individuals, filing complaints would be futile in
most of these places, so the real discrimination suffered by their residents will never be reflected in actual
court opinions. But the cases that we did find provide a suggestive glimpse of the situation, and the
recurring nature of cases over a period of the last two decades reinforces the conclusion that there remains a
pattern of widespread discrimination.
The discrimination occurs across a range of state and local occupations, but the most frequently
encountered cases involve public school teachers, police officers, and fire fighters. Most of the reported cases
involve local rather than state employees, which is not surprising when one considers that the number of local
police officers and school teachers is huge compared to the number of state employees. It is worth noting
that although these cases involve local employees, state laws and rules play a significant role in many of these
cases. Some of the teacher cases, especially those occurring prior to 2003, turn on state teacher certification
rules that have discriminated against gay people, and some of the law enforcement employee cases have
turned on the existence of state sodomy laws. Ironically, given the social progress that sexual minorities
have made in this country, the number of cases found by going back through my newsletter has grown from
year to year, as those suffering discrimination have become more emboldened to seek redress and as the
number of states and localities providing protection through statutes, regulations or executive orders has
increased, generating hope that initiating a discrimination claim might achieve something for the plaintiff.
In addition, with the advent of the Internet and its dramatic expansion of reporting on these issues through
newsgroups and blogs, it is likely that we have much better information about ongoing discrimination cases
from the most recent years.
I found 35 cases involving county or local law enforcement officers, 7 cases involving firefighters,
and 26 cases involving public school teachers or administrators occurring since 1990. There were also a
handful of cases involving local government health care workers and various other positions, mainly clerical
or administrative, for a total of 79 cases involving county or municipal employees or employees of county or
municipal agencies or programs that would be subject to the requirements of the 14 Amendment.
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At the level of state employment, the range of occupations was greater and the overall numbers
smaller, as expected. I found four cases involving state law enforcement personnel, six cases involving state
education (universities and colleges) personnel, a few corrections officers and health care workers, and about
a dozen “miscellaneous” cases spread throughout various kinds of agencies. Altogether, there were 26 cases
involving employees of state government or state entities (such as universities or colleges) among the cases
reported in my newsletter.
What was more significant than the numbers, however, was how widespread the instances of sexual
orientation and gender identity discrimination complaints were. The cases I have reported about in Law
Notes have come from the following states: Alabama, Arizona, California, Connecticut, Florida, Georgia,
Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey,
New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming, as well as the Commonwealth of
Puerto Rico. Thus, 31 states are represented in this enumeration, and the lack of a reported case from a
jurisdiction does not, as indicated above, necessarily mean that there is no discrimination against sexual
minorities in that jurisdiction, merely that the iceberg hasn’t poked its tip above the surface in those states.
Every region of the country is represented, and more cases originated in California than anywhere else, which
is not surprising given the sheer size of the population of that state.
Why Statutory Protection Is Needed to Protect Public Employees
While a careful review of the Supreme Court’s opinions in Romer v. Evans and Lawrence v. Texas
should make clear that public employers are bound not to discriminate on the basis of sexual orientation, or
on the basis that their employees are engaged in lawful intimate relationships with same-sex partners, there is
still a need for statutory protection, for several reasons.
First, the Court’s opinions in Romer and Lawrence are somewhat opaque, leaving a difference of
opinion among the lower courts about how sexual minority discrimination claims should be analyzed for
purposes of constitutional protection. In Romer, the Court found that Amendment 2 “defied” traditional equal
protection methodology and declared the measure unconstitutional without expressly stating whether sexual
orientation is a suspect classification or whether sexual orientation discrimination claims brought by
individuals should command heightened or strict scrutiny by the court of the defendant’s case. Instead, the
Court stated that it could find no legitimate justification for the measure, thus invalidating it without having
to weigh state justifications against the asserted constitutional right of equal treatment.
Similarly, in Lawrence, the Court’s opinion did not engage in any detailed analysis of whether the
right implicated in the case was fundamental, and although it had granted certiorari on the question whether
the Texas Homosexual Conduct Law violated the Equal Protection Clause, it declined to rule on that
question directly, leaving any detailed discussion of equal protection to Justice Sandra Day O’Connor’s
concurring opinion. As in Romer, here the Court found no legitimate justification for applying criminal law
to the conduct of the plaintiffs, and struck the law as failing to meet the least demanding level of
constitutional scrutiny. In her concurring opinion, Justice O’Connor suggested that statutes burdening
intimate relationship be subjected to “more searching” rationality review, which seems to suggest some sort
of slightly heightened scrutiny. At the very least, Justice O’Connor’s discussion of the Equal Protection
issue raised by the Texas law appeared to contemplate that some burden should be placed on the state to
justify its unequal treatment of gay people.
Thus, as far as the Supreme Court is concerned, these questions have not yet been definitively
answered. However, as a result of the failure of these two opinions to engage in a more detailed equal
protection analysis, and the use of what appeared to be “rationality review” to strike down the state
measures, many lower courts have persisted in holding that sexual orientation discrimination claims merit
only deferential rationality review of the government’s action. Rarely are these lower court holdings based
on any kind of detailed analysis of the factors usually considered by the Supreme Court in making such
determinations. Instead, many judges simply cite Romer, mistakenly, for the proposition that sexual
orientation discrimination claims receive rationality review. In many cases, lower courts cite court of
appeals decisions pre-dating Romer (and thus, of course, predating Lawrence, in which Bowers v Hardwick
was overruled), and such earlier court of appeals decisions frequently rely on Bowers v. Hardwick as a basis
for rejecting the plaintiffs’ equal protection claims.
A federal statute declaring that sexual orientation and gender identity discrimination by state and
local government employers are unlawful would help to make concrete the guarantee of equal protection of
the laws in these cases, and would shift a burden of production to the government to provide legitimate
reasons for adverse personnel decisions. By contrast, in litigation under the Equal Protection Clause, the
government has no burden of production or proof as to non-discriminatory reasons for its actions if there is
neither a suspect classification nor a fundamental right involved in the case. Enactment of ENDA would
ensure, at least, that where a prima facie case of discrimination has been alleged, the government employer
would be obligated to articulate a non-discriminatory reason for its actions. And it is certainly open to
Congress, as a co-equal branch of government, to declare its understanding that the 14 Amendment would
protect sexual minorities from invidious employment discrimination by state or local governments.
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In addition, a lack of recent affirmative court of appeals decisions has meant that in some cases courts
have found that public officials whose actions would otherwise be subject to constitutional challenge are
protected by the doctrine of qualified immunity, under which damage claims may not be asserted against
officials who acted unlawfully unless it was clearly established in controlling precedent cases that the conduct
in which they engaged was constitutionally forbidden. The qualified immunity problem would be resolved
by the enactment of an affirmative ban of such discrimination in a federal statute.
The foremost illustration of this immunity problem is Milligan-Hitt v. Board of Trustees of Sheridan
County School District No. 2, 523 F.3d 1219 (10 Cir. 2008), a case that arose in Wyoming, where there is
no state statutory protection against sexual orientation discrimination. Although a trial jury determined that
the school district, acting through its superintendent, had discriminated against well-qualified lesbian
applicants for administrative positions, the court of appeals reversed the verdict on grounds of qualified
immunity. Based on evidence presented to the jury, the court found that the jury could have concluded that
the superintendent recommended against promoting these individuals because he anticipated community
disapproval based on their lesbian orientation and relationships. Such a justification for discrimination
would clearly be ruled out under Justice O’Connor’s description of the existing equal protection precedents
in her concurring opinion in Lawrence v. Texas. But the 10 Circuit, noting that the events in this case took
place shortly before Lawrence was decided, opined that gay people did not then enjoy a clearly established
right not to be discriminated against on these grounds, and the court declined to speculate about whether
such a right would be considered clearly established after Lawrence was decided, either. A different 10
Circuit panel, ruling in a case presenting facts that occurred after Lawrence was decided, subsequently found
that the right had been clearly established, and rejected a similar qualified immunity argument in
Price-Cornelison v Brooks, 524 F.3d 1003 (10 Cir.2008), an Oklahoma case that did not, however, concern
public employment. The qualified immunity problem theoretically persists in many of the federal circuits
where the courts of appeals have not yet issued rulings in particular cases clearly identifying the
constitutional non-discrimination right for sexual minorities.
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Another reason why a statute is needed is that it is more difficult for those encountering
discrimination to vindicate their rights in the absence of an administrative agency to receive charges,
investigate complaints, seek to mediate settlements, and represent the charging party in subsequent litigation
if mediation fails to produce a settlement. As noted above, the overwhelming majority of discrimination
claims that are filed with administrative agencies are resolved within the administrative system with no need
for litigation. Making an agency available provides the mechanism for neutral investigation of
discrimination claims and for a neutral party, the enforcing agency, to attempt to secure a settlement before
positions harden into intransigence. Many discrimination claims by sexual minorities would arise in localities
or states that provide no statutory protection against discrimination, so state or local civil rights agencies are
not available to fulfill this important role.
A federal statute would enable the Equal Employment Opportunity Commission to provide the
necessary administrative apparatus for the efficient processing of such claims. In states and localities
where such protection is provided, of course, the EEOC could defer enforcement to those local agencies
whose authority is at least co-extensive with that of the EEOC, and it is likely that the passage of the
federal bill would give impetus to efforts to legislate on this subject on the state level, resulting in even
more deferral jurisdictions. An administrative process would also introduce more order and
predictability by providing the normal apparatus of administrative enforcement, including an express
statute of limitations, an express description of the types of claims that are or are not covered, and a
statutory remedial scheme. At present, public employees who must go directly to court under 42 USC
sec. 1981 have none of this available to them, and are left in each individual case to litigate the
“unsettled” questions about the level of judicial review, taking what should be the routine enforcement of
a non-discrimination policy into the realm of abstruse and expensive constitutional litigation.
The Record of Discrimination by Public Employers
Twenty-six cases involving relevant charges of employment discrimination by state employers
have been identified through the archived issues of Lesbian/Gay Law Notes. These are court actions that
resulted in decisions published on Westlaw or reported in newspapers of general circulation. As such, they
are merely the tip of an iceberg. Here are descriptions of some of the most recent cases:
Glenn v. Brumby, 2009 Westlaw 1849951 (N.D.Ga. 2009). The plaintiff, Vandiver Elizabeth Glenn,
was employed by the Georgia Assembly’s Office of General Counsel, which provides legal research and
editorial assistance for the state legislative process. Glenn, a transsexual, was hired as a man but shortly after
beginning work was diagnosed as having gender identity disorder (GID), which means that Glenn’s physician
determined that Glenn was transsexual. Glenn sought to undergo physical transition so that her female gender
identity would be in accord with he physical appearance. This transitioning process is standard medical
treatment for gender identity disorder. When informed about Glenn’s intentions, her superiors discharged
her, articulating three reasons, none of them having to do with Glenn’s abilities or job performance: they
disapproved of her course of action on moral grounds, they believed that such a transition would be
inappropriate to their workplace, and they believed that co-workers would be made uncomfortable by the
transition process. These are the kinds of objections that are normally considered unavailing in employment
discrimination cases. Glenn has sued in federal court under the Equal Protection Clause, and the federal
district judge has rejected the employer’s motion to dismiss the case, finding that a valid constitutional claim
has been alleged. Because Georgia does not have a statute banning gender identity discrimination and there is
no precedent for such a claim under state law, Glenn’s only recourse was to litigate in federal court.
New York State Department of Correctional Services v. New York State Division of Human Rights,
861 N.Y.S.2d 494 (N.Y. App. Div., 3d Dept. 2008). The complainant, Alice Humig, a lesbian, is a state
corrections officer. She proved to the satisfaction of the New York State Division of Human Rights that she
had been subjected to sexual harassment and a hostile work environment by a discriminatory male supervisor,
and thus had stated a claim under the State Human Rights Law for both sex discrimination and sexual
orientation discrimination. New York State’s Human Rights Law authorizes damages for emotional distress,
and the State Division awarded $850,000 on that ground. The Department of Correctional Services sought
judicial review in the Appellate Division, which found that the agency’s decision was sustainable on the
record but that the damage award was excessive, so it reduced the penalty to $200,000.
Aguiar v State of New York, 2008 WL 4386761 (S.D.N.Y. 2008). Mark Aguiar is an openly-gay
court attorney working for the Appellate Term in New York County, an intermediate appellate state court. He
claimed that although he was qualified and among the most senior attorneys who had applied for a
promotion, he was passed over because of his sexual orientation. He sued claiming a violation of his rights
under state and federal law, and settlement negotiations ensued. Settlement negotiations ensued. The state
claimed that there was an agreement that would justify terminating the lawsuit. Aguiar demurred,
contending that the defendants had refused to reduce the agreement to writing. The federal magistrate to
whom the matter had been referred ruled in favor of the state, finding that Aguiar was bound by the verbal
settlement agreement. That there was any settlement agreement suggests that the defendants found some
merit to Aguiar’s allegations of discrimination.
Trevino v. Health Care Services, 2008 WL 4449939 (W.D.Tex. 2008). Ramsey Trevino, a
transsexual employed by the state health agency, alleged that she had been subjected to inappropriate
comments, jokes, and a hostile work environment because of her race and gender, filing suit under Title VII.
The defendant sought to have the claim dismissed, arguing that Title VII does not protect transsexuals from
discrimination. The magistrate judge to whom the motion was referred refused to dismiss the case, finding
that Trevino had alleged a viable case of race and sex discrimination. This is one of several recent cases,
almost all involving public employees, in which courts have adopted a broader view of “sex discrimination”
under Title VII to include discrimination against individuals because they fail to conform to gender
stereotypes. Of course, only sexual minorities who fail to conform to gender stereotypes in visible ways can
resort to this theory of Title VII protection. Those whose sexuality does not express itself in non-conforming
ways are left without a remedy for discrimination solely based on their sexual orientation or gender identity.
Vivas v. Fresno State University. The Associated Press reported in July 2007 that a jury had
awarded $5.85 million to Lindy Vivas in her discrimination case against Fresno State University in
California. Vivas’s case convinced the jury that the University had refused to renew her contract as a
volleyball coach at the state school because of her advocacy of gender equity and her perceived sexual
orientation. The evidence presented at trial must have outraged the jury, because it awarded damages far
exceeding the amount sought in the complaint.
Nearly 80 cases of sexual orientation or gender identity discrimination alleged against local
government employers were reported by Lesbian/Gay Law Notes over the past two decades. The
overwhelming majority of these cases involved just three categories of employment: public school educators,
police officers, and fire fighters. In most of the cases, a major part of the claim is for hostile environment
harassment. In some, the problem is discharge from employment after the employer discovers that the
employee is gay or transsexual. As noted above, prior to the Lawrence decision in 2003, some
discrimination cases involving local police officers have turned on the existence of a state sodomy law, and in
some states the teacher cases were affected by state licensing rules. The lack of express protection against
discrimination would naturally deter many potential complainants from bringing formal charges in the face of
such discrimination, so that – as in the state level employment cases – it is likely that the eighty cases are just
the tip of an iceberg. The accompanying spread sheet provides details on these cases, some of which resulted
in settlements with substantial damages being paid to the complainants. As noted at the outset of this section
of the letter, however, the enumeration of cases here undoubtedly understates the scope of the problem, since
these cases are generated from jurisdictions that do provide some kind of cause of action, or are the rare
constitutional equal protection cases that survive pre-trial skirmishes sufficiently to generate actual opinions
or new reports.
Conclusion
Discrimination against sexual minorities in government employment remains a widespread and
pervasive phenomenon. Even though the factual record that can be compiled based on reported court
opinions and newspaper accounts of particular cases is incomplete, it is sufficient to demonstrate that
Congressional action to enforce equal protection rights through passage of the Employment
Non-Discrimination Act is needed, and that the problem is sufficiently serious to justify making the full
remedial arsenal of the statute available to redress discrimination by state and local government employers.
Sincerely,
Arthur S. Leonard
Professor of Law & Editor, Lesbian/Gay Law Notes