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: FE_logo.jpg
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.

You can learn more about the mark either in Chapter 4 of our new book or in this draft law review article.

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.

  • anon

    Why should we support efforts to put pressure on businesses who merely put into effect the preferences of their employees?

  • Paul Gowder

    Anon: why shouldn’t consumers and the public get to express their preferences to the contrary?

  • http://catamorphism.livejournal.com/ Kirsten Chevalier

    That’s a great idea. Are there any plans to expand the Fair Employment Mark to encompass discrimination based on gender expression, even though that’s not included in ENDA? In addition, it would be great if the language on the web page were more inclusive of bisexuals as well as lesbians and gay men; when it comes to coalition-building, it’s always better to risk making one’s language a little clunkier than to risk alienating potential allies.

  • http://www.usedcarsalesman.com chris franklin

    The “Fair Employment Mark” is a great idea and as a way for businesses to set themselves apart as more progressive organizations.

    You’ve probably already considered this point: I tend to think that an FE mark and policy could legally weigh very heavily on older corporations with longstanding employees and corporate cultures. These entities may be a little gun-shy about adopting FE.

    But, any companies formed in the last 5 years would probably be prime candidates for adopting the Fair Employment Mark and policies. In twenty to fifty years, maybe it will be a majority of U.S. companies that have such a policy.

  • http://suthakamal.blogspot.com Sutha Kamal

    Great idea. While we’re in Canada, and I’m not sure we can necessarily “sign” the document because it refers to specific US legislation, we absolutely buy into the FE idea. (It amazes me that anyone wouldn’t be.)

  • http://www.kernelmustard.com Steve Dispensa

    Sorry for the late comment. The present climate may indeed prevent adopting ENDA as a requirement for all American businesses, but what about the Federal Government as an employer? Have you been able to make any progress about getting the Government to adopt the license and mark? Adoption of FE would be an important precedent; perhaps it’s more feasible at this point.

  • http://www.seattleu.edu Sid DeLong

    I applaud the ingenuity of using the mix of contract, IP, and third party beneficiary law to enforce non-discrimination norms. But what is to stop the Focus on the Family crowd from following suit: licensing a little cross in a circle confirming that the seller is a bigot? Sellers who failed to discriminate would be subject to suit by their customers who found out.