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Supporters of federal legislation that would forbid employment discrimination based on sexual orientation are buoyed by a recent federal study showing that the bill, if passed, likely would not trigger a new wave of litigation. But the supporters also find that the study by the General Accounting Office, the nonpartisan research arm of Congress, does not appear to be helping them in their uphill fight to get the bill passed. The study looked at the number of lawsuits filed in Washington, D.C., and the 11 states that have expanded their workplace discrimination laws by adding sexual preference to the traditionally protected areas of gender, nationality, religion and race. The GAO found that only 436 — or 1.4 percent — of the 32,257 employment discrimination complaints filed in 1999 involved claims of discrimination based on an employee’s sexual preference. This dearth of lawsuits appears to counter an argument by some opponents of the federal measure, the Employee Non-Discrimination Act, that such a law would create a flood of suits. But the bill is still languishing. The Senate sponsor, James M. Jeffords, a Republican from Vermont, has been unable to get the bill through the Committee on Health, Education, Labor and Pensions, even though he chairs it. A spokesman for Sen. Jeffords says that instead, the senator will try to attach the proposal as an amendment to another bill on the Senate floor and pass it that way — by the end of this year, if possible. That tactic would also be one way around the bill’s dormancy in the House, where the Republican leadership has not allowed a committee hearing on the bill and where Speaker Dennis Hastert, R-Ill., has far more power to block floor amendments than does the majority leader of the Senate. THE REASONS The bill’s supporters cite a variety of possible reasons for the low level of sexual orientation litigation, from the relatively small portion of the population that is gay to the fact that homosexual men and lesbians, unlike women or blacks who feel that they’ve been discriminated against, must consider the impact of revealing their status publicly before filing a suit. Another possible reason: Corporations are doing a much better job of protecting employee rights and thus are discriminating less, says Jay W. Waks, who represents employers and heads the employment litigation practice at New York’s Kaye, Scholer, Fierman, Hays & Handler. Waks also suggests that many gender and race discrimination suits are filed not on the basis of direct evidence, but on the belief that a personnel action took place for no other reason except discrimination based on a visible attribute. But this would not be the case with sexual orientation, he says, because it is not an attribute an employer generally can perceive. Still, supporters are less heartened by the results of the GAO study than one might suspect because much of the political opposition centers on moral issues. A logical business opponent — the U.S. Chamber of Commerce — hasn’t even taken a position on the bill. The Conservative Family Research Council, on the other hand, calls the measure “a threat to our privacy and our beliefs” and warns that employers might have to keep records on the sexual orientation of their employees to disprove any claims of discrimination that arise. “The opposition comes from conservative Republicans who are afraid that the religious right will punish them for allowing this bill to move forward,” says Chai R. Feldblum, a Georgetown University Law Center professor who helped draft Sen. Jeffords’ bill and is now a consultant to the National Gay and Lesbian Task Force. NO EXPLOSION OF SUITS Along with the District of Columbia, these states have laws prohibiting employment discrimination based on sexual preference: California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont and Wisconsin. Maine had such a law, but a 1998 referendum repealed it. The GAO stated that its report found neither an explosion in complaints in any state immediately after enactment of a sexual orientation protection law nor any steady growth in such suits in succeeding years. In California, for example, the total number of employment discrimination complaints rose almost 40 percent, from 13,362 to 18,644, between 1993 and 1999. At the same time, however, the number of sexual orientation workplace suits remained fairly steady, creeping up from 159 in 1993 to 173 three years later before falling back to 154 — 0.8 percent of the total — in 1999. In Massachusetts, where the law took effect in 1989, the numbers were somewhat larger, but comparable: 43 sexual preference suits in 1990, or 1.3 percent of all 3,232 employment discrimination complaints; 146 such suits in 1995, or 2.8 percent of the 5,144 total suits; and 113 sexual-preference suits in 1999, or 2.7 percent of the 4,180 total workplace discrimination complaints. The GAO study covered the period from 1989 to 1999, and found that 216,338 employment discrimination suits of all sorts were filed in the 11 states and Washington, D.C., in those years and that 3,283 — or 1.5 percent — of them involved claims of sexual orientation discrimination. Jeffords’ bill would apply to businesses with 15 or more employees. It would exempt religious organizations, to the extent that they are engaged in religious activities. Unlike many of the state laws, the federal measure would explicitly ban the use of affirmative-action-type remedies in successful suits and would not cover transsexuals. If the bill does become law, says Garry G. Mathiason, who chairs the high-technology employer practice group at San Francisco’s Littler Mendelson, prepare for a showdown of competing rights: that of gays to be free of workplace discrimination, and that of managers to hold sincere religious beliefs that homosexuality is immoral. “Society will demand that they be objective in the workplace setting, and yet if asked if there’s an animus, the answer is yes — because of the manager’s religion,” Mathiason says. He also adds that while he rejects the notion that a sexual orientation addition to federal workplace discrimination laws would produce a flood of litigation, he does feel that such suits would make up more than 1 percent or 2 percent of all discrimination cases — although still less than the 10 percent predicted by some.

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