|
Effects of new employee rights bill uncertain
By Kathleen Dayton
Staff Writer
A bill that would outlaw workplace discrimination based on sexual orientation and gender identity is once again before the U.S. House of Representatives.
Five members of Congress introduced the bill April 24, although versions of similar bills have failed in the past.
The Employment Non-Discrimination Act, H.R. 2015, has bi-partisan sponsorship from Reps. Deborah Pryce, R-Ohio; Barney Frank, D-Mass.; Tammy Baldwin, D-Wis.; Christopher Shays, R-Conn.; and Jerrold Nadler, D-N.Y.
A number of states have similar laws, but 33 states, including South Carolina, do not have laws prohibiting discrimination based on sexual orientation and gender identity.
“This is an attempt to expand further the protections of the Civil Rights Act. It’s just an expansion of another protected category,” said David McCormack, an attorney specializing in labor and employment law with Buist Moore Smythe McGee PA.
A lot of companies, particularly national corporations, have already adopted similar non-discriminatory policies, McCormack said.
Opinions vary as to whether the federal law is necessary.
“Some employers probably don’t care; they’ve already adopted the policy,” McCormack said. “Other employers don’t want to deal with another issue. It just creates another work place right that they have to deal with and that would be a reason they might opposed it.”
While ENDA may not be a top priority in Congress, some feel it could become an election issue. Democratic frontrunners Sen. Hillary Clinton of New York and Sen. Barack Obama of Illinois support passing ENDA, while Republican presidential candidate Mitt Romney reversed his position on the bill, saying there is no need for new or special legislation regarding discrimination in the work place.
Romney said his experience as governor has convinced him that the passage of such a bill would open a floodgate of litigation that could unfairly penalize employers.
Local attorneys aren’t yet sure what effects the bill would have if it passes.
“You will see an increase in lawsuits, but I don’t think it will be significant,” said Sherrie Blackburn, head of the employment team and a partner at Nelson Mullins Riley & Scarborough LLP.
“I think the sexual orientation issue has been out there for a while. Some companies do have in their own policies a provision that they will not discriminate based on sexual orientation even though Title VII of the Civil Rights Act does not address sexual orientation. It’s adding another protective class of individual to a company’s policy.”
Blackburn said discrimination cases based on sexual orientation or gender identity are especially hard to prove when companies have documented other reasons for firing or not hiring an employee, such as performance problems.
“It’s like any other protective class. The individual is going to have to show they were discriminated against based on their sexual orientation,” Blackburn said. “If the company points to performance problems or some other reason for termination, then the employee has to show that’s merely a pretext. I don’t think there will be a significant change in the number of lawsuits filed, because most companies today are not treating someone differently because of their sexual orientation.”
Employment law experts in the Charleston area say most discrimination lawsuits they have handled deal with racial discrimination.
“I think race is still the primary area of discrimination, but I think there’s been an increase in disability discrimination from what I have been seeing in my practice,” said Shawn D. Wallace, a partner with Young Clement Rivers LLP and a certified specialist in employment and labor law.
“Once you have any kind of new law come out, both the lawyers for the plaintiffs and the lawyers for the defendants don’t know the full parameters of how it’s going to be interpreted until our courts have the opportunity to look at fact patterns. Any new right that’s created will certainly create litigation in relationship to the enforcement of that right.”
Kathleen Dayton is a staff writer for the Business Journal. E-mail her at kdayton@charlestonbusiness.com.
|
E-Mail This Article
Printer-Friendly Version