[House Report 110-406]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-406
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
EMPLOYMENT NON-DISCRIMINATION ACT OF 2007
_______
October 22, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
MINORITY AND DISSENTING VIEWS
[To accompany H.R. 3685]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 3685) to prohibit employment discrimination on
the basis of sexual orientation, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
PURPOSE
Millions of gay, lesbian, bisexual, and heterosexual
Americans can be fired from their jobs, refused work, paid less
and otherwise subjected to employment discrimination because of
their actual or perceived sexual orientation with no recourse
under Federal law. Currently, it is legal in 30 states\1\ to
fire someone based on their sexual orientation.
---------------------------------------------------------------------------
\1\California, Colorado, Connecticut, District of Columbia, Hawaii,
Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New
Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island,
Vermont, Washington and Wisconsin have laws barring discrimination in
employment (and other areas) based on sexual orientation. Oregon's law
takes effect on January 1, 2008.
---------------------------------------------------------------------------
Workplace discrimination based on sexual orientation,
affecting heterosexual, as well as gay, lesbian and bisexual
(GLB) Americans, has been widespread and well-documented over
the years. The Employment Non-Discrimination Act (ENDA)
protects all Americans who are or may be perceived to be gay,
lesbian, or bisexual by making it illegal to fire, refuse to
hire, refuse to promote employees based on notions of a
person's sexual orientation. Furthermore, employers are
prohibited from requiring GLB employees to work in a
discriminatorily hostile or abusive environment.
Specifically, ENDA extends Federal employment protections
to GLB workers similar to those protections provided to a
person based on race, religion, sex, national origin, age or
disability. The Act prohibits an employer from using an
individual's sexual orientation as the basis for employment
decisions, such as hiring, firing, promotion or compensation.
ENDA also creates a cause of action for any individual--whether
actually homosexual or heterosexual--who is discriminated
against because that individual is ``perceived'' as homosexual
due to the fact that the individual does not conform to the sex
or gender stereotypes associated with that individual's sex.
Furthermore, ENDA provides for the similar procedures, while
giving somewhat more limited remedies as those under Title VII
of the Civil Rights Act of 1964\2\ (``Title VII'') and the
Americans with Disabilities Act (``ADA'').\3\ In addition, ENDA
applies to Congress and the Federal government, as well as
employees of state and local governments.
---------------------------------------------------------------------------
\2\42 U.S.C. Sec. Sec. 2000e-2000e-17.
\3\42 U.S.C. Sec. Sec. 12101-12213.
---------------------------------------------------------------------------
COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES
94th Congress
On January 14, 1975, Congresswoman Bella Abzug (D-NY)
introduced the first bill to address sexual-orientation
discrimination in the United States, H.R. 166, the Civil Rights
Amendments. H.R. 166 would have amended the Civil Rights Act of
1964 to prohibit discrimination on the basis of affectional or
sexual orientation, sex, or marital status in public
accommodations, public education, equal employment
opportunities, the sale, rental and financing of housing, and
education programs which receive Federal financial assistance.
It garnered four cosponsors and was referred to the Judiciary
Committee. The Committee did not consider H.R. 166.
Representative Abzug on March 25, 1975 reintroduced the
Civil Rights Amendments, as H.R. 5452 with 23 cosponsors. The
Civil Rights Amendments was also introduced by Representative
Richard Ottinger (D-NY) as H.R. 10389 on October 28, 1975 with
no cosponsors. Both bills were referred to the Judiciary
Committee and neither was considered by the Committee.
On February 4, 1975 Representative Donald Fraser (D-MN)
introduced H.R. 2667, A Bill to Prohibit Employment
Discrimination on the Basis of Sexual Orientation, which also
sought to amend the Civil Rights Act of 1964. However, in
addition to covering discrimination in all the venues provided
in the Civil Rights Act of 1964, H.R. 2667 also banned
discrimination in public facilities and federally assisted
opportunities. The bill had no co-sponsors and was referred to
the Judiciary Committee. The Committee did not consider H.R.
2667.
The Civil Rights Amendments were reintroduced by
Representative Phillip Burton (D-CA) as H.R. 13019, on March 5,
1976 with no cosponsors. H.R. 13019 was substantively the same
as H.R. 2667, A Bill to Prohibit Employment Discrimination on
the Basis of Sexual Orientation. Representative Abzug
subsequently introduced the Civil Rights Amendments, H.R. 13928
on May 20, 1976 with 4 cosponsors. Both bills were referred to
the House Judiciary Committee, where no further action was
taken.
96th Congress
On February 8, 1979 the Civil Rights Amendments Act of
1979, H.R. 2074 was introduced by Representative Ted Weiss (D-
NY). In addition to prohibiting discrimination on the basis of
affectional or sexual orientation, it prescribed penalties for
non-compliance and authorized the Attorney General to
intervene. It garnered 56 cosponsors and was referred to the
House Judiciary and House Education and Labor Committees. No
further action was taken.
On December 5, 1979, Senator Paul Tsongas (D-MA) introduced
the first bill in the Senate to address sexual-orientation
discrimination, A Bill to Prohibit Employment Discrimination on
the Basis of Sexual Orientation, S. 2081. It had 3 cosponsors
and was referred to the Senate Labor and Human Resources
Committee. No further action was taken.
97th Congress
On January 28, 1981, Representative Ted Weiss (D-NY)
introduced the Civil Rights Amendments Act of 1981, H.R. 1454.
It garnered 59 cosponsors and was referred to the House
Committees on Judiciary and Education and Labor. However, no
further action was taken on the bill.
On May 1, 1981, Representative Phillip Burton (D-CA)
introduced the Civil Rights Amendments Act of 1981, H.R. 3371,
which had no cosponsors. It was referred to the House Judiciary
Committee and the Committee on Education and Labor. It was
subsequently referred to the Education and Labor Committee's
Subcommittee on Employment Opportunities of the Committee on
Education and Labor. No further action was taken in either
Committee or in the Subcommittee.
On October 6, 1981, Senator Paul Tsongas (D-MA) introduced
A Bill To Prohibit Employment Discrimination on the Basis of
Sexual Orientation, S. 1708, which garnered 6 cosponsors. It
was referred to the Senate Labor and Human Resources Committee,
but no further action was taken.
98th Congress
On January 3, 1983, Representative Ted Weiss (D-NY)
introduced the Civil Rights Amendments Act of 1983, H.R. 427.
It garnered 38 cosponsors and was referred to the House
Committees on Judiciary and Education and Labor. It was
subsequently referred to the Subcommittee on Civil and
Constitutional Rights of the Judiciary Committee.
On February 3, 1983, Senator Paul Tsongas (D-MA) introduced
A Bill To Prohibit Employment Discrimination on the Basis of
Sexual Orientation, S. 430, which garnered 8 cosponsors. It was
referred to the Senate Labor and Human Resources Committee. No
further action was taken.
On April 19, 1983, Representative Ted Weiss (D-NY)
reintroduced the Civil Rights Amendments Act of 1983, H.R.
2624. It garnered 75 cosponsors and was referred to the House
Judiciary Committee and the Education and Labor Committee. H.R.
2624 was subsequently referred to the Subcommittee on
Employment Opportunities of the Committee on Education and
Labor. No further action was taken in either Committee or the
Subcommittee.
99th Congress
On January 3, 1985, Representative Ted Weiss (D-NY)
introduced the Civil Rights Amendments Act of 1985, H.R. 230.
It garnered 72 cosponsors and was referred to the House
Committees on Judiciary and Education and Labor. It was
subsequently referred to the Subcommittee on Civil and
Constitutional Rights of the Judiciary Committee.
On July 15, 1985, Senator John Kerry (D-MA) introduced the
Civil Rights Amendments Act of 1985, S. 1432, which garnered 5
cosponsors. It was referred to the Senate Judiciary Committee.
No further action was taken.
100th Congress
On January 21, 1987, Representative Ted Weiss (D-NY)
introduced the Civil Rights Amendments Act of 1987, H.R. 709.
It garnered 73 cosponsors and was referred to the House
Committees on Judiciary and Education and Labor. It was
subsequently referred to the Subcommittee on Employment
Opportunities of the Committee on Education and Labor, but no
further action was taken.
On February 2, 1987, Senator Alan Cranston (D-CA)
introduced the Civil Rights Amendments Act of 1987, S. 464,
which garnered 9 cosponsors. It was referred to the Senate
Judiciary Committee, and the Committee's Subcommittee on the
Constitution. No further action was taken.
On February 29, 1988, Senator John Kerry (D-MA) introduced
the Civil Rights Protection Act of 1988, S. 1432, which
garnered 2 cosponsors. It was referred to the Senate Judiciary
Committee, and the Committee's Subcommittee on the
Constitution. Neither the Committee nor the Subcommittee
considered the bill.
101st Congress
On January 24, 1989, Representative Ted Weiss (D-NY)
introduced the Civil Rights Amendments Act of 1989, H.R. 655.
It garnered 79 cosponsors and was referred to the House
Judiciary Committee and the Education and Labor Committee. H.R.
655 was subsequently referred to the Judiciary Committee's
Subcommittee on Civil and Constitutional Rights, but no further
action was taken.
On January 25, 1989, Senator Alan Cranston (D-CA)
introduced the Civil Rights Amendments Act of 1989, S. 47,
which garnered 11 cosponsors. It was referred to the Senate
Judiciary Committee and the Committee's Subcommittee on
Constitution. No further action was taken.
102nd Congress
On March 6, 1991, Senator Alan Cranston (D-CA) introduced
the Civil Rights Amendments Act of 1991, S. 47, which garnered
16 cosponsors. It was referred to the Senate Judiciary
Committee and then to the Subcommittee on Constitution. No
further action was taken.
On March 13, 1991, Representative Ted Weiss (D-NY)
introduced the Civil Rights Amendments Act of 1991, H.R. 1430.
It garnered 110 cosponsors and was referred to the House
Judiciary Committee and Education and Labor Committee. H.R.
1430 was subsequently referred to the Judiciary Committee's
Subcommittee on Civil and Constitutional Rights, but no further
action was taken.
103rd Congress
On January 5, 1993, Representative Edolphus Towns (D-NY)
introduced the Civil Rights Amendments Act of 1993, H.R. 423,
which had no cosponsors. It was referred to the House
Committees on Judiciary and Education and Labor. It was
subsequently referred to the Subcommittee on Civil and
Constitutional Rights of the Judiciary Committee, but no
further action was taken.
Also on January 5, 1993, Representative Henry Waxman (D-CA)
introduced the Civil Rights Act of 1993, H.R. 431, which had
garnered 76 cosponsors. It was referred to the House Committees
on the Judiciary and Education and Labor. It was subsequently
referred to the Subcommittee on Civil and Constitutional Rights
of the Judiciary Committee, but no further action was taken.
On June 23, 1994 Senator Edward Kennedy (D-MA) introduced
the Employment Non-Discrimination Act of 1994 (ENDA), S. 2238.
It was referred to the Senate Labor and Human Resources
Committee, which held the first hearing on the issue entitled
``Employment Non-Discrimination Act of 1994'' on July 29,
1994.\4\
---------------------------------------------------------------------------
\4\S. Hrg. 103-703.
---------------------------------------------------------------------------
The hearing featured testimony from witnesses, including:
The Honorable Claiborne Pell, U.S. Senator from the State of
Rhode Island; The Honorable Jeff Bingaman, U.S. Senator from
the State of New Mexico; Ms. Cheryl Summerville, Bremen,
Georgia; Ernest Dillon, Detroit, Michigan; Mr. Justin Dart,
Jr., Chairman, President Bush's Committee on Employment of
People with Disabilities; Warren Phillips, former publisher,
the Wall Street Journal, and former CEO and Chairman, Dow Jones
& Company, Inc.; Steven Coulter, Vice-President, Pacific Bell;
and Richard Womack, Director of Civil Rights, AFL-CIO; Mr.
Joeseph E. Broadus, George Mason School of Law; Robert H.
Knight, Family Research Council; and Chai Feldblum, Georgetown
University Law Center, on behalf of Leadership Conference on
Civil Rights.
Written statements were provided by: Mr. Philippe Kahn,
President, Chairman, and CEO, Borland, International;
Leadership Conference on Civil Rights, Washington, D.C.; Mr.
Deval Patrick, Assistant Attorney General, Department of
Justice; The Honorable John Chafee, U.S. Senator from the State
of Rhode Island; The Honorable Barry Goldwater, U.S. Senator
from the State of Arizona; Reverend Edmond Browning, Presiding
Bishop, Episcopal Church; Mrs. Coretta Scott King, President,
Martin Luther King Jr. Center for Non-Violent Social Change;
Ms. Mary Frances Berry, Chairperson, U.S. Commission on Civil
Rights; and Mr. Anthony Carnevale, Chair, National Commission
on Employment Policy.
On June 23, 1994, Representative Gerry Studds (D-MA)
introduced the Employment Non-Discrimination Act, H.R. 1430,
which garnered 110 cosponsors. It was referred to the House
Committees on the Judiciary and Education and Labor. It was
subsequently referred to the Subcommittee on Civil and
Constitutional Rights of the Judiciary Committee, but no
further action was taken.
104th Congress
On January 4, 1995, Representative Edolphus Towns (D-NY)
introduced the Civil Rights Amendments Act of 1995, H.R. 382,
which had 1 cosponsor. It was referred to the House Judiciary
Committee, the Economic and Educational Opportunities Committee
and subsequently referred to the Subcommittee on Employer-
Employee Relations of the Committee on Economic and Educational
Opportunities. No further action was taken in either Committee
or the Subcommittee.
On June 15, 1995, Representative Gerry Studds (D-MA)
introduced the Employment Non-discrimination Act of 1995, H.R.
1863, which garnered 142 cosponsors. It was referred to the
House Committees on Educational and Economic Opportunities,
Oversight, Judiciary, and Government Reform and Oversight. It
was subsequently referred to the Subcommittee on the
Constitution of the Judiciary Committee, but no further action
was taken.
On June 15, 1995, Senator James Jeffords (R-VT) introduced
the Employment Non-Discrimination Act of 1995, S. 932, which
garnered 30 cosponsors. It was referred to the Committee on
Labor and Human Resources.
On September 5, 1995, Senator Edward Kennedy (D-MA)
introduced the Employment Non-Discrimination Act of 1995, S.
2056, which garnered 3 cosponsors. It was brought before the
Senate by unanimous consent. The Senate narrowly rejected S.
932 on September 10, 1996 by a 50-49 vote.\5\ It marked the
first time that the idea of a Federal non-discrimination clause
protecting gays and lesbians in employment was voted on in the
Congress.
---------------------------------------------------------------------------
\5\Rollcall No. 281.
---------------------------------------------------------------------------
105th Congress
On January 7, 1997, Representative Edolphus Towns (D-NY)
introduced the Civil Rights Amendments Act of 1998, H.R. 365,
which had no cosponsors. It was referred to the House Judiciary
Committee, and Education and the Workforce Committee. H.R. 365
was subsequently referred to the Subcommittee on Employer-
Employee Relations of the Committee on Education and the
Workforce, but no further action was taken.
On June 10, 1997, Senator James Jeffords (R-VT) introduced
the Employment Non-Discrimination Act of 1997, S. 869, which
garnered 34 cosponsors. It was referred to the Committee on
Labor and Human Resources.
On October 23, 1997, a hearing was held by the Committee on
Labor and Human Resources entitled ``The Employment Non-
discrimination Act of 1997''.\6\ The following persons and
organizations presented testimony: Ms. Kendall Hamilton,
Oklahoma City, Oklahoma; Mr. David N. Horowitz, Phoenix,
Arizona; Raymond W. Smith, Chairman of the Board and CEO, Bell
Atlantic Corporation, Arlington, Virginia; Mr. Thomas J. Grote,
Chief Operating Officer, Donato's Pizza, Blacklick, Ohio; Mr.
Herbert D. Valentine, Executive Presbyter, Baltimore
Presbytery, Moderator of the 203rd General Assembly, the
Presbyterian Church (USA); National Council of the Churches of
Christ in the U.S. A.; Mr. Oliver Thomas, Special Counsel for
Civil and Religious Liberties; Ms. Chai Feldblum, Associate
Professor of Law, Georgetown University Law Center; American
Civil Liberties Union; Ann McBride, President, Common Cause;
America Psychological Association; Elizabeth Birch, Executive
Director, Human Rights Campaign; Parents, Families, and Friends
of Lesbians and Gays.
---------------------------------------------------------------------------
\6\S. Hrg. 105-279.
---------------------------------------------------------------------------
On June 10, 1997, Representative Chris Shays (R-CT)
introduced the Employment Non-discrimination Act of 1997, H.R.
1858, which garnered 160 cosponsors. It was referred to the
House Committees on Education and the Workforce, Oversight,
Judiciary, and Government Reform and Oversight. It was
subsequently referred to the Subcommittee on Employer-Employee
Relations of the Education and the Workforce Committee, but no
further action was taken.
106th Congress
On January 6, 1999, Representative Edolphus Towns (D-NY)
introduced Civil Rights Amendments Act of 1999, H.R. 311, which
had one cosponsor. It was referred to the House Committees on
Judiciary, and Education and the Workforce. It was subsequently
referred to the Subcommittee on the Constitution of the
Committee on Judiciary, but no further action was taken.
On June 24, 1999, Senator James Jeffords (R-VT) introduced
the Employment Non-Discrimination Act of 1999, S. 1276, which
garnered 36 cosponsors. It was referred to the Committee on
Health, Education, Labor, and Pensions (HELP). No further
action was taken.
On June 24, 1999, Representative Chris Shays (R-CT)
introduced the Employment Non-Discrimination Act of 1999, H.R.
2355, which garnered 173 cosponsors. It was referred to the
Education and the Workforce Committee, House Administration
Committee, Judiciary Committee, and Government Reform
Committee. It was subsequently referred to the Subcommittee on
Employer-Employee Relations of the Education and the Workforce
Committee, but no further action was taken.
107th Congress
On January 3, 2001, Representative Edolphus Towns (D-NY)
introduced Civil Rights Amendments Act of 2001, H.R. 217, which
had no cosponsors. It was referred to the House Committees on
Judiciary and Education and the Workforce. It was subsequently
referred to the Subcommittee on Employer-Employee Relations of
the Committee on Education and the Workforce, but no further
action was taken.
On July 31, 2001, Senator Edward Kennedy (D-MA) introduced
the Employment Non-Discrimination Act of 2002, S. 1274, which
garnered 44 cosponsors. It was referred to the HELP Committee.
The HELP Committee held a hearing on the legislation on
February 27, 2002 entitled ``The Employment Non-Discrimination
Act.''\7\ The following persons presented testimony: Mr.
Charles K. Gifford, President and CEO FleetBoston Financial,
Boston, Massachusetts; Lucy Billingsley, Partner, Billingsley
Company, Carrollton, Texas; Robert L. Berman, Director of Human
Resources and Vice President, Eastman Kodak Company, Rochester,
New York; Richard Womack, Director, Department of Civil Rights,
AFL-CIO, Washington, D.C.; Lawrence Lane, Long Island, New
York; and Matthew Coles, Director, National Lesbian and Gay
Rights Project, American Civil Liberties Union, New York, New
York.
---------------------------------------------------------------------------
\7\S. Hrg. 107-307.
---------------------------------------------------------------------------
Written statements were provided by: The American
Psychological Association; Kim Wisckol, Vice-President and
Director of Human Resources of the Consumer Business
Association, Hewlett-Packard Company; Elizabeth Birch,
Executive Director, Human Rights Campaign; and the Honorable
Patty Murray, U.S. Senator from the State of Washington. A
letter was provided from the President of New Balance Athletic
Shoe, Inc., James Davis, to Senators Kennedy and Gregg, dated
April 18, 2002.
The bill was reported out of committee by voice vote\8\ and
placed on the legislative calendar. However, no vote was taken
in the Senate.
---------------------------------------------------------------------------
\8\S. Rep. 107-341.
---------------------------------------------------------------------------
On July 31, 2001, Representative Chris Shays (R-CT)
introduced the Employment Non-discrimination Act of 2001, H.R.
2692, which garnered 193 cosponsors. It was referred to the
House Committees on Education and the Workforce,
Administration, Judiciary, and Government Reform. It was
subsequently referred to the Subcommittee on Employer-Employee
Relations of the Education and the Workforce Committee, but no
further action was taken.
108th Congress
On October 2, 2003, Senator Edward Kennedy (D-MA)
introduced the Employment Non-Discrimination Act of 2003, S.
1705, which garnered 43 cosponsors. It was referred to the HELP
Committee however, no further action was taken.
On January 7, 2003, Representative Edolphus Towns (D-NY)
introduced the Civil Rights Amendments Act of 2003, H.R. 214,
which had no cosponsors. It was referred to the Judiciary
Committee, and the Education and the Workforce Committee. H.R.
214 was subsequently referred to the Subcommittee on
Constitution of the Committee on Judiciary, but no further
action was taken.
On October 8, 2003, Representative Chris Shays (R-CT)
introduced the Employment Non-discrimination Act of 2003, H.R.
3285, which garnered 180 cosponsors. It was referred to the
House Committees on Education and the Workforce, House
Administration, Judiciary, and Government Reform. It was
subsequently referred to the Subcommittee on Employer-Employee
Relations of the Education and the Workforce Committee, but no
further action was taken.
109th Congress
On January 6, 2005, Representative Edolphus Towns (D-NY)
introduced the Civil Rights Amendments Act of 2003, H.R. 214,
which had no cosponsors. It was referred to the House
Committees on Judiciary, and Education and the Workforce. It
was subsequently referred to the Subcommittee on Constitution
of the Committee on Judiciary, but no further action was taken.
110th Congress
On March 24, 2007, Representative Barney Frank (D-MA)
introduced the Employment Non-Discrimination Act of 2007, H.R.
2015, which currently has 165 cosponsors. It was referred to
the House Committees on Education and Labor, Administration,
Judiciary, and Oversight and Government Reform. It was
subsequently referred to the Subcommittee on Health,
Employment, Labor and Pensions (HELP) of the Education and
Labor Committee.
On September 28, 2007, Representative Barney Frank (D-MA)
and Deborah Pryce (R-OH) introduced H.R. 3685, the Employment
Non-Discrimination Act of 2007. It was referred to House
Committees on Education and Labor, Administration, Judiciary,
and Oversight and Government Reform.
Subcommittee Hearing on H.R. 2015
On September 5, 2007, the Education and Labor Committee's
HELP Subcommittee held a hearing on ``The Employment Non-
Discrimination Act of 2007 (H.R. 2015).'' Witnesses testifying
before the Committee included: Representative Barney Frank;
Representative Tammy Baldwin; Representative Emmanuel Cleaver;
Michael Carney of Springfield, MA; Brooke Waits of Dallas, TX;
Mark Fahleson, Attorney at Rembolt Ludtke LLP; Lee Badgett,
Research Director of Williams Institute at the UCLA School of
Law; Helen Norton, Associate Professor of Law, University of
Colorado School of Law; Nancy Kramer, Founder and CEO of
Resource Interactive; Kelly Baker, Vice President of Diversity
of General Mills; and Larry Lorber, Partner at Proskauer Rose
LLP.
Full Committee Markup of H.R. 3685
On October 18, 2007, the Committee on Education and Labor
met to mark up H.R. 3685, the Employee Non-Discrimination Act
of 2007. The Committee reported the bill favorably by a vote of
27-21 to the House of Representatives.
Four amendments were offered and debated. None of the
amendments were adopted.
Representative Souder (R-IN) offered three amendments. The
first Souder amendment was defeated by a vote of 18-30. The
amendment would have struck ``perceived'' from the protection
against discrimination based on ``actual or perceived sexual
orientation.'' The term sexual orientation is expressly defined
in H.R. 3685 as including only: ``homosexuality,
heterosexuality, or bisexuality.'' The Committee strongly
believes that prohibiting discrimination based on ``perceived''
sexual orientation is necessary to protect the rights of
employees. The Souder amendment would permit an employer who
believes an employee may be gay, when in fact he or she is not,
to lawfully fire that employee based on that perception.
Furthermore, including protections based on an individual's
perceived sexual orientation ensures that employers will not be
able to defend its actions by alleging it did not know the
``actual'' sexual orientation of the employee but nevertheless
discriminated against the employee on the basis of his/her
perceived sexual orientation.
The second Souder amendment was defeated by a vote of 18-
30. The amendment would have permitted employers to condition
employment on being married or being eligible to marry. The
``Actions Conditioned on Marriage'' provision is necessary to
protect against an easy subterfuge for anti-gay discrimination.
A marriage ability job requirement would be a deceptive way in
which employers could intentionally discriminate against gay
employees in states without same-sex marriage.
The third Souder amendment was defeated by a vote of 19-29.
The third amendment offered by Congressman Souder would
prohibit retaliation against an employee who refuses to sign an
employer's anti-discrimination or anti-harassment policy or
refused to participate in diversity training because such
policy is against the individual's religious beliefs regarding
sexual orientation.
The fourth amendment was offered by Representative Hoekstra
(R-MI) and defeated by a vote of 21-27. The Hoekstra amendment
would have expanded the religious exemption to include
institutions that maintain a faith-based mission. H.R. 3685
adopts Title VII's definition of a religious organization and
thereby imports long-standing existing law on who is or is not
a religious organization. The scope of its religious exemption
is to those organizations who are covered by Title VII's
exemption, no more and no less.
SUMMARY
The Employment Non-Discrimination Act of 2007 prohibits
employers of fifteen or more persons, including government
employers, employment agencies and labor organizations, from
discriminating in employment or employment opportunities on the
basis of actual or perceived sexual orientation. Employment
opportunities include: firing, hiring, compensation, terms,
conditions and privileges of employment or union membership.
The Act prohibits the imposition of affirmative action and
the adoption of quotas or granting preferential treatment to an
individual based on their sexual orientation by an employer.
H.R. 3685 does not require employers to provide benefits to
their employees or their domestic partners. It prohibits the
Equal Employment Opportunity Commission (EEOC) from collecting
statistics and does not require the collection of statistics by
employers. Religious organizations, including religious
corporations, associations, societies, or educational
institutions are exempted. In addition, H.R. 3685 does not
apply to members of the Armed Forces.
The enforcement powers, procedures, and remedies that exist
under current Federal employment discrimination law are
included under the Act. This means a plaintiff must go through
the administrative mechanism of the EEOC. A plaintiff may then
file a lawsuit in Federal court and, if the plaintiff prevails,
may receive injunctive relief such as reinstatement and/or back
pay. A plaintiff may also receive compensatory and punitive
damages, to the extent such damages are allowed under Title
VII. Similar to Title VII, attorney's fees are also available.
However, unlike the protections contained under Title VII, ENDA
does not allow an individual to bring a traditional ``disparate
impact'' claim, which is a claim that a facially neutral
practice of the employer has a disproportionate adverse effect
on persons of a protected class.
STATEMENT AND COMMITTEE VIEWS
The Committee on Education and Labor of the 110th Congress
is committed to guaranteeing equality and opportunity in the
workplace and to ensuring that American workers have access to
remedies if they are discriminated against. ENDA is a critical
step toward ensuring that Americans are not discriminated
against because of their sexual orientation. Despite the
tremendous progress this country has made in securing the
rights of Americans to be free from discrimination, GLB workers
remain vulnerable to discrimination. Without any Federal
protection, GLB workers can be fired simply for being gay. The
Employment Non-Discrimination Act will ensure that in the same
tradition of this country's civil rights laws, the fundamental
principles of fairness and equality at work will be protected
regardless of an individual's sexual orientation.
Title VII of the 1964 Civil Rights Act generally makes it
unlawful for employers with 15 or more employees, employment
agencies, and labor organizations to discriminate against
employees or applicants on the basis of race, color, religion,
sex, or national origin. While many forms of employment and
pre-employment bias are forbidden under Title VII,
discrimination based on sexual orientation is currently an
unprotected class which represents millions of working
Americans.
H.R. 3685 furthers the spirit of civil rights law by
extending protections to GLB workers. In the same way that
Title VII, the Age Discrimination in Employment Act (ADEA), and
the Americans with Disabilities Act (ADA) prohibit other forms
of employment discrimination, ENDA would prohibit intentional
discrimination based on sexual orientation. The legislation
would create no ``special rights,'' but will guarantee equal
rights. ``Sexual orientation'' is defined by the bill as
``homosexuality, bisexuality, or heterosexuality.''
In addition to prohibiting discrimination based on a
person's actual sexual orientation, ENDA also prohibits
discrimination based on a person's perceived sexual
orientation. Both forms of discrimination--because of a
person's actual sexual orientation and because of a person's
perceived sexual orientation--are invidious. For this reason,
ENDA creates a cause of action for an individual, for example,
who is actually heterosexual, but who is discriminated against
because that individual is perceived as homosexual.
By providing workplace protections and remedies to these
workers who experience discrimination, ENDA will help to end
the insidious and irrational job discrimination inflicted upon
GLB workers each day.
Anti-Discrimination Protections Must Extend to Sexual Orientation
Historical overview of sexual orientation discrimination
In the majority of states, it is entirely legal for
employers to openly discriminate on the grounds of sexual
orientation. The existence of sexual orientation discrimination
in American employment illustrates half a century's worth of
severe anti-gay bias in both the state and private employment
contexts.\9\ A pattern of anti-gay discrimination began to
emerge throughout the 1940's and 1950's, both in the public and
private employment contexts. In many instances, such
discrimination was a matter of policy in areas of Federal
employment, as well as in many police forces, fire departments,
schools, and public agencies of our country. Even where no
government policies mandated sexual orientation discrimination,
unchecked private anti-gay biases cost the careers of thousands
of GLB workers.\10\
---------------------------------------------------------------------------
\9\S. Rep. 107-341.
\10\Id. See generally Russell J. Davis, Refusal to Hire, or
Dismissal From Employment, On Account of Plaintiff's Sexual Lifestyle
or Sexual Preference as a Violation of Federal Constitution or Federal
Civil Rights Statutes, 42 A.L.R. Fed. 189 (2002); Robin Cheryl Miller,
Federal and State Constitutional Provisions As Prohibiting
Discrimination in Employment on the Basis of Gay, Lesbian or Bisexual
Orientation or Conduct, 96 A.L.R. 5th 391 (2002); The Human Rights
Campaign, Documenting Discrimination (2001); William D. Rubenstein, Do
Gay Rights Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65
(2001).
---------------------------------------------------------------------------
On July 2, 1964 the Civil Rights Act of 1964 was signed
into law, prohibiting discrimination based on race, sex, color,
national origin, and religion. Despite a growing awareness that
anti-discrimination law should include protections based on
sexual orientation, Title VII did not extend such protection to
GLB workers. However, the implementation of Title VII
demonstrated the positive impact anti-discrimination laws can
have,\11\ while fueling a widening belief that sexual
orientation discrimination should no longer be legally
permissible. Events, particularly the Stonewall uprising of
1969\12\ further highlighted the plight of GLB individuals and
the need to protect them under Federal anti-discrimination law.
---------------------------------------------------------------------------
\11\The Employment Non-Discrimination Act of 2007, hearing before
the Subcommittee on Health, Employment, Labor and Pensions, 110th
Cong., 1st Sess. (2007) (written testimony of Representative Emanuel
Cleaver II (D-MO)) [Hereinafter Cleaver testimony].
\12\On Friday evening, June 27, 1969, the New York City tactical
police force raided a popular Greenwich Village gay bar, the Stonewall
Inn. Raids were not unusual in 1969; in fact, they were conducted
regularly without much resistance. However, that night the street
erupted into violent protest as the crowds in the bar fought back. The
backlash and several nights of protest that followed have come to be
known as the Stonewall Riots. The Stonewall uprising marked the arrival
of the modern mass movement for equality for lesbians, gay men,
transgender and bisexual men and women.
---------------------------------------------------------------------------
In 1975, Congresswoman Bella Abzug (D-NY) introduced the
first Federal legislation\13\ to address sexual orientation
discrimination in America. This legislation was modeled after
the succession of previous civil rights legislation that
prohibited employment discrimination based on race and sex.
Despite these early efforts, severe discrimination has
continued throughout the years, with private anti-gay biases
fortified by the lack of a Federal pronouncement on sexual
orientation discrimination. Federal courts have been rendered
virtually powerless to remedy the discrimination for want of a
proper Federal cause of action.\14\
---------------------------------------------------------------------------
\13\H.R. 166. Congresswoman Abzug introduced a bill of the same
nature two additional times during the 94th Congress, H.R. 5452, H.R.
13928.
\14\S. Rep. 107-341.
---------------------------------------------------------------------------
The Civil Service Reform Act of 1978\15\ put into law
regulatory changes and prohibited discrimination against
Federal employees for ``conduct which does not adversely
affect'' their job performance. This was interpreted to mean
that sexual orientation discrimination is a prohibited
personnel practice.\16\
---------------------------------------------------------------------------
\15\Pub. L. 95-454.
\16\The law did not affect the issuing of security clearances by
agencies including the FBI and CIA because they denied clearances based
on sexual orientation on the grounds that homosexuality might subject
them to blackmail. See, Peter Freiberg, President's Order Protects
Workers, the Wash. Blade (June 5, 1998).
---------------------------------------------------------------------------
Despite the reach of the Civil Service Reform Act, formal
protections for GLB workers are still lacking. In response to
the lack of recourse, the Clinton Administration encouraged
individual Federal agencies to issue policies banning sexual
orientation discrimination.\17\ However agencies failed to
adopt such policies or notify employees that non-discrimination
policies were adopted. Consequently, in 1998 President Clinton
issued Executive Order (E.O.) 13087, formally adding sexual
orientation to an existing E.O.\18\ which banned job
discrimination against Federal workers based on race, color,
religion, sex, national origin, disability and age.\19\ While
E.O. 13087 was a crucial step, Federal law applicable to non-
federal employers was still needed.
---------------------------------------------------------------------------
\17\President Clinton did not initially issue an Executive Order
requiring these policies because of a fear that Congress would overturn
it.
\18\Executive Order 11478.
\19\Peter Freiberg, President's Order Protects Workers, the Wash.
Blade (June 5, 1998).
---------------------------------------------------------------------------
President Clinton highlighted that the Order failed to
create any new enforcement rights, such as the ability to bring
bias complaints to the Equal Employment Opportunity Commission
(EEOC). However Federal employees like Rob Sadler, an attorney
with the Department of Commerce and president of the Federal
GLOBE (gay, lesbian, or bisexual employees) stated the Order
would bring major change to the workplace by telling ``agencies
to explicitly detail and distribute the complaint procedures
for employees who believe they have been subject to anti-gay
discrimination.''
President Clinton urged Congress to pass ENDA to extend
these basic employment protections to all GLB workers. He
argued, ``individuals should not be denied a job on the basis
that has no relationship to their ability to perform
work.''\20\
---------------------------------------------------------------------------
\20\Id.
---------------------------------------------------------------------------
Sexual orientation discrimination by State and local governments
In addition, the State and local governments throughout the
United States have demonstrated a long and troubling history of
unconstitutional discrimination against GLB workers who are
employed by those government entities. Examples of
discrimination by state or local government employers include:
In 1973, Steven Childers was denied a job with the
Dallas Police Department because of his sexual orientation,
despite the fact that he earned the highest score of any
candidate who took the civil service examination for that
position.\21\ During the relevant job interview, the police
department official with sole authority for hiring for that
particular opening asked Childers various questions intended to
determine Childers' sexual orientation. At the conclusion of
the interview, the interviewer told Childers, ``I think you
should know there are a lot of cops who like to bust fags.''
After he was denied the job, Childers filed suit against the
local government employer in the U.S. District Court for the
Northern District of Texas, but he was denied relief.
---------------------------------------------------------------------------
\21\Childers v. Dallas Police Dep't, 513 F. Supp. 134 (N.D. Tex.
1981).
---------------------------------------------------------------------------
In December 1974, Ms. Rowland was suspended from
her position as a high school guidance counselor in the Mad
River Local School District in Montgomery County, Ohio.\22\
Rowland ``was fired because she was a homosexual who revealed
her sexual preference--and, as the jury found, for no other
reason.''\23\ Indeed, the federal jury that heard her case
ruled in her favor and awarded her damages, however, that
ruling was later overturned by the U.S. Court of Appeals for
the Sixth Circuit. Although the U.S. Supreme Court later
declined to hear Rowland's appeal, Justice William Brennan
offered a powerful opinion dissenting from the denial of
certiorari, in which he explained why classifications based on
sexual orientation are suspect and should be carefully
scrutinized by the courts.\24\
---------------------------------------------------------------------------
\22\Rowland v. Mad River Local School Dist., 730 F.2d 444 (6th Cir.
1984).
\23\Id. at 454 (Edwards, J., dissenting).
\24\470 U.S. 1009, 105 S. Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan,
J. and Marshall, J. dissenting from the denial of cert.).
---------------------------------------------------------------------------
Joseph Acanfora III, a public junior high school
science teacher in Montgomery County, Maryland, was transferred
to a nonteaching position in 1972 when the school district
learned he was gay. Acanfora filed a constitutional challenge
and the U.S. District Court for the District of Maryland ruled
in his favor, holding that the school officials wrongfully
transferred him to a nonteaching position when they discovered
that he was gay.\25\ However, the U.S. Court of Appeals for the
Fourth Circuit overturned this ruling without even considering
the equal protection arguments presented in Acanfora's case.
Instead, the Fourth Circuit oddly focused on the fact that
Acanfora had not outed himself in his application for
employment.\26\
---------------------------------------------------------------------------
\25\Acanfora v. Board of Ed. of Montgomery County, 359 F. Supp. 843
(D.Md. 1973).
\26\Acanfora v. Board of Ed. of Montgomery County, 491 F.2d 498
(4th Cir. 1974).
---------------------------------------------------------------------------
Richard Aumiller, a lecturer at the University of
Delaware, served as the faculty advisor to the University's Gay
Community group.\27\ Aumiller's employment contract was not
renewed in 1975 after he made positive statements in newspaper
articles about homosexuality which the University, president,
and officials found to be offensive. The U.S. District Court
for the District of Delaware found that these statements in no
way impeded Aumiller's ability to perform his daily duties, nor
did they substantially disrupt the University or his working
relationship with his superiors. Therefore, the Court held that
the University's discriminatory actions violated Aumiller's
constitutional rights.
---------------------------------------------------------------------------
\27\Aumiller v. the University of Delaware, 434 F. Supp. 1273
(D.Del. 1977).
---------------------------------------------------------------------------
Vernon R. Jantz had regularly worked as a
substitute teacher at the Wichita North High School in Wichita,
Kansas, but he was denied fulltime employment as a social
studies teacher in 1988 because the principal of that high
school had perceived that Jantz might have ``homosexual
tendencies.''\28\ Jantz filed suit against the local government
employer in the U.S. District Court for the District of Kansas,
and he was initially successful as that court ruled in his
favor. However, his victory was later overturned by the U.S.
Court of Appeals for the Tenth Circuit.
---------------------------------------------------------------------------
\28\Jantz v. Muci, 759 F.Supp. 1543 (D.Kan. 1991), reversed by, 976
F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952, 113 S. Ct. 2445,
124 L.Ed.2d 662 (1993).
---------------------------------------------------------------------------
Robin Joy Shahar--a lawyer who was employed by the
Georgia Attorney General's Office--was terminated from her job
in 1991 when her State employer discovered that she was a
lesbian and had held a private religious ceremony with her
lesbian partner.\29\ Attorney General Michael Bowers--who had
previously achieved notoriety by promoting the discriminatory
legal position in the now-discredited case of Bowers v.
Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841
(1986)--personally wrote to Shahar to inform her that he could
not continue to employ her because--in his opinion--her life
did not reflect appropriately on the Attorney General's Office.
Shahar brought a constitutional challenge in the federal
courts, but was ultimately unsuccessful in getting reinstated
by her State employer.
---------------------------------------------------------------------------
\29\Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), vacated en
banc, 114 F.3d 1097 (1997), writ of certiorari denied, 522 U.S. 1049,
118 S. Ct. 693, 139 L.Ed.2d 638 (1998).
---------------------------------------------------------------------------
Thomas Figenshu worked as an officer with the
California Highway Patrol from 1983 to 1993.\30\ After he was
promoted to sergeant and transferred to West Los Angeles in
1988, co-workers began to harass him by taping anti-gay
pornographic cartoons to his mailbox and leaving a ticket for
``sex with dead animals'' on his windshield. Figenshu also
found urine on his clothes and his locker, and was commonly the
object of anti-gay slurs. To remove himself from the hostile
work environment, Figenshu resigned in 1993 and brought a
successful claim pursuant to California law. However, he had no
Federal remedy to address the discriminatory workplace
environment created by his State employer.
---------------------------------------------------------------------------
\30\See Figenshu v. State, 1999 Cal. LEXIS 4666, No. S079219 (Cal.
Jul. 14, 1999).
---------------------------------------------------------------------------
James Shermer worked as a building tradesman for
the Illinois Department of Transportation.\31\ Shermer's
supervisor constantly made offensive homophobic remarks about
Shermer at the workplace, thus creating a hostile work
environment. In 1995, Shermer filed suit against his State
employer pursuant to Title VII of the Civil Rights Act of 1964,
however, the U.S. District Court for the Central District of
Illinois and the U.S. Court of Appeals for the Seventh Circuit
ruled against Shermer because the harassment was based on
sexual orientation and not prohibited by Title VII.\32\
---------------------------------------------------------------------------
\31\Shermer v. Illinois DOT, 937 F. Supp. 781 (C.D. Ill. 1996).
\32\Id.; Shermer v. Illinois DOT, 171 F.3d 475 (7th Cir. 1999).
---------------------------------------------------------------------------
Wendy Weaver was a teacher at Spanish Fork High
School in Utah for 19 years, and served as the school's
volleyball coach since 1979.\33\ Weaver consistently received
good to excellent evaluations, was never subject to any
discipline and was considered an effective and capable teacher.
After it was discovered in 1997 that Weaver was a lesbian, the
school directed her to refrain from making comments to or
answering questions from students, staff or parents about her
``homosexual orientation or lifestyle,'' and she was removed
from her position as volleyball coach. The U.S. District Court
for the District of Utah held that because the school attempted
to infringe upon Weaver's First Amendment rights, she was
entitled to summary judgment. Weaver was reinstated to her
coaching position and awarded damages.
---------------------------------------------------------------------------
\33\Weaver v. Nebo School District, 29 F. Supp. 2d 1279 (C.D. Ut.
1998).
---------------------------------------------------------------------------
After reviewing this long history of workplace
discrimination by State and local government employers,
Congress finds that the States do not possess even a rational
basis--and certainly not a compelling reason--for
discriminating against GLB workers merely because of their
sexual orientation. Any such discrimination by State and local
governments is completely irrational.
Discrimination based on sexual orientation continues
Employment discrimination based on actual or perceived
sexual orientation continues in America's workplaces. Studies
find that while a majority of GLB workers believe there is more
acceptance of them in today's society compared to years
previous, they also report an equally significant amount of
prejudice and discrimination.\34\ Many well documented
cases\35\ illustrate the need to protect workers who experience
discrimination with regard to unfair hiring and termination
practices, inequitable benefits, and hostile and oppressive
working conditions.\36\
---------------------------------------------------------------------------
\34\Inside Out: A Report on the Experience of Lesbians, Gays and
Bisexuals in America and the Public's Views on Issues and Policies
Related to Sexual Orientation, The Kaiser Family Foundation (2001).
\35\See generally, Bias in the Workplace: Consistent Evidence of
Sexual Orientation and Gender Identity Discrimination; Badgett, Lau,
Sears, Ho; The Williams Institute (2007) at Executive Summary
[hereinafter Williams Institute Report]; Sexual Orientation-Based
Employment Discrimination; GAO-02-878R [hereinafter GAO Report];
Inside-Out: A Report on the Experiences of Lesbians, Gays, and
Bisexuals in America and the Public's Views on Issues and Policies
Related to Sexual Orientation; The Kaiser Family Foundation (2001)
[hereinafter Kaiser Report].
\36\Employment Non-Discrimination Act (H.R. 2015), Hearing before
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong.,
1st Sess. (2007) (written testimony of Prof. Helen Norton). In this
testimony, the witness cited cases where workers suffered oppressive
conditions and discrimination due to their sexual orientation, but were
denied legal recourse under 42 U.S. C. 2000e-2000e-17 (Title VII of the
Civil Rights Act of 1964), citing Vickers v. Fairfield Medical Center,
453 F.3d 757, 759 (6th Cir. 2006) cert. denied, 127 S. Ct. 2910 (2007);
Simonton v. Runyon, 232 F.3d 33, 34-35 (2 Cir. 2000); Medina v. Income
Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005)
(rejecting heterosexual woman's Title VII claim challenging her lesbian
supervisor's sexually explicit remarks and e-mail: ``We construe Ms.
Medina's argument as alleging that she was discriminated against
because she is a heterosexual. Title VII's protections, however, do not
extend to harassment due to a person's sexuality.''); Bibby v.
Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001)
(``Harassment on the basis of sexual orientation has no place in our
society. Congress has not yet seen fit, however, to provide protection
against such harassment.'') (citations omitted).
---------------------------------------------------------------------------
Numerous studies\37\ show that discrimination in the
workplace based on sexual orientation is a national problem.
Sexual orientation discrimination occurs in small and large
companies, public agencies, schools, and municipalities across
the nation. It impacts all levels of the workforce from minimum
wage employees to corporate executives, affecting all races,
ages, religions and skill levels of workers. Basic protections
are long overdue, as homosexual and bisexual--as well as
heterosexual\38\--workers have been vulnerable to unfair
treatment through the years. The lack of basic rights leaves
millions of hardworking tax-payers without Federal protection
from discriminatory practices.
---------------------------------------------------------------------------
\37\See generally, Williams Institute Report; GAO Report; Kaiser
Report.
\38\Referring to documented cases where heterosexuals who are
either perceived to be gay or simply befriend gay co-workers, resulting
in workplace harassment and/or discrimination--as in the case of
Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006)
cert. denied, 127 S. Ct. 2910 (2007).
---------------------------------------------------------------------------
A considerable amount of evidence has been presented before
both the House and Senate demonstrating that intentional
employment discrimination on the basis of sexual orientation
causes severe economic and psychological harm. Many employees
who have experienced discrimination demonstrated an exemplary
work ethic, received above-average evaluations and have made
significant contributions to the workplace and their
communities. However, a prejudice towards their sexual
orientation ensues irrespective of job performance.\39\
Consequently, GLB employees are put at an economic disadvantage
as an entire class of workers. The lack of Federal protection
fosters hostile work environments where GLB employees fear that
their sexual orientation could be revealed to the detriment of
their careers.
---------------------------------------------------------------------------
\39\I.e. Denying promotions, paying GLB workers a lower wage than
their heterosexual counterparts, and/or termination.
---------------------------------------------------------------------------
To learn more about this problem, the HELP Subcommittee
heard testimony from police officer Michael Carney, a highly
decorated police officer who was denied reinstatement to the
Springfield, Massachusetts Police Department because he is gay.
Despite his solid record as an officer, and despite the Police
Chief's recommendations, Carney was denied reinstatement three
times after informing the Police Commission that he was gay.
Fortunately for Mr. Carney, Massachusetts has a law prohibiting
such discrimination.\40\ As a result, he filed a claim under
state law. After an investigation, the Massachusetts Commission
against Discrimination ruled probable cause existed that the
police commission discriminated against Officer Carney on the
basis of sexual orientation. A settlement was subsequently
reached and Officer Carney was reinstated.\41\ Mr. Carney's
experience demonstrates that state and local government
employers continue to discriminate against GLB workers, even
though such discrimination is completely irrational and serves
no conceivable government purpose.
---------------------------------------------------------------------------
\40\Mass. Gen. Law Chpt. 151B.
\41\Employment Non-Discrimination Act (H.R. 2015) hearing before
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong.,
1st Sess. (2007) (written testimony of Officer Michael Carney).
---------------------------------------------------------------------------
The Subcommittee also heard from Brooke Waits, who was
praised for her job performance at Cellular Sales in Texas, as
an inventory control manager. She received a raise within
several weeks after joining the company, and was lauded for her
performance. However, when her supervisor discovered that she
was a lesbian, Brooke was fired the very next day.
Unfortunately Brooke had no recourse under Texas law, and thus
could not assert a valid claim against her employer's
discriminatory conduct.\42\
---------------------------------------------------------------------------
\42\Employment Non-Discrimination Act (H.R. 2015), hearing before
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong.,
1st Sess. (2007) (written testimony of Brooke Waits).
---------------------------------------------------------------------------
The Senate HELP Committee heard testimony from Larry Lane
who worked as the regional manager for the New York region of
Collins and Aikman Floor Coverings, Inc. For over two-years
Larry's work was praised. In the only written evaluation he
received, Larry's manager stated ``Larry is doing an
outstanding job. He is already having a positive impact on the
New York zone.''\43\ However, when colleagues discovered Larry
was gay they began a campaign to get rid of him. Without
warning he was placed on probation. Shortly thereafter he
admitted to colleagues that he was in fact gay and within weeks
he was formally fired. Recounting his experience Larry
testified, ``one's success in the workplace should depend on
performance and ability and not be subject to the ignorant
views and lack of acceptance that many times still exists
toward lesbians and gay men.''\44\
---------------------------------------------------------------------------
\43\The Employment Non-Discrimination Act, hearing before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong.,
2nd Sess. (2002) (written testimony of Lawrence Lane, at 22)
[hereinafter Lane Testimony].
\44\Lane Testimony at 23.
---------------------------------------------------------------------------
Cases such as these are not isolated. Unfortunately, many
GLB workers who have been discriminated against are frightened
to speak up after the discriminatory act for fear that it could
happen again by a subsequent employer. Studies show that up to
68 percent of GLB respondents have experienced some kind of
workplace discrimination ranging from the denial of employment
promotion, to termination without cause.\45\ States that ban
this type of discrimination, report that the number of sexual
orientation discrimination suits is proportional to that of sex
and race discrimination complaints, pro rata.\46\ Thus, there
is a substantial need for Federal protection of these workers,
particularly in the majority of states that do not already
protect them.
---------------------------------------------------------------------------
\45\Bias in the Workplace: Consistent Evidence of Sexual
Orientation and Gender Identity Discrimination; Badgett, Lau, Sears,
Ho; The Williams Institute; (2007) at Executive Summary [hereinafter
Williams Institute].
\46\Id.
---------------------------------------------------------------------------
The impact of sexual orientation discrimination
Economic impact on GLB workers
GLB workers experience significant wage disparities, higher
unemployment rates, and inequitable public accommodations and
benefits.\47\ Economists and sociologists who study these
patterns also conclude that due to discrimination based on
sexual orientation, gay men earn less money than heterosexual
men who have similar experience, education, and
credentials.\48\ Another study showed that when job applicants
submitted applications or resumes that were coded with language
suggesting the applicants' involvement in a gay rights
organization, those applicants were consistently denied
employment more often than applicants of equivalent quality
that did not have any ``gay code'' in their applications.\49\
---------------------------------------------------------------------------
\47\Id. at 12, 15, 18-20.
\48\Id. 13.
\49\Id.
---------------------------------------------------------------------------
In addition to economic harms, GLB workers tend to
experience substantially impaired ability to obtain affordable
healthcare and employment related benefits.\50\ Without stable
employment, income, and access to jobs, the effects of
discrimination are felt in almost every aspect of life,
including one's own health and well-being.
---------------------------------------------------------------------------
\50\Human Rights Campaign at 15.
---------------------------------------------------------------------------
Psychological impact
The discrimination and/or fear of discrimination that many
GLB workers face can have far-reaching consequences. The
American Psychological Association testified to the Senate HELP
Committee that researchers have found that GLB workers suffer
psychological distress because they are often persecuted and in
a constant state of fear of being discovered.\51\ The study
reported ``research has indicated that social stigma based upon
sexual orientation may be a risk factor for psychological
depression, and anxiety.\52\ Brooke Waites testified that her
co-workers frequently made jabs and other derogatory comments
about GLB people. Fearing for her job and not wanting to
``cause problems,''\53\ Waites carefully avoided using pronouns
when talking about her girlfriend. Although Waites was openly
lesbian in every aspect of her life outside of her job, this
work environment ``kept [her] * * * from being [herself] with
coworkers.''\54\ Despite her efforts, Waites was ultimately
fired when her manager discovered that she was a lesbian. She
testified ``the experience has been difficult for me, as it has
altered not only how I feel about the world but also, how I
feel in the world. Work was more than work to me: it was a part
of what I know about myself and how I feel about myself.''\55\
---------------------------------------------------------------------------
\51\The Employment Non-Discrimination Act, hearing before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong.,
2nd Sess. (2002) (testimony submitted by the American Psychological
Association (APA), at 40) [hereinafter APA Testimony].
\52\Id.
\53\Waites Testimony at 1.
\54\Id.
\55\Id.
---------------------------------------------------------------------------
Researchers have found that the experience of Brooke Waites
is not isolated. In fact GLB workers who place a high value on
career advancement and success fear being `outed' at work.
Disclosure at work ``may be related to the relative importance
a [GLB] employee places on certain aspects of work and life
domains.''\56\ A 2006 study found that ``gay men who emphasized
quality of work life and relationship quality were more likely
to disclose at work than those who emphasized job security or
career success.\57\
---------------------------------------------------------------------------
\56\Shaun Pichler, ``Heterosexism in the Workplace,'' Sloan Work
and Family Research Network at 7 (Apr. 3, 2007). See also, Y.B. Chung,
``Career Decision Making of Lesbian, Gay, and Bisexual Individuals,''
Career Development Quarterly at 44 (1995).
\57\R.N.C. Trau & C.E.J. Hartel, ``Impact of career-life conflict
on disclosure and attitudes towards organization among gay men'' Sexual
Orientation in the Workplace: Current Issues. Symposium Presented at
the National Academy of Management Meeting, Atlanta, GA. See also,
Shaun Pichler, ``Heterosexism in the Workplace,'' Sloan Work and Family
Research Network at 7 (Apr. 3, 2007).
---------------------------------------------------------------------------
The American Psychological Association concludes that
psychological research findings indicate that GLB individuals
experience ``significantly higher levels of discrimination
based upon sexual orientation than do heterosexual
individuals.''\58\ Stigmatization and discrimination can lead
to increased vulnerability of negative mental health
conditions.
---------------------------------------------------------------------------
\58\APA Testimony at 41.
---------------------------------------------------------------------------
The APA further states that ``anti-discrimination policies
in the workplace can * * * [positively] affect job satisfaction
and productivity.''\59\ Researchers have found ``a significant
relationship between self-disclosure, anti-discrimination
policies and top management support for equal rights and
organizational commitment.''\60\ Enactment of ENDA would
decrease the fear and stigmatization GLB workers feel and would
promote the mental welfare of these individuals as well as the
public good.
---------------------------------------------------------------------------
\59\Id.
\60\Id.
---------------------------------------------------------------------------
Existing Federal and State Laws Provide Inadequate Protections
Federal law
Federal law today provides the American worker with the
necessary safeguards to protect them against workplace
discrimination with regard to race, color, sex, national
origin, religion, age and disability.\61\ Courts have
interpreted Title VII to prohibit associative discrimination in
employment (i.e., discrimination against a person with whom the
employee associates). Title VII and other Federal laws have
been interpreted to prohibit discrimination based on the
perceived characteristics of an employee or applicant for
employment.\62\
---------------------------------------------------------------------------
\61\42 U.S. C. Sec. Sec. 2000e-2000e-17 (Title VII of the Civil
Rights Act of 1964); 29 U.S. C. Sec. Sec. 621-634 (Age Discrimination
in Employment Act); 42 U.S. C. Sec. Sec. 12101-12102, 12111-12117,
12201-12213 (Americans with Disabilities Act).
\62\Courtney Joslin. ``Protection for Lesbians, Gay, Bisexual, and
Transgender Employees Under Title VII of the 1964 Civil Rights Act.''
http://www.abanet.org/irr/hr/summer04/protectlgbt.html.
---------------------------------------------------------------------------
Unfortunately, however, current Federal law fails to
address discrimination on the basis of sexual orientation in
the workplace. Federal case law is ``replete with decisions
where Federal judges have characterized egregious acts of
discrimination targeted at GLB workers as morally reprehensible
yet utterly beyond the law's reach.''\63\ Furthermore, only 20
states, plus the District of Columbia, prohibit employment
discrimination based on sexual orientation,\64\ leaving
millions of GLB Americans vulnerable to blatant employment
discrimination.
---------------------------------------------------------------------------
\63\The Employment Non-Discrimination Act of 2007 (H.R. 2015),
hearing before the Subcommittee on Health, Employment, Labor &
Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Professor
Helen Louise Norton) [hereinafter Norton Testimony]. See, Higgens v.
New Balance Athletic Shoes, Inc., 194 F.3d 252, 258 (1st Cir. 1999)
(The court held that harassment because of sexual orientation is a
noxious practice but the court is called upon to construe a statute,
not to make a moral judgment--Title VII does not proscribe harassment
simply of sexual orientation); Simonton v. Runyon, 232 F.3d 33, 34-35
(2nd Cir. 2000) (The court stated the conduct allegedly engaged in by
[Simonton's] co-workers is morally reprehensible * * * particularly in
the modern workplace. However, the court held that Simonton had no
cause of action under Title VII.
\64\California, Colorado, District of Columbia, Illinois, Iowa,
Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island,
Vermont, Washington, Connecticut, Hawaii, Maryland, Massachusetts,
Nevada, New Hampshire, New York and Wisconsin.
---------------------------------------------------------------------------
Over the past several decades, some courts have held that
dismissing an individual from Federal employment because of
their sexual orientation without a rational connection between
the employee's behavior and the efficiency of the government
service is a violation of the constitutional guarantee of due
process.\65\ Conversely, other Federal courts have upheld
Federal regulations that allowed for dismissal based on what
those misguided courts have labeled as ``immoral''
sexuality.\66\
---------------------------------------------------------------------------
\65\Russell Davis, ``Refusal to hire, or dismissal from employment,
on account of plaintiff's sexual lifestyle or sexual preference as
violation of Federal constitution or Federal civil rights statutes.''
42 A.L.R. Fed.189. at 4.
\66\Id.
---------------------------------------------------------------------------
Many plaintiffs have attempted to bring sexual orientation
claims pursuant to Title VII's sex discrimination provision
however they have done so without success.\67\ Federal courts
have asserted that they do not have the legal authority to
remedy workplace discrimination based on sexual orientation
under Title VII. Although a few Federal courts have broadly
applied Title VII's prohibition on sex discrimination, GLB
workers were held not to be covered by civil rights law.\68\
---------------------------------------------------------------------------
\67\Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265
(3rd Cir. 2001). (``Harassment on the basis of sexual orientation has
no place in our society. Congress has not yet seen fit, however, to
provide protection against such harassment.'')
\68\Id.
---------------------------------------------------------------------------
The first Title VII cases filed for employment
discrimination based on sexual orientation emerged in the
1970s. In 1979, the U.S. Court of Appeals for the Fifth Circuit
ruled that ``discharge for homosexuality is not prohibited by
Title VII.''\69\ In the same year, the U.S. Court of Appeals
for the Ninth Circuit issued a similar ruling in what is
considered the most clearly established precedent, clarifying
that sexual orientation discrimination was not actionable under
Title VII.
---------------------------------------------------------------------------
\69\Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Circuit 1979).
---------------------------------------------------------------------------
In DeSantis v. Pacific Telephone & Telegraph Co., the
plaintiffs argued that Title VII should be interpreted to cover
discrimination on the basis of sexual orientation and that
Title VII should be interpreted to encompass discrimination
directed at a male employee because he is perceived to be
``effeminate.''\70\Both arguments were rejected by the Ninth
Circuit on the basis that that court believed Congress never
intended to provide protection for persons discriminated
against based on sexual orientation or perceived sexual
orientation.\71\ Rather, the court held that Title VII was only
intended to cover ``traditional notions of [gender].''\72\
---------------------------------------------------------------------------
\70\DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327
(9th Cir. 1979).
\71\Id.
\72\Id.
---------------------------------------------------------------------------
In 1989, the U.S. Court of Appeals for the Eighth Circuit
Court of Appeals ruled in accordance with the previous courts'
rulings on the matter by issuing an opinion which clearly
stated: ``Title VII does not prohibit discrimination against
homosexuals.''\73\ And in 1997, the U.S. Court of Appeals for
the Eleventh Circuit ruled in a similar manner when it held in
Fredette v. BVP Management Associates that
---------------------------------------------------------------------------
\73\Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th
Circuit 1989).
finally, we address concerns raised by the appellee
regarding the implication of this case for the law
regarding discrimination based on sexual orientation.
BVP argues that to hold in favor of the appellant is,
in effect, to protect against discrimination on the
basis of sexual orientation. The short but complete
answer to this argument is to make clear the narrowness
of our holding today. We do not hold that
discrimination based on sexual orientation is
actionable * * * We note at the EEOC has also drawn a
distinction between [what is] actionable as gender
discrimination, and discrimination because of sexual
orientation.\74\
---------------------------------------------------------------------------
\74\Fredette v. BVP Management Associates, 112 F.3d 1503, 1510
(11th Cir. 1997).
While many U.S. District Courts and U.S. Courts of Appeals
have made it clear that they do not have the legal authority to
remedy workplace discrimination based on sexual orientation
under Title VII of the Civil Rights Act of 1964, two decisions
by the U.S. Supreme Court clearly display the Court's intent to
protect against certain types of gender-role discrimination.
In Price Waterhouse v. Hopkins,\75\ plaintiff Ann Hopkins
claimed she had been denied partnership at the firm because she
was not feminine enough. In order to increase her chances of
making partner, Hopkins was told she should ``walk more
femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry.''\76\ While
the employer argued that Title VII did not prohibit
discrimination based on gender stereotypes, the Supreme Court
disagreed and held that Title VII is not simply limited to
discrimination based on the biological makeup of an individual
but also includes discrimination based on gender
stereotypes.\77\
---------------------------------------------------------------------------
\75\490 U.S. 228 (1989).
\76\Joslin, supra note 63 at 2.
\77\Id.
As for the legal relevance of sex stereotyping, we
are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched
the stereotype associated with Their group, for in
forbidding employers to discriminate against
individuals because of their sex Congress intended to
strike at the entire spectrum of disparate treatment of
men and women resulting from sex stereotypes.\78\
---------------------------------------------------------------------------
\78\Id.
In addition, the Supreme Court's decision in Oncale v.
Sundowner further expanded previous interpretations of Title
VII.\79\ In Oncale, the Supreme Court held that a plaintiff
could state a Title VII claim where sexual harassment was
perpetrated by a person of the same sex.\80\
---------------------------------------------------------------------------
\79\523 U.S. 75 (1998).
\80\Id.
---------------------------------------------------------------------------
These two important Supreme Court cases influenced
contemporary courts to more vigorously scrutinize cases
involving sexual orientation discrimination under a variety of
state and Federal constitutional theories. For example, in
2002, the U.S. District Court for the District of Oregon denied
the defendant-employer's motion for summary judgment in a Title
VII suit brought by a lesbian who claimed her female supervisor
made disparaging and harassing comments based on gender
stereotypes.\81\ The Ninth Circuit issued a similar ruling in
the Rene v. MGM Grand Hotel, Inc.,\82\ where a gay male
plaintiff presented evidence that his former coworkers harassed
and taunted him by calling him feminine names and saying he
walked like a woman.\83\
---------------------------------------------------------------------------
\81\Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212
(D. Or. 2002).
\82\305 F.3d 1061 (9th Cir. 2002).
\83\Id.
---------------------------------------------------------------------------
Despite what may be seen as progress in the direction of
protecting GLB Americans from employment discrimination,
millions of workers still face the prospect of being fired
because they are gay, lesbian, or bisexual. Therefore, Congress
finds it important to protect GLB workers in all states in
order to end the irrational practice of workplace
discrimination based on sexual orientation.
State laws
The first jurisdiction to prohibit sexual orientation
discrimination in employment was East Lansing, Michigan in
1972. Wisconsin enacted its gay-rights law in 1983, leading the
way for states passing laws that ban sexual orientation
discrimination in employment.\84\ Since then, a significant
number of cities and counties that have enacted similar laws,
but as of today, only 20 states and the District of Columbia
prohibit discrimination based on sexual orientation.
---------------------------------------------------------------------------
\84\William Rubenstein. ``Do Gay Rights Laws Matter? An Empirical
Assessment.'' (November 2001) at 3.
---------------------------------------------------------------------------
State laws that prohibit employment discrimination on the
basis of sexual orientation can be divided into two groups. In
some states, sexual orientation is deemed a protected class in
a general anti-discrimination law. In other states, sexual
orientation is protected under a provision separate from those
protecting other categories such as race or sex.\85\
---------------------------------------------------------------------------
\85\Joslin, supra note 63 at 3.
---------------------------------------------------------------------------
According to the General Accounting Office's (GAO) report
on ``Sexual Orientation--Based Employment Discrimination:
States' Experience with Statutory Prohibitions,'' states that
protect against employment discrimination based on sexual
orientation have generally established the basis for the
protection they provide. Most of these states define ``sexual
orientation'' as heterosexuality, homosexuality, or
bisexuality. Besides Vermont and the District of Columbia, all
other state definitions include people who are perceived by
others to be in, or are identified with, those three
categories. These states have expanded their definition to not
only prohibit discrimination against employees who actually are
homosexual, but also against employees whom the employer
incorrectly believes are homosexual.\86\
---------------------------------------------------------------------------
\86\The Government Accounting Office (GAO). ``Sexual Orientation
``Based Employment Discrimination: States' Experience with Statutory
Prohibitions,'' (July 2002) at 1.
---------------------------------------------------------------------------
California and Minnesota provide protections to its
citizens that expressly prohibit associational discrimination.
Specifically, California's statute prohibits unlawful
employment practices on the basis of sexual orientation
including instances where ``the [employee] is associated with a
person who has, or is perceived to have `any of the
characteristics on which basis it is illegal to discriminate,'
such as sexual orientation.'' Minnesota deems it an unfair
discriminatory practice for an individual who participated in
alleged discrimination to intentionally engage in a reprisal
against any person because that person associated with a person
or group of persons who are of a different sexual
orientation.\87\
---------------------------------------------------------------------------
\87\Id at 4-5.
---------------------------------------------------------------------------
Under the state laws the size of the employer's business is
a factor in determining coverage.\88\ GAO found that in the
states they reviewed with laws prohibiting discrimination on
the basis of sexual orientation, six included all employers
regardless of business size. In seven other states, the minimum
number of employees that trigger coverage ranges from as few as
three (Connecticut) to as many as fifteen (Maryland and
Nevada).\89\
---------------------------------------------------------------------------
\88\This is also the case under existing Federal laws and ENDA.
\89\GAO, supra note 86 at 5.
---------------------------------------------------------------------------
The nature of an employer's business or activity is another
factor states have used to determine whether nondiscrimination
protections apply. In particular, all states have found it
necessary to provide an exemption for religious organizations.
Though the religious exemption language varies from state to
state, most states have exemptions that are broad in scope.
Under these broad exemptions, religious organizations are
permitted to give preference to individuals of the same
religion or to those people whose employment is in accordance
with the tenets of their particular religion. However,
Minnesota has an exemption that does not apply to secular
business activities engaged in by religious associations.\90\
---------------------------------------------------------------------------
\90\Id. at 5.
---------------------------------------------------------------------------
ENDA Is the Necessary Remedy
Congress has the responsibility to pass ENDA to ensure that
all GLB individuals, regardless of where they live or work, are
protected from sexual orientation discrimination. The lack of
Federal protection leaves GLB workers reliant on a patchwork of
local and state laws that have failed to protect them. While
certain states, municipalities and businesses should be
commended for adopting anti-discrimination policies, their
efforts do not extend far enough to negate the need for federal
intervention.
In addition to state and local support for fair and equal
treatment of GLB individuals, business leaders have widely
adopted workplace anti-discrimination policies protecting GLB
rights. According to a recent survey, over 2000 companies,
colleges, universities, state and local governments and Federal
agencies have non-discrimination policies encompassing sexual
orientation of their employees.\91\
---------------------------------------------------------------------------
\91\S. Rpt. 107-341.
---------------------------------------------------------------------------
Despite some progress to secure the rights of GLB workers,
millions of Americans remain vulnerable to workplace
discrimination. In her testimony before the HELP Subcommittee's
September 5, 2007 hearing, Professor Helen Norton stated that
the patchwork of state and local laws leaves a wide range of
injuries and injustices unaddressed and that ENDA would ``fill
these gaps'' by extending a ``national commitment to equal
employment opportunity'' for these workers.\92\ Opponents of
this legislation have argued that GLB anti-discrimination
policies should be left to the states and/or individual
businesses. However, as Richard Womack, Director of the AFL-CIO
Department on Civil and Human Rights testified to the Senate
HELP Committee in reflection of the debate over the Civil
Rights Act in the 1960's where there was disagreement over
bill, ``if we had waited for the states to say this was the
right thing to do, we would not have had a civil rights bill
[at all].''\93\
---------------------------------------------------------------------------
\92\The Employment Non-Discrimination Act of 2007, hearing before
the Subcommittee on Health, Employment, Labor and Pensions, 110th
Cong., 1st Sess. (2007) (written testimony of Helen Norton, Associate
Professor, University of Colorado School of Law, at 3) [Hereinafter
Norton Testimony].
\93\The Employment Non-Discrimination Act, hearing before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong.,
2nd Sess. (2002) (written testimony of Richard Womack, Director of the
AFL-CIO Department on Civil and Human Rights Charles at 22)
[hereinafter Womack Testimony].
---------------------------------------------------------------------------
Moreover, the gaps in the state and municipal protections
leave the majority of GLB workers defenseless against
discrimination. This reality was directly evidenced by the
experience with discrimination described by Officer Michael
Carney and Brooke Waites before the HELP Subcommittee. While
both were discriminated against for being gay, the outcomes of
their experiences are dramatically different. As previously
discussed, Michael Carney--a Springfield, Massachusetts police
officer--was denied reinstatement to the police force because
he was gay. However, because Officer Carney was protected under
a Massachusetts anti-discrimination law, he was reinstated.
Unfortunately, Brook Waites of Dallas, Texas, had no right to
fight for her job because Texas does not have an anti-
discrimination statute to protect the rights of GLB workers.
Ms. Waites testified that while ENDA may not change people's
minds, Congress has the power to help stop the devastating
effects of discrimination. She explained no one ``should be
exposed to a workplace where they have to worry that simply and
honestly being who they are could cost them their
livelihood.''\94\ ENDA will close the loopholes that currently
exist in anti-discrimination laws so that people like Brooke
Waites have the right to fight an employer's discrimination
regardless of the state in which she lives.
---------------------------------------------------------------------------
\94\The Employment Non Discrimination Act of 2007, hearing before
the Subcommittee on Health, Employment, Labor and Pensions, 110th
Cong., 1st Sess. (2007) (written testimony of Brooke Waits, at 2)
[Hereinafter Waites Testimony].
---------------------------------------------------------------------------
The Act will not only extend fair employment practices, it
will also foster workplaces where creativity, knowledge and
life experiences are exchanged freely. This type of environment
unquestionably benefits employers and employees. Nancy Kramer,
Founder and CEO of Resource Interactive, testified that in her
twenty-six years running a small business, she ``ha[s] learned
that an inclusive workplace, which judges people on their
merits, not on unrelated matters like sexual orientation * * *
is the key to success in a competitive, ever-changing
marketplace.''\95\
---------------------------------------------------------------------------
\95\The Employment Non Discrimination Act of 2007, hearing before
the Subcommittee on Health, Employment, Labor and Pensions, 110th
Cong., 1st Sess. (2007) (written testimony of Nancy Kramer, Founder and
CEO, Resource Interactive, at 1) [Hereinafter Kramer Testimony].
---------------------------------------------------------------------------
In addition, business leaders like Lucy Billingsley believe
that failing to enact ENDA would be more costly to business
than having businesses comply with its non-discrimination
requirements.\96\ Discrimination in the workplace burdens
companies and gives rise to costly grievances and lawsuits.\97\
A Federal law banning sexual orientation discrimination will
actually give businesses the right focus. Ms. Billingsley
testified: ``By directing attention to only factors of
performance and productivity * * * all of America's businesses
will perform better.''\98\ Accordingly, Congress finds that
employment discrimination against GLB workers--whether in the
private or public sector--is completely irrational.
---------------------------------------------------------------------------
\96\Id.
\97\Id.
\98\The Employment Non-Discrimination Act, hearing Before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong.,
2nd Sess. (2002) (written testimony of Lucy Billingsley, founder and
partner of Billingsley Company, at 32) [hereinafter Billingsley
Testimony].
---------------------------------------------------------------------------
Broad Support for Federal Protection
Business leaders support equality in the workplace
A significant number of large and small businesses support
the goals of ENDA, and many have already adopted their own
corporate non-discrimination policies.\99\ Employers promote
equality not only because it is the right and moral thing to
do, but also because it makes good business sense. Today,
nearly 90 percent of the Fortune 500 ranked corporations
include workplace protections based on sexual orientation.\100\
Charles Gifford, Chairman and CEO of FleetBoston Financial,
testified before the Senate that the trend among businesses
indicates that corporate leaders view anti-discrimination
policies to protect GLB workers as good for business noting
``the closer a company is to the top of the Fortune list, the
more likely it is to include sexual orientation in its non-
discrimination policy.''\101\
---------------------------------------------------------------------------
\99\The State of the Workplace 2006-2007, The Human Rights Campaign
(2007) at 7. [hereinafter Human Rights Campaign Report]
\100\Human Rights Campaign Report.
\101\The Employment Non-Discrimination Act, hearing Before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 2
Sess. (2002) (written testimony of Charles Gifford, Chairman and CEO,
FleetBoston Corporation, at 30) [hereinafter Gifford Testimony].
---------------------------------------------------------------------------
In an effort to attract and retain GLB workers and fair
minded employees and consumers, companies acknowledge that such
internal and public policies are necessary to preserve a stable
and developing economy. More than half of the nation's
employers in 2007 assert that one of their primary business
goals is to retain employees.\102\ Hayward Bell, Chief
Diversity Officer of Raytheon (73,000 employees) stated that
``over the next 10 years we're going to need anywhere from
30,000 to 40,000 new employees. We can't afford to turn our
back on anyone in the talent pool.''\103\
---------------------------------------------------------------------------
\102\Human Rights Campaign at 13.
\103\Id.
---------------------------------------------------------------------------
Maintaining a satisfied and productive workforce within any
company is critical to a business' success, and forward-
thinking employers are taking crucial steps to ensure as much
productivity in this area as possible. General Mills, Inc.,
with over 28,500 employees worldwide, voluntarily holds as its
policy that GLB inclusion in the workplace ``only makes good
business sense to create a work environment where every
employee is respected, valued, challenged, and rewarded for
their individual contribution and performance. Because when you
do this, good things happen.''\104\
---------------------------------------------------------------------------
\104\Employment Non-Discrimination Act (H.R. 2015), Hearing Before
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong.,
1st Sess. (2007) (written testimony of Kelly Baker, Vice President of
Diversity, General Mills, Inc.) [hereinafter Baker Testimony]
---------------------------------------------------------------------------
Testifying before the Senate HELP Committee hearing,
Charles Gifford, Chairman and CEO of FleetBoston Financial
stated that members of his company's gay and lesbian community
``remind [him] of how tiring it can be to stay `in the closet'
and how much energy is wasted and how focus is diverted from
their job when they feel they must conceal so much of who they
are.''\105\ Robert Berman, senior Vice President of Eastman
Kodak, testified that one key reason for Kodak's success has
been the company's work environment ``in which [our] employees
can perform to their full potential. In the same way [we] value
each and every one of [our customers], we also value each and
every one of [our] employees.''\106\ Berman testified that
while it was unusual for companies to support legislation that
would invite further Federal regulation, ``the protection
against discrimination because of one's sexual orientation is a
basic civil right. [The] issue is so fundamental to core
principles of fairness that [we] believe the value of Federal
leadership outweighs [any] concerns.''\107\
---------------------------------------------------------------------------
\105\Gifford Testimony at 31.
\106\The Employment Non-Discrimination Act, hearing Before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 2
Sess. (2002) (written testimony of Robert Berman, Senior Vice
President, Eastman Kodak, at 32) [hereinafter Berman Testimony].
\107\Id.
---------------------------------------------------------------------------
Smaller employers also testified to the positive impact of
implementing acceptance policies, stating that such policy
represents the ``importance of creating a workplace that
welcomes the best and the brightest, from all walks of
life.''\108\ Lucy Billingsley, founder and partner of
Billingsley Company in Dallas Texas testified to the Senate
HELP Committee that her ``workplace is a collaborative
environment where employees can work hard together to beat the
competition, regardless of sexual orientation. As a small
business [we] can afford nothing less.''\109\
Businesses such as IBM Corp., Eastman Kodak Co., American
Express and Microsoft also provide comprehensive health
benefits specific to GLB needs.\110\
---------------------------------------------------------------------------
\108\Employment Non-Discrimination Act (H.R. 2015), Hearing Before
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong.,
1st Sess. (2007) (written testimony of Nancy Kramer, Founder & CEO,
Resource Interactive (200 employees), at 1) [hearinafter Kramer
Testimony]
\109\Billingsley Testimony at 31.
\110\Id.
---------------------------------------------------------------------------
All of the evidence above provides persuasive evidence--
which Congress credits--that from the perspective of business
efficiency, discrimination based on irrelevant characteristics
such as sexual orientation is completely irrational.
Civil rights & religious leaders support a federal non-discrimination
law
ENDA has been endorsed by over 180 civil rights, religious,
labor, and women's rights organizations.\111\ These communities
have articulated their support on moral and economic grounds.
As a moral issue, extending workplace protections to GLB
workers will further the goals of equality and fairness in the
workplace to all people. Many faith organizations of various
denominations have taken part in a strong movement against
discrimination: including the Episcopal Church, the Union for
Reform Judaism; the United Church of Christ; the United
Methodist Church; the American Friends Service Committee as
well as many individual Quaker institutions; the Unitarian
Universalists; the Universal Fellowship of Metropolitan
Community Churches; and the Interfaith Alliance.
---------------------------------------------------------------------------
\111\As represented by the Leadership Conference on Civil Rights
(Coalition).
---------------------------------------------------------------------------
Representative Emanuel Cleaver, an ordained minister in the
United Methodist Church, spoke candidly about the legislation
during the HELP Subcommittee hearing, stating ``[as a
minister], no one has yet explained to me how keeping someone
from gaining equal consideration based on their individual
skill set to obtain lawful employment pleases God.''\112\ He
and others in the civil rights and religious community agree
that ENDA seeks simply to ``further extend the rights of
individuals who have been marginalized and discriminated
against and denied legal Federal protection for an equal
playing field when they seek employment.''\113\
---------------------------------------------------------------------------
\112\The Employment Non-Discrimination Act, hearing Before the
Senate Health, Education, Labor and Pensions Committee, 107th Cong.,
2nd Sess. (2002) (written testimony of Rep. Emanuel Cleaver, II).
\113\Id.
---------------------------------------------------------------------------
Constitutional Authority
Congress has the authority to enact ENDA through the
Commerce Clause and the Fourteenth Amendment of the United
States Constitution. In addition, the Act's authorization of
individual suits against state governmental employers is
derived from Congress' enforcement power under Section 5 of the
Fourteenth Amendment as well as Congress' Spending Power under
Article 1.
Commerce clause and fourteenth amendment authority for ENDA
The Supreme Court has acknowledged that Congress has
considerable discretion to determine what activities affect
interstate commerce, to the extent that the Court has held
events of purely local commerce (such as local working
conditions) might, because of market forces, negatively affect
interstate commerce, and thus could be regulated.\114\
Protecting the employment rights of GLB workers is a valid
exercise of Congress' authority to regulate commerce pursuant
to Article 1, Section 8 of the Constitution.
---------------------------------------------------------------------------
\114\U.S. v. Darby, 312 U.S. 100 (1941) (upholding the Fair Labor
Standards Act as applied to a local employer); Wickard v. Filburn, 317
U.S. 111 (1942) (upholding federal limits on farm production as applied
to a local farmer who grew wheat for family consumption).
---------------------------------------------------------------------------
Congress has a long-history of enacting civil rights
legislation based on its Constitutional authority granted in
the Commerce Clause of Article 1, Section 8. This power is the
same power exercised when enacting Title VII of the Civil
Rights of 1964, the ADA, and the ADEA. The costs of sexual
orientation discrimination in the workplace are significant and
have regional and national economic impacts for which the
federal government must be responsive. Sexual orientation
discrimination is a detriment to American commerce because it
impedes employers' productivity, and has significant
psychological and economic costs on GLB workers in the form of
lost and lower wages, and unfair terms and conditions of
employment to sustain themselves and their families.
The Fourteenth Amendment of the United States Constitution
entitles all persons to equal protection under the law.
Congress possesses the authority to enforce the substantive
provisions of the Fourteenth Amendment through Section 5 of the
Amendment: ``The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.''
Section 5 of the Fourteenth Amendment is an affirmative grant
of legislative power to Congress.\115\ The Supreme Court has
ruled that Congress' authority to legislate under the
Fourteenth Amendment is broader than the Amendment's language,
holding that Congress has the ability to deter and remedy
conduct which is not by itself forbidden under the Fourteenth
Amendment.\116\
---------------------------------------------------------------------------
\115\Katzenbach v. Morgan, 384 U.S. 641 (1966).
\116\Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
---------------------------------------------------------------------------
Protecting and ensuring civil rights in this country has
long been recognized as an essential element to national
citizenship and the Federal government has sought to enforce
and guarantee those rights through the Fourteenth Amendment.
Similar to discrimination based on race, sex, national origin,
religion, age, or disability, sexual orientation discrimination
stands wholly contrary to the fundamental principles of equal
protection. The Fourteenth Amendment's Equal Protection Clause
prohibits a State government from engaging in intentional
discrimination--even when that basis is sexual orientation--
absent some rational basis for doing so.\117\ The Supreme Court
has recognized that ``irrational prejudice'' does not create a
rational basis to support a state action against an equal
protection challenge. Sexual orientation discrimination
predominately reflects prejudices and stereotypes, not actual
differences.\118\ Consequently, it is well within Congress'
power to properly address the unfairness and irrationality of
workplace discrimination through the enforcement powers granted
to it pursuant to this Amendment.
---------------------------------------------------------------------------
\117\Weaver, supra note 34 at 1287.
\118\Janet E. Halley, ``The Politics of the Closet: Towards Equal
Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. Rev.
915, 937 (1989). See also, Erwin Chemerinsky, Constitutional Law:
Principles and Policies, Aspen Publ. (2002).
---------------------------------------------------------------------------
Fourteenth Amendment and spending clause authority for abrogating the
State's sovereign immunity
Section 5 of the Fourteenth Amendment clearly provides
Congress with the power to enforce ENDA against state and local
governments. Congress possesses the authority to remedy sexual
orientation discrimination in state government employment by
abrogating the states' sovereign immunity in private suits for
damages under ENDA. This action is congruent and proportional
to the problem addressed by ENDA. Indeed, Congress' action
specifically targets the pattern of irrational and
unconstitutional discriminatory conduct--discussed earlier in
this Report--on the part of State and local government
employers. Congress finds that the states do not possess even a
rational basis--and certainly not a compelling reason--for
discriminating against GLB workers merely because of their
sexual orientation. Any such discrimination by state and local
governments is completely irrational.
Sexual orientation discrimination has been held
unconstitutional in many cases when perpetrated through State
action.\119\ The outcome of these cases is not surprising given
that GLB Americans are a discrete and insular minority that has
been subjected to a history of purposeful unequal treatment
based on characteristics that are beyond the control of such
individuals and resulting from stereotypic assumptions not
truly indicative of the ability of such individuals to
participate in, and contribute to, society. Thus, in the
absence of Congressional action, invidious and irrational
discrimination on the part of state employers would continue to
deprive hard-working GLB Americans of the fundamental fairness
to which all American workers are entitled: the right to be
judged on one's merits, not upon irrelevant factors such as
sexual orientation.
---------------------------------------------------------------------------
\119\See, e.g., Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472,
156 L.Ed. 2d 508 (2003); Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620,
134 L.Ed. 2d 855 (1996).
---------------------------------------------------------------------------
As the Supreme Court noted in Garret,\120\ [Congress] has
the power ``both to remedy and to deter violation of rights
guaranteed [by the Fourteenth Amendment] * * *. Furthermore,
``legislation reaching beyond the scope of Section 1's actual
guarantees must exhibit `congruence and proportionality between
the injury to be prevented or remedied and the means adopted to
that end.'''\121\ Unlike Garret where the Court held that the
Americans with Disabilities Act exceeds Congress' authority
because a State may have a rational reason to not provide a
reasonable accommodation (i.e. saving money), as cruel as that
decision might be,\122\ employment discrimination against gays,
lesbians and bisexuals is entirely irrational. Thirty states
legally permit state-sponsored discrimination by allowing state
employers to refuse to hire, fire or harass GLB workers because
of their sexual orientation. The evidence presented before
Congress demonstrates that state conduct in the area of sexual
orientation discrimination is marked by pervasive unequal
treatment of GLB workers who have no legal protections.
---------------------------------------------------------------------------
\120\Board of Trustees of the University of Alabama v. Garrett, 121
S. Ct. 955 (2001).
\121\Id.
\122\Id. at 964.
---------------------------------------------------------------------------
The Supreme Court continues to assert its respect for
Congress' determinations concerning what is necessary to
guarantee Fourteenth Amendment rights.\123\ However, the Court
places the onus on Congress to limit legislation so as to
correspond to the constitutional violations that it seeks to
address. ENDA is narrowly tailored. The Act exempts certain
categories of employers from liability to ensure that the bill
does not reach beyond Congress' authority. ENDA has no
application to the military; it exempts businesses with fewer
than 15 employees; and it exempts religious organizations. ENDA
also prohibits the imposition of affirmative action and the
adoption of quotas or granting preferential treatment to an
individual based on their sexual orientation. Moreover, ENDA is
further limited because it does not allow GLB plaintiffs to
bring disparate impact claims. In sum, these limitations
demonstrate the Act's concern for targeting conduct which is in
need of redress and which serves no possible rational
purpose.\124\ Consequently, ENDA is a congruent and
proportional response to the problem of workplace
discrimination based on sexual orientation.
---------------------------------------------------------------------------
\123\Kimel, 528 U.S. at 81; City of Bourne, 521 U.S. at 518.
\124\William D. Araiza, ENDA Before it Starts: Section 5 of the
Fourteenth Amendment and the Availability of Damages Awards to Gay
State Employees under the Proposed Employment Non-Discrimination Act,''
22 B.C. Third World L.J. 1 (2002).
---------------------------------------------------------------------------
In addition to its authority under Section 5 of the
Fourteenth Amendment, Congress has the power to apply ENDA to
the states and localities under its Spending Power authority.
States that wish to obtain Federal funds for their programs or
activities must comply with reasonable, constitutional
conditions placed on the receipt of such funds.\125\ Through
this power, Congress has the authority to provide a private
cause of action for damages against states to those state
employees who are affected by discrimination based on their
sexual orientation. The Supreme Court has recognized that
``Congress may, in the exercise of its spending power,
condition its grant of funds to the states upon their taking
certain actions that Congress could not require them to take,
and that acceptance of the funds entails an agreement to the
actions.\126\
---------------------------------------------------------------------------
\125\42 U.S.C. 2000d-4a (2002).
\126\Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Say.
Bank, 527 U.S. 627, 686 (1999).
---------------------------------------------------------------------------
The Supreme Court has identified five limitations on
Congressional power to condition funds, including: (1)
conditions placed on funds may not be ``so coercive as to pass
the point at which pressure turns into compulsion\127\; (2) the
plain language of the Spending Clause indicates the use of the
spending power must be aimed at the ``public welfare'' of the
country, and thus have ``a general public purpose''\128\; (3)
the receipt of funds must be ``unambiguous'' in the statute so
that a state may make an informed choice as to whether to
adhere to conditions upon which the receipt of funds are
contingent\129\; (4) conditions must be reasonably related to
the purpose for which the funds are expended\130\; and (5) the
conditional grant of funds should not be barred by any
provision of the Constitution.\131\ Congress intends,
consistent with the guidelines set forth, to use its spending
power to condition the receipt of Federal funding in State
programs and activities upon the availability of a private
cause of action for damages against the state under ENDA to
state employees.
---------------------------------------------------------------------------
\127\South Dakota v. Dole, 483 U.S. 203, 211 (1987).
\128\Id. at 207.
\129\Id. at 207.
\130\Id. at 213.
\131\Id. at 208.
---------------------------------------------------------------------------
ENDA constitutes historic civil rights legislation that
will provide critical workplace protections to millions of
Americans who have lived in fear of being fired, not being
hired, or otherwise being discriminated against because of
their sexual orientation. This Act ensures equal opportunity
for gay, lesbian, and bisexual Americans and thus enshrines a
fundamental American principle. Its passage by the Congress and
its enactment are long overdue.
SECTION-BY-SECTION ANALYSIS
Section 1: This section of the bill designates it as the
``Employment Non-Discrimination Act of 2007.''
Section 2: Defines the purposes of the Act, namely: to
provide a comprehensive Federal prohibition on employment
discrimination on the basis of sexual orientation; to provide
meaningful remedies against such discrimination; and to invoke
congressional powers, including the enforcement clause of the
Fourteenth Amendment to the Constitution, the Commerce Clause
and the Spending Clause.
Section 3: Provides definitions of key terms used in the
Act, most of which come directly from existing Federal civil
rights laws, primarily Title VII of the Civil Rights Act of
1964 (``Title VII''). The Act defines ``sexual orientation'' as
``homosexuality, heterosexuality, or bisexuality.'' The term
employer includes a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in
each of 20 or more calendar weeks in the current or preceding
calendar year, and any agent of such person. The definitions of
``employee'' and ``employer'' exclude volunteers and private
membership clubs from the coverage of the Act. The term
religious organization means a religious corporation,
association or society; or a school, college, university or
other educational institution or institution if the institution
is in whole or substantial part controlled, managed, owned, or
supported by a particular religion, religious corporation,
association or society; or the curriculum of the institution is
directed toward the propagation of a particular religion. This
definition of a religious organization is taken directly from
Title VIPs descriptions of religious organizations exempt from
that law's religious discrimination prohibitions. If an
organization qualifies for Title VII's religious exemption from
religious discrimination claims, it would qualify for ENDA's
religious organization exemption as well.
Section 4: Prohibits employers, employment agencies, labor
organizations, and joint labor-management committees from
discriminating in employment or employment opportunities on the
basis of actual or perceived sexual orientation. With respect
to the latter, ENDA creates a cause of action for any
individual--whether actually homosexual or heterosexual--who is
discriminated against because that individual is ``perceived''
as homosexual due to the fact that the individual does not
conform to the sex or gender stereotypes associated with that
individual's sex. Employment opportunities include hiring,
firing, compensation, and other terms, conditions, or
privileges of employment or union membership. In accordance
with Title VII, the phrase ``terms, conditions, or privileges
of employment'' includes requiring GLB people to work in a
discriminatorily hostile or abusive environment. In other
words, ENDA creates an actionable discrimination claim based on
hostile work environment when, for example, the workplace is
permeated with discriminatory intimidation, ridicule, or insult
that is 33 sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment.\132\
---------------------------------------------------------------------------
\132\See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
---------------------------------------------------------------------------
Modeled after a provision of the Americans with
Disabilities Act (``ADA'') and case law under Title VII,
Section 4 also prohibits discrimination based on the actual or
perceived sexual orientation of someone with whom an employee
associates. Section 4 sets forth the Act's prohibition on
quotas and preferential treatment based on sexual orientation.
ENDA does not require employers to justify neutral practices
that may result in a disparate impact against people of a
particular sexual orientation. As a result, the disparate
impact claim available under Title VII is not available under
this Act.
Section 5: Prohibits retaliation against individuals
because they oppose any practice prohibited by the Act or
participate in an investigation or other proceeding authorized
by the Act. This section is modeled on Title VII's retaliation
prohibition, and retaliation claims under the act will be
treated like similar claims under Title VII, including
providing protection from retaliation where a person reasonably
believes the practice in question is an unlawful employment
practice.\133\
---------------------------------------------------------------------------
\133\See Clark County School District v. Breeden, 532 U.S. 268
(2001).
---------------------------------------------------------------------------
Section 6: This section provides that the Act shall not
apply to religious organizations. Religious organizations,
defined in Section 2 above, are identical to religious
organizations described in Title VII. In other words, insofar
as a religious organization is exempt from Title VII religious
discrimination claims, it is exempt from sexual orientation
discrimination claims under ENDA.
Section 7: Explicitly provides that the Act does not apply
to uniformed members of the Armed Forces. The Act does not
affect current law on gay men, lesbians, and bisexuals in the
military. Similar to Title VII, section 7 further provides that
the act does not repeal or modify any other law that gives
special preferences to veterans.
Section 8: Defines how the Act would apply to employer
workplace rules and policies and employee benefits. Section 8
clarifies that the Act does not affect an employer's authority
to regulate employee conduct (including, explicitly, sexual
harassment) to same the extent currently allowed under law, so
long as that regulation does not intentionally circumvent the
purposes of the Act and is neutral with regard to sexual
orientation in both design and implementation. The term
``intentionally'' here carries no further import than the
intentionality required to make a disparate treatment claim, as
opposed to a disparate impact claim. This section clarifies
that it is unlawful to condition a term or condition of
employment either on being married or being eligible to marry
in states where same-sex marriage is not permitted, as such a
condition would constitute a subterfuge for disparate treatment
against GLB workers. This section also makes clear that nothing
in the Act shall be construed to require that an employer treat
a couple who are not married, including a same-sex couple, in
the same manner as an employer treats a married couple for
purposes of employee benefits.
Section 9: Expressly prohibits the EEOC from collecting
statistics on sexual orientation or requiring employers to
collect such statistics.
Section 10: Authorizes the same enforcement powers,
procedures, and remedies that currently exist in Federal
employment law. All individual relief that is available under
Title VII is available under ENDA, although disparate impact
claims are not permitted.
Section 11: Waives the states' Eleventh Amendment immunity
from suit for discrimination based on sexual orientation. This
section is based on Congress' enforcement powers pursuant to
Section 5 of the Fourteenth Amendment to the U.S. Constitution,
as well as Congress' spending power under Article I. If the
Federal government or the states violate this Act, they are
subject to the same action and remedies as other employers,
except that punitive damages are not available.
Section 12: Provides that a successful party, other than
the EEOC or the United States, is entitled to attorneys' fees
and litigation expenses.
Section 13: Sets forth a covered entity's duty to post
notices describing the requirements of the law.
Section 14: Authorizes, but does not require, the issuance
of regulations to enforce the Act.
Section 15: Preserves provisions in other Federal, state,
or local laws that currently provide protection from
discrimination. For example, Congress does not intend to
overrule, displace, or in any other way affect any U.S. Supreme
Court or other federal court opinion that has interpreted Title
VII in such a way that protects individuals who are
discriminated against because they do not conform to sex or
gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490
U.S. 228 (1989) (female plaintiff brought successful Title VII
claim after she was denied partnership in an accounting firm
because she did not conform to female sex stereotype); Nichols
v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male
plaintiff brought successful Title VII claim after he was
subjected to a hostile work environment because he failed to
conform to a male stereotype).
Section 16: Ensures that if one or more provisions of the
Act are held invalid by a court, the balance of the Act will
remain in effect.
Section 17: Provides that ENDA will take effect sixty days
after its enactment and will not apply retroactively.
EXPLANATION OF AMENDMENTS
No amendments to the legislation were adopted.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 3685 includes in
its definition of employer any employing office as defined in
section 101 of the Congressional Accountability Act of 1995, as
well as entities covered by Section 717(a) of the Civil Rights
Act of 1964, which include the Library of Congress.
REGULATORY IMPACT STATEMENT
As H.R. 3685 merely adds ``actual or perceived sexual
orientation'' to the categories of discrimination already
prohibited by federal employment law, does not create any new
enforcement structures but merely utilizes those already in
existence, and authorizes, but does not require, further
regulation by the appropriate agencies to carry out the Act,
the Committee has determined that H.R. 3685 will have minimal
impact on the regulatory burden.
UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. (The CBO letter will address this issue.)
EARMARK STATEMENT
H.R. 3685 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
ROLLCALL
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of Clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 3685 from the Director of the
Congressional Budget Office:
October 22, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3685, the
Employment Non-Discrimination Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 3685--Employment Non-Discrimination Act of 2007
Summary: H.R. 3685 would prohibit employment discrimination
based on sexual orientation. Assuming appropriation of the
necessary amounts, CBO estimates that implementing H.R. 3685
would cost $28 million over the 2008-2012 period for the Equal
Employment Opportunity Commission (EEOC) to handle additional
discrimination cases. The bill could affect direct spending,
but we estimate that any such effects would be less than
$500,000 annually. H.R. 3685 would not affect revenues.
H.R. 3685 would prohibit state, local, and tribal
governments from discriminating against employees and
applicants for employment based on sexual orientation, and it
would require those governments to post notices regarding such
prohibitions. Those requirements would be intergovernmental
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
However, CBO estimates that the costs of complying with those
mandates would not be significant and would not exceed the
thresholds established in UMRA ($66 million in 2007, adjusted
annually for inflation).
The bill also would impose a number of mandates on private-
sector employers, employment agencies, and labor organizations.
CBO estimates that the direct cost of those requirements would
not exceed the annual threshold specified in UMRA ($131 million
in 2007, adjusted annually for inflation) in any of the first
five years the mandates would be effective.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3685 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2008 2009 2010 2011 2012
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION\1\
EEOC Spending Under Current Law:
Estimated Authorization Level\2\............................... 339 351 362 375 387
Estimated Outlays.............................................. 338 350 361 374 386
Proposed Changes:
Estimated Authorization Level.................................. 4 6 6 6 6
Estimated Outlays.............................................. 4 6 6 6 6
EEOC Spending Under H.R. 3685:
Estimated Authorization Level\2\............................... 343 357 368 381 393
Estimated Outlays.............................................. 342 356 367 380 392
----------------------------------------------------------------------------------------------------------------
\1\In addition to the bill's discretionary cost, H.R. 3685 could affect direct spending, but CBO estimates that
any such effects would be less than $500,000 annually.
\2\The estimated authorization levels for 2008 through 2012 are CBO baseline estimates. A full-year
appropriation for 2008 for EEOC has not yet been enacted, so we adjusted the amount appropriated for the
agency in 2007 for anticipated inflation.
Basis of estimate: CBO estimates that implementing H.R.
3685 would cost $28 million over the 2008-2012 period, assuming
appropriation of the necessary amounts. For this estimate, CBO
assumes that the necessary amounts will be appropriated near
the start of each fiscal year and that outlays will follow the
historical spending pattern of those activities. The bill could
affect direct spending, but we estimate that any such effects
would be less than $500,000 annually.
Spending subject to appropriation
The EEOC expects that implementing H.R. 3685 would increase
its annual caseload (currently about 90,000 cases) by about 5
percent and would require an additional 60 to 80 staff. CBO
estimates that the costs to hire an additional 70 employees
would reach $6 million annually by fiscal year 2009, subject to
the appropriation of the necessary amounts. We expect that
enacting H.R. 3685 also would increase the workload for a few
other agencies, such as the Merit Systems Protection Board, but
any increase in costs for those agencies would not be
significant because of the small number of additional cases.
The additional cases resulting from H.R. 3685 also would
increase the workload of the Department of Justice's Civil
Rights Division and the federal judiciary. However, CBO
estimates that increased costs for those agencies would also
not be significant because of the relatively small number of
cases referred to them.
Direct spending
Enacting H.R. 3685 could increase payments from the
Treasury's Judgment Fund for settlements against federal
agencies in discrimination cases based on sexual orientation.
However, CBO estimates that any increases in direct spending
would be less than $500,000 annually.
Estimated impact on state, local, and tribal governments:
H.R. 3685 would prohibit state, local, and tribal governments
from discriminating against employees and applicants for
employment based on sexual orientation, and it would require
those governments to post notices regarding such prohibitions.
Those requirements would be intergovernmental mandates as
defined in UMRA. The costs of the mandates would include the
costs of posting notices and modifying employment procedures to
avoid discriminatory practices. CBO assumes that the costs of
notices would likely be relatively minor and would be made in
the course of other routine updates. Similarly, changes to
employment procedures likely would build on such things as
ongoing training and updates to personnel manuals. Thus, CBO
estimates that compliance costs would not be significant and
would not exceed the thresholds established in UMRA ($66
million in 2007, adjusted annually for inflation).
Under H.R. 3685, by accepting any federal financial
assistance, states would waive their sovereign immunity under
the 11th Amendment and would be subject to suit for
discriminatory practices. Because UMRA excludes conditions of
federal assistance from the definition of an intergovernmental
mandate, any costs resulting from potential suits would not be
the result of complying with an intergovernmental mandate as
defined in UMRA. In any event, the number of such cases likely
would be very small, and states would not be subject to
punitive damages.
Estimated impact on the private sector: The bill would
impose a number of mandates on many private-sector employers,
employment agencies, and labor organizations. It would prohibit
employers from discriminating against any worker on the basis
of sexual orientation in hiring, firing, pay, and other aspects
of employment. The bill would also require employers to modify
the notices they are required to post regarding federal laws
that protect employees from discrimination and set minimum
wages. CBO estimates that the direct costs of complying with
those mandates would not exceed the annual threshold specified
in UMRA ($131 million in 2007, adjusted annually for inflation)
in any of the first five years the mandates would be effective.
Estimate prepared by: Federal Costs: Mark Grabowicz; Impact
on State, local, and Tribal Governments: Melissa Merrell;
Impact on the Private Sector: Nabeel Alsalam.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c) of House rule XIII, the goal
of H.R. 3685 is to prohibit employment discrimination on the
basis of sexual orientation.
CONSTITUTIONAL AUTHORITY STATEMENT
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 3685. Congress
has the authority to enact ENDA through the Commerce Clause,
the Fourteenth Amendment of the United States Constitution. The
Act's authorization of individual suits against state
governmental employers is derived from Congress' enforcement
power under Section 5 of the Fourteenth Amendment as well as
Congress' Spending Power under Article 1.
COMMITTEE ESTIMATE
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 3685.
However, clause 3(d)(3)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
COMMITTEE CORRESPONDENCE
None.
DISSENTING VIEWS
We dissent from H.R. 3685, a narrow version of the
Employment Non-Discrimination Act (ENDA) that excludes
protections based on gender identity. We are co-sponsors of
H.R. 2015, the original version of ENDA introduced earlier this
year, that would prohibit workplace discrimination based on
sexual orientation and gender identity. While we agree with
H.R. 3685's objective of prohibiting workplace discrimination
on the basis of sexual orientation, we do not support the
decision to remove gender identity from the bill because it
leaves this legislation woefully incomplete. H.R. 3685 fails to
expressly protect transgender people, who are among the most at
risk for discrimination. The decision to strip gender identity
from the bill was not based on substantive concerns about the
bill's language but rather on a perception that protecting this
vulnerable group might jeopardize the bill's chances for clean
passage on the House floor. We cannot support this rationale,
which reinforces the very bias and discrimination that ENDA
seeks to prohibit.
Transgender individuals and their families aspire to the
same basic rights as other Americans, including equal access to
gainful employment and fair housing in safe communities. Yet
across this country, transgender people face extremely high
rates of unemployment, poverty, and homelessness. Studies
across the country reveal that transgender people suffer a 35%
unemployment rate, with 60% earning less than $15,300 a year.
As a result of this disparity in income and employment levels,
a disproportionate number of transgender people cannot support
themselves or their families, and many are literally forced
onto the streets. Every American has the right to be free from
discrimination in employment and to be judged solely on one's
performance in the workplace--not on irrelevant characteristics
such as sexual orientation and gender identity. We are eager to
support legislation that addresses such discrimination, and we
wish that we would have had an opportunity to do so in
Committee.
We believe that Congress should pursue the path that state
legislatures have uniformly followed for the past several
years, which is to pass measures that include both sexual
orientation and gender identity. Such inclusive laws have
passed on the local and state level in jurisdictions in every
region of the country. Nationally, 37% of the U.S. population
lives in jurisdictions that prohibit gender identity
discrimination. Currently, there are inclusive laws in twelve
states and over 90 local jurisdictions, including Iowa, New
Jersey, Colorado, and Oregon, which passed inclusive laws just
this year. Congress should be reinforcing these efforts instead
of undermining advancement on the state and local level.
We have heard overwhelmingly from constituents and civil
rights organizations that passage of this non-inclusive bill
will undermine the ultimate attainment of full employment
protections for all LGBT individuals. We are not aware of a
single gay or LGBT organization that has endorsed this bill. In
contrast, over 300 organizations have formally opposed H.R.
3685 because it omits gender identity protections. These
include national groups such as the National Gay and Lesbian
Task Force, National Center for Lesbian Rights, Equality
Federation, National Black Justice Coalition, National
Association of LGBT Community Centers, Pride At Work (AFL-CIO),
PFLAG (Parents, Families and Friends of Lesbians and Gays), and
the National Center for Transgender Equality. Also in
opposition is nearly every single statewide organization that
represents the LGBT community in their state, including
Equality Alabama, Equality California, Equality Illinois,
Equality Maryland, Equality Advocates Pennsylvania, Garden
State Equality, Empire State Pride Agenda, Equality Florida,
Equality Maine, Equality Ohio, Equal Rights Washington, and
Equality Texas.
For the reasons set forth herein, we respectfully dissent
from H.R. 3685.
Rush Holt.
Yvette D. Clarke.
Linda T. Sanchez.
Dennis J. Kucinich.
MINORITY VIEWS
INTRODUCTION
At the federal level, numerous civil rights statutes exist
to protect individuals from discrimination. Although these laws
share similar features, each statute differs based upon the
type of discrimination that it prohibits and the circumstances
under which it operates. Arguably the most prominent among
these various laws is the Civil Rights Act (``CRA'') of 1964,
which expanded civil rights protections to many different
settings and served as a model for subsequent anti-
discrimination laws. Among the provisions of the CRA, Title VII
specifically prohibits discrimination in employment on the
basis of race, color, religion, national origin, or sex.\1\
Title VII applies to employers with 15 or more employees,
including the federal government and state and local
governments.
---------------------------------------------------------------------------
\1\42 U.S.C. Sec. 2000e.
---------------------------------------------------------------------------
For more than two decades, a number of bills have been
introduced in Congress that sought to protect individuals from
workplace discrimination on the basis of sexual orientation,
Very recently, in the 110th Congress, Rep. Barney Frank (D-MA)
introduced H.R. 2015, The Employment Non-Discrimination Act of
2007 (``H.R. 2015''). This bill, introduced on April 24, 2007,
purports to protect against discrimination on the basis of
sexual orientation and, for the first time, gender identity. On
September 5, 2007, the Committee on Education and Labor,
Subcommittee on Health, Employment, Labor, and Pensions held a
hearing on H.R. 2015. On September 27, 2007, because of
questions raised at that hearing and questionable support for
H.R. 2015, Rep. Frank introduced two new bills, H.R. 3685 and
H.R. 3686, which split the protections for sexual orientation
and gender identity, respectively. On October 18, 2007, the
full Committee on Education and Labor proceeded to markup H.R.
3685, which provides protections on the basis of sexual
orientation only. Subsequently, the Committee on Education and
Labor ordered reported H.R. 3685.
The Minority Members of this Committee have consistently
stated their opposition to intentional workplace
discrimination. However, H.R. 3685 as reported out of Committee
raises many legitimate concerns that remain unresolved. For
example, the bill's religious exemption fails to adequately
protect certain religious employers from liability. Also, the
bill provides unprecedented protection against discrimination
based on ``perceived'' sexual orientation. For these reasons
and others detailed later in this document, the majority of
Committee Republicans reject this legislation, and urge its
defeat on the House Floor. Further, the House should reject any
attempt to amend this bill to add protections for gender
identity.
FEDERAL LEGISLATIVE HISTORY
A variety of federal proposals have been introduced over
the last two decades that sought to protect against workplace
discrimination on the basis of sexual orientation. Included in
these efforts were relatively simple proposals to amend Title
VII of the CRA to add the term ``sexual orientation'' to
existing categories afforded protection, such as race.\2\ Since
it was first introduced in the House and the Senate in the
103rd Congress, the Employment Non-Discrimination Act (ENDA)
has been the primary legislative vehicle for extending federal
employment discrimination protections to employees on the basis
of their sexual orientation. While many Democrats and some
Republicans have supported ENDA legislation, the bill has not
garnered the support necessary to move through Congress. In
September 1996, the Senate voted on a prior version of ENDA,
but the bill was defeated by a vote of 50-49 (Roll Call Vote
No. 281). The last major action on this issue took place in the
Senate during the 107th Congress, when the Senate Health,
Education, Labor, and Pensions (HELP) Committee under Chairman
Kennedy held a hearing, marked up a bill, and reported it
favorably out of Committee. Despite reporting the bill
favorably, Senate HELP Committee Republicans, who did not
support the legislation, voiced concerns and claimed that ``* *
* the legislation remains overly broad and unclear in many
respects, specifically, with regard to its effect on
individual, constitutional, and States' rights.''\3\ That bill
was placed on the Senate Legislative Calendar under General
Orders, but did not move any further.
---------------------------------------------------------------------------
\2\See, CRS Report RL31863, Sexual Orientation Discrimination in
Employment: Legal Analysis of Title VII of S. 16, the Employment
Nondiscrimination Act of 2003.
\3\``Minority Views'', S. Report 107-341, p. 39 (2001).
---------------------------------------------------------------------------
In the 108th Congress, an ENDA bill (H.R. 3285) was
introduced by Rep. Christopher Shays (R-CT), but there was no
action taken on that bill. Subsequently, legislation was not
introduced during the 109th Congress. In the 110th Congress,
Rep. Frank introduced three separate ENDA bills that included
protection against discrimination on the basis of gender
identity (defined below), as well as sexual orientation. Given
the considerable policy and political questions raised by this
legislation, a discussion of these three ENDA bills is
appropriate to illustrate its progression.
H.R. 2015, the Employment Non-Discrimination Act of 2007
Rather than amend existing civil rights laws, H.R. 2015 was
drafted as a stand-alone anti-discrimination law, but generally
has the same enforcement scheme and remedies as Title VII of
the CRA (Title VII) and the Americans with Disabilities Act
(ADA). Central to its purpose, the bill, at Section 3(a)(9),
defines ``sexual orientation'' as ``homosexuality,
heterosexuality, or bisexuality.'' Also, Section 3(a)(6)
defines gender identity as ``the gender-related identity,
appearance, mannerisms or other gender-related characteristics
of an individual, with or without regard to the individual's
designated sex at birth.''
H.R. 2015 would address employment discrimination in four
areas. First, the legislation would make it unlawful to fire,
refuse to hire or take any other action that would adversely
affect a person's status as an employee based on his or her
actual or perceived sexual orientation or gender identity.\4\
With language borrowed from the ADA, the legislation also
prohibits ``association discrimination'' as a result of the
actual or perceived sexual orientation or gender identity of
someone with whom an employee associates. Second, H.R. 2015
would prohibit discrimination against an individual who has
opposed or spoken out against an unlawful employment practice.
Third, the bill would not permit the creation or use of
preferential treatment or employent quotas based on perceived
sexual orientation or gender identity. Finally, H.R. 2015
requires that employers must have policies in place to address
dress standards and gender-segregated facilities (such as
changing areas) in the workplace.
---------------------------------------------------------------------------
\4\Employer actions that aversely affect a person's status as an
employee relate to compensation, benefits, training programs and
opportunities, and union membership.
---------------------------------------------------------------------------
Similar to current requirements under Title VII, H.R. 2015
would apply to private employers with 15 or more employees,
labor unions, employment agencies, and federal, state, and
local governments. The bill contains a number of exemptions,
including those for members of the armed forces, private
employers with less than 15 employees, and religious and
religious-affiliated entities. Also, H.R. 2015 would grant the
Equal Employment Opportunity Commission (EEOC) and other
appropriate agencies the power to enforce the Act. If an
employee's complaint is not resolved by the EEOC, the
legislation would allow an individual to file suit seeking
punitive and compensatory damages up to a cap of $300,000 and
attorney's fees.
Notably, H.R. 2015 differs in several significant respects
from prior versions of ENDA. H.R. 2015 adds, for the first
time, gender identity as a protected classification which would
prohibit workplace discrimination against transgendered
individuals.\5\ Section 4(b) of the bill makes it an unlawful
employment practice to discriminate against an individual
because of ``the actual or perceived sexual orientation or
gender identity'' of the individual. The inclusion of
protection based on ``perceived'' gender identity would likely
raise issues as to how employers could accommodate individuals
who perceive themselves to be of the opposite gender, and
therefore comply with the legislation.
---------------------------------------------------------------------------
\5\Transgendered individuals are individuals of one sex who, by
surgery or other means, change their gender to the opposite sex.
---------------------------------------------------------------------------
In addition, although the bill retains language from
previous bills that would not require domestic partner
benefits, H.R. 2015 would exempt any state and local rules from
preemption under the Employee Retirement and Income Security
Act (ERISA). This exemption would be contrary to longstanding
precedent that prevents state and local mandates on employer-
provided benefits.
Further, H.R. 2015 contains insufficient exemptions for
religious organizations and actions based on religious beliefs,
and actually narrowed the single broad exemption for religious-
affiliated organizations contained in the ENDA legislation
introduced in the 108th Congress (H.R. 3285). First, under H.R.
2015, all houses of worship, missions or schools that have the
purpose of religious worship or teaching of religious doctrine
would be completely exempt. Second, in religiously-affiliated
entities, employees who teach or spread religion, take part in
religious governance or supervise those who teach or spread
religion are completely exempt. Third, a religiously-affiliated
entity can require all or some employees to conform to
religious tenets as set forth by the organization regardless of
sexual orientation or gender identity.\6\ Although seemingly
intended to cover a wide range of religious organizations and
activities, the H.R. 2015 religious exemption is far more
prescriptive than earlier versions and the existing exemption
contained in Title VII of the CRA, and it therefore results in
a far narrower religious exemption. Although a broader
religious exemption had been proposed in a prior Congress,
those who previously sponsored and supported H.R. 2015 chose,
inexplicably, to narrow the exemption.
---------------------------------------------------------------------------
\6\Since these exemption provisions are narrower than the religious
exemptions contained in Title VII, this proposed exemption has raised
significant concern among religious employers (detailed below).
---------------------------------------------------------------------------
In addition to the Committee on Education and Labor, H.R.
2015 was referred to three other committees of jurisdiction:
the Committee on House Administration, the Committee on the
Judiciary, and the Committee on Oversight and Government
Reform. To date, none of the other committees of jurisdiction
have taken any official action on H.R. 2015.
On September 5, 2007, a legislative hearing on H.R. 2015
took place before the Committee on Education and Labor,
Subcommittee on Health, Education, Labor, and Pensions. Witness
testimony at that hearing raised several substantive concerns
about ENDA legislation in the 110th Congress, many of which
have yet to be addressed by the Majority.
H.R. 3685, the Employment Non-Discrimination Act of 2007
On September 27, 2007, in apparent recognition of the
fundamental policy flaws contained in H.R. 2015 and diminishing
support for that bill as a result of those flaws,
Representative Barney Frank introduced two bills, H.R. 3685 and
H.R. 3686 which, respectively, split the protections against
discrimination based on sexual orientation and gender identity
into two separate bills.
Although H.R. 3685 attempts to address certain concerns,
many of its provisions are similar to those contained in H.R.
2015 and therefore continue to raise significant policy
questions. H.R. 3685 removes ``gender identity'' as a protected
classification, and conforms the retaliation provision to
existing law under Title VII. However, H.R. 3685 revises the
religious exemption, ostensibly to conform to the exemption
under Title VII. The new provision, however, still fails to
protect many religious organizations that would qualify for an
exemption under Title VII. Further, H.R. 3685 retains vague and
unworkable references to the ``perceived'' sexual orientation
of individuals. The bill would still make it unlawful to
condition employment, in a state in which a person cannot marry
a person of the same sex, either on being married or being
eligible to marry.
H.R. 3686, to prohibit employment discrimination based on gender
identity
On September 27, 2007, Representative Frank also introduced
H.R. 3686, legislation which is intended to complement the so-
called ``improved'' version of ENDA embodied in H.R. 3685. The
stated purpose of H.R. 3686 is to prohibit employment
discrimination based on gender identity.
Again, many of the provisions of H.R. 3686 are similar to
those contained in H.R. 2015; but the legislative language of
H.R. 3686 contains fatal flaws and raises significant concerns
that undermine the fundamental policy promoted by this bill.
Like H.R. 3685, the revision to the religious exemption in
effect fails to protect many religious organizations that would
qualify for an exemption under Title VII. H.R. 3685 also
retains the vague and unworkable reference to the ``perceived''
gender identity of individuals. This is arguably even more
problematic than use of the term as applied to sexual
orientation, since perception of one's gender could be
inherently more difficult to ascertain from day to day.
Further, H.R. 3686 contains language governing employer rules
and policies with respect to certain shared facilities and
dress and grooming standards, provisions that were initially
included in H.R. 2015. Although the Majority attempts to
address concerns regarding certain shared shower or dressing
facilities by stating ``nothing in this Act shall be construed
to require the construction of new or additional facilities,''
significant questions still remain regarding what constitutes
reasonable access to such facilities, which will result in
great uncertainty and litigation.
LEGISLATIVE ACTIVITY
Legislative hearing on H.R. 2015
The only hearing on ENDA legislation during the 110th
Congress occurred on September 5, 2007, before the Committee on
Education and Labor, Subcommittee on Health, Education, Labor,
and Pensions. The subject of the legislative hearing was H.R.
2015. Notably, the full Committee on Education and Labor failed
to hold a legislative hearing on that bill, or any other ENDA
legislation, thereby depriving most Committee Members of the
opportunity to hear testimony on the merits and/or flaws of the
bills prior to their consideration.
At the September 5, 2007 hearing, testimony was received
from Representatives Barney Frank, Tammy Baldwin, and Emanuel
Cleaver, II, along with two alleged victims of discrimination,
two representatives from academic institutions, and two company
representatives. Additional witnesses included Lawrence Lorber,
Esq., an experienced labor and employment lawyer, and Mark
Fahleson, Esq., a labor and employment lawyer who counsels
small and medium-sized businesses, including religious colleges
and universities. Although purported to be a legislative
hearing on the provisions of H.R. 2015, most of the testimony
from the Majority's witnesses focused on personal experiences
and opinions concerning discrimination. By contrast, most of
the discussion of substantive problems and concerns with the
actual legislative language was provided by the Republican
witnesses, Mr. Lorber and Mr. Fahleson.
The two witnesses who testified on behalf of private
business, Ms. Kelly Baker from General Mills and Ms. Nancy
Kramer, owner of an Ohio marketing services company, stated
that promoting a diverse work environment, that respects
individuals' sexual orientation, helps their businesses improve
productivity and compete more effectively.\7\ This testimony
raises the question of whether a federal directive applied to
the free market is necessary in light of voluntary (and
apparently successful) private-sector efforts to promote
diversity and improve business performance.
---------------------------------------------------------------------------
\7\See generally, Testimony of Nancy Kramer, Founder and Chief
Executive Officer, Resource Interactive, and Testimony of Kelly Baker,
General Mills, Inc., Committee on Education and Labor, Subcommittee on
Health, Education, Labor and Pensions Hearing, ``The Employment Non-
Discrimination Act of 2007 (H.R. 2015)'' (September 5, 2007).
---------------------------------------------------------------------------
Mr. Lorber and Mr. Fahleson focused their written testimony
and verbal comments on substantive concerns with H.R. 2015. Mr.
Lorber initially noted that the ``[g]reatest single area of
growth in federal civil litigation involves employment and
labor law. Therefore the Congress should be cautious in adding
to this growing and complex list of laws, and thereby the
potential for increased litigation.''\8\ He then went on to
highlight concerns with various provisions of the bill,
including the need to appropriately define the term ``disparate
impact'' and clarify that only intentional circumvention of the
Act is implicated in order to avoid attacks on neutral employer
rules and policies. Also, Mr. Lorber raised multiple technical
concerns resulting from inclusion of gender identity as a new
protected class, and the need to conform the bill's prohibition
against retaliation with existing Title VII language.
---------------------------------------------------------------------------
\8\Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP,
Committee on Education and Labor, Subcommittee on Health, Education,
Labor and Pensions Hearing, ``The Employment Non-Discrimination Act of
2007 (H.R. 2015)'' (September 5, 2007), at 2.
---------------------------------------------------------------------------
Mr. Fahleson began his testimony by raising a threshold
question as to whether there was a need for a federal remedy at
this time. In his own words:
I believe it is appropriate to ask the question: is a
broad, new federal remedy for sexual orientation and
gender identity employment discrimination such as that
embodied in H.R. 2015 necessary at this time? As the
Committee is aware, a significant number of employers
have voluntarily adopted policies barring
discrimination on the basis of sexual orientation and
transgender status. In addition, several states and
municipalities have enacted local regulatory schemes
addressing sexual orientation and/or transgender
discrimination in the workplace. For the last 32 years
legislation has been introduced in Congress seeking to
prohibit sexual orientation discrimination in
employment. Meanwhile, it appears that the free market
and local regulators are already addressing the issues
raised by this legislation.\9\
---------------------------------------------------------------------------
\9\Testimony of Mark A. Fahleson, Esq., testifying individually,
Committee on Education and Labor, Subcommittee on Health, Education,
Labor and Pensions Hearing, ``The Employment Non-Discrimination Act of
2007 (H.R. 2015)'' (September 5, 2007), at 1.
Mr. Fahleson also raised concerns regarding the cost of
this legislation, especially the potential impact on smaller
employers that have less ability to absorb financial costs
associated with this regulation. Further, he expressed concerns
that the exemption for religious organizations was far narrower
than the current exemption under Title VII, and raised a number
of hypothetical situations in which eligibility for the
exemption was questionable. Mr. Fahleson opined that ``[t]he
blanket exemption for religious organizations found in prior
versions of ENDA provides greater certainty and is less
problematic for religious and faith-based employers, as well as
the judiciary.''\10\
---------------------------------------------------------------------------
\10\Id., at 4.
---------------------------------------------------------------------------
Committee Republicans share the concerns expressed by Mr.
Lorber and Mr. Fahleson that H.R. 2015 creates significant
policy questions on the issue of extending federal protections
based on sexual orientation and gender identity. Left
unanswered, these questions could result in severe burdens
being placed on employees and employers. Such questions must be
addressed before extending new federal protections and
requirements in this area.
Committee legislative action
Despite the fact that a legislative hearing was held on
H.R. 2015, the Committee did not further consider H.R. 2015.
Instead, on Thursday, October 18, 2007, the Committee on
Education and Labor met to consider H.R. 3685, without the
benefit of any legislative hearing on the bill or the ways in
which it differs from H.R. 2015, the bill that did receive some
limited scrutiny from the Committee. Republican Members offered
four (4) amendments designed to: (1) broaden the exemption for
religious schools not covered under H.R. 3685; (2) strike the
term ``perceived'' sexual orientation, which is vague and will
create uncertainty in the workplace; (3) prohibit retaliation
against employees who may not agree with employer policies
relating to the Act on the basis of sincerely held beliefs; and
(4) remove the provision making it unlawful to condition
employment, in a state in which a person cannot marry a person
of the same sex, either on being married or being eligible to
marry. These amendments were rejected by the Committee. The
Committee favorably reported H.R. 3685 on a roll call vote of
27 to 21.
REPUBLICAN VIEWS, H.R. 3685
Committee Republicans are generally committed to the
principle that discrimination in the workplace is unacceptable.
It is for that reason that we support the current-law
protections provided under Title VII of the Civil Rights Act.
However, we also believe that before imposing any new federal
mandates in this area, even those cloaked in the honorable
moniker of ``non-discrimination,'' the Committee and Congress
must thoroughly and thoughtfully examine the need for such
mandates and must evaluate the substantive implications of the
legislative proposals. In this regard, the Committee has fallen
short. Not only has the Majority provided little compelling
evidence as to the need for this legislation, but they have
also failed to fully address the substantive concerns it
raises.
Remarkably, although absent from the bill reported by the
Committee, the issue of providing discrimination protections on
the basis of gender identity remains clearly on the Majority's
agenda for future consideration. Indeed, at the conclusion of
the Committee's consideration of H.R. 3685, several Committee
Democrats voiced their intent to amend the bill during its
consideration by the full House of Representatives by inserting
additional protections for gender identity. While we do not
question the right of our Democrat colleagues to offer such
amendments, we do believe their expressed intention to do so
begs an important question: Why was an amendment to include
protections from discrimination on the basis gender identity
not offered by these Members during the Committee's
consideration of the bill? Indeed, why were gender identity
protections--expressly provided in H.R. 2015--dropped from the
bill that was brought before the Committee? The answer, of
course, is rooted in the fact that extending non-discrimination
protections to gender identity not only raises substantive and
policy-related questions that the Majority cannot answer, it is
also politically untenable. That Committee Democrats would
forgo the opportunity to include such protections during the
Committee's consideration of the bill merely underscores this
fact.
Finally, we are troubled by the fact this legislation is
proceeding to the House floor without adequately resolving
outstanding issues and urge that the House of Representatives
reject it, along with any amendments that seek to include
protections based on gender identity.
The bill fails to protect the hiring prerogatives of religious schools
H.R. 3685 attempts to provide an exemption for religious
organizations, including religious educational institutions.
However, the bill's definition of ``religious organizations''
contains a two-part test used to determine if an educational
institution qualifies for an exemption. This test, found in
Section 3(a)(8) of the bill, requires that the school be
``controlled, managed, owned, or supported by a particular
religion''; or, have its curriculum ``directed toward the
propagation of a particular religion.'' (emphasis added).
Although this exemption is broader than that contained in H.R.
2015, it still does not provide the broad protections that
exist under current law. Moreover, it fails to cover non-
denominational religious schools and invites the federal
government to investigate the religious nature of schools'
curricula, effects we find unacceptable.
Despite assertions by the Majority that the exemption in
H.R. 3685 is the same as the exemption found in Title VII, a
plain reading of both reveals the Majority's assertion is
incorrect. Current law, under Title VII, as amended, broadly
exempts religious corporations, associations, societies, and
educational institutions.\11\ Title VII also contains a
provision, the so-called ``bona fide occupational
qualification'' (BFOQ), which provides further protections
applicable to educational institutions in certain rare
circumstances.\12\ The BFOQ provision is rarely utilized in
practice, because of the initially broad protections for
educational institutions contained in Title VII. However, H.R.
3685 changes the nature of the exemption under Title VII with
respect to educational institutions because, rather than simply
providing a broad exemption for ``educational institutions,''
it qualifies the exemption for such institutions by using the
BFOA provision exclusively. This creates several unresolved
problems.
---------------------------------------------------------------------------
\11\See, 42 U.S.C. Section 2000e-1.
\12\See, 42 U.S.C. Section 2000e-2(e)(2).
---------------------------------------------------------------------------
For example, a non-denominational, independent faith-based
school that is not controlled or supported by a ``particular''
religion, or whose curriculum is not directed toward
propagation of a ``particular'' religion, may not be exempt
from this legislation, even though religion forms the
foundation of its mission. Unfortunately, there are many
schools that may be penalized by this provision. One such
institution, Wheaton College in Wheaton, Illinois, expressed
serious concerns about the religious exemption in H.R. 3685. In
a letter dated October 3, 2007 to Congressman Tim Walberg, the
President of Wheaton College, Duane Litfin, stated as follows:
On behalf of Wheaton College I want to register our concern
about a bill that has been introduced in the U.S. House titled
``To prohibit employment discrimination on the basis of sexual
orientation or gender identity,'' and referred to as the
Employment Non-Discrimination Act or ENDA (HR 3685),
Appropriately, the Act provides a religious exemption
consistent with the Civil Rights Act as Amended in 1972.
However, the categorical religious exemption is undermined in
Section 3(a)(8) of the Act by a problematic definition of
religious organization that casts doubt on whether Wheaton
College would be exempt. As I understand the definition
language, educational institutions that are themselves
religious but that are not controlled by some other religious
organization, such as a church or a denomination, may not be
covered by the religious exemption.
Wheaton College has a clearly defined religious identity,
dating back to its founding in 1860, including a Statement of
Faith to which all of our employees give assent, and a
Community Covenant to which all of the members of our community
adhere, Nevertheless, Wheaton College is not controlled by a
religious corporation, but rather by a self-perpetuating Board
of Trustees.
Surely a religious college such as Wheaton should be
permitted the same protection of its religiously motivated
hiring rights as those colleges that are controlled by churches
or other religious organizations.
Since 1972 when the Civil Rights Act was amended to
forthrightly protect the mission-critical hiring rights of
religious organizations, including religious higher education,
we have been able to grow and expand our service to our
communities with a robust religious mission and distinctive
approach because we have had the ability to select all of our
staff on a religious, mission-critical basis. Our continued
existence as a distinctively religious institution, and with
it, a diverse and thriving higher education sector, is
threatened because the proposed ENDA, with its limiting and
non-categorical religious exemption, does not clearly and fully
ensure our religious, mission-critical staffing freedom.
I urge you to remove the problematic religious definition
language currently in ENDA and ensure that the Act
categorically exempts religious organizations as in Section
702(a) of Title VII of the Civil Rights Act of 1964, as
amended.
The concerns expressed by Mr. Litfin are not unique to
Wheaton College. Indeed, the impact of the insufficient
religious exemption has engendered comments from numerous
organizations, who expressed serious reservations similar to
those expressed by Wheaton College. Those commentators
included:
The Council for Christian Colleges & Universities
Agudath Israel of America
The American Association of Christian Colleges & Seminaries, Inc.
The American Association of Christian Schools
The Family Research Council
The Ethics & Religious Liberty Commission of the Southern Baptist
Convention
The Traditional Values Coalition
The American Center for Law and Justice
This is by no means a comprehensive list of concerned
parties, but reflects the concern of many impacted institutions
and organizations who find the current exemption to be wholly
insufficient.
Additional concerns regarding the so-called religious
exemption are also worthy of mention. For example, if the
current exemption were to be enacted, religious schools would
likely be subjected to a ``denominational'' test. Such a test
would inevitably ``entangle'' the federal government in the
practice of religion, since it invites courts to examine the
beliefs and practices of religious schools to determine if they
are ``religious enough.'' In addition, H.R. 3685 would vest the
EEOC with regulatory, enforcement, and investigatory powers.
This would require the EEOC to investigate and determine
whether institutions are associated with ``particular''
religions or whether the curriculum of an institution is
directed toward the propagation of a ``particular'' religion.
In doing so, the provisions would entangle a Federal agency in
complex questions involving religious missions and doctrine and
would require promulgation of Federal rules governing this area
of inquiry. This intrusive federal inquiry into the religious
beliefs of schools arguably violates the constitutional
separation of church and state. Religious schools and faith-
based institutions should be free to exercise their religious
beliefs without government intrusion.
Also, in an effort to qualify for the exemption, religious
schools may be forced to alter their curricula in an attempt to
focus it on the ``propagation of a particular religion.''
Forcing schools to choose between adopting a ``particular
religion'' or relinquishing hiring prerogatives would be
antithetical to, and in conflict with, the mission of many of
these faith-based schools.
Uncertainties associated with the new exemption would
result in lengthy and expensive litigation to uphold religious
freedoms and the separation of church and state. Litigants
would use this loophole to bring suits against the schools,
forcing them to hire individuals whose lifestyles might violate
the schools' core principles.
In an effort to address the insufficient religious
exemption, Republican Members overwhelmingly supported an
amendment by Rep. Hoekstra at the full Committee markup that
would appropriately expand the exemption to include religious
and faith-based schools. More specifically, the amendment would
have stricken the requirement to associate with a
``particular'' religion, and would have provided an exemption
for institutions that maintain a faith-based mission.
Unfortunately, the Majority refused to address the legitimate
concerns regarding the religious exemption, and the amendment
failed.
The bill provides vague prohibitions based on ``perceived'' sexual
orientation
H.R. 3685 prohibits--as did its predecessor, H.R. 2015--
employers from discriminating against an individual because of
an individual's actual or ``perceived'' sexual orientation. The
bill also makes it unlawful to discriminate against an
individual based on the actual or ``perceived'' sexual
orientation of a person with whom the individual associates or
has associated. Despite its significance to the bill's
underlying policy, the term ``perceived'' is not defined
anywhere in H.R. 3685. Its inclusion raises a number of
practical and legal concerns that remain unaddressed.
At the Subcommittee hearing on H.R. 2015, one of the
witnesses, Mr. Lorber, expressed general concern regarding
legal protections based on perception, which would be
applicable to perception as applied to both sexual orientation
and gender identity. In his own words, Mr. Lorber states:
Section 4(e) is modeled after the ADA, 42 U.S.C. sect.
12112(b)(4) and is understandable when applied to
defined characteristics. It is less than clear,
however, when applied to non-inherent characteristics
which may be self-perceived by the individual but not
apparent to the employer. This will seem to create the
potential for difficult enforcement and even more
potentially difficult litigation since the underlying
issue may be ephemeral or not readily apparent to the
employer. Again, understanding the law makes compliance
with the law an acceptable undertaking.\13\
---------------------------------------------------------------------------
\13\Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP,
Committee on Education and Labor, Subcommittee on Health, Education,
Labor and Pensions Hearing, ``The Employment Non-Discrimination Act of
2007 (H.R. 2015)'' (September 5, 2007), at 3.
The issue raised by Mr. Lorber highlights the fact that a
perception of an individual being homosexual or bisexual is a
highly subjective determination. An individual may ``perceive''
themselves to be homosexual, but this may not be apparent to
others. Yet, notwithstanding the lack of clarity, this could
still provide the basis for a discrimination claim. In the
litigation context, determinations would have to be made
involving consideration of evidence that is highly subjective,
circumstantial, or contradictory. This would make it virtually
impossible to make factual determinations with a high degree of
certainty and confidence.
The potential impact on employers is profound. Even though
employers would have difficulty in identifying non-inherent
characteristics of a person, they would still be subjected to
claims and potential liability. Even though an employer may not
be capable of perceiving a person to be homosexual, if they
have fifteen or more employees and are otherwise subject to
this bill, they would have to defend themselves in lawsuits by
having to prove a negative; that they did not ``perceive'' the
person to be part of a protected class. Difficulty in enforcing
this provision will undoubtedly lead to costly litigation. Or,
in the alternative, employers--especially small employers with
limited resources--may simply choose to settle these cases
regardless of the merits, in order to avoid lengthy and costly
litigation.
It is worth noting that the term ``perceived'' does not
appear in any other civil rights legislation, including Title
VII, which protects race, color, religion, sex, and national
origin. As such, there is simply no reason to provide more
statutory protection for one protected class over other
protected classes. Although the Majority may claim that the ADA
protects persons ``regarded as'' having a disability, that term
is different from ``perceived'' and is applied to protect
situations that are different from those to be addressed by
this bill. Their analogy to the ADA is off the mark. For
example, an employer may more easily be able to identify an
apparent condition, for example the fact that a worker suffered
a treatable heart attack, and ``regard'' that employee as being
disabled. A person's sexual orientation may not be so readily
apparent to an employer, and thus protection against
discrimination based on ``perceived'' sexual orientation is not
appropriate.
The Majority denies these valid concerns, by simply stating
that the inclusion of this term is necessary to protect the
rights of employees, and that employers could use the absence
of this term to defend against lawsuits by claiming they did
not know the ``actual'' sexual orientation of the individual.
However, this explanation evades and ignores the expansion of
statutory rights based on sexual orientation, beyond the
current statutory protections for race, color, sex, religion
and national origin.
At markup, Rep. Souder offered an amendment to strike the
term ``perceived'' from the bill. This amendment was rejected.
Inclusion of the statutory extension of protection on the basis
of ``perceived'' sexual orientation is justification to reject
this bill.\14\
---------------------------------------------------------------------------
\14\If protection based on ``perceived'' gender identity were added
to this bill, it would raise similar significant, and perhaps even
greater, concerns regarding its application in the workplace. For
example, questions regarding employee privacy and reasonable
accommodation of transgendered individuals and coworkers would arise.
Such an extension of the law, if attempted, is wholly inappropriate and
should be rejected.
---------------------------------------------------------------------------
Policies conditioning employment on marriage
Under the bill it is unlawful to condition employment, in a
state in which a person cannot marry a person of the same sex,
either on being married or being eligible to marry.\15\ The
Majority claims that this provision purports to protect against
instances where an employer would use marriage as a pretext for
discrimination. On its face, the inclusion of such a provision
would suggest that employers routinely engage in such pretext,
and that they regularly condition employment with their
companies for the sole purpose of engaging in discrimination.
Yet, the Committee heard no testimony, nor is there any history
of case law, to suggest that employers use such a pretext in
order to discriminate on this basis. As such, the provision is
unnecessary, in the first instance.
---------------------------------------------------------------------------
\15\H.R. 3685, Section 8(a)(3).
---------------------------------------------------------------------------
Beyond the apparent lack of need for the provision, its
practical implications are significant. Current law permits
employers to adopt policies on the basis of behavior
expectations, if such policies are applied equally to all
employees. In some work environments--or for some specific
jobs--it may be entirely appropriate to condition employment on
marital status. Take, for instance, certain groups, such as
Boys and Girls Ranch organizations, which provide residential
treatment programs designed to help at-risk children and
families. If this provision of the bill were enacted, these
organizations could be precluded from using married couples for
``house parent'' positions. In short, the provision could
prevent employers from hiring people they believe to be best-
suited to the job.
In addition, employers could be precluded from implementing
codes of ethics with respect to employees' behavior. One such
example would be a policy that discourages any form of extra-
marital conduct, both homosexual and heterosexual. Such codes
are reasonable and legal under current law. The provision would
limit the ability of employers from instituting such policies
or others they believe to be in the best interest of their
companies and their workers.
Finally, the provision undermines the ability of states to
define, preserve and protect the institution of marriage. Only
one state, Massachusetts, permits same-sex marriage. The other
49 states currently have chosen to prohibit same-sex marriage.
This provision directly challenges and circumvents independent
state determinations to define and protect their definitions of
marriage. At least one commentator, the American Center for Law
and Justice (ACLJ), in an October 1, 2007 memorandum to the
Chairman and Ranking Member of the Committee's HELP
Subcommittee, highlighted this concern.\16\
---------------------------------------------------------------------------
\16\See, Comments of the ACLJ on the Employment Non-Discrimination
Act of 2007, addressed to the Hon. Robert Andrews, Chairman, Hon. John
Kline, Ranking Member (October 1, 2007).
---------------------------------------------------------------------------
In order to maintain the current legal right of employers
to maintain codes of conduct, and to preserve 49 independent
state determinations regarding the definition of marriage,
Republican Rep. Souder offered an amendment to strike the
provision at markup. Unfortunately, this amendment was rejected
by the Majority.
Protection from retaliation
The bill makes it unlawful to discriminate or retaliate
against an individual because the individual opposed any
practice made unlawful by the bill, or participated in a
proceeding relating to the bill. However, the bill fails to
protect those who may not agree with employer policies relating
to this Act, because of sincerely held beliefs regarding sexual
orientation. This creates an imbalance with respect to
protections from retaliation by excluding certain individuals
from those protections.
This is not some theoretical concern, proffered merely to
provide yet another reason to oppose this bill. In fact,
Members were provided with substantial anecdotal evidence of
instances where employees were disciplined, or even terminated,
for failing to embrace their employers' policies, irrespective
of whether those policies conflicted with the employee's
sincerely held religious beliefs.
It is simply unfair to provide legal protections relating
to sexual orientation, without also protecting the rights of
individuals to be free from retaliation for disagreeing or
refusing to consent to employer policies on this issue. Certain
people, because of sincerely held beliefs, may have great
difficulty consenting to employer rules, policies--such as
diversity training programs--related to treatment of sexual
orientation in the workplace. It is unfair to leave these
employees open to punishment or retaliation, while at the same
time providing new protections to another class of workers.
Further, freedom of speech and free exercise of religious
beliefs may be at issue. The failure to provide protections
against retaliation would place a severe, unjustified, and
wholly unnecessary burden on an individual.
In an effort to restore this balance of protections, Rep.
Souder offered an amendment that would have clearly and
unambiguously extended protection against retaliation to
employees who, because of burdens on sincerely held beliefs,
may choose not to provide consent to employer policies on this
issue. Unfortunately, the Souder amendment was rejected by the
Committee.
Protection against discrimination based on gender identity
Although absent from the bill under consideration, H.R.
3685, the issue of extending non-discrimination protections
based on gender identity is clearly on the agenda for future
consideration by the House. In fact, several Members at markup
expressed the intent to offer an amendment to this bill to
extent such protection prior to or during a House Floor vote on
this bill. Accordingly, it is appropriate to raise concerns
regarding this issue at this time.
Evidence presented for the record at the September 5, 2007
HELP Subcommittee hearing on H.R. 2015 raised numerous concerns
associated with gender identity. The problems associated with
providing protection based on ``perceived'' status are more
compounded in the case of gender identity. The question of
providing reasonable accommodation for such employees is
extremely problematic. Employee privacy issues are significant,
Litigation concerns abound.
Simply put, it is premature to consider extending
protections based on gender identity, a fact grudgingly
acknowledged by the bill's own sponsor. This becomes more
apparent in light of the sparse legislative history and
consideration of this issue. Any attempt to amend this bill to
add protections based on gender identity should be rejected by
the House.
CONCLUSION
As noted repeatedly throughout these Views, Committee
Republican Members strongly oppose intentional discrimination
in the workplace. We also believe the protections found in
Title VII of the Civil Rights Act to be, on balance, sufficient
for guarding against such discrimination. We therefore find
H.R. 3685, the Employment Non-Discrimination Act, to be
unnecessary in the first instance. Moreover, we find many of
the bill's provisions, and the policy questions they raise, to
be troubling. Among its more obvious flaws, the bill fails to
provide an adequate exemption for religious organizations,
including many faith-based educational institutions. It also
includes questionable protections based on ``perceived'' sexual
orientation, which will result in great uncertainty as to the
meaning and application of this term, leading to costly and
unnecessary litigation. The bill also precludes employers from
regulating workplace conduct, despite the lack of evidence
supporting the need for such a provision and the adverse impact
on employers' ability to institute policies for the benefit of
companies and their workers. Finally, the bill fails to provide
a proper balance with respect to retaliation, unfairly
according protections to one class of employees but not others.
In every instance, Republican Members offered viable and
entirely reasonable proposals to address these concerns.
Unfortunately, those proposals were rejected by the Majority.
The result of these legislative machinations is a bill that,
however well-intended, favors a certain protected class of
individual over other classes already protected under current
civil rights law, and over individuals with sincerely-held
moral and religious beliefs. It is for these reasons that
Republicans opposed the bill during its consideration by the
Committee on Education and Labor, and why we urge its defeat
when considered by the full House of Representatives.
Howard P. ``Buck'' McKeon.
Pete Hoekstra.
Mark Souder.
Joe Wilson.
John Kline.
Cathy McMorris Rodgers.
Tom Price.
C. W. Boustany, Jr.
David Davis.
Tim Walberg.