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, gender identity, and disability. Such protections are already available to employees of the federal government through executive orders for sexual orientation and gender identity in 1998 and 2009 respectively; this would extend them to employees in the private sector (religious organizations exempted).

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 eight years of Republican rule in the 2006 midterm elections. Sponsors found that even with a Democratic majority, ENDA did not have enough votes to pass the House with transgender inclusion, and dropped it from the bill, where it 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 has been introduced by House representative Barney Frank. President Barack Obama, as opposed to his predecessor who threatened a veto, supports its passage.


Contents

[edit] Existing law

[edit] State law

Current U.S. LGBT employment discrimination laws.
All employment:
     Sexual orientation and gender identity      Sexual orientation onlyState 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

Currently, 12 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment: California[1], Colorado[2], Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington in the public and private sector. An additional seven states -- Connecticut, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, Wisconsin and Delaware[3][4] -- 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, Michigan, Ohio, and Pennsylvania. And an additional three states prohibit discrimination against public employees based on sexual orientation only: Arizona, Montana, and Virginia.[5]

Fifteen other states have laws[6] that have been interpreted to protect transgender persons.

[edit] Federal employees

Until 1998, employees of the Federal government of the United States could be fired on the basis of sexual orientation. Then-President Bill Clinton issued an executive order that year that added sexual orientation to the federal government's antidiscrimination policy. This already existed in some agencies but was not consistently applied. The Republican caucus responded by trying to pass a bill preventing budgetary funds from being used to enforce this order, but failed.[7]

One decade and a year later, lawyers for President Barack Obama are drafting guidelines barring workplace discrimination for transgender federal employees. It is an interpretation of a federal civil service law that bars federal supervisors from taking action against employees based on factors not related to job performance.[8]

[edit] Legislative Progress

[edit] 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.[9] Versions of ENDA inroduced in the 103rd through 108th Congresses did not include provisions that protect transgender people from discrimination.[citation needed]

[edit] 109th Congress

ENDA was not introduced in the 109th Congress.

[edit] 110th Congress

In the 110th 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[11] (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[12] 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.[13] Some LGBT activist organizations responded by refusing to support H.R. 3685.[14][15] This version was protested against by many LGBT rights organizations in the United States, with the exception of the Human Rights Campaign.[16]

Many[who?] have claimed that excluding transgender people would undermine the underlying principle of ENDA, which is that fairness is a fundamental American principle.[17] 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. The courts would narrowly interpret a sexual-orientation-only ENDA as not covering anti-gay discrimination that stems from gender expression.[18] Those favoring exclusion counter that it will ease the process of passing some changes in civil rights.[19]

[edit] 111th Congress

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.[20] The lead Republican cosponsor is Rep. Ileana Ros-Lehtinen (R-FL).[20]

On June 24, 2009, Rep. Barney Frank introduced H.R. 3017 to ban workplace discrimination based on sexual orientation and gender identity.[21] 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." [22] 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. [23] As of July 9th, 2009 H.R. 3017 had 134 cosponsors in the House. [24] Earlier in June Frank had introduced H.R. 2981 for the same purpose.[25]

[edit] Arguments in favor of ENDA

Most proponents of the law intend it to address cases where gay, lesbian and/or transgender employees have been discriminated against by their employer because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the judicial system because sexual orientation is not considered to be a suspect class by the federal courts and by many US states. Proponents argue that such a law is appropriate in light of the US Constitution's guarantees of equal protection and due process to all. Advocates say that being gay, lesbian, bisexual or transgender is not a "lifestyle," but an identity[26], and that the "special rights" argument does not apply to a group subject to widespread prejudice. 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.[27] There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.[28]

The bill exempts small businesses, religious organizations and the military.

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%.[29] Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964[11] which has consistently been upheld by the Courts.

[edit] Arguments against ENDA

ENDA has raised concerns over alleged conflicts between gay rights and religious freedoms.[30] Judith Moldover explained that "The conflict between sexual orientation discrimination and the duty to accommodate religious bias against homosexuals typically arises in three types of situations: refusal to service homosexual clients, refusal to participate in diversity programs and training, and supervisory conduct."[31]

Some opponents say that groups such as Christian book stores would be forced to either close or hire employees who do not share the basic teachings of their faith.[32] Rep. George Miller (D-CA) has introduced an amendment to ENDA that expands the religious exemption to include all business claiming religious objections regardless of tax status.[citation needed]

Some opponents of the law also argue, in opposition to available scientific studies,[33] that "sexual preference" is a choice. They say the law creates a protected class that "promotes" homosexuality[34] and negatively affects their interpretation of family values.[35]

[edit] 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[36] 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.[37] In 1996, the bill came within one vote passage in the Senate and was not voted on in the House[38], 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.

[edit] Transgender inclusion in ENDA

The inclusion of transgender employees in ENDA has long been debated[39][40] 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.[41] A 2004 article by Matt Foreman, the executive director of the National Gay and Lesbian Task Force discusses.[42]

[edit] 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) 134 Referred to the House Judiciary Committee
H.R. 2981 Yes June 19, 2009 Rep. Barney Frank (D-MA) 10 Referred to the House Judiciary Committee
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. 3685 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

[edit] References

  1. ^ Cal Civ Code sec. 51
  2. ^ C.R.S. 24-34-402 (2008)
  3. ^ State votes to end gay bias | Delawareonline.com | The News Journal:
  4. ^ "Delaware anti-discrimination bill awaits Markell’s signature". Insurance & Financial Advisor. 2009-06-25. http://ifawebnews.com/2009/06/25/delaware-anti-discrimination-bill-awaits-markell%E2%80%99s-signature/. Retrieved on 2009-06-25. 
  5. ^ HRC | Maps of State Laws & Policies
  6. ^ Weiss, Jillian Todd. (July 23, 2007) How many states have law covering gender identity? Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  7. ^ Freedberg, Louis (1998-07-08). "Republicans Trying To Kill Gay Order / Clinton barred discrimination". San Francisco Chronicle. http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/1998/07/08/MN11988.DTL. Retrieved on 2009-06-25. 
  8. ^ Rutenberg, Jim (2009-06-23). "New Protections for Transgender Federal Workers". The New York Times. http://www.nytimes.com/2009/06/24/us/24transgender.html. Retrieved on 2009-06-25. 
  9. ^ Manley, Roslyn. (June 17, 2003) New "Unified" Bill to Replace ENDA: A Left Coast Perspective TG Crossroads. Accessed October 20, 2007.
  10. ^ FINAL VOTE RESULTS FOR H R 3685
  11. ^ a b Civil Rights Act of 1964
  12. ^ Weiss, Jillian Todd. (April 26, 2007) The text of ENDA Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  13. ^ Eleveld, Kerry. (September 29, 2007) ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity The Advocate. Accessed October 20, 2007.
  14. ^ http://www.thetaskforce.org/activist_center/ENDA_oct1_letter
  15. ^ http://nosubstitutes.org
  16. ^ Schindler, Paul. (October 4, 2007) HRC Alone in Eschewing No-Compromise Stand Gay City News. Accessed October 8, 2007.
  17. ^ http://www.bilerico.com/2007/09/a_moment_of_truth.php
  18. ^ http://ga4.org/ct/5dwu1Cp1kmiv/
  19. ^ http://www.salon.com/opinion/feature/2007/10/08/lgbt/index_np.html?source=rss
  20. ^ a b Chibarro, Lou (2009-06-17). "Rep. Frank close to introducing ENDA". Washington Blade. http://www.washblade.com/thelatest/thelatest.cfm?blog_id=25791. Retrieved on 2009-06-25. 
  21. ^ Frank Introduces Trans-Inclusive ENDA|News|Advocate.com:
  22. ^ Frank Introduces Trans-Inclusive ENDA|News|Advocate.com:
  23. ^ Search Results - THOMAS (Library of Congress)
  24. ^ Search Results - THOMAS (Library of Congress):
  25. ^ [1]
  26. ^ Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective American Psychological Association. Accessed October 20, 2007.
  27. ^ 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.
  28. ^ 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.
  29. ^ (April 24, 2002) CBO Cost Estimate: S. 1284 Employment Non-Discrimination Act of 2002 Congressional Budget Office. Accessed October 20, 2007.
  30. ^ Ritter, Bob (Jan-February 2008). "Collision of religious and gay rights in the workplace". Humanist. http://findarticles.com/p/articles/mi_m1374/is_1_68/ai_n24944645. 
  31. ^ Moldover, Judith (October 31, 2007). "Employer's Dilemma: When Religious Expression and Gay Rights Cross". New York Law Journal. http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1193735028038. 
  32. ^ Association of Christian Schools Congress Puts Christian Liberties At Risk. Accessed November 8, 2007
  33. ^ American Psychiatric Association. Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective Accessed January 15, 2008.
  34. ^ Bilson, Vic. Affirmative Action for Homosexuals Jeremiah Project. Accessed October 20, 2007.
  35. ^ Knight, Robert H. and Ervin, Kenneth L. (February 27, 2002) Talking Points: The Employment Non-Discrimination Act Concerned Women for America: Culture and Family Issues. Accessed October 20, 2007.
  36. ^ (October 13, 2007) U.S. Congressmember Bella S. Abzug Stonewall.org. Accessed October 20, 2007.
  37. ^ Wendland, Joel. (April 9, 2007) A New Beginning for ENDA The Williams Institute, UCLA School of Law. Accessed October 20, 2007.
  38. ^ Bull, Chris. (May 13, 1997) No ENDA in sight - Employment Non-Discrimination Act of 1996 The Advocate. Accessed October 20, 2007.
  39. ^ Weiss, Jillian Todd. (November 1, 2006) U.S. Federal bill for gender identity protection Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  40. ^ Curry, Wendy. (September 28, 2007) No ENDA without "T" Curried Spam. Accessed October 20, 2007.
  41. ^ Sandeenm, Autumn. (November 6, 2007) Breaking: The HRC Now Supports ENDA Without Perceived Gender Protections Accessed May 2008.
  42. ^ Foreman, Matt. (August 3, 2004) ENDA as We've Known It Must Die TG Crossroads.org. Accessed October 20, 2007.

[edit] External links

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