Legal Commentary

One of the many issues the Obama Administration will have to resolve is where to go on civil rights legislation. The campaign website's section on civil rights gives prominent focus to enacting the Fair Pay Act, the Employment Non-Discrimination Act (protecting gays and lesbians and, seemingly, transgendered people) and the Matthew Shepard Act (expanding federal hate crimes law to include gays and lesbians), overturning the Ledbetter decision (which seems to be what the Fair Pay Act does, so maybe they're double-counting), depoliticizing DOJ and reinvigorating civil rights enforcement.  No doubt renewal of the Voting Rights Act will also be part of this agenda.  Presumably the new Congress will support most, if not all, of this agenda, though of course who knows when and whether they will get to it given the other issues on the nation's plate right now.

My question is about the constitutionality of the civil rights legislation that may come out of Congress over the next couple of years.  Aside from the Voting Rights Act renewal (about which a lot of people, including my colleague Rick Hasen, have written and about which I won't comment here), I don't see any serious constitutional issues with any of this legislation, given the commerce power. (Even the Matthew Shepard Act devotes a fair amount of verbiage to bringing itself within the Supreme Court's opinions in Lopez and Morrison, though I certainly wouldn't rule out a Commerce Clause challenge).   The one major caveat is the extent that such legislation applies to states and makes them liable for retrospective relief, such as damages or backpay.  Of course, Seminole Tribe disqualifies the commerce power as the source for such remedies, and thus requires examination of Congress's power to enforce the 14th Amendment -- the so-called "congruence and proportionality" test from City of Boerne v. Flores.

Would ENDA be congruent and proportional to the equal protection problem of state government employment discrimination based on sexual orientation or gender identity?  This does not seem an open and shut question, although I argued in an article published in 2002 that ENDA should be upheld as appropriate enforcement legislation.  The only cases where the Court has upheld Section 5 legislation against this standard have been where the legislation either benefitted a class that gets heightened equal protection scrutiny (Nevada Dept of Human Resources v. Hibbs) or protected a fundamental right (Tennessee v. Lane).  And even those decisions depended on the four liberals peeling off from the conservative bloc Chief Justice Rehnquist and Justice O'Connor (Hibbs) or O'Connor alone (Lane); with those two justices gone it's not clear that even those cases would come out the same way today.

As for ENDA in particular the matter gets difficult because gays and lesbians are not a suspect class, and if cases like Romer v. Evans (and for that matter, City of Cleburne v. Cleburne Living Center) are any indication, the Court does not seem inclined to create any more suspect classes.  Thus, claims of ENDA's Section 5 validity are pinioned between the Court's skepticism of any enforcement legislation that doesn't target a suspect class or fundamental right, and the Court's unwillingness to bestow suspect class status on any new classes.  There's more to the analysis -- in particular, the question how broad the enforcement statute is -- but this presents the gist of the problem. 

Gender identity presents an even trickier question, since it raises a question of definition -- is gender identity "like" gender enough to bring it within the suspect class status accorded gender more generally?  If not, then the relative newness of the issue may cause the Court sufficient discomfort with granting Congress broad enforcement power unless Congress can convincingly demonstrate a severe constitutional problem with employment discrimination against transgendered people.  (Again, I seriously doubt the Court will classify the transgendered as a suspect class, regardless of whether on the merits they should so qualify.)

A different issue arises should Congress choose to impose more stringent regulation benefitting traditional suspect classes such as women and racial minorities.  Recent scholarship has called for employment discrimination law that seeks to change organizational structures in firms that make discrimination possible.   Scholars such as Susan Sturm have suggested regulatory regimes in which courts, managers and professionals such as lawyers and HR specialists interact to change basic structures in the firm in ways that traditional liability rules alone could not do.  (I know this is not clear; read Susan's excellent article to get a better sense of this idea.)

For now what's important is the possibility that such regulation, if adopted to tackle persistent racial and gender discrimination, might be seen as violating the congruence and proportionality standard.  To the extent these laws mandate deep changes in how state government workplaces are organized, they might be seen as imposing more burdensome regulation than current anti-discrimination law, which focuses more on policing discrete violations of equal treatment.  Of course, this theory of regulation is, in some ways, aimed at providing employers with flexibility and discretion in determining how to make these changes; to that extent such regulation might be seen as imposing a lighter federal hand.  But the target of such regulation -- not just the correction and punishment of discrete violations but the restructuring of workplace relationships to prevent violations -- reflects, in a real sense, a more aggressive regulatory approach.  It's an interesting question whether the Court would uphold such regulation under Congress's enforcement power -- not just because the case might arise, but also because it would test the congruence and proportionality test against a fundamentally different regulatory model.

Finally, would an Obama Administration  regulate the workplace to move toward some requirement of comparable worth?  (Here's an old New York Times article that explains the basic idea.)  The campaign website doesn't mention this, but it wouldn't surprise me if continued wage disparities between men and women increased the calls to start down this road.  (During the campaign Senator Obama talked about "equal pay for equal work," but I'm not sure that's necessarily the same concept as "comparable worth" -- am I right about that?)  This is completely speculative, of course.  But if such regulation came to pass the Court would again have to consider the intrusiveness of such regulation on the states against the constitutional problem posed by continued wage disparities based on the gender identification of particular jobs.  Ironically, given Hibbs such regulation might present less of a constitutional problem than more conventional regulation aimed at non-suspect classes like gays.