Wednesday, November 21, 2007

ENDA: need to watch public "telling"

The text of the Employment Non-Discrimination Act (ENDA), HR 2015, as passed by the House of Representatives, may be found here.

I note that the word “gender identity” appears in the text, and apparently (according to previous media stories) this was removed in the version passed by the House.

I also notice the phrase “actual or perceived sexual orientation.”

One concern in some specific areas could be public speech. The First Amendment protects individuals from actions by their government for protected speech, but it does not prohibit actions by private entities for such (as with the Boy Scouts case).

I would be important in some circumstances to protect an individual who has stated homosexual orientation in a public forum, including the Internet (especially on a site [ blog, social networking site, or more conventional website] that is completely open to the public and not whitelisted, and that is searchable). One can see how the issue could come up, for example, with public school teachers, who are supposed to be protected by the First Amendment for off-campus speech (until the speech presents a danger or security hazard), but the Internet is tending to blend off and on campus speech for practical purposes.

Of course, speech on the Internet may constitute "telling" for members of the military, under the current 1993 DADT law.

In general, employers are tending to expect associates to refrain from public speech (even from “home”) that, if found by clients, would call into question the ability of the client to do his/her job or meet the clients needs. One would need to craft ENDA to define sexual orientation as not constituting a quality that affects the ability to do a job for a client.

A distant related story on ABCNEWS tonight by Andrea Stone is "Gay Rights Group Boycotts Wal-Mart; Wal-Mart Comes Under Fire for its Refusal to Offer Domestic Partner Benefits", link here. ENDA would probably not require the offering of domestic partner benefits, but would ban discrimination in assigning work or in assigning overtime or oncall hours (out of "heterosexism", sometimes single people are expected to be on-call more, and ENDA could affect that).

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