Sitting around, and we were writing regulations for i dont remember if it was the Fair Housing Act or the housing part of the americans with disabilities act, but anyway we were there and we were deciding you know what the rule should be for employers when it came to ramps and door knobs and sunken living rooms and all kinds of stuff like that. And it was appalling. You know, none of us knows at that table knew anything about the business of how to build an apartment complex. Why were we sitting around, you know making up all these rules . It was just very scary. Hes another part did i hear you say earlier in your testimony that you didnt have to have a familiarity with something in order to do the job . Well, no, i didnt say that. I said that you didnt think you had to be to put it bluntly, i dont think that you have to be a black person in order to be able to sell pepsis to a black person. And this notion that only members of a particular group can effectively market to members of that group is something that i have a problem with. But if youre a nondisabled person trying to figure out how a disabled person would be able to interact with their surroundings . It wasnt that we werent disabled. Although thats also, i think, a fair point. The problem is we didnt know anything about building. Thats the point that im making here. And the point you know, likewise, were not people i mean, were not in the caregiving business. The hypothetical that i gave about a caregiver and whether people might have preferences about, you know, who is going to bathe them. You know i think that those kinds of decisions should be made by people who are in the caregiving business not by a bunch of bureaucrats. Heres another part of the of enda. And you tell me whether this belongs in the u. S. Code. Nothing in this act shall prohibit an employer from requiring an employee during the employees hours at work to adhere to reasonable dress or grooming standards not prohibited by other provisions of federal, state or local law. During the time of employment and any employee who has notified the employer that the employee has undergone or is undergoing gender transition to adhere to the same gender standards to the employee for whom the employee is transitioning. I dont think that thats the kind of micro management that congress should be putting into the u. S. Code. To govern the grooming standards and dress standards that hundreds and thousands of employers and hundreds of thousands of different workplaces have to commit every day. I think thats a decision that ought to be left to individual employers in businesses. I just think you said earlier, though, people should be allowed to figure out what they do with their own private property. Lets let the market decide. If we adhere to that, there would still be people today who would be considered property and we wouldnt have fought a civil war to change what the market is. So i think theres an Important Role that government has to play in the regulation of how we interact with one another and the rights that are forfeited by individuals in the workplace. Absolutely. And i agree. You know i talk in my written testimony about that. I think that the and commissioner kirsanow alluded to this also in his question. I think that the situation that was presented and is presented by race discrimination in this country is special and different. And i think that it makes all the sense in the world to you know draw distinctions between what was going on in this country with respect to Racial Discrimination and things like Sexual Orientation and gender identity. You know, Racial Discrimination presented an extraordinary situation, justifying departure from the usual freemarket presumptions. It was widespread, blatant and often governmentally your microphone. Im sorry. Racial discrimination presented an extraordinary situation justifying departure from the usual freemarket pruchbltions. It was widespread, blatant and often governmentally codified and mandated. It was irrational in the 20th century by no moral or religious convictions. It was a historic problem, national in scope, which was clearly not susceptible to state, local or private resolution. Discrimination against homosexuals is simply not in this league. I was wondering if anybody else on the panel would like to respond to mr. Cleggs partial reading of enda and the dress code and things like that. I have one quick response. Well, i guess two quick responses. Even as a lawyer, i would love nothing more if we could pass a bill that said dont be mean and that would be sufficient to treat People Fairly with a recognition of their humanity but obviously we dont have that in our history and race discrimination is a perfect example of that. Were not dealing with a blank slate here. We have a number of states that have passed laws based on gender discrimination using Something Like the definition that mr. Clegg read and there hasnt been a huge flood of litiation. Nor has there been inane interpretation. What these laws do is they set a tone for how we think people should be treated on the job. And by existing they stop the very discrimination that theyre meant to redress. And then in extreme cases people then are free and have the ability to bring cases. The ability to answer the question, what kind of country do we want to live in, with a statute that says, we want to live in a country where people all sorts of people, including people based on Sexual Orientation or gender, live free, honored for who they are and able to do their jobs to the highest of their ability. And their ability is what matters, not who they are. That seems to me to be a good thing for this country to do. Anybody else . Theres also a dramatic difference between regulating bad Business Decisions that impact only the employer. Right, an employer who is foolish enough to require all of their employees to wear chartreuse uniforms. Thats a bad employment decision that the government should not be engaged in. Its radically different when were talking about bad Employment Decisions that have negative lifelong consequences for the individuals that they are choosing to fire, refuse to hire, or fail to promote. There should be in our laws a do no harm principle. Thats what nondiscrimination laws in employment attempt to do. To create a level Playing Field that ensure that Employment Decisions are made on the basis of an employees merits talent skills and background rather than on who they are. The only thing i would add and i know this is a different context, not Congress Passing a law, but companies implementing their own nondiscrimination policies as they relate to Sexual Orientation and gender identity. Im often frustrated, not when people disagree with me, because that happens all the time. I have twin boys who are 12 and a half and they disagree with me all the time. Thats okay. But its when there are spurious arguments about why someone would disagree with me. Thats what i find somewhat unnerving. So to go back to, not the legislative language that mr. Clegg referenced, but the Business Practices that large, medium, and Small Businesses today have adopted for Good Business reasons because it makes sound sense to have a Nondiscrimination Policy based on Sexual Orientation and gender identities those business policies often mirror the language that mr. Clegg referenced in terms of the employment and nondiscrimination act. That is what a business use to describe and to define gender identity in that case. And what we see is not businesses falling all over themselves and not being able to figure out what the policy means, but rather providing a level disPlaying Field for all employees, that those gay, lesbian, bisexual, and transgender employees, it doesnt just benefit them, but it benefits the entire culture of the large medium, and small business, because it says to any employee that youre here to work and were going to judge you on your skills and thats it. Nothing irrelevant, but your job performance. And so i think again, the Employment Practices and the employment policies, of nondiscrimination, and theyre by private companies, that they have to set their own Playing Field for their own companies, often mirror the language and what we dont see in those companies from major fortune 100 companies to Small Businesses around this country, is, we dont see the kind of interpretations that mr. Clegg says will happen. Is that like a meritocracy . Kind of Something Like that. I think the problem, though is that to the extent that thats true, youve undercut the argument for the necessity to pass this bill in the first place. And, you know its a rational thing for all companies to do, to do the kinds of things that this bill requires. Then you dont need to pass the bill. Not passing it is not going to have a substantial effect on interstate commerce. Discrimination is not going to have a substantial effect on interstate commerce, because companies are going to be taking steps to get rid of it anyway. I think there are going to be situations where taking Sexual Orientation into account is going to make sense. It may not be common. It may not be something that involves what most companies do. This is another problem with passing one size fits all federal legislation. It may be that people who make airplanes have no reason to consider, you know, Sexual Orientation. But people who are in the caregiving business might want to consider Sexual Orientation. It just depends. Theres thousands of businesses out there theyre all different. And i dont think that we should be passing a federal one size fits all bill in that situation. If i could just one size fits all and it seems to work. Miss stackelberg. Similar arguments to that were raised when president obama decided that he would considering lifting the ban on gays and lesbians serving openly in the military, one of our nations largest employers. And people said, this shouldnt be a one size fits all. We have men and women in fox holes together. This is not what we should have. We should have people on submarines and Sexual Orientation will absolutely undermine morale and unit cohesion and we havent seen that come to pass. Im going to move on now. Several commissioners want to ask questions. Commissioner herot. Thank you, mr. Chairman. I guess i wanted to ask about this notion that this can be intercepted in unpredictable or counterproductive ways. You mentioned that some corporations have adopted similar language but they get to interpret their own policies and they wont have that luxury if theres an congressional enactment. The chairman just mentioned that title 7 has worked out well. I guess i would disagree with that. We need title 7, but there are lots of ways in which it has been intercepted in unpredictable and counter productive ways such as the difficulty that employers have in taking into consideration felony convictions by job applicants. I dont want that to occur here if enda is passed. Because of the way that gender identity is defined in the current version, enda prohibits discrimination on the basis of quote, gender related characteristics. Can you give me some help on what that might mean . For example, in the price water house case we had a plaintiff who argued that she had not been promoted because she was i guess we could call it you know, she was pushy as a female, and she said that same characteristic would be regarded as a assertiveness in a male. So is assertiveness versus nonassertiveness, is that a genderrelated characteristic. Is it long hair versus short . Employers are going to look at that and want some guidance as to what that means. Anyone . Well if genderrelated means gender correlated which i think is certainly one way you could interpret this then i agree that, you know this is opening a real pandoras box. You could probably find social scientists or statisticians that could find all kinds of characteristics that have some kind of correlation with gender, with sex. And if all of those are now characteristics that you cant discriminate on the basis of then youve made it very hard for employers to make decisions on the basis of any characteristics at all. I mean, for instance, i should give you an example. Criminal behavior. Your mike went off again. I promise you im not trying to turn you off. I wouldnt blame you. Criminal behavior. I think that everybody would agree that men are more likely to commit crimes than women are. Okay . So is criminal behavior a genderrelated characteristic . Well its certainly a gendercorrelated characteristic. So does this now mean that employers cant discriminate at all, not just on the basis of the disparate impact, but that its disparate treatment now to discriminate against somebody on the basis that they have murdered their last employer . Sounds like a reasonable interpretation of the definition of gender identity to me. But not a very reasonable example. Well tell us what i think thats a little bit ridiculous. I think what it means in terms of how weve seen it interpreted. What i understand that it means i wasnt involved in the drafting. But i understand its very much along the price water house. Its draft its presentation. It could be interpreted as characteristics involved in the price water house case, a woman that does not wear makeup, is not sufficiently feminine assertiveness is two sides of the same coin. Would you say thats part of a genderrelated characteristic that men tend to be more assertive in certain situations and women are sometimes less assertive in certain situations . What does it mean . People dont always con form to gender. [ laughter ] i feel like thats what this is trying to get to, is that when one doesnt con form price water house stands for the theory and i feel like the language that jerntrelated characteristics is about ensconcing that, if someone either con forms to or does not con form to gender stereotypes, they will be protected. It doesnt say anything about gender stereotypes here. This is not title 7. See, thats the problem here. If assertiveness is something that is considered to be a more masculine characteristic you know calmness less assertiveness, something considered to be more feminine it looks to me that under enda, it doesnt matter who you know which person has the problem. A male job applicant could say i was rejected because i do con form to gender stereotypes and especially assertive. Hypermasculine. And yet there are lots of jobs where being hyperassertive would be a very bad thing. I understand the hypothetical. Its not something weve seen in states that have had similar language. On the other hand, with title 7, it takes 50 years sometimes for these things to work themselves out. Thats the thing about passing language, it becomes part of the law. It doesnt go away. But you do have case interpretations of state law language that is similar to this, that can be used to rebut a nonsense claim, for example. Because, again, the good news is this isnt a blank slate. Its not as if this the first incursion into understanding how we would protect transgender or gender noncon forming employees. We have a body of law and several years at least of experience. But title 7 has been worked out perfectly but its very controversial. One of the things that developed quite late sometimes 50 years after it passes. For example, right here, weve been told that title 7 can be used in terms of Sexual Orientation and gender identity. Nobody would have thought that in 1964. And maybe thats the right way to interpret it, or maybe its the wrong way. But its wrong to suggest that the language is not going to be a problem, because its not a problem now. Thats not the way statutes work. I understand that but i think its more important in your considerations to address what is the real problem now that we are trying to ameliorate. I think thats the wrong approach. We have a problem we have to deal with it right now. Lets go with whatever good language we have. We want good language. That wont be abused in the future. We want it to cover only the things we want it to cover. Do we have that now . I would say no. We dont know what genderrelated characteristics are going to mean. Dont we need to develop that . We have over 20 years of experience. Minnesota adopted a law including Sexual Orientation and gender identity more than 20 years ago. And the reason that youre seeing Sexual Orientation and gender identity being incorporated into an interpretation of title 7 is because the similarity between sex discrimination and gender discrimination is bound up with one another. What is discrimination on the basis of sex is also discrimination on the basis of gender identity. 20 years and one state like minnesota, is nothing. Very, very very small. When you multiply that over the population of the United States of america, and you run it for 50 years there are going to be a lot of cases. We want to get this right the first time. Weve also been looking at legislation for more than 20 years to address discrimination. In congress, theres been ongoing conversations. This is not a new topic not a new idea. We have changed language over time, hashed things out, based on best practices that we have seen in states in municipalities. And laws are not static. They dont exist forever. While title 7 has not been amended, certainly congress has gone in and changed other statutes to deal with changes in interpretation, Bad Supreme Court decisions, address additional statutes, to rectify those situations. It is not a static and permanent forever. As a again a former bureaucrat i will point out, when i was in the Civil Rights Division at the justice department, it was rare that we looked at how analgous state statutes had been interpreted in the state court. I think that commissioner heriot is right the notion that youre g