Writing up equality for the future

By John Wright Staff Writer

Dallas attorney Rob Wiley is seeing months of effort start to pay off as Congress considers new version of ENDA



Rob Wiley

The clause prohibiting discrimination based on sexual orientation in your employee handbook if there is one may not be worth the piece of paper it’s written on.

That’s because courts in Texas have consistently ruled that such clauses are nonbinding, due to the lack of a state statute to back them up.

Which is why the federal Employment Nondiscrimination Act, introduced in Congress this week, would have a particularly big impact here, according to a local attorney who helped draft the legislation.

Seventeen states and the District of Columbia already ban discrimination in the workplace based on sexual orientation which ENDA would do nationally but Texas is not one of them.

“You can’t turn around and sue the company to be reinstated or for your other damages simply because that’s in your handbook,” said Rob Wiley, who worked on ENDA as chairman of the National Employment Lawyer Association’s Committee on Sexual Orientation and Gender Identity. “You’re employer can say I am firing you because you are gay and that’s perfectly OK under Texas law.”

Wiley compared ENDA to the federal Civil Rights Act of 1964, which banned discrimination in voting, employment and public services based on race, color, religion, sex or national origin. Prior to its passage, Texas had no such statute.

“I think the only real chance Texas has of getting this kind of law is if it comes at the federal level,” Wiley said. “The federal government had to be the leader then, and I think the federal government has to be the leader now. It really is going to bring real relief for Texans.”

The 34-year-old Wiley, who has practiced labor and employment law in Dallas since 1999, said he has been traveling to Washington for one day every other week since the start of the year to help work on ENDA.

He said NELA has primarily been involved with updating and fine-tuning the wording of ENDA, first introduced in 1996 but never passed, to make sure it could be effectively enforced and would stand up to court challenges.

“I think what we did is we provided practical insight as people who actually litigate discrimination cases on a day-to-day basis,” he said. “I think this is the best chance that we’ve had since 1996 because of the makeup of Congress.”

Questions remain about to what degree ENDA would trump state laws, and those questions would have to be answered by federal courts, Wiley said.
“I would be very surprised if there was any problem with applying ENDA to private businesses,” he said. “It’s an open debate with trying to apply it to state agencies.”

Despite his undergraduate degree in political science, Wiley called the experience of working on ENDA and helping to get it introduced an “eye-opener.” He also said the main reward is just the feeling of being involved.

“I really look forward to the day that ENDA passes,” he said. “It would change the entire employment landscape for people who are gay, lesbian or transgendered.”

E-mail wright@dallasvoice.com

This article appeared in the Dallas Voice print edition, April 27, 2007.

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