DOCSLIB.ORG

Sexual Orientation: Developments in the Law and Issues for the Courts

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Sexual Orientation: Developments in the Law and Issues for the Courts Sexual Orientation: Developments in the Law and Issues for the Courts Prepared at Seattle University School of Law for the Washington State Gender and Justice Commission From Gay Marriage to Domestic Violence to Hate Crimes: What You Need to Know About the Cases Coming to Your Court Tuesday, October 4, 2011 53rd Washington Judicial Conference Primary Authors: Cynthia B. Jones, Seattle University School of Law Niloufar A. Park, Seattle University School of Law Tammy M. Sittnick, University of Washington School of Law Quita St. John, Seattle University School of Law With the Assistance of: The Honorable Mary I. Yu, King County Superior Court Professor David M. Skover, Seattle University School of Law Professor Julie Shapiro, Seattle University School of Law Professor Anne M. Enquist, Seattle University School of Law Stephanie Wilson, Reference Librarian, Seattle University School of Law Tracey A. Thompson, Staff Attorney, Teamsters Local Union No. 117 Jeffrey L. Nesiba, Seattle University School of Law Aaron Pritchard, Seattle University School of Law Additional Credits: The authors would like to thank Nancy Bradburn-Johnson, Bonnie Canada- Thurston, Corey Edmonds, Rudolph Hasl, Gloria Hemmen, Kimberley Prochnau, Doris Russell, Suzanne J. Thomas, and Kellye Testy for their support of and assistance with this project. Second Edition Edited by: E. Ross Farr Table of Contents I. Preface Preface to Second Edition............................................................................I-1 Introduction ..................................................................................................I-2 Terminology .................................................................................................I-2 Court Rules and Professional Responsibility................................................I-3 Demographics ..............................................................................................I-4 II. Family Law Introduction ..................................................................................................II-1 Meretricious Relationships & the Non-Marital Couple ..................................II-1 Marriage .......................................................................................................II-5 Registered Domestic Partnership.................................................................II-7 Adoption .......................................................................................................II-9 Parentage and Custody of Children .............................................................II-11 Domestic Violence........................................................................................II-12 III. Employment Law Introduction ..................................................................................................III-1 Employment Discrimination Under Washington Law....................................III-1 Employment Discrimination Under Federal Law ..........................................III-5 Employee Benefits .......................................................................................III-10 IV. Criminal Law Introduction ..................................................................................................IV-1 Malicious Harassment—“Hate Crimes” ........................................................IV-1 Rape.............................................................................................................IV-5 V. Youth Introduction ..................................................................................................V-1 Gay, Lesbian, Bisexual, Transgender Youth, and Schools .........................V-1 Gay, Lesbian, Bisexual, Transgender Youth, and Foster Care ....................V-2 VI. Transgender/Transsexual Issues Introduction ..................................................................................................VI-1 Medical and Other Studies ...........................................................................VI-1 Terminology .................................................................................................VI-1 Discrimination...............................................................................................VI-2 Changing Sex on a Birth Certificate .............................................................VI-2 Changing Sex on a Driver’s License ............................................................VI-3 Name Change ..............................................................................................VI-3 Marriage .......................................................................................................VI-4 Custody of Children......................................................................................VI-4 Incarceration ................................................................................................VI-4 Appendix A. Style Book Supplement A-1 B. Percentage of Same-Sex Couples by County B-1 C. Private Sector Codes and Ordinances C-1 D. Public Sector Employee Codes and Ordinances D-1 E. Employment Policies E-1 F. Additional Resources F-1 G. Final Bill Report SSB 5336; Chapter 156; Laws of 2007 G-1 I. Preface A. Preface to Second Edition Since the publication of the first edition of this benchguide in 2004, Washington State has seen significant changes in the law as it affects gay, lesbian, bisexual and transgendered (“GLBT”) persons. The state legislature has added sexual orientation as a protected against discrimination in employment and housing. Although our Supreme Court has held that same-sex couples do not have a right to marry under state constitution, the legislature has created a state-wide domestic partnership registry, which provides same-sex couples with some, but not all, of the rights afforded to married couples. The Supreme Court affirmed the doctrine of de facto parentage articulated by the Court of Appeals, and suggested that it is finally time to set aside the pejorative term “meretricious relationship” when dividing property between unmarried couples, suggesting that we call those relationships what they are – “committed intimate relationships.” This second edition leaves in tact the hard work of the original authors and contributors, while attempting to reflect the changes mentioned above. As the law is a work in progress, so is this benchguide, and it will undoubtedly require further updates as the law changes. It is my hope that the second edition continues to provide Washington’s judges with a point of reference for the particular ways that the law touches the lives of GLBT persons in their courtrooms. October 2007 E. Ross Farr Editor, Second Edition I - 1 B. Introduction As our society becomes increasingly aware of the existence and needs of gay, lesbian, bisexual, and transgendered (“GLBT”) persons, there inevitably will be more “openly” GLBT people and issues within our courts. See, e.g., Jill Schaachner Chanen, The Changing Face of Gay Legal Issues, AMERICAN BAR ASSOCIATION JOURNAL, July 2004, at 47. These developments serve to challenge each judicial officer to become familiar with the current state of the law and to maintain a forum that is free of bias. A 2001 California study by the Judicial Council’s Access and Fairness Advisory Committee found that 56% of gay and lesbian court users observed or experienced a negative comment or action, particularly when sexual orientation was at issue. See Judicial Council of California, Sexual Orientation Fairness in the California Courts, Jan. 2001, at 3-4. One in five California court employees of all sexual orientations heard “derogatory terms, ridicule, snickering or jokes about gay men and lesbians in open court, with the comments being made most frequently by judges, lawyers, or court employees.” Id. at 4. This percentage increased in situations other than open court. Id. at 6. As we all know, reaching the lawful decision in a case is not enough to offset any perception of bias. Rather, litigants and parties want to experience our courts as a place where they are heard and are treated with respect and dignity. We also know that racial minorities and women still experience bias in the justice system even though it is not always obvious. In the spirit of promoting fair and equal justice this Handbook is offered as a tool to familiarize judges with the current state of the law affecting GLBT individuals. C. Terminology Language in the courtroom is of utmost importance in assuring a fair and impartial tribunal for all citizens. Pejorative terms can immediately indicate ignorance, disrespect, or even bias on the part of a judge, lawyer, or litigant. In the area of sexual orientation, many people may have questions about the appropriate terms to use to describe persons or issues. Accordingly, this section is designed to develop an awareness of various terms so that oral rulings and written decisions do not communicate an unintended message. 1. National Lesbian and Gay Journalists Association Stylebook Supplement as Guide for Terminology and Usage. a) We offer a terminology stylebook (Appendix A) as a guideline for modern usage of language relating to gay, lesbian, bisexual, and transgender/transsexual people. The terminology is compiled by and used with permission from the National Lesbian and Gay Journalists Association. The style sheet is also used by the American Medical Association. I - 2 b) The language associated with GLBT people is constantly evolving. Indeed, within GLBT communities, there has been reclamation of various words
Load more

Recommended publications
  • Gender Identity Sexual Orientation Discrimination Workplace
    Gender Identity and Sexual Orientation Discrimination in the Workplace A Practical Guide Chapter 19: The Employment Non-Discrimination Act: Its Scope, History, and Prospects Suzanne B. Goldberg, Esq., Terra Hittson, Class of 2014 & Kevin Hu, Class of 2014 Editor-in-Chief Christine MiChelle Duffy, esq. Pro Bono Partnership Parsippany, New Jersey State Laws Executive Editor Denise M. VisConti, esq. Littler Mendelson, P.C. San Diego, California With the assistance of The National LGBT Bar Association and its Executive Director D’Arcy Kemnitz, Esq. AArlington, VA Copyright © 2014 The Bureau of National Affairs, Inc. Reprinted by permission Nothing contained herein is to be considered the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms or agreements herein are intended for educational and informational purposes only. Library of Congress Cataloging-in-Publication Data Gender identity and sexual orientation discrimination in the workplace : a practical guide / Editor-in-Chief Christine Michelle Duffy, Esq., Pro Bono Partnership, Parsippany, New Jersey ; State Laws Executive Editor Denise M. Visconti, Esq., Littler Mendelson, P.C., San Diego, California ; with the assistance of The National LGBT Bar Association and its Executive Director D’Arcy Kemnitz, Esq. pages cm Includes index. ISBN 978-1-61746-300-6 1. Transgender people--Employment--Law and legislation--United States. 2. Gays--Employment--Law and legislation--United States. 3. Gender identity-- Law and legislation--United States. 4. Transphobia--Law and legislation--United States. 5. Homophobia--Law and legislation--United States. I. Duffy, Christine Michelle, editor. II. Visconti, Denise M., editor.
    [Show full text]
  • LGBTQ+ Nondiscrimination Laws in Kentucky
    University of Louisville ThinkIR: The University of Louisville's Institutional Repository Electronic Theses and Dissertations 12-2017 LGBTQ+ nondiscrimination laws in Kentucky. Christopher M Wales University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/etd Part of the American Politics Commons, Lesbian, Gay, Bisexual, and Transgender Studies Commons, Other Legal Studies Commons, Public Policy Commons, Social Policy Commons, and the Urban Studies Commons Recommended Citation Wales, Christopher M, "LGBTQ+ nondiscrimination laws in Kentucky." (2017). Electronic Theses and Dissertations. Paper 2874. https://doi.org/10.18297/etd/2874 This Master's Thesis is brought to you for free and open access by ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. LGBTQ+ NONDISCRIMINATION LAWS IN KENTUCKY By Christopher Michael Wales B.A. Northern Kentucky University, 2014 A Thesis Submitted to the Faculty of the College of Arts and Sciences of the University of Louisville in Partial Fulfillment of the Requirements for the Degree of Master of Public Administration Department of Public Administration University of Louisville Louisville, Kentucky December 2017 LGBTQ+ NONDISCRIMINATION LAWS IN KENTUCKY By Christopher Michael Wales B.A. Northern Kentucky University, 2014 A Thesis Approved on November 16, 2017 by the following Thesis Committee: Dr. Janet Kelly, Chair Dr. Matthew Ruther Dr. Catherine Fosl ii DEDICATION This thesis is dedicated to Carrie Donald, who inspired and encouraged me to pursue social justice, and whose guidance will be greatly missed.
    [Show full text]
  • The Middleborough Public Schools Does Not Discriminate in His Educational Activities Or
    Civil Rights Training and Compliance MIDDLEBOROUGH PUBLIC SCHOOLS What are Civil Rights? Civil rights are the nonpolitical rights of a citizen; the rights of personal liberty guaranteed to U.S. citizens by the 13th and 14th Amendments to the U.S. Constitution and Acts of Congress. Civil rights refer to the fair and equitable treatment of all students and employees. Civil Rights Laws Title VII – Civil Rights Act of 1964, as amended ØRace, color, religion, sex, and national origin (limited English proficiency) ØSex based discrimination now encompasses sexual orientation and gender identity Title IX of the Education Amendments of 1972 ØSex Section 504 of the Rehabilitation Act of 1973 ØDisability Americans with Disabilities Act ØDisability Civil Rights Laws Continued Age Discrimination Act of 1975 ØAge Civil Rights Restoration Act of 1987 ØRace, color & national origin Food Stamp Act of 1977 ØRace, color, national origin, sex, age, religion, and disability Civil Rights Laws Continued Presidential action was influential in adding sexual orientation and gender identity as protected classifications. Presidential Executive Orders added classifications of discrimination when they included sexual orientation and gender identity in employment or security clearance: ØPresident Clinton’s Executive Order 12968 in 1995 involved security clearance and included sexual orientation ØPresident Clinton’s Executive Order 13087 in 1998 prohibited discrimination on the basis of sexual orientation for the federal civilian workforce ØPresident Obama’s Executive Order 13672 in 2014 prohibits discrimination on the basis of both sexual orientation and gender identity in federal hiring and contracting practices Civil Rights Laws Continued President Obama added gender identity to the classifications of people protected by the EECO (Equal Employment Opportunity Commission) in 2010.
    [Show full text]
  • Sexual Orientation and the Federal Workplace
    SEXUAL ORIENTATION and the FEDERAL WORKPLACE Policy and Perception A Report to the President and Congress of the United States by the U.S. Merit Systems Protection Board MAY 2014 THE CHAIRMAN U.S. MERIT SYSTEMS PROTECTION BOARD 1615 M Street, NW Washington, DC 20419-0001 The President President of the Senate Speaker of the House of Representatives Dear Sirs: In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit this U.S. Merit Systems Protection Board (MSPB) report, Sexual Orientation and the Federal Workplace: Policy and Perception. The purpose of our study was to examine Federal employee perceptions of workplace treatment based on sexual orientation, review how Federal workplace protections from sexual orientation discrimination evolved, and determine if further action is warranted to communicate or clarify those protections. Since 1980, the U.S. Office of Personnel Management has interpreted the tenth Prohibited Personnel Practice (5 U.S.C. § 2302(b)(10)), which bars discrimination in Federal personnel actions based on conduct that does not adversely affect job performance, to prohibit sexual orientation discrimination. As this prohibition has neither been specifically expressed in statute nor affirmed in judicial decision, it has been subject to alternate interpretations. Executive Order 13087 prohibited sexual orientation discrimination in Federal employment but provided no enforceable rights or remedies for Federal employees who allege they are the victims of sexual orientation discrimination. Any ambiguity in the longstanding policy prohibiting sexual orientation discrimination in the Federal workplace would be resolved by legislation making that prohibition explicit. Such legislation could grant Federal employees who allege they are victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.
    [Show full text]
  • Letter of Notification of Presidential Records Release (Clinton)
    VIA EMAIL (LM 2016-066) June 8, 2016 The Honorable W. Neil Eggleston Counsel to the President The White House Washington, D.C. 20502 Dear Mr. Eggleston: In accordance with the requirements of the Presidential Records Act (PRA), as amended, 44 U.S.C. §§2201-2209, this letter constitutes a formal notice from the National Archives and Records Administration (NARA) to the incumbent President of our intent to open Clinton Presidential records in response to the Freedom of Information Act (FOIA) requests listed in Attachment A. These records, consisting of 69,555 pages, have been reviewed for all applicable FOIA exemptions, resulting in 2,387 pages restricted in whole or in part. NARA is proposing to open the remaining 67,168 pages. A copy of any records proposed for release under this notice will be provided to you upon your request. We are also concurrently informing former President Clinton’s representative, Bruce Lindsey, of our intent to release these records. Pursuant to 44 U.S.C. 2208(a), NARA will release the records 60 working days from the date of this letter, which is September 1, 2016, unless the former or incumbent President requests a one-time extension of an additional 30 working days or asserts a constitutionally based privilege, in accordance with 44 U.S.C. 2208(b)-(d). Please let us know if you are able to complete your review before the expiration of the 60 working day period. Pursuant to 44 U.S.C. 2208(a)(1)(B), we will make this notice available to the public on the NARA website.
    [Show full text]
  • Public Opinion and Gay Rights: Do Members of Congress Follow Their Constituents’ Preferences?
    Public Opinion and Gay Rights: Do Members of Congress Follow Their Constituents' Preferences? Katherine L. Krimmel Dept. of Political Science, Columbia University [email protected] Jeffrey R. Lax Dept. of Political Science, Columbia University [email protected] Justin H. Phillips Dept. of Political Science, Columbia University [email protected] March 30, 2011 Abstract While gay and lesbian rights have become controversial, high-profile issues in con- temporary American politics, scholars know relatively little about what drives federal policymaking in this area. In this paper, we consider a likely determinant of govern- ment action|public opinion|by investigating the relationship between the roll call votes of members of Congress on gay rights legislation issues and the policy-specific preferences of their constituents. For each state and congressional district, we use national-level surveys and advances in multi-level modeling to estimate the preferences of constituents on bills relating to same-sex marriage, hate crimes, employment non- discrimination, and military service. We then use these estimates to examine the effects of policy-specific opinion on the corresponding roll call votes. In addition to constituent opinion, our models of legislator behavior include variables that capture the partisan identification, ideology, and personal characteristics of individual lawmakers. We can, thus, evaluate the effect of constituent opinion relative to other potential and know de- terminants of roll call votes. Overall, our results will contribute to our understanding of democratic representation, policy responsiveness, and legislative behavior surrounding civil rights issues. 1 Introduction On the same day the nation voted to elect its first African-American president, California voters|who supported Obama over McCain by a wide margin of 61% to 37%|voted to ban gay marriage through Proposition 8.
    [Show full text]
  • Dynamics of Acceptance for Transgender Constituents Among California State Legislators This Projec
    Overcoming Historical Biases? Dynamics of Acceptance for Transgender Constituents Among California State Legislators This project explores substantive representation for transgender, intersex and nonbinary (trans) constituencies by cisgender elected officials in the California State Legislature. California was the first state to chapter gender all-inclusive legislation and is the nation’s leader in passing measures that seek to enhance the political rights of trans Americans. Although legislation passed to serve Californians of diverse genders is the most comprehensive across the United States, there has been a historical reluctance and opposition by movements seeking to enhance gender and sexual rights to be inclusive of trans members and issues. A similar resistance and wariness are perhaps reflected by the small number of legislators who seek to substantively represent trans constituents through bill authorship and the in the scant number of bills that singularly position trans constituents as the sole beneficiaries of legislation. However, there are signals of growing support for trans Californians by blocs of elected officials who are supportive of trans rights, the frequency of bills passed and the increased comprehensiveness of legislation. By looking at legislative successes over time, this work identifies a burgeoning solidarity between and across groups of diverse genders, which is a hopeful indicator that the rights of trans Californians are becoming substantively enhanced. Amanda Brush Doctoral Candidate Department of Political Science University of California, Santa Barbara [email protected] Paper prepared for the 2019 Annual Meeting of the Western Political Science Association Conference San Diego, California, April 2019 Draft manuscript. Please do not cite or quote without the author’s permission.
    [Show full text]
  • Title VII Discrimination Protections & LGBT Employees
    Belmont Law Review Volume 6 Symposium 2018: The Modern Workplace: Contemporary Legal Issues in Employment & Labor Article 1 Law 2019 Title VII Discrimination Protections & LGBT Employees: The eedN for Consistency, Certainty & Equality Post-Obergefell Regina Hillman Follow this and additional works at: https://repository.belmont.edu/lawreview Part of the Legal Writing and Research Commons Recommended Citation Hillman, Regina (2019) "Title VII Discrimination Protections & LGBT Employees: The eN ed for Consistency, Certainty & Equality Post-Obergefell," Belmont Law Review: Vol. 6 , Article 1. Available at: https://repository.belmont.edu/lawreview/vol6/iss2/1 This Article is brought to you for free and open access by the College of Law at Belmont Digital Repository. It has been accepted for inclusion in Belmont Law Review by an authorized editor of Belmont Digital Repository. For more information, please contact [email protected]. Title VII Discrimination Protections & LGBT Employees: The eedN for Consistency, Certainty & Equality Post-Obergefell Cover Page Footnote Regina Lambert Hillman is an Assistant Professor of Law at the University of Memphis Cecil C. Humphreys School of Law. In 2013, Professor Hillman was an organizing member of the Tennessee Marriage Equality Legal Team that challenged Tennessee’s constitutional and statutory bans on recognition of valid out-of-state same-sex marriages. In 2015, the case, Tanco v. Haslam/Obergefell v. Hodges, was successfully decided by the United States Supreme Court, culminating with nationwide marriage equality on June 26, 2015. Professor Hillman received her J.D. summa cum laude from The nivU ersity of Tennessee College of Law and her B.A. summa cum laude from The nivU ersity of Memphis.
    [Show full text]
  • Employment Non-Discrimination Act: Ensuring Opportunity for All Americans
    S. HRG. 111–1134 EMPLOYMENT NON-DISCRIMINATION ACT: ENSURING OPPORTUNITY FOR ALL AMERICANS HEARING OF THE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION ON EXAMINING S. 1584, TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION OR GENDER IDENTITY NOVEMBER 5, 2009 Printed for the use of the Committee on Health, Education, Labor, and Pensions ( Available via the World Wide Web: http://www.gpo.gov/fdsys/ U.S. GOVERNMENT PRINTING OFFICE 75–804 PDF WASHINGTON : 2012 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS TOM HARKIN, Iowa, Chairman CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming BARBARA A. MIKULSKI, Maryland JUDD GREGG, New Hampshire JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee PATTY MURRAY, Washington RICHARD BURR, North Carolina JACK REED, Rhode Island JOHNNY ISAKSON, Georgia BERNARD SANDERS (I), Vermont JOHN MCCAIN, Arizona SHERROD BROWN, Ohio ORRIN G. HATCH, Utah ROBERT P. CASEY, JR., Pennsylvania LISA MURKOWSKI, Alaska KAY R. HAGAN, North Carolina TOM COBURN, M.D., Oklahoma JEFF MERKLEY, Oregon PAT ROBERTS, Kansas AL FRANKEN, Minnesota MICHAEL F. BENNET, Colorado J. MICHAEL MEYERS, Staff Director and Chief Counsel FRANK MACCHIAROLA, Republican Staff Director and Chief Counsel (II) CONTENTS STATEMENTS THURSDAY, NOVEMBER 5, 2009 Page Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and Pensions, opening statement ............................................................................... 1 Merkley, Hon. Jeff, a U.S.
    [Show full text]
  • Developing Law on LGBT Rights in the Workplace
    Developing Law on LGBT Rights in the Workplace American Bar Association, Labor and Employment Law Section: National Conference on Equal Employment Opportunity Law 2015 Lisa J. Banks1 Matthew S. Stiff Sam Kramer KATZ, MARSHALL & BANKS, LLP 1718 Connecticut Ave., N.W. Sixth Floor Washington, D.C. 20009 (202) 299-1140 www.kmblegal.com 1 Lisa J. Banks is a founding partner with Katz, Marshall & Banks, LLP, a civil rights firm based in Washington, D.C., that specializes in the representation of plaintiffs in employment law, whistleblower, civil rights and civil liberties matters. Matthew S. Stiff is a partner with the Firm. Sam Kramer is an associate with the firm. © Copyright 2015, Lisa J. Banks, Katz, Marshall & Banks, LLP, Washington, D.C. TABLE OF CONTENTS I. Introduction ........................................................................................................................... 3 II. LGBT Demographics and the Pervasiveness of LGBT Workplace Discrimination ....... 3 III. Constitutional Protections for LGBT Employees ............................................................... 4 A. Romer v. Evans ............................................................................................................... 5 B. Lawrence v. Texas .......................................................................................................... 7 C. United States v. Windsor ............................................................................................... 9 D. Obergefell v. Hodges ...................................................................................................
    [Show full text]
  • Executive Orders and the Struggle for Workplace Equality
    EXECUTIVE ORDERS AND THE STRUGGLE FOR WORKPLACE EQUALITY † DAVID C. ROTH TABLE OF CONTENTS INTRODUCTION..........................................................................................2 I. THE HISTORICAL DEVELOPMENT AND SIGNIFICANCE OF WORKPLACE NON-DISCRIMINATION EXECUTIVE ORDERS........................................4 A. President Roosevelt Issues the First Executive Order to Ban Discrimination in the Workplace ...................................................5 B. Presidents Truman, Eisenhower, and Kennedy Continue and Expand Executive Action ...............................................................7 C. President Johnson, Executive Order 11,246, and Refinement of Order 10,925................................................................................10 D. Executive Action to Protect Against Discrimination on the Basis of Sexual Orientation..........................................................11 II. PRESIDENT OBAMA’S NON-DISCRIMINATION EXECUTIVE ORDER ...15 III. WORKPLACE NON-DISCRIMINATION EXECUTIVE ORDERS, LIKE ORDER 13,672, PROVIDE CRITICAL RIGHTS AND HELP INSTITUTE REFORMS ..........................................................................................18 A. Success of the First-Generation Executive Orders Portends Success for Order 13,672.............................................................18 B. The Current Situation Calls for Executive Action Because LGBT Discrimination Remains Rampant ....................................21 C. First-Generation Racial Executive Orders Segue to Second- Generation
    [Show full text]
  • Ing Nondiscrimination
    Mark(et)ing Nondiscrimination: Privatizing ENDA with a Certification Mark Ian Ayres* & Jennifer Gerarda Brown** Abstract: A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit to the exact substantive duties of the proposed “Employment Non-discrimination Act,” which if passed would prohibit disparate treatment on the basis of sexual orientation. By signing the licensing agreement, an employer gains the right (but not the obligation) to use the mark and in return promises to abide by the word-for-word strictures of ENDA. Other certification marks (such as the Good Housekeeping Seal, the UL (Underwriters Laboratory), and the Orthodox Union (Kosher) marks) require the owner of the mark police licensees, but our proposed “Fair Employment” mark allows employees and applicants to enforce the ENDA duties directly as express third-party beneficiaries of the license. The “Fair Employment” mark thus replicates the core enforcement mechanism of ENDA by creating private causes of action in the same class of individuals. The mark provides a mechanism for producing precedent about a statute before the statute is ever enacted. The cases enforcing the mark’s requirements would provide legislators with information about how the statute might be interpreted, as well as a lower bound on the litigation rates it might engender. The mark represents a new form of federalism. Instead of jurisdictional federalism, the mark facilitates corporate federalism -- whereby individual corporations can experiment with taking on the duties of a proposed bill. Employers might sign the license (and thereby take on the risk of discrimination liability) to: 1) induce more sales – including state and local EEO officers who are charged to contract only with non-discriminating employers; 2) recruit employees – including gay-friendly as well as gay applicants, and 3) appease input suppliers – including accreditation organizations and unions that already press for non-binding nondiscrimination provisions.
    [Show full text]