ENDA Before it Starts: Could Gay or Lesbian State Employees Sue Their Employers for Damages Under the Proposed Employment Non-Discrimination Act, in Light of the Court's Recent Section 5 Jurisprudence?

Abstract

The proposed Employment Non-Discrimination Act (ENDA) would prohibit much employment discrimination on the basis of sexual orientation. This Article considers whether ENDA would pass muster as appropriate legislation under Section 5 of the Fourteenth Amendment, thus allowing plaintiffs to seek retrospective relief against state governments in their capacity as employers. Part I lays the foundation for this examination by considering the Supreme Court's Section 5 jurisprudence, paying special attention to the cases beginning with City of Boerne v. Flores, 521 U.S. 507 (1997). Part II applies that jurisprudence to the recent versions of ENDA. The recent Section 5 cases require an examination of the suspicion with which the Court regards the underlying conduct being restricted. Applying that test to ENDA would require examining how seriously the Court takes sexual orientation discrimination. This, in turn, requires consideration of Romer v. Evans, 517 U.S. 620 (1996). The challenge is to translate Romer's concern about anti-gay state action into Section 5 language. It mirrors the Court's approach in Board of Trustees v. Garrett, 121 S.Ct. 955 (2001), in which the Court held that Title I of the Americans With Disabilities Act was not appropriate Section 5 legislation, even though it had previously found an equal protection violation when a city discriminated against the mentally disabled. After considering whether Romer means that all sexual orientation-based employment discrimination would fail the rational basis test, and reaching an equivocal conclusion, Part II continues by examining whether ENDA is sufficiently limited so as to prohibit only that discrimination that the Court would in fact consider unconstitutional. The Article suggests that ENDA's limitations and exceptions potentially limit its application only to conduct that would in fact be unconstitutional if performed by a state. Nevertheless, it is unclear whether the Court would be willing to announce such a broad constitutional rule limiting sexual orientation discrimination. Thus, the Article continues by assuming that ENDA does in fact go beyond what the Constitution commands, and considers whether ENDA constitutes appropriate prophylactic legislation, going beyond what equal protection requires but sufficiently related to those limits as to satisfy the Court's test of congruence and proportionality. Again, given ENDA's limited scope, it arguably satisfies that test. Part III takes a more prescriptive tone. It offers advice for those interested in ENDA's enactment, suggesting ways in which the bill's drafting, and especially its fact-finding, may maximize chances for its survival as an appropriate expression of Congress' Section 5 power. Part IV concludes by offering some general thoughts on the Court's recent Section 5 jurisprudence, based on the results of the foregoing analysis of ENDA as legislation designed to ensure the equal protection rights of gays and lesbians.