On June 12 the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss the merits of the bipartisan Employment Non-Discrimination Act (ENDA) (H.R. 1397, S. 811), legislation that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. This bill was reintroduced in both the House and Senate last year, and has the President’s support.
Generally, ENDA would make it an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or
(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.
The bill includes exemptions for small businesses, religious entities and the armed forces.
Committee Chairman Tom Harkin (D-IA) stated during the hearing that ENDA “is not complex,” and that it “makes clear” that an employer cannot base employment decisions on a person’s actual or perceived sexual orientation and gender identity. Harkin claimed further that allegations that ENDA would create a flood of lawsuits and be an undue burden on religious organizations are “baseless.” Harkin included into the record a letter signed by 90 corporations supporting ENDA.
A number of witnesses at the hearing cited a study finding that 87% of Fortune 500 companies have policies banning discrimination based on sexual orientation, and that 41% of these companies also ban discrimination based on gender identity. Panelist Ken Charles, Vice President of Global Diversity and Inclusion at General Mills, Inc., touted his company’s LGBT-friendly policies, and offered support for ENDA. According to Charles, such anti-discrimination policies allow his company to attract and retain talent, promote a workplace where members of the LGBT community feel safe, and foster creativity and innovation. Charles claimed that it is “absolutely critical for employees to be able to bring their true selves to work every day,” and stated his belief that companies that have such inclusive policies out-perform those that do not.
Other panelists, including law professor and former Department of Justice attorney Samuel Bagenstos, emphasized that 21 states have already enacted laws banning employment discrimination against lesbians, gays and bisexuals, and 16 states have laws that also protect transgendered individuals from discrimination. M. V. Lee Badgett, Research Director for the Williams Institute for Sexual Orientation Law and Public Policy at UCLA and Director of the Center for Public Policy and Administration at the University of Massachusetts Amherst, noted that in these states, the number of discrimination lawsuits filed under such statutes is comparable to those filed by members of other protected groups. According to Badgett, this finding suggests that if ENDA were enacted, a flood of complaints would not follow.
Sen. Jeff Merkley (D-OR), an ENDA co-sponsor, echoed this point, claiming that in his home state of Oregon, which is one of the states to have enacted a LGBT anti-discrimination law, he has not had any businesses come back to the state legislature to complain.
Along this vein, Professor Bagenstos emphasized that ENDA includes a number of provisions that seek to limit an employer’s compliance burdens. For example, the bill specifically precludes disparate impact claims, and prohibits employers from establishing quotas or affirmative action policies for LGBT individuals.
Bagenstos testified also that the “patchwork” of state laws protecting LGBT employees is insufficient and that ENDA “is an appropriately tailored bill” to help this problem and “is the next logical step” toward ending workplace discrimination.
Earlier this year, the Equal Employment Opportunity Commission (EEOC) determined in Macy v. Holder that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is cognizable under Title VII of the Civil Rights Act. However, not all forms of discrimination against individuals based on sexual orientation or gender identity can be protected under Title VII, and, as Bagenstos testified, the “current legal regime is inadequate.”
Craig Parshal, Senior Vice President and General Counsel for the National Religious Broadcasters Association, voiced criticism of the bill. Parshal took issue with the scope of ENDA’s religious exemption, claiming that it would “impose a substantial burden on the First Amendment rights” of religious entities. Section 6 of ENDA states that it “shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act.” According to Parshal, this exemption “is textually and constitutionally insufficient.” Parshal expressed fear over how the courts would interpret this exemption, and advocated that the exemption language be strengthened.
Professor Bagenstos countered this argument, explaining that the broad religious exemption in ENDA affords even more protections to religious entities than does Title VII, as the exemption inquiry ends if the organization can show that it is, indeed, a religious entity. Bagenstos mentioned that the ACLU has criticized this exemption as being too broad, as it would apply to any charge of LGBT-related discrimination. In essence, once an organization is able to show that it constitutes a religious entity, Bagenstos said, it would be exempt from a complaint filed under ENDA. It would not need to show that the discrimination itself is based on the organization’s religious beliefs. Bagenstos noted also that there exists an “extensive body of case law” under Title VII that addresses whether an organization qualifies as a religious entity for exemption purposes.
A full list of panelists and links to their testimony can be found here.