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Legal record clashes with warning on U.S. gay job-discrimination ban

U.S. House Speaker John Boehner (R-OH) calls on a reporter during a news conference at the Republican National Committee offices on Capitol
U.S. House Speaker John Boehner (R-OH) calls on a reporter during a news conference at the Republican National Committee offices on Capitol

By Amanda Becker

WASHINGTON (Reuters) - John Boehner, the top Republican in the U.S. Congress, predicts a wave of litigation if a bill banning discrimination against gay, lesbian and transgender workers becomes law, but states with similar laws report relatively few such complaints.

Warnings from the speaker of the House of Representatives about the bill - headed for Senate approval this week - also contrast with how such claims are handled by courts, enforcement agencies and employers, lawyers told Reuters.

As of April, 88 percent of Fortune 500 companies already had non-discrimination policies for sexual orientation, and 57 percent had such policies for gender identity, according to the Human Rights Campaign, a gay and transgender rights groups.

Moreover, attorneys said, the U.S. Equal Employment Opportunity Commission (EEOC) and the courts already use current laws to combat gender identity and sexual orientation discrimination in the workplace.

The EEOC enforces the country's federal employment anti-discrimination laws.

Tico Almeida, president of Freedom to Work, a group that lobbies against gay, lesbian and transgender discrimination, said the main advantage of a federal statute is that it would replace a "patchwork" of laws with a single clear-cut standard.

"We'll be avoiding possible circuit splits and conflicting decisions by federal courts about whether they agree with the EEOC ... . It will decrease the need for litigation over the legal issue," Almeida said.

The Employment Non-Discrimination Act, or ENDA, is expected to pass the Senate, led by Democrats, within days. But its fate in the Republican-controlled House is uncertain.

Boehner has indicated the legislation may hit a roadblock there. His office cites a September 2013 study by the non-partisan Congressional Budget Office. It said ENDA would require the EEOC to hire 110 more employees at a four-year implementation cost of $47 million.

"We are concerned the bill creates a new right of action based on vague, undefined language that does not exist elsewhere in federal non-discrimination law. It would undoubtedly lead to an increase in lawsuits, as indicated by the CBO report," Boehner spokesman Michael Steel told Reuters.

Boehner wields enormous power by controlling which bills go to the House floor for a vote and which do not, meaning he could block ENDA from coming to the floor for action.

'RELATIVELY FEW' COMPLAINTS

Twenty-one states and the District of Columbia ban workplace discrimination based on sexual orientation. Of those, 18 also ban discrimination based on gender identity.

Two studies by the non-partisan Government Accountability Office (GAO) found that, in states that have such bans, sexual orientation and gender identity claims make up a small percentage of total workplace discrimination claims filed by employees with administrative agencies.

Both GAO reports said there were "relatively few" complaints based on sexual orientation and gender identity.

The most recent GAO report came out in July. It showed that in states that ban sexual orientation discrimination, such claims accounted for 1.8 percent to 6.7 percent of the administrative employment-discrimination complaints filed last year. Gender identity claims, where covered by statute, were an even smaller proportion.

In Colorado, 35 out of a total 516 job discrimination claims filed statewide involved sexual orientation, while just one involved gender identity discrimination in fiscal year 2011-2012.

In fiscal 2007-2008, when sexual orientation and transgender became a protected status in Colorado, there were 21 sexual orientation and two gender identity claims filed with state agencies. No such category existed before then, so there were no claims.

In California GAO found that 1,104 of 19,839 employment discrimination administrative complaints filed in calendar year 2012 were sexual orientation claims. California does not track gender identity complaints separately.

"The GAO reports are hugely helpful ... . We bring them to every meeting and use them to dispel the myth that ENDA will create a flood of litigation," Almeida said.

Almeida also said the Senate bill does not permit a type of lawsuit known as a "disparate impact" claim, which allows plaintiffs to sue for practices that have a discriminatory result, even if it was unintentional.

There are also exceptions in the bill for religious organizations and for workplaces with fewer than 15 employees.

Attorneys who advise employers said that as a practical matter, the EEOC and some federal appeals courts have already established that sexual orientation and gender identity are classes protected from workplace discrimination.

In a unanimous, bipartisan decision last year in Macy v. Holder, the EEOC said that the 1964 civil rights statute that covers employment discrimination claims applied to a transgender individual who had sought a job at the Bureau of Alcohol, Tobacco, Firearms and Explosives.

"So what does ENDA do for employers? Certainly in one regard it would clarify and make abundantly certain that discrimination based on sexual orientation and gender identity is prohibited," said attorney Denise Visconte of Littler Mendelson, a firm that represents employers. "There wouldn't be this patchwork of laws, that's really the biggest thing."

(Editing by Kevin Drawbaugh and Xavier Briand)

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