June 1, 2005 · Ian Ayres
A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit not to discriminate on the basis of sexual orientation. With just a few clicks of the mouse, at www.fairemploymentmark.org any employer in the country can license the “Fair Employment Mark.” It is an innocuous symbol, an “FE” inside a circle:
There are lots of parallels to the Creative Commons. Both are reinventions of traditional intellectual property licenses to make the world a better place.
Employers that are committed to the idea of employment equality for gay and lesbian workers don’t have to wait for federal or state legislation. They can privately adopt the legislation themselves.
The idea is simple, really. 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 (the proposed federal statute that would prohibit employment discrimination on the basis of sexual orientation). Displaying the mark on a product or service signals to knowing consumers and employees that the company has committed itself not to discriminate on the basis of sexual orientation.
Other certification marks (such as the Good Housekeeping Seal, the Underwriters Laboratory, and the Orthodox Union marks) require the mark holder to police the certification to insure compliance with the requirements of the licensing agreement. But the licensing agreement for the Fair Employment mark allows employees and applicants to enforce the ENDA duties directly as express third-party beneficiaries of the agreement. The Fair Employment mark thus replicates the core enforcement mechanism of ENDA by creating private causes of action in the same class of individuals who would gain protection under the statute.
The license is also incredibly transparent. No need to worry that Ayres and Brown will be litigious or hold up licensees for money. We disclaim any personal right to sue for breach of the non-discrimination promise and licensees can terminate their license at anytime. It is clear we are not profiting from this venture because we charge no licensing fee. The substance of the licensees’ duties is also clear. We did not try to improve on ENDA, just to copy it. Since ENDA requires a filing of claims within 180 days, so does our license. Since ENDA would allow arbitration agreements, our license would as well.
The mark represents an incremental strategy in the struggle for equality. Most importantly, the mark holds out the possibility of extending substantive ENDA rights – especially rights to sue for discrimination – to potentially millions of workers and applicants who are currently uncovered.
But the mark also provides a “demonstration” effect. It provides Congress with information that might quell concerns about ENDA. The mark provides a mechanism for producing case law about the language of a statute before the statute is ever enacted. The mark thus provides legislators with information about the ways a statute might be interpreted by courts, as well as the rates of litigation the statute might engender.
It is somewhat surprising, but to the best of our knowledge, this license is the first time that private contractors have intentionally taken the language of proposed legislation and inserted it into private agreement.
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.” Even prominent conservatives — such as George W. Bush — at least give lip service to the idea that employment discrimination on the basis of sexual orientation is wrong.
But gay rights advocates have made only limited legislative progress on this issue. Fifteen “blue” states have prohibited employment discrimination against gays and lesbians. At the federal level, the “Employment Non-Discrimination Act” (ENDA) has been introduced several times in Congress without success. ENDA has virtually no chance of passing during the Bush administration.
A boatload of prominent corporations – including the likes of AT&T, Coors, IBM and General Mills – have already come out and endorsed ENDA. Virtually all the corporate endorsers of ENDA already have nondiscrimination policies that include sexual orientation. But the pretty words of nondiscrimination policies sometimes turn out to be only that. If an employer discriminates against an applicant because she is gay, it is far from certain that the employer would be liable for breach of contract – even if the employer has a non-discrimination policy.
Lots of businesses say they oppose this kind of discrimination. They adopt policies and endorse ENDA. Few employers, given the chance, would opt out of race discrimination laws. Few employers would opt out of ENDA if a waivable version were enacted. Now, with the Fair Employment mark, they have the opportunity to opt in.