Lawyers Tweak ENDA Language
By Kerry Eleveld
A House committee vote on the Employment Non-Discrimination Act,
originally scheduled for Wednesday, November 18, was postponed so
that lawyers could adjust the legal language regarding issues of
disparate impact, double recovery, and attorney’s fees.
“Our understanding is that the committee lawyers wanted a few
more days to look at several of the outstanding issues,” said
Allison Herwitt, legislative director for the Human Rights
ENDA would prohibit employers from discriminating against workers
on the basis of their sexual orientation or gender identity. The
legal fine-tuning stands to push back the date of the committee
vote by about two to three weeks. “Hopefully, we’ll be able to
see a markup after Thanksgiving and before the end of the year,”
Rep. Barney Frank of Massachusetts, lead sponsor of the bill, has
suggested the full House vote might not take place until February
of next year.
Disparate impact is a type of legal case filed against an employer
with an employment practice that does not appear to be overtly
discriminatory but is nonetheless discriminatory in practice.
Herwitt said the lawyers are working to ensure that such cases will
not be allowed under ENDA although they are allowed to be brought
under Title VII of the 1964 Civil Rights Act, which prohibits
discrimination on the basis of race, color, gender, religion, or
The committee is also clarifying that if a plaintiff files a
discrimination case under Title VII, they cannot also pursue an
ENDA case under the same claim — a situation that would create
the potential for “double recovery.”
“Some Title VII cases have been filed based on gender
identity,” said Herwitt, explaining the potential for
In terms of attorney’s fees, the committee’s goal is to restrict
the latitude of the Equal Employment Opportunity Commission so it
cannot assign the fees to defendants in successful discrimination
“Granting attorney fees to the party that prevails is not
something that will be available,” Herwitt explained.
Once committee lawyers have completed the adjustments, Herwitt said
they would be sharing the solutions with stakeholders, including
HRC, the U.S. Chamber of Commerce, and Camille Olson, an attorney
and Republican witness who testified at both ENDA hearings about
the pitfalls of the bill’s language in those three areas.
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Senior Legislative Counsel Emily Hecht for live updates.