Senate Committee passes ENDA, which would erode free speech and lead to meritless lawsuits

Senate Committee passes ENDA, which would erode free speech and lead to meritless lawsuits

CensoredOn Wednesday, a Senate Committee voted 15-to-7 to approve the Employment Non-Discrimination Act, “a bill that would prohibit employers from discriminating against workers on the basis of sexual orientation or gender identity,” reported the Huffington Post and The Hill. I previously explained why the bill would encourage meritless litigation through one-way fee-shifting — through the so-called Christiansburg Garment rule — and would undermine free speech about sexual-orientation-related issues in religious bookstores, broadcasters, and media.

That’s because under ENDA, the courts might allow gay employees who overhear theologically-conservative viewpoints about gay marriage or sexual morality in their workplace, or who are exposed to anti-gay religious books, views, or commentary in bookstores or radio or TV shows where they work, to bring “hostile work environment” claims.

ENDA would lead to lawsuits by gay employees over speech that they overhear and perceive as creating a “hostile work environment.”  Although ENDA purports not to include disparate-impact claims, even some courts that construe “hostile work environment” claims as being solely a species of intentional discrimination, i.e., disparate treatment, rather than disparate impact, have nevertheless allowed sexual harassment claims under existing federal laws such as Title VII that really more akin to disparate-impact claims, in that they involved comments or displays that were not aimed at the plaintiff because of her sex, but which merely were overheard by the plaintiff. See, e.g., Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) (en banc) (unanimously allowing sexual harassment lawsuit largely over comments not aimed at the plaintiff, such as offensive radio programs played in plaintiff’s workplace). Based on such logic, an arbitrator in one case allowed a female employee who worked for a broadcaster to collect damages over offensive broadcasts she was exposed to in the course of her job.In another case criticized by civil-libertarians, a college initially found a student guilty of racial harassment for reading a history book about the Ku Klux Klan.

By parity of reasoning, these courts could sharply restrict religious expression about things like gay marriage, sodomy laws, adoption by gay couples, or same-sex unions, that is offensive to gays who overhear it, by interpreting it as a violation of ENDA, even though ENDA purports not to authorize disparate impact claims. Local civil-rights agencies have occasionally charged employers with sexual-orientation harassment for speech that is not even aimed at a gay complainant.

For example, an employer was charged with sexual-orientation harassment under Seattle’s gay-rights ordinance partly for listening to Rush Limbaugh on the radio, which offended a gay employee, even though the charges were controversial, to say the least.  Similarly, in Good News Employees Association v. Hicks (2007), an unpublished, poorly-reasoned Ninth Circuit Court of Appeals decision ruled that the City of Oakland could remove employee flyers containing the terms “natural family,” “marriage” and “family values” after a complaint from a lesbian employee.  A city official had justified this speech restriction by stating that “flyers were placed in public view which contained statements of a homophobic nature and were determined to promote sexual orientation-based harassment.”  In its non-precedential ruling, the appeals court declared that the city had the institutional prerogative to restrict such speech by its own employees, although it did not decide whether such speech constitutes “sexual-orientation harassment.”  (While the Title VII rulings I discussed earlier allowing employees to sue over speech not directed at them are dubious as a matter of statutory construction, they are likely to be followed by courts interpreting ENDA, unless and until constitutional objections are successful raised, since ENDA is largely modeled on Title VII.)

Such speech restrictions raise serious First Amendment problems when imposed on private employers, since such restrictions on religious expression are constitutionally more suspect in the eyes of many judges than bans on sexual expression in the workplace, compare Meltebeke v. BOLI, 903 P.2d 351 (Or. 1995) (voiding religious harassment fine imposed on private employer for unintentionally offensive religious speech that created a religiously-hostile work environment as violation of state religious-freedom guarantees) with Robinson v. Jacksonville Shipyards, 760 F.Supp. 1486 (M.D. Fla. 1991) (upholding injunction against pornography in workplace to remedy sexual harassment). In short, hostile-environment claims are likely to be viewed as constitutionally problematic more often under ENDA than under existing federal law.

For a discussion of the broad range of speech that hostile-environment harassment law already reaches, see the writings of U.C.L.A. Law Professor Eugene Volokh, which you can find here and here, in commentaries explaining why the First Amendment logically limits liability by private employers for the speech of their employees.  Volokh is the author of First Amendment textbooks and is widely cited by American judges and law reviews, including in opinions that have been joined in by every sitting U.S. Supreme Court justice. Courts have occasionally blocked hostile-environment racial or sexual harassment lawsuits over core political speech — like the Ninth Circuit’s decision in Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010), blocking a racial-harassment suit over anti-immigration emails on First Amendment grounds— but generally, the courts have allowed the concept of a “hostile work environment” to reach a broad range of speech, and out of ingrained habit, courts are likely to continue that practice when they interpret ENDA, paving the way for constitutional clashes. (The Supreme Court has never squarely addressed the issue, as Justice Thomas noted in his opinion in Avis Rent-A-Car System v. Aguilar, thus leaving enormous uncertainty in just how far political or religious speech can be restricted in the name of preventing a hostile work environment.)  Hostile-environment “harassment” liability for student speech is also logically limited by First Amendment academic-freedom principles, as court rulings striking down overbroad campus racial and sexual harassment codes illustrate, in court decisions like Dambrot v. Central Michigan University (1995) and DeJohn Temple University (2008).

One common misconception promoted about ENDA is that its exclusion of disparate-impact claims would prevent meritless statistically-based suits against employers saying they haven’t hired enough gay employees on a numerical basis. This reflects the misconception that statistical cases can only be brought under a disparate-impact theory. In reality, gross statistical disparities can also give rise to a lawsuit under an intentional-discrimination theory, too, if the disparity is significant enough, although in such cases, the employer is theoretically allowed to defend itself by giving innocent reasons for the disparity. See International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Even flawed statistical evidence is admissible in the eyes of many courts under the Supreme Court’s 1986 Bazemore decision, and even an innocent employer risks a finding of liability based on sloppy regression analyses that do not include all relevant variables. The possibility of flawed statistical evidence is particularly great under ENDA, because the percentage of gay Americans — unlike the percentage of black Americans — is not subject to precise calculation, and is often massively overstated by the public, no doubt including many judges and jurors.

The possibility of pressure to hire-by-the-numbers cannot be ruled out under ENDA. Activists have already pressured President Obama to mandate sexual-orientation-based hiring goals for government contractors. The Supreme Court’s decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), permits employers to be held liable for “disparate treatment” (not just “disparate impact”) if circumstantial evidence in the form of workplace racial imbalances suggests that the employer is guilty of discrimination. Statistical disparities are treated as creating a “prima facie” case of “disparate treatment” if the racial or sexual composition of the employer’s workforce is at least two standard deviations away from the purported norm. But no one knows exactly what that norm is for sexual orientation. As the leading pollster Gallup notes, Americans tend to vastly overestimate the percentage of the population that is gay. As Garance Franke-Ruta of The Atlantic notes, Americans systematically overestimate the percentage of the population that is gay or lesbian: “‘U.S. adults, on average, estimate that 25 percent of Americans are gay or lesbian,’ Gallup found,” even though “fewer than 5 percent of Americans identify as gay or lesbian.” In short, due to widespread misconceptions about the percentage of gay Americans, ENDA could lead to meritless statistically-based suits against employers under a Teamsters-style pattern-or-practice (or “statistical disparity”) theory.

I share the Senate Committee’s disapproval of prejudice towards LGBT Americans. But if federal lawmakers wanted to help LGBT Americans, they should have focused on repealing their own discriminatory laws against gays and lesbians (I and my co-workers have criticized federal discrimination against gay people in the past, here, here, here, and here), rather than imposing new burdens on American business, which is perfectly happy to hire gay employees, and has a much better record of fairness based on sexual orientation than Congress itself. As I noted earlier, “American business is quite happy to hire gay and lesbian employees, and needs no federal mandate to do so. Virtually all Fortune 500 companies already ban sexual orientation discrimination in their own hiring and firing, and have done so for years.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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