Monday, November 4, 2013

Boehner Claims ENDA Would Spark Litigation Avalanche, Statistics Not Supportive

Earlier today the Employment Non-Discrimination Act passed vote  to end debate in the Senate 61-30.  A final vote is expected this Thursday in the Senate with passage in the House looking very dim.  Recently, Speaker John Boehner (R., Ohio), in voicing objection to passage of the bill stated that "...[t]his legislation will increase frivolous litigation and cost American jobs, especially small-business jobs,”  However, data and statistics according to a report released in July by the U.S. Government Accountability Office. The agency examined the number of complaints filed in the 21 states – 22, including the District of Columbia – with laws on the books forbidding discrimination against lesbian, gay and bisexual workers. Eighteen of those states also ban workplace discrimination on the basis of gender identity, which would apply to transgender people.  From the Wall Street Journal article on the Speaker's remarks:
The data “show relatively few employment discrimination complaints based on sexual orientation and gender identity,” the GAO found. The agency looked at data provided by the states for the years 2007 to 2012. 
In Wisconsin, for example, only 69 of the 3,383 employment discrimination grievances filed in 2012 – or 2% — included sexual orientation as a basis. In Oregon, it was 30 out of 1,676 complaints (1.8%); in New York, 243 out of 5,032 (4.8%); and in California, 1,104 out of 19,839 (5.6%). 
The low numbers partly reflect the fact that only a small percentage of the U.S. population identifies as gay, lesbian or bisexual – 4%, according to the Williams Institute, a research organization based at the University of California School of Law. The Institute estimates that 500,000 Americans are transgender.
Though Wisconsin  provides for protection against employment discrimination on the basis of sexual orientation, further protection at the federal level would better protect employees as the remedy available for a violation found under the Wisconsin Fair Employment Act (WFEA) is limited to a make-whole remedy (i.e., back pay, attorney's fees, lost benefits, etc).  ENDA would provide for similar remedies as other federal anti-discrimination laws in the form of punitive and/or compensatory damages.  Stay tuned!

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