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Employment Non-Discrimination Act

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The Employment Non-Discrimination Act (ENDA) is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.

ENDA has been introduced in every Congress, except the 109th, since 1994, albeit without gender identity protections, but gained its best chance at passing after the Democratic Party broke twelve years of Republican Congressional rule in the 2006 midterm elections. However, some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion, and dropped it from the bill, which passed and subsequently died in the Senate. LGBT advocacy organizations were divided over support of the changed bill.

In 2009, on the heels of the 2008 elections that strengthened the Democratic majority, and after the debacle of the 2007 ENDA divisions, only a transgender-inclusive ENDA was introduced by House representative Barney Frank. Frank has announced this bill will be introduced again in 2011[1].

President Barack Obama supports the bill's passage; former President George W. Bush, Obama's immediate predecessor, threatened to veto the measure.

Existing law

State law

Current U.S. LGBT employment discrimination laws.
All employment:
  Sexual orientation and gender identity
  Sexual orientation only
State employment:
  Sexual orientation and gender identity
  Sexual orientation only
  No state-level protection for LGBT employees
Animation showing the evolution of US LGBT civil rights policies

Wisconsin was the first state to ban employment discrimination based on sexual orientation, in 1982, while Minnesota was the first state to ban employment discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993.[2] Currently, 12 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment: California,[3] Colorado,[4] Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington in the public and private sector. An additional nine states -- Connecticut, Delaware,[5][6] Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin -- have state laws that protect against discrimination based on sexual orientation only.

Five states have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity: Indiana, Kansas, Kentucky, Michigan, and Pennsylvania. Delaware, Maryland, Massachusetts, and New York prohibit discrimination based on gender identity in public employment only. An additional five states prohibit discrimination against public employees based on sexual orientation only: Alaska, Arizona, Missouri [7], Montana and Ohio.

Fifteen other states have laws[8] that have been interpreted to protect transgender persons.

Federal employees

As with other employers in most states, there is no federal statute addressing employment discrimination based on sexual orientation or gender identity in the federal government. However, in 1998, the administration of President Bill Clinton interpreted the Civil Service Reform Act of 1978, prohibiting federal government workplace discrimination "on the basis of conduct not related to job performance", as meaning sexual orientation [as a factor not related to job performance], and issued an executive order to more strongly cover the executive branch, over which the President has more control.[9] In 2009 Barack Obama did the same for gender identity[10]. However, remedies pursued under this law are limited.[11]

Existing workplace policies

Many large companies already provide equal rights and benefits to their lesbian, gay, bisexual and transgender employees, as measured by the Human Rights Campaign through their Corporate Equality Index. This tool found that 260 large companies received a 100% rating.[12] Additionally, each year, corporations send thousands of employees to the Out & Equal Regional Summit, a conference that intends to create a more inclusive work environment for lesbian, gay, bisexual and transgender employees.[13] Furthermore, there are workplace resources for how allies can create a more inclusive work environment, including programs available through PFLAG and the Out & Equal publication, Allies at Work, by David M. Hall.[14]

Current version provisions

The current version of the bill under consideration in Congress would prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity.

Religious organizations are provided a special exception to this protection, similar to the principles of the Civil Rights Act. Non-profit membership-only clubs (except labor unions) are likewise not bound to this rule.

The bill defines that service in the military is not "employment" and thus it does not affect the don't ask, don't tell policy of the United States military. This matter is addressed in another bill, the Military Readiness Enhancement Act.

Legislative progress

103rd through 108th Congresses

While the first bill on the subject of sexual orientation discrimination was introduced in Congress in 1974, the first bill using the current title of "Employment Non-Discrimination Act" was introduced in 1994. It failed in 1994 and 1995, though by 1996, missed passage in the Senate by a 49-50 vote.[15] Versions of ENDA introduced in the 103rd through 108th Congresses did not include provisions that protect transgender people from discrimination.[16]

109th Congress

ENDA was not introduced in the 109th Congress.

110th Congress

In the 110th United States Congress there were two versions of the bill:

Under both versions, the bill provided employment protections similar to those of the Civil Rights Act of 1964[18] (the employment section is also known as "Title VII"), but specifically directed to gay, lesbian, bisexual (and under HR 2015, transgender) employees. The bills were different from Title VII in that they contained exemptions concerning employer dress codes.

H.R. 2015 does contain provisions that protect transgender people from discrimination, including a specific definition of gender identity, as well as exemptions for employer dress codes and locker rooms[19] The bill defines gender identity as "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." The bill also specifically allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."

After H.R. 2015 died in committee, Frank proposed a new bill, H.R. 3685, that contained only prohibitions on sexual orientation discrimination, excluding gender identity.[20] Some LGBT activist organizations responded by refusing to support H.R. 3685.[21][22] This version was protested against by many LGBT rights organizations in the United States, with the exception of the Human Rights Campaign.[23]

Many[who?] have claimed that excluding transgender people would undermine the underlying principle of ENDA, which is that fairness is a fundamental American principle.[24] In addition, failure to include gender identity/expression will weaken the protection for the portion of the gay population that needs it most: gender non-conforming gays, who are discriminated against in greater numbers than their gender-conforming compatriots[citation needed]. The courts would narrowly interpret a sexual-orientation-only ENDA as not covering anti-gay discrimination that stems from gender expression.[25] Those favoring exclusion counter that it will ease the process of passing some changes in civil rights.[26]

111th Congress

House

The Washington Blade reported on June 17, 2009 that Rep. Barney Frank (D-MA) had announced plans to introduce an ENDA bill (H.R. 2981) that includes gender identity in June 2009, with original cosponsors slated to include 4 Republicans.[27] The lead Republican cosponsor is Rep. Ileana Ros-Lehtinen (R-FL).[27]

On June 24, 2009, Rep. Barney Frank introduced H.R. 3017 to ban workplace discrimination based on sexual orientation and gender identity.[28] The Advocate reported that "the 2009 Employment Nondiscrimination Act (ENDA) has 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007." [28] Republican Main Street Partnership members Mark Kirk (R-IL), Mike Castle (R-DE), Todd Russell Platts (R-PA), Judy Biggert (R-IL), and Leonard Lance (R-NJ) were among the original cosponsors.[29] Earlier in June Frank had introduced H.R. 2981 for the same purpose.[30] H.R. 3017 was referred to the House Education and Labor Committee; a hearing was held before the committee on September 23, 2009[31] but no further action was taken.

As of March 3, 2010, H.R. 3017 had 198 cosponsors in the House, 192 Democrats and 6 Republicans.[32]

Senate

The Washington Blade reported on August 5, 2009 that Sen. Jeff Merkley introduced an ENDA bill (S. 1584) that included gender identity, with 38 original cosponsors[33] including Sens. Ted Kennedy (D-MA), Susan Collins (R-ME), Olympia Snowe (R-ME) and Chris Dodd (D-CT), according to a statement released by Merkley’s office.[34] Sen. Merkley was quoted by The Advocate as noting that while he has yet to consult with others, “[i]t’s certainly possible that this could be passed by year’s end, though the [congressional] schedule is very crowded."[35]

Blue Oregon, a progressive Oregon blog, commented on the suitability of Sen. Merkley to be lead sponsor of ENDA, noting that as Speaker of the Oregon House of Representatives Merkley had successfully guided Oregon's state version of ENDA, the Oregon Equality Act, to become law.[36]

As of March 13, 2010, S. 1584 had 45 co-sponsors and was pending before the Health, Education, Labor, and Pensions (HELP) Committee.[33] A hearing was held before the committee on November 5, 2009.[37]

Arguments in favor of ENDA

Most proponents of the law [who?] intend it to address cases where gay, lesbian, bisexual, and transgender employees have been discriminated against by their employers because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the United States Constitution's guarantees of equal protection and due process to all. Advocates argue that homosexuality is not a “choice” but a personal identity, a claim supported by the American Psychology Association (APA), and that all working people have a right to be judged by the quality of their work performance and not by completely unrelated factors.[38] According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender.[39] The APA also states that there is significant discrimination against homosexuals in the workforce.[38] There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.[40]

Cost estimates from the Congressional Budget Office from 2002 show that the EEOC estimated that their complaint caseload would rise by only 5 to 7%.[41] Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964,[18] which has consistently been upheld by the courts.

Arguments in opposition of ENDA

Gays as a “protected class”

Opponents of ENDA sometimes argue that homosexuals are not deserving of being considered a “protected class of employees” by law.[42] However, ENDA would not protect "homosexuals" as a class; rather, the law would ban discrimination in employment based on any sexual orientation (including heterosexual orientation). Consumer surveys show that self-identified homosexuals likely have higher incomes than the average US household,[43] and ENDA opponents argue that many homosexuals hold positions of cultural influence as well.[42] The conservative Christian organization American Family Association's AFA Journal concluded in 2007 that there was “no real problem of discrimination against homosexuals.”[42]

Transgender protection

The conservative Christian group Traditional Values Coalition, through its site endahurtskids.com, advocates against protection for transgender individuals on the basis that schools would be required to keep teachers who undergo sex changes.[44] It argues that children should not be “subjected to [a transgendered] man’s bizarre sexual transformation,” as it claims transgender individuals are “seriously mentally disturbed.”

History

The "United ENDA" coalition protests the removal of gender identity from the 2007 bill at San Francisco City Hall.

On May 14, 1974, the fifth anniversary of the Stonewall Rebellion, Representatives Bella Abzug and Ed Koch[45] introduced H.R. 14752, the "Gay Rights Bill." The bill would have added "sexual orientation" to the Civil Rights Act of 1964.

In the early 1990s, a new strategy emerged. Rather than trying to obtain all of the rights in the Civil Rights Act, the legislative efforts focused on employment rights, and the "Equality Act" was renamed the "Employment Non-Discrimination Act," (H.R. 4636/S.2238) and introduced by Rep. Gerry Studds on June 23, 1994. [Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).] The legislation failed in 1994 and 1995.[46] In 1996, the bill came within one vote passage in the Senate and was not voted on in the House,[47] its success perhaps spurred by backlash from the recently passed DOMA, the "Defense of Marriage Act" that permitted the states and mandated the federal government to ignore same sex marriages from other states. HRC sets out the timeline of ENDA introductions.

Transgender inclusion in ENDA

The inclusion of transgender employees in ENDA has long been debated[48][49] in the LGBT community. One argument is that transgender individuals are already covered under existing laws prohibiting employment based on gender stereotypes.

In 1999, the National Gay and Lesbian Task Force became the first LGBT civil rights organization to stop work on ENDA because of its lack of transgender-inclusion. From 1999 to 2007, it has worked to build a LGBT community consensus to only support a trans-inclusive bill, and participated in redrafting the fully trans-inclusive version for the 110th Congress. ENDA now enjoys the unequivocal support of a large coalition of civil rights, labor and religious organizations. In August 2004, the Human Rights Campaign – an LGBT organization that is among the primary lobbyists for the bill – announced that it will only support passage of ENDA if it included gender identity protections as well. However, in November 2007, it reneged on its stance and supported a non-inclusive ENDA instead.[50] A 2004 article by Matt Foreman, the executive director of the National Gay and Lesbian Task Force discusses this.[51]

Dale Carpenter, a conservative and homosexual legal academic, however, has argued that explicit transgender-inclusion is not necessary to achieve substantive protection against gender identity discrimination.[52]

Legislative history

Congress Short title Bill number(s) Gender identity included? Date introduced Sponsor(s) # of cosponsors Latest status
111th Congress Employment Non-Discrimination Act of 2009 H.R. 3017 Yes June 24, 2009 Rep. Barney Frank (D-MA) 203 Referred to the Judiciary, Administration, Education and Labor, and Oversight and Government Reform committees. Hearings held September 23, 2009 in Education and Labor committee.
H.R. 2981 Yes June 19, 2009 Rep. Barney Frank (D-MA) 12 Referred to the House Judiciary Committee
S. 1584 Yes August 5, 2009 Sen. Jeff Merkley (D-OR) 45 Referred to the Senate Health, Education, Labor, and Pensions Committee Hearings held 11/5/2009.
110th Congress Employment Non-Discrimination Act of 2007 H.R. 2015 Yes April 24, 2007 Rep. Barney Frank (D-MA) 184 Died in the House Subcommittee on the Constitution, Civil Rights and Civil Liberties
H.R. 3681 No September 27, 2007 Rep. Barney Frank (D-MA) 9 Passed the House (235-184), Died in the Senate
108th Congress Employment Non-Discrimination Act of 2003 H.R. 3285 No October 8, 2003 Rep. Christopher Shays (R-CT) 180 Died in the House Subcommittee on Employer-Employee Relations
S. 1705 No October 2, 2003 Sen. Ted Kennedy (D-MA) 43 Died in the Senate Committee on Health, Education, Labor, and Pensions
107th Congress Employment Non-Discrimination Act of 2001 H.R. 2692 No July 31, 2001 Rep. Christopher Shays (R-CT) 193 Died in the House Subcommittee on Employer-Employee Relations
S. 1284 No July 31, 2001 Sen. Ted Kennedy (D-MA) 44 Died in the Senate
106th Congress Employment Non-Discrimination Act of 1999 H.R. 2355 No June 24, 1999 Rep. Christopher Shays (R-CT) 173 Died in the House Subcommittee on Employer-Employee Relations
S. 1276 No June 24, 1999 Sen. Jim Jeffords (R-VT) 36 Died in the Senate Committee on Health, Education, Labor, and Pensions
105th Congress Employment Non-Discrimination Act of 1997 H.R. 1858 No June 10, 1997 Rep. Christopher Shays (R-CT) 140 Died in the House Subcommittee on Employer-Employee Relations
S. 869 No June 10, 1997 Sen. Jim Jeffords (R-VT) 34 Died in the Senate Committee on Labor and Human Resources
104th Congress Employment Non-Discrimination Act of 1995 H.R. 1863 No June 15, 1995 Rep. Gerry Studds (D-MA) 142 Died in the House Subcommittee on the Constitution
S. 932 No June 15, 1995 Sen. Jim Jeffords (R-VT) 30 Died in the Senate Committee on Labor and Human Resources
S. 2056 No September 5, 1996 Sen. Ted Kennedy (D-MA) 3 Failed in Senate (49-50)
103rd Congress Employment Non-Discrimination Act of 1994 H.R. 4636 No June 23, 1994 Rep. Gerry Studds (D-MA) 137 Died in the House Subcommittee on Select Education and Civil Rights
S. 2238 No July 29, 1994 Sen. Ted Kennedy (D-MA) 30 Died in the Senate Committee on Labor and Human Resources

References

  1. ^ "ENDA To Be Introduced This Week; Rep. Frank Talks Trans Support, ENDA's Future". Metro Weekly. 2011-03-28. Retrieved 2011-03-28.
  2. ^ "Franken, Klobuchar sponsor workplace non-discrimination act". Minnesota Independent. 2009-08-05. Retrieved 2009-08-05.
  3. ^ Cal Civ Code sec. 51
  4. ^ C.R.S. 24-34-402 (2008)
  5. ^ State votes to end gay bias | Delawareonline.com | The News Journal:
  6. ^ "Delaware anti-discrimination bill awaits Markell's signature". Insurance & Financial Advisor. 2009-06-25. Retrieved 2009-06-25.
  7. ^ Missouri governor sets new discrimination policy
  8. ^ Weiss, Jillian Todd. (July 23, 2007) How many states have law covering gender identity? Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  9. ^ Freedberg, Louis (1998-07-08). "Republicans Trying To Kill Gay Order / Clinton barred discrimination". San Francisco Chronicle. Retrieved 2009-06-25.
  10. ^ "Administration Adds Gender Identity To Equal Employment Opportunity Policies". American Civil Liberties Union. 2010-01-05. Retrieved 2011-02-28.
  11. ^ Ishimaru, Stuart (2009-09-23). "Stuart J. Ishimaru's testimony before the House Committee on Education and Labor" (pdf). Equal Employment Opportunity Commission. p. 12. Retrieved 2011-02-28.
  12. ^ http://www.hrc.org/issues/workplace/cei.htm
  13. ^ http://outandequal.org/annual-summit
  14. ^ http://www.outandequal.org/Allies-At-Work
  15. ^ Manley, Roslyn. (June 17, 2003) New "Unified" Bill to Replace ENDA: A Left Coast Perspective TG Crossroads. Accessed October 20, 2007.
  16. ^ http://www.govtrack.us/congress/bill.xpd?bill=h110-3685&tab=related
  17. ^ FINAL VOTE RESULTS FOR H R 3685
  18. ^ a b Civil Rights Act of 1964
  19. ^ Weiss, Jillian Todd. (April 26, 2007) The text of ENDA Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  20. ^ Eleveld, Kerry. (September 29, 2007) ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity The Advocate. Accessed October 20, 2007.
  21. ^ http://www.thetaskforce.org/activist_center/ENDA_oct1_letter
  22. ^ http://nosubstitutes.org
  23. ^ Schindler, Paul. (October 4, 2007) HRC Alone in Eschewing No-Compromise Stand Gay City News. Accessed October 8, 2007.
  24. ^ http://www.bilerico.com/2007/09/a_moment_of_truth.php
  25. ^ http://ga4.org/ct/5dwu1Cp1kmiv/
  26. ^ http://www.salon.com/opinion/feature/2007/10/08/lgbt/index_np.html?source=rss
  27. ^ a b Chibarro, Lou (2009-06-17). "Rep. Frank close to introducing ENDA". Washington Blade. Retrieved 2009-06-25. [dead link‍]
  28. ^ a b Frank Introduces Trans-Inclusive ENDA|News|Advocate.com:
  29. ^ Search Results - THOMAS (Library of Congress)
  30. ^ [1]
  31. ^ "Congressional hearing on ENDA: great success!". Bilerico.com.
  32. ^ Search Results - THOMAS (Library of Congress):
  33. ^ a b Search Results - THOMAS (Library of Congress):
  34. ^ Johnson, Chris (2009-08-05). "Merkley introduces ENDA in Senate". Washington Blade. Retrieved 2009-08-05. [dead link‍]
  35. ^ Harmon, Andrew (2009-08-05). "ENDA Possible by Year's End". The Advocate. Retrieved 2009-08-05.
  36. ^ [2]
  37. ^ "Employment Non-Discrimination Act: Ensuring Opportunity for All Americans". U.S. Senate Committee on Health, Education, Labor, and Pensions.
  38. ^ a b Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective American Psychological Association. Accessed May 22, 2010.
  39. ^ Rubenstein, William B. (January 30, 2002) Do Gay Rights Laws Matter?: An Empirical Assessment The Williams Institute, UCLA School of Law. Accessed October 20, 2007.
  40. ^ Flatt, Victor. (November 21, 2006) We need Federal Law to Protect Gays and Lesbians from Discrimination University of Houston Law Center Faculty Blog. Accessed October 20, 2007.
  41. ^ (April 24, 2002) CBO Cost Estimate: S. 1284 Employment Non-Discrimination Act of 2002 Congressional Budget Office. Accessed October 20, 2007.
  42. ^ a b c Viagliano, Ed (September 2007). "How ENDA could begin an Uncivil war". American Family Association Journal. American Family Association. Retrieved May 22, 2010.
  43. ^ CMI's 3rd Annual Gay and Lesbian Consumer Index Community Marketing, Inc. Accessed May 22, 2010/
  44. ^ Why It Matters Traditional Values Coalition. Accessed May 22, 2010.
  45. ^ (October 13, 2007) U.S. Congressmember Bella S. Abzug Stonewall.org. Accessed October 20, 2007.
  46. ^ Wendland, Joel. (April 9, 2007) A New Beginning for ENDA The Williams Institute, UCLA School of Law. Accessed October 20, 2007.
  47. ^ Bull, Chris. (May 13, 1997) No ENDA in sight - Employment Non-Discrimination Act of 1996 The Advocate. Accessed October 20, 2007.
  48. ^ Weiss, Jillian Todd. (November 1, 2006) U.S. Federal bill for gender identity protection Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  49. ^ Curry, Wendy. (September 28, 2007) No ENDA without "T" Curried Spam. Accessed October 20, 2007.
  50. ^ Sandeenm, Autumn. (November 6, 2007) Breaking: The HRC Now Supports ENDA Without Perceived Gender Protections Accessed May 2008.
  51. ^ Foreman, Matt. (August 3, 2004) ENDA as We've Known It Must Die thetaskforce.org. Accessed December 8, 2009.
  52. ^ Carpenter, Dale. (October 6, 2007) [3] volokh.com. Accessed March 17, 2010.
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