Mark(Et)Ing Nondiscrimination: Privatizing Enda with a Certification Mark
79 Pages Posted: 30 Apr 2005
Date Written: April 28, 2005
A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit to the exact substantive duties of the proposed "Employment Non-discrimination Act," which if passed would prohibit disparate treatment on the basis of sexual orientation. 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 strictures of ENDA. Other certification marks (such as the Good Housekeeping Seal, the UL (Underwriters Laboratory), and the Orthodox Union (Kosher) marks) require the owner of the mark to police licensees, but our proposed "Fair Employment" mark allows employees and applicants to enforce the ENDA duties directly as express third-party beneficiaries of the license. The "Fair Employment" mark thus replicates the core enforcement mechanism of ENDA by creating private causes of action in the same class of individuals.
The mark provides a mechanism for producing precedent about a statute before the statute is ever enacted. The cases enforcing the mark's requirements would provide legislators with information about how the statute might be interpreted, as well as a lower bound on the litigation rates it might engender. The mark represents a new form of federalism. Instead of jurisdictional federalism, the mark facilitates corporate federalism - whereby individual corporations can experiment with taking on the duties of a proposed bill.
Employers might sign the license (and thereby take on the risk of discrimination liability) to: 1) induce more sales - including state and local EEO officers who are charged to contract only with non-discriminating employers; 2) recruit employees - including gay-friendly as well as gay applicants; and 3) appease input suppliers - including accreditation organizations and unions that already press for non-binding nondiscrimination provisions. Some employers might sign the license because their employees already have private rights of actions under state law or local ordinances. This article includes original empiricism suggesting that the litigation cost to employers in states that have prohibited sexual orientation discrimination has been quite modest. Still others may sign simply because it is the right thing to do. Many, many employers have already included sexual orientation in their non-binding nondiscrimination policies. For such employers, signing the license may mean only that the employer will never defend a claim by denying that it promised not to discriminate.
Keywords: civil rights, gay rights, contracts, intellectual property, ENDA, law and economics
JEL Classification: K12, K10, K31
Suggested Citation: Suggested Citation