Mark(et)ing Nondiscrimination: Privatizing ENDA with a Certification Mark

People in the United States strongly support the simple idea that employers should not discriminate against gays and lesbians. In a 2003 Gallup poll, eighty-eight percent of respondents said that “homosexuals should . . . have equal rights in terms of job opportunities.” Even prominent social conservatives- such as George W. Bush-give lip service to the idea that employment discrimination on the basis of sexual orientation is wrong. But gay rights advocates have achieved only modest legal reform on this issue. Seventeen states have prohibited employment discrimination against gays and lesbians. A seemingly modest bill, the Employment Non Discrimination Act (ENDA), which only prohibits disparate treatment on the basis of sexual orientation, has been introduced several times in Congress, always without success. ENDA has little chance of passing during the Bush administration unless midterm elections in 2006 radically change the face of Congress. Civil rights advocates may even abandon ENDA and instead promote a broader, omnibus civil rights improvement act, in which employment rights for gays would presumably play a part. This Article attempts to extend ENDA rights to individual employees by another means. The certification mark, a little-known piece of intellectual property, provides a mechanism for employers to commit to the exact substantive duties of ENDA. We have created a symbol, an FE inside a circle, that we call the “Fair Employment” mark.