Employment Non-Discrimination Act

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The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment 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 since 1994 except the 109th. Similar legislation has been introduced without passage since 1974.[1] The bill gained its best chance at passing after the Democratic Party broke twelve years of Republican Congressional rule in the 2006 midterm elections. In 2007, gender identity protections were added to the legislation for the first time. 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 the House and then died in the Senate. President George W. Bush threatened to veto the measure. LGBT advocacy organizations and the LGBT community were divided over support of the modified bill.

In 2009, following Democratic gains in the 2008 elections, and after the divisiveness of the 2007 debate, Rep. Barney Frank introduced a transgender-inclusive version of ENDA. He introduced it again in 2011, and Sen. Jeff Merkley introduced it in the Senate. President Barack Obama supports the bill's passage.

Evidence of employment discrimination on the basis of sexual orientation and gender identity

Main article: LGBT employment discrimination in the United States

In states that have anti-discrimination policies in place, LGB complaints are equivalent to the number of complaints filed based on sex and fewer than the number of complaints filed based on race.[2][3][4]

The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government. Thirty percent of state and local LGBT employees live in California and New York. In comparison, LGB people make up only one half of one percent of state and local employees in Montana, North Dakota and Wyoming combined.[5] This suggests that the need for policies to address discrimination may vary markedly from state to state. Surveys that seek to document discrimination on the basis of perceived sexual orientation and/or gender identity are often conducted with a pool of self identified LGBT people, making it difficult to ascertain the impact of this type of discrimination on non-LGBT individuals.

One source of evidence for hiring discrimination against openly gay men comes from a field experiment that sent two fictitious but realistic resumes to roughly 1,700 entry-level job openings. The two resumes were very similar in terms of the applicant's qualifications, but one resume for each opening mentioned that the applicant had been part of a gay organization in college. The results showed that applicants without the gay signal had an 11.5 percent chance of being called for an interview; openly gay applicants had only a 7.2 percent chance. The callback gap varied widely according to the location of the job. Most of the overall gap detected in the study was driven by the Southern and Midwestern states in the sample — Texas, Florida, and Ohio. The Western and Northeastern states in the sample (California, Nevada, Pennsylvania, and New York) had only small and statistically insignificant callback gaps.[6]

Transgender people may experience higher rates of discrimination than the LGB population. A survey of transgender and gender non-conforming people conducted by the National Center for Transgender Equality found 90 percent of respondents experienced harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it.[7] In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.[8]

It is unclear whether LGBT individuals earn more or less than the general population. In a survey conducted by Harris Interactive, 38 percent of LGBT people report incomes less than $35,000, compared to 33 of all U.S. adults over age 18.[9] Some organizations believe that no such gap exists, and that LGBT people may in fact have higher incomes than non-LGBT families. The American Family Association (AFA) argues that homosexuals as a class enjoy privileged, rather than disadvantaged, economic and cultural positions in society and that their household income is above average.[10]

Provisions

The current version of the bill under consideration in Congress prohibits private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity. Religious organizations are provided an exception from this protection, similar to that found in the Civil Rights Act of 1964. Non-profit membership-only clubs, except labor unions, are similarly exempt.

All versions of the bill, irrespective of the military's changing policies with respect to service by open gays and lesbians, have provided an exclusion for the military as an employer of members of the armed forces, though not as an employer of civilians.[11]

Since the 111th Congress, the legislation has included language to prevent any reading of the law as a modification of the federal definition of marriage established in the Defense of Marriage Act (1995).[12] Since the 110th Congress, a related provision aimed at non-marital legal relations like civil unions and domestic partnerships prevents requiring an employer to treat unmarried and married couples similarly.[13]

Legislative activity

On May 14, 1974, the fifth anniversary of the Stonewall Rebellion, Reps. Bella Abzug (D-NY) and Ed Koch (D-NY) introduced H.R. 14752, the "Equality Act", which would have added sexual orientation to the protected classes specified in the Civil Rights Act of 1964, prohibited discrimination in employment and access to public accommodations and facilities.[14]

The "United ENDA" coalition protests the removal of gender identity from the 2007 bill at San Francisco City Hall.
Senate vote on Employment Nondiscrimination Act of 1996.[15]
  Both yes
  One yes, one didn't vote
  One yes, one no
  Both no

In the early 1990s, supporters of the legislation decided to focus on employment. Rep. Gerry Studds introduced the Employment Non-Discrimination Act on June 23, 1994.[16] The legislation failed in 1994 and 1995.[17] In 1996, the bill failed on a 49-50 vote in the Senate and was not voted on in the House.[18][19] Its level of support in the Senate may have represented an attempt by some to compensate for their recent support of the Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same-sex marriages.[citation needed] These early versions of ENDA did not include provisions to protect transgender people from discrimination[20] and ENDA was not introduced in the 109th Congress.

110th Congress

In the 110th United States Congress there were two versions of the bill, both of which provided employment protections similar to Title VII of the Civil Rights Act of 1964.[21] Reps. Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce introduced H.R. 2015 on April 24, 2007. It included gender identity within its protections. It defined 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." It allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."[22]

House vote on Sexual Orientation Employment Nondiscrimination Act of 2007 by congressional district.[23]
  Democratic aye
  Republican aye
  Abstention or no representative seated
  Democratic no
  Republican no

When that bill died in committee, Frank introduced H.R. 3685 on September 27, 2007, which did not include gender identity and contained exemptions concerning employer dress codes. It was endorsed by the Education and Labor Committee on October 18 and the House of Representatives passed it on November 7, 2007, by a vote of 235 to 184, with 14 members not voting.[24] Frank introduced a separate piece of legislation to prohibit discrimination in employment on the basis of gender identity.[25]

Some LGBT activist organizations refused to support H.R. 3685 because of its failure to cover gender identity.[26][27] An exception was the Human Rights Campaign, which received wide criticism from the LGBT community for supporting a non-inclusive ENDA.[28] The LGBT activist organizations that refused to support H.R. 3685 argued that not including transgender people undermined the underlying principle of ENDA.[29] They claimed that failure to include gender identity/expression weakened the protection for the portion of the LGBT population that most needed its protections: gender non-conforming people, who they claimed are discriminated against in greater numbers than their gender-conforming compatriots[citation needed]. Others argued that this was ENDA's best chance of passing Congress in thirty years, that civil rights victories have historically been incremental, that concerns about the legislation's protections were unfounded, and that forgoing a chance to provide immediate workplace protections to millions of lesbians, gays and bisexuals was politically and morally wrong.[30]

111th Congress

On June 24, 2009, Frank introduced H.R. 3017 to ban workplace discrimination based on sexual orientation and gender identity,[31] with 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007."[31] The lead Republican cosponsor was Rep. Ileana Ros-Lehtinen (R-FL).[32] 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.[33] The bill was referred to the House Education and Labor Committee, which held a hearing on the legislation on September 23, 2009.[34] At the end of the 111th Congress, H.R. 3017 had 203 cosponsors in the House.[35]

On August 5, 2009, Sen. Jeff Merkley introduced ENDA legislation (S. 1584) that included gender identity,[36] with 38 original cosponsors including Sens. Ted Kennedy (D-MA), Susan Collins (R-ME), Olympia Snowe (R-ME) and Chris Dodd (D-CT).[37] Sen. Merkley said "It's certainly possible that this could be passed by year's end, though the [congressional] schedule is very crowded."[38] As of March 13, 2010, S. 1584 had 45 co-sponsors and was pending before the Health, Education, Labor, and Pensions (HELP) Committee,[36] which held a hearing on the legislation on November 5, 2009.[39]

112th Congress

On April 6, 2011, Frank introduced an ENDA bill (H.R. 1397) in the House to ban workplace discrimination based on sexual orientation and gender identity.[40]

On April 14, 2011, Sen. Jeff Merkley introduced an ENDA bill (S. 811) in the Senate.[41] The bill had 39 original cosponsors. On June 19, 2012, the Senate Committee on Health, Education, Labor & Pensions held a hearing on the bill, the first such hearing to include testimony by a transgender witness.[42]

113th Congress

Wikisource has original text related to this article:

On April 25, 2013, Rep. Jared Polis (D-Colo.) introduced an ENDA bill in the House (H.R. 1755) and Sen. Jeff Merkley (D-Ore.) introduced an ENDA bill in the Senate (S. 815).[43]

On July 10, 2013, the Senate Health, Education, Labor & Pensions Committee approved ENDA by a 15-7 vote. Senator Lamar Alexander announced he would offer 3 amendments when the Senate takes up the measure.[44]

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.[45] 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.[46] The APA also states that there is significant discrimination against homosexuals in the workforce.[45] There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.[47]

The Congressional Budget Office in 2002 estimated that the Equal Employment Opportunity Commission's complaint caseload would rise by 5 to 7% as a result of the proposed law.[48] Assessments of the impact of comparable state policies also show a minimal impact on caseload.[49] Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964,[21] which has consistently been upheld by the courts.

In opposition to ENDA

Ed Vitagliano, director of research for the American Family Association (AFA), a conservative Christian organization, wrote in 2007 that there was "no real problem of discrimination against homosexuals."[50] He expressed concern about the impact of anti-discrimination laws on religious organizations. He cited a lack of clarity around whether the narrow exemption would apply to support staff and lay employees in addition to churches and clergy.[10] Consumer surveys show that self-identified gay individuals likely have higher incomes than the average US household,[51] and ENDA opponents argue that many gay people hold positions of cultural influence as well.[50]

Another conservative Christian group, the Traditional Values Coalition (TVC), claims that the legislation would have a negative impact on school children by eliminating schools' ability to avoid hiring against transgender teachers. The group claims that parents are not being adequately informed of the presence of transgender teachers in their children's classrooms. It argues that children should not be "subjected to [a transgender] man's bizarre sexual transformation", claiming that transgender individuals are "seriously mentally disturbed". The TVC argues that individuals cannot change their sex, even with surgery, and that it is impossible to transition from one sex to another.[52]

Libertarians argue that laws against private sector discrimination are acts of coercion that infringe on employers' property rights and freedom of association.[53]

Legislative history

Congress Short title Bill number(s) Gender identity included? Date introduced Sponsor(s) # of cosponsors Latest status
103rd Congress Employment Non-Discrimination Act of 1994 H.R. 4636 No June 23, 1994 Gerry Studds
(D-MA) 		137 Died in the House Subcommittee on Select Education and Civil Rights
S. 2238 No July 29, 1994 Ted Kennedy
(D-MA) 		30 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 Gerry Studds
(D-MA) 		142 Died in the House Subcommittee on the Constitution
S. 932 No June 15, 1995 Jim Jeffords
(R-VT) 		30 Died in the Senate Committee on Labor and Human Resources
S. 2056 No September 5, 1996 Ted Kennedy
(D-MA) 		3 Failed in Senate (49-50)
105th Congress Employment Non-Discrimination Act of 1997 H.R. 1858 No June 10, 1997 Christopher Shays
(R-CT) 		140 Died in the House Subcommittee on Employer-Employee Relations
S. 869 No June 10, 1997 Jim Jeffords
(R-VT) 		34 Died in the Senate Committee on Labor and Human Resources
106th Congress Employment Non-Discrimination Act of 1999 H.R. 2355 No June 24, 1999 Christopher Shays
(R-CT) 		173 Died in the House Subcommittee on Employer-Employee Relations
S. 1276 No June 24, 1999 Jim Jeffords
(R-VT) 		36 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 Christopher Shays
(R-CT) 		193 Died in the House Subcommittee on Employer-Employee Relations
Employment Non-Discrimination Act of 2002 S. 1284 No July 31, 2001 Ted Kennedy
(D-MA) 		44 Died in the Senate
108th Congress Employment Non-Discrimination Act of 2003 H.R. 3285 No October 8, 2003 Christopher Shays
(R-CT) 		180 Died in the House Subcommittee on Employer-Employee Relations
S. 1705 No October 2, 2003 Ted Kennedy
(D-MA) 		43 Died in the Senate Committee on Health, Education, Labor, and Pensions
110th Congress Employment Non-Discrimination Act of 2007 H.R. 2015 Yes April 24, 2007 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 Barney Frank
(D-MA) 		9 Passed the House (235–184), died in the Senate
111th Congress Employment Non-Discrimination Act of 2009 H.R. 3017 Yes June 24, 2009 Barney Frank
(D-MA) 		203 Died in the Judiciary, House 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 Barney Frank
(D-MA) 		12 Died in the House Judiciary Committee
S. 1584 Yes August 5, 2009 Jeff Merkley
(D-OR) 		45 Died in the Senate Health, Education, Labor, and Pensions Committee Hearings held November 5, 2009.
112th Congress Employment Non-Discrimination Act of 2011 H.R. 1397 Yes April 6, 2011 Barney Frank
(D-MA) 		171 Referred to the Education and the Workforce, House Administration, Oversight and Government Reform, and Judiciary committees.
S. 811 Yes April 14, 2011 Jeff Merkley
(D-OR) 		43 Referred to the Health, Education, Labor, and Pensions committee.
113th Congress Employment Non-Discrimination Act of 2013 H.R. 1755 Yes April 25, 2013 Jared Polis
(D-CO) 		178 Referred to the Education and the Workforce, House Administration, Oversight and Government Reform, and Judiciary committees.
S. 815 Yes April 25, 2013 Jeff Merkley
(D-OR) 		54 Passed the Health, Education, Labor, and Pensions committee (15-7), referred to the Senate floor.

References

  1. ^ "Nondiscrimination legislation historical timeline". National Gay and Lesbian Task Force. Retrieved November 1, 2011.
  2. ^ "The State of the Workplace: for Lesbian, Gay, Bisexual, and Transgender Americans" (PDF). Human Rights Campaign.
  3. ^ Evidence Discrimination based on sexual orientation occurs at a similar rate as sex and race at 4.7 per 10,000, as compared to discrimination based on sex at 5.4 and race at 6.5.
  4. ^ Ramos, Christopher. "Evidence of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity: Complaints Filed with State Enforcement Agencies, 1999-2007" (PDF). The Williams Institute. Retrieved April 30, 2011.
  5. ^ "Estimates of LGBT Public Employees". The Williams Institute. Retrieved Accessed April 30, 2011. {{cite web}}: Check date values in: |accessdate= (help)
  6. ^ Tilcsik, A. (2011). Pride and prejudice: Employment discrimination against openly gay men in the United States. American Journal of Sociology, 117, 586–626.
  7. ^ Grant, Jamie M. "Injustice at Every Turn: A Report of the National Transgender Discrimination Survey". National Center for Transgender Equality and National Gay and Lesbian Task Force.
  8. ^ Badgette, M.V. Lee. "Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination" (PDF). The Williams Institute.
  9. ^ Witeck, Bob. "Ending Employment Discrimination in America: Lies, Damned Lies and Statistics About America's LGBT Families".
  10. ^ a b Vitagliano, Ed. "How ENDA Could Begin an Uncivil War". American Family Association Journal. Retrieved April 30, 2011.
  11. ^ 103rd Congress: "For purposes of this Act, the term 'employment or employment opportunities' does not apply to the relationship between the United States and members of the Armed Forces."; 112th Congress: "In this Act, the term 'employment' does not apply to the relationship between the United States and members of the Armed Forces."
  12. ^ 111th and 112th Congresses: "In this Act, the term 'married' refers to marriage as such term is defined in section 7 of title 1, United States Code (commonly known as the 'Defense of Marriage Act')."
  13. ^ 112th Congress: "Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits."
  14. ^ (October 13, 2007) U.S. Congressmember Bella S. Abzug Stonewall.org. Accessed October 20, 2007.
  15. ^ S 2056 - Employment Nondiscrimination Act of 1996 - Voting Record
  16. ^ [Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).]
  17. ^ Wendland, Joel. (April 9, 2007) A New Beginning for ENDA The Williams Institute, UCLA School of Law. Accessed October 20, 2007.
  18. ^ Bull, Chris. (May 13, 1997) No ENDA in sight - Employment Non-Discrimination Act of 1996 The Advocate. Accessed October 20, 2007.
  19. ^ Manley, Roslyn. (June 17, 2003) New "Unified" Bill to Replace ENDA: A Left Coast Perspective TG Crossroads. Accessed October 20, 2007; MetroWeekly: Chris Geidner, "Double Defeat," September 15, 2011, accessed February 10, 2012
  20. ^ H.R. 3685
  21. ^ a b Civil Rights Act of 1964
  22. ^ Weiss, Jillian Todd. (April 26, 2007) The text of ENDA Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  23. ^ H.R. 3685 (110th): Employment Non-Discrimination Act of 2007 (On Passage of the Bill)
  24. ^ Final Vote Results For HR 3685
  25. ^ Eleveld, Kerry. (September 29, 2007) ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity The Advocate. Accessed October 20, 2007.
  26. ^ http://www.thetaskforce.org/activist_center/ENDA_oct1_letter
  27. ^ http://nosubstitutes.org
  28. ^ Schindler, Paul. (October 4, 2007) HRC Alone in Eschewing No-Compromise Stand Gay City News. Accessed October 8, 2007.
  29. ^ Smith, Nadine (September 29, 2007). "A Moment of Truth". The Bilerico Project. Retrieved March 22, 2012.
  30. ^ Aravosis, John (October 8, 2007). "How did the T get in LGBT?". Salon.com. Retrieved March 22, 2012.
  31. ^ a b Frank Introduces Trans-Inclusive ENDA|News|Advocate.com:
  32. ^ Johnson, Chris (November 30, 2011). "Pro-LGBT Republican endorses Romney". Washington Blade. Retrieved June 25, 2009.
  33. ^ Search Results - THOMAS (Library of Congress)
  34. ^ "Congressional hearing on ENDA: great success!". Bilerico.com.
  35. ^ Search Results - THOMAS (Library of Congress):
  36. ^ a b Search Results - THOMAS (Library of Congress):
  37. ^ "Merkley, Collins, Kennedy, Snowe Introduce Legislation To End Workplace Discrimination, August 5, 2009". U.S. Senate. Retrieved October 6, 2012.
  38. ^ Harmon, Andrew (August 5, 2009). "ENDA Possible by Year's End". The Advocate. Retrieved August 5, 2009. As Speaker of the Oregon House of Representatives, Merkley successfully managed the enactment of Oregon's state version of ENDA, the Oregon Equality Act. Teigen, Kristin (August 5, 2009). "Senator Jeff Merkley Introduces the Employment Non-Discrimination Act (ENDA)". BlueOregon. Mandate Media. Retrieved March 22, 2012.
  39. ^ "Employment Non-Discrimination Act: Ensuring Opportunity for All Americans". Washington Blade. June 12, 2012.
  40. ^ Geidner, Chris. "ENDA Introduced -- With 92 Fewer Co-Sponsors Than at the End of the 111th Congress". MetroWeekly. Retrieved April 7, 2011.
  41. ^ "Merkley, Kirk, Harkin, Collins Introduce Legislation to End Workplace Discrimination". Office of Senator Jeff Merkley. Retrieved April 14, 2011.
  42. ^ Johnson, Chris. "Trans advocate testifies before Senate on ENDA". Retrieved October 6, 2012.
  43. ^ Benen, Steve. "ENDA introduced with bipartisan backing". Retrieved April 25, 2013.
  44. ^ "Senate panel advances trans-inclusive ENDA". Washington Blade. {{cite news}}: Unknown parameter |day= ignored (help)
  45. ^ a b Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective American Psychological Association. Accessed May 22, 2010.
  46. ^ 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.
  47. ^ 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.
  48. ^ (April 24, 2002) CBO Cost Estimate: S. 1284 Employment Non-Discrimination Act of 2002 Congressional Budget Office. Accessed October 20, 2007.
  49. ^ "Employment Discrimination against Lesbian, Gay, Bisexual, and Transgender People in Oklahoma". The Williams Institute. Retrieved May 1, 2011.
  50. ^ a b Viagliano, Ed (September 2007). "How ENDA could begin an Uncivil war". American Family Association Journal. American Family Association. Retrieved May 22, 2010.
  51. ^ CMI's 3rd Annual Gay and Lesbian Consumer Index Community Marketing, Inc. Accessed May 22, 2010/
  52. ^ "Why It Matters". Traditional Values Coalition. Retrieved April 30, 2011.
  53. ^ "Context Matters: A Better Libertarian Approach to Antidiscrimination Law". Cato Unbound. Retrieved December 12, 2012.

External links

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