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In the first essay below, law professor Ian Ayres ’81, ’86JD, discusses the “Fair Employment” mark, an idea proposed by Ayres and his wife, Quinnipiac University law professor Jennifer Brown. (An article about the proposal appeared in the 2005 “Year in Ideas” issue of the New York Times Magazine.)
In the second essay, David Frum ’82, ’82MA, comments on the Fair Employment mark proposal.
Promises, Not Policies
People in the United States strongly support the simple idea that employers should not discriminate against gays and lesbians. In a 2003 Gallup poll, a whopping 88 percent of respondents said that “homosexuals should … have equal rights in terms of job opportunities.”
But gay rights advocates have made only limited legislative progress on this issue. Only 16 states have prohibited employment discrimination against gays and lesbians. At the federal level, a seemingly modest bill, the “Employment Nondiscrimination Act” (ENDA), has been introduced several times in Congress. All ENDA does is to forbid employers to treat employees differently on the basis of their sexual orientation. Yet it still has not passed.
Business has been far more active. The vast majority of large corporations—now 462 of the Fortune 500—have nondiscrimination policies that explicitly include sexual orientation. But the pretty words of nondiscrimination policies sometimes turn out to be only that. If an employer discriminates against a job applicant because she is gay, it is far from certain that the employer would suffer any legal consequences—even if the employer has a nondiscrimination policy.
In 1975, AT&T became the first major U.S. corporation to add sexual orientation to its nondiscrimination policy. But in 1986, when Steven Joachim filed a suit claiming sexual orientation discrimination in AT&T’s decision to dismiss him, AT&T argued that the policy in its employee handbook did not create a contractual obligation. The Fifth Circuit Court of Appeals agreed—finding under Texas law that AT&T’s “employee handbooks ‘constituted no more than general guidelines,’ and did not create a contractual right in the employees.”
This same argument that ldquoquot;a policy is not a promise” is still being made today. USA Today, on May 10, 2006, featured the battle of Jennifer Harris, a three-time all-USA Today high school basketball selection, against Penn State and its coach, Rene Portland. Harris alleges she was kicked off the team as part of the coach’s harassment of her for appearing to be a lesbian. According to the article, the university found that the coach “creat[ed] a ‘hostile, intimidating, and offensive environment’ because of Harris’s perceived sexual orientation,” fined the coach $10,000, and required her to undergo diversity and inclusiveness training. Nevertheless, the university is defending itself against Harris’s lawsuit on the basis that its nondiscrimination policy did not give rise to an enforceable contractual duty:
It is true that Pennsylvania courts have held that the relationship between a student and a private college is generally contractual in nature and that in determining the provisions of such a contract the courts may look at the written guidelines, policies, and procedures distributed to the student over the course of his or her enrollment. However, numerous courts have declined to find that nondiscrimination policies of the type at issue in this case rise to the level of an enforceable contract term.
The right of employees and applicants to sue for discrimination is a cornerstone of our civil rights law. The right to a day in court is not just symbolically important; it is a guarantee that those who are harmed by discrimination will be compensated. Instead of hollow nondiscrimination policies, corporations should adopt nondiscrimination promises that will be backed up by the force of law if an employee is a victim of employer discrimination.
One solution is a certification mark—a free-market, voluntary label like those of the Underwriters Laboratory for consumer safety or the Orthodox Union for kosher foods. Jennifer Brown, a Quinnipiac law professor, and I have created a symbol we call the “Fair Employment” mark: a simple FE in a circle.
With just a few clicks of the mouse at fairemploymentmark.org, any employer, without paying a fee, can turn its policy into a legally enforceable promise. 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 guarantees of ENDA.
This license is the first time that private contractors have intentionally taken the language of proposed legislation and inserted it into private agreement. When companies agree to the contract beforehand, a legal precedent can be established even before the law is passed. Some legislators worry that “activist judges” might interpret the statute to go beyond the narrow prohibition of sexual-orientation discrimination. But the certification license helps alleviate this concern. If courts interpret the terms of the contract more broadly than Congress intended, then Congress can revise the terms before the law is ever passed. Companies do test markets all the time. Here’s a chance for Congress (with help from companies) to do the same.
Why would any employer take on the potential additional legal liability of an explicit promise? Committing to equality is good business. And displaying a good-housekeeping seal for equal employment rights is a great way to attract both customers and employees. Licensing the mark doesn’t require the employers to display the mark on all their products—or in every market. A company might choose to display it in Connecticut but not Utah. But by signing the license the employer would be committing to legal protections for all its employees.
What about the costs of litigation? Well, employers in the 16 states that independently prohibit sexual-orientation discrimination already may be sued: they face no additional liability. Even in states without such laws, the potential costs to employers who use the Fair Employment mark are insubstantial. Using Government Accountability Office data from the states with statutes on the books, Brown and I have calculated that in an average year, only 17 out of 1 million employees brought claims of sexual-orientation discrimination. Even if an average claim costs $100,000, this would represent an extra cost per employee of only $1.70 per year.
Most important, promising not to discriminate is the right thing to do. Licensing the mark doesn’t mean that an employer can’t defend lawsuits. It just means that the employer can’t tell the court, “We have a right to discriminate against gay and lesbian employees if we feel like it.”
Many businesses say they oppose this kind of discrimination. In large numbers, they adopt policies and endorse legislation. Now they have an opportunity to do something that will give their employees genuine protection.
No More Judicial Activism
Hearing that a Yale law professor wants to apply free-market ideas to anything is such a delightful novelty that one hesitates to raise objections. But unfortunately there is little that is either novel or freedom-enhancing about Professor Ayres’s “Fair Employment Mark” concept.
The mark itself is just a gimmick. Private corporations already of course possess the right to print just about anything on the labels of their products, from “Support Our Troops” to “Gay Rights Now.” Few corporations use this right, for the very powerful reason that they want to avoid giving offense to potential customers who might disagree with management’s opinions.
The real content of Professor Ayres’s idea is not the mark, but the promise betokened by the mark: to live by the rules of the defeated Employment Nondiscrimination Act of 1996, a bill that proposed to extend most of the protections of the great Civil Rights Act of 1964 to homosexuals.
Professor Ayres suggests that this concept offers a voluntary way forward. But does it really? Already it is true that companies can, if they wish, offer benefits to homosexual employees. By one count, 80 of the Fortune 500 corporations have made this decision, including such influential corporations as American Express, Intel, Marriott, and Microsoft.
From the point of view of gay-rights advocates, however, these programs contain a major flaw. They are unilateral concessions by employers. They can be revoked at any time. And if a dispute arises between employee and employer, employees have only a very limited right to litigate the matter in court.
The “Fair Mark” concept hopes to expand these litigation rights. From the website: “Applying the mark grants employees and applicants the same legal rights and remedies they would have if ENDA were passed.”
The magic word here is “remedies.” ENDA—the Employment Nondiscrimination Act of 1996—attempted to write “sexual orientation” into the Civil Rights Act of 1964. If the law had passed, the whole vast mechanism of civil rights enforcement in the United States—the EEOC, the Civil Rights Division of the Justice Department—would have been available to redress the grievances of homosexual employees.
But of course ENDA didn’t pass, and that mechanism is not available. So what would the words on the Fair Mark label actually mean in practice?
The Fair Mark scheme treats this question as if it were an easy and obvious one. Check the box, and then if you end up in court, the judge acts as if … but as if what?
The fact is that the Civil Rights Act of 1964 creates a very complicated regulatory scheme, fraught with difficult questions. Asking judges to act as if it contained words it does not contain is asking them—not just to award victory to one side or another in an employment dispute case—but to construct a huge system of employment law. And they are to construct that system not merely without statutory authorization—but in actual defiance of Congress' decision to reject the system.
Let’s consider just a few questions that courts might have to consider under the Fair Mark scheme. Suppose the employer is a gay-friendly company that has lots of gay employees, partnership benefits, and so forth—but has somehow never quite got around to promoting any gay employees into senior management. Under what circumstances would ENDA have required an affirmative action program … if it had been enacted?
Or suppose the employer is a gay bar. They like to hire rugged, macho-looking guys to tend bar. A job applicant is rejected because he looks too effeminate. Is effeminate behavior a protected sexual orientation? And even if so, are there circumstances under which “acting straight” could be a bona fide job qualification?
Let me pose a more technical question: the Civil Rights Act of 1964 protects workers from discrimination both on grounds of sex and on grounds of race. Yet even though those two categories are mentioned in the very same sentence, the courts have constructed two very different standards of scrutiny by which they are judged: “strict” for race, “intermediate” for sex. What standard should be used for sexual orientation?
Pondering these questions should make clear that inviting courts to act “as if” ENDA had been enacted presents them with a huge and daunting set of hypothetical questions. Which is why, as a matter of law, I find it almost inconceivable that a federal court ever would grant any validity to the Fair Mark scheme. The Constitution grants federal courts authority over “cases and contro-versies,” and U.S. courts, state and federal, have consistently interpreted these words to mean that they cannot answer hypothetical questions, and certainly not vast sets and systems of the infinitely multiplying hypothetical questions that would follow from allowing private parties to write nonexistent federal regulatory regimes into their private contracts.
I suspect the appeal to Professor Ayres of the Fair Mark scheme is less that it offers a free-market approach to gay rights than that it might serve as a device to prod a new generation of liberal judges to write sexual orientation into U.S. law despite the clear intention of Congress to the contrary. For many judges, unfortunately, the steps from “as if it were law” to “it should be law” to “OK, so it will be law” are all too easily trod.
“Fair Mark” is a new name. But underneath, it’s the same old project: judicial activism on behalf of liberal social goals in defiance of the democratically enacted law of the land.
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