S. Rept. 113-105 - 113th Congress (2013-2014)
September 12, 2013, As Reported by the Health, Education, Labor, and Pensions Committee

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Senate Report 113-105 - THE EMPLOYMENT NON-DISCRIMINATION ACT OF 2013




[Senate Report 113-105]
[From the U.S. Government Printing Office]


                                                       Calendar No. 184
113th Congress                                                   Report
                                 SENATE
 1st Session                                                    113-105

======================================================================



 
             THE EMPLOYMENT NON-DISCRIMINATION ACT OF 2013

                                _______
                                

               September 12, 2013.--Ordered to be printed

                                _______
                                

    Mr. Harkin, from the Committee on Health, Education, Labor, and 
                   Pensions, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 815]

    The Committee on Health, Education, Labor, and Pensions, to 
which was referred the bill (S. 815) to prohibit employment 
discrimination on the basis of sexual orientation or gender 
identity, having considered the same, reports favorably thereon 
with an amendment in the nature of a substitute and recommends 
that the bill (as amended) do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................2
 II. Legislative History..............................................2
III. Section-by-Section Analysis and Explanation of the Legislation...6
 IV. Committee Action................................................11
  V. Cost Estimate...................................................11
 VI. Regulatory Impact Statement.....................................13
VII. Application of Law to the Legislative Branch....................14
VIII.Need for the Legislation........................................14

 IX. The Visibility of ENDA's Protections Will Make a Difference in the 
     Lives of LGBT People............................................21
  X. Constitutional Authority........................................22
 XI. Additional Views................................................24

                         I. Purpose and Summary

    Millions of lesbian, gay, bisexual, transgender (``LGBT'') 
and heterosexual Americans today face the possibility of being 
fired from their jobs, refused work, paid less, or otherwise 
being subjected to employment discrimination because of their 
actual or perceived sexual orientation or gender identity. 
Currently, 18 States and the District of Columbia explicitly 
prohibit firing someone based on their sexual orientation or 
gender identity.\1\ Another four States explicitly prohibit 
firing someone based on their sexual orientation, but do not 
explicitly protect employees based on gender identity.\2\
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    \1\California, Colorado, Connecticut, Delaware, District of 
Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, 
Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and 
Washington have laws barring discrimination in employment based on 
sexual orientation and gender identity.
    \2\Maryland, New Hampshire, New York, and Wisconsin have laws 
barring employment discrimination based on sexual orientation, but not 
gender identity.
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    The Employment Non-Discrimination Act (``ENDA'' or ``Act'') 
is intended to address this discrimination and explicitly 
protect all Americans who are or may be perceived to be 
lesbian, gay, bisexual or transgender.
    The legislation extends Federal employment protections to 
LGBT workers similar to those protections provided to a person 
based on race, color, sex, national origin, religion, age or 
disability. The Act prohibits an employer from using an 
individual's sexual orientation or gender identity 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, heterosexual, or 
transgender--who is discriminated against because that 
individual is ``perceived'' as homosexual or transgender.
    ENDA provides for similar procedures, while giving some 
more limited remedies, as those under Title VII of the Civil 
Rights Act of 1964 (``title VII'').\3\ ENDA applies to Congress 
and the Federal Government, as well as to State and local 
governments.
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    \3\42 U.S.C. 2000e-2000e-917 (Title VII).
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    The Act does not require employers to collect statistics on 
actual or perceived sexual identity or gender identity of its 
employees, and it expressly prohibits the Equal Employment 
Opportunity Commission (``EEOC'') from requiring the collection 
of such statistics by an employer. The Act also prohibits the 
imposition of affirmative action and the adoption of quotas or 
granting of preferential treatment to an individual by any 
employer on the basis of sexual orientation or gender identity. 
Religious organizations are exempt from coverage under ENDA. 
The relationship between the armed services and its uniformed 
service members is also not subject to the Act.

                        II. Legislative History

    On June 23, 1994, Senator Edward Kennedy (D-MA) introduced 
the Employment Non-Discrimination Act of 1994, S. 2238. It was 
referred to the Senate Labor and Human Resources Committee, 
which held the first hearing on the issue titled ``Employment 
Non-Discrimination Act of 1994'' on July 29, 1994.\4\
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    \4\Gay Rights--U.S.: Sex Discrimination in Employment, Before the 
S. Comm. on Labor and Human Res., 103d Cong. 103-703 (1994). For a 
discussion of the history of the ENDA in the House of Representatives, 
see H. Rep. 110-406 (2007). On October 18, 2007, the Committee on 
Education and Labor met to markup 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.
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    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, GA; 
Ernest Dillon, Detroit, MI; 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. 
Joseph 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, DC; 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 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, 1996, Senator Edward Kennedy (D-MA) 
introduced the Employment Non-Discrimination Act of 1996, S. 
2056, which garnered three cosponsors. It was brought before 
the Senate by unanimous consent. The Senate narrowly rejected 
S. 2056 on September 10, 1996 by a 49-50 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.
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    \5\Roll Call vote No. 281.
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    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, OK; Mr. David N. Horowitz, Phoenix, AZ; Raymond 
W. Smith, chairman of the board and CEO, Bell Atlantic 
Corporation, Arlington, VA; Mr. Thomas J. Grote, chief 
operating officer, Donato's Pizza, Blacklick, OH; Mr. Herbert 
D. Valentine, executive presbyter, Baltimore Presbytery, 
Moderator of the 203d 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.
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    \6\The Employment Non-Discrimination Act of 1997 Before the S. 
Comm. on Labor and Human Res., 105th Cong. 279 (1997).
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    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 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 titled ``The Employment Non-Discrimination 
Act.''\7\ The following persons presented testimony: Mr. 
Charles K. Gifford, president and CEO FleetBoston Financial, 
Boston, MA; Lucy Billingsley, partner, Billingsley Company, 
Carrollton, TX; Robert L. Berman, director of Human Resources 
and vice president, Eastman Kodak Company, Rochester, NY; 
Richard Womack, director, Department of Civil Rights, AFL-CIO, 
Washington, DC; Lawrence Lane, Long Island, NY; and Matthew 
Coles, director, National Lesbian and Gay Rights Project, 
American Civil Liberties Union, New York City, NY.
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    \7\The Employment Non-Discrimination Act Before the S. Comm. on 
Health, Educ., Labor, and Pensions, 107th Cong. 307 (2002).
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    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 and 
placed on the legislative calendar.\8\ However, no vote was 
taken in the Senate.
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    \8\S. Rep. No. 107-341 (2001).
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    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 August 5, 2009, Senator Jeff Merkley (D-OR) introduced 
the Employment Non-Discrimination Act of 2009, S. 1584, which 
garnered 45 cosponsors. It was referred to the HELP Committee. 
The bill introduced in 2009 was the first version of ENDA 
introduced that prohibited discrimination based on sexual 
orientation and gender identity.
    On November 5, 2009, the HELP Committee held a hearing on 
``Employment Non-Discrimination Act: Ensuring Opportunity for 
All Americans.'' Witnesses testifying before the committee 
included: The Honorable Thomas E. Perez, Assistant Attorney 
General for Civil Rights; Mike Carney, police officer, city of 
Springfield police department; Helen Norton, professor of law, 
Colorado School of Law; The Honorable Lisa Madigan, Illinois 
attorney general; Virginia Nguyen, Nike, Inc., Diversity & 
Inclusion Team Member; Craig Parshall, senior vice president 
and general counsel of the National Religious Broadcasters 
Association; and Camille Olson, partner at Seyfarth Shaw, LLP.
    Written statements and letters were provided by: Eliza 
Byard, executive director of the Gay, Lesbian and Straight 
Education Network; Rea Carey, executive director, National Gay 
and Lesbian Task Force Action Fund; Jennifer Chrisler, 
executive director, Family Equality Council; Masen Davis, 
executive director, Transgender Law Center; Nancy Ratzan, 
president, National Council of Jewish Women; Joe Solmonese, 
president, Human Rights Campaign; African-American Ministers in 
Action; American Airlines; American Bar Association; American 
Psychological Association; American Civil Liberties Union; BMC 
Softward, Inc.; Business Coalition on Workplace Fairness; 
Center for American Progress Action Fund; Martha Coakley, 
Massachusetts attorney general; Gay & Lesbian Advocates & 
Defenders (``GLAD''); Sun Microsystems; Interfaith Alliance; 
Lambda Legal Defense and Education Fund; Marriott 
International, Inc.; National Center for Lesbian Rights; 
Nationwide Mutual Insurance Company; Parents, Families and 
Friends of Lesbians and Gay (``PFLAG'') National; Raytheon 
Company; Unitarian Universalist Association of Congregations; 
Chevron Corporation; National Center for Trangender Equality 
and the National Gay and Lesbian Task Force; and Meghan 
Stabler.
    On April 13, 2011, Senator Jeff Merkley (D-OR) introduced 
the Employment Non-Discrimination Act of 2011, S. 811, which 
garnered 43 cosponsors. It was referred to the HELP Committee.
    On June 12, 2012, the HELP Committee held a hearing on 
``Equality At Work: The Employment Non-Discrimination Act.'' 
Witnesses testifying before the committee included: M. V. Lee 
Badgett, research director of Williams Institute at the UCLA 
School of Law; Kylar Broadus, founder of Trans People of Color 
Coalition; Samuel Bagenstos, professor of law at Michigan Law 
School and former Principal Deputy Attorney General for Civil 
Rights in the Obama administration; Ken Charles, vice president 
of Diversity and Inclusion at General Mills; and Craig 
Parshall, senior vice president and General Counsel of the 
National Religious Broadcasters Association.
    Written statements and letters were provided by Camille 
Olson, partner at Seyfarth Shaw LLP, Log Cabin Republicans, 
Human Rights Campaign, Transgender Law Center, Interfaith 
Alliance, and the National Gay and Lesbian Task Force.
    On April 25, 2013, Senator Jeff Merkley (D-OR) introduced 
the Employment Non-Discrimination Act of 2013, S. 815, which 
currently has garnered 53 cosponsors. It was referred to the 
HELP Committee.
    On July 10, 2013, the HELP Committee met to markup S. 815, 
the Employee Non-Discrimination Act of 2013. The committee 
reported the bill favorably by a vote of 15-7 to the Senate.

           III. Section-by-Section Analysis and Explanation 
                           of the Legislation

Section 1. Short title
    This section designates the bill as the ``Employment Non-
Discrimination Act.''
Section 2. Purposes
    This section sets forth the Act's purposes: (1) to address 
the history and persistent, widespread pattern of 
discrimination, including unconstitutional discrimination, on 
the bases of sexual orientation and gender identity by private 
sector employers and local, State, and Federal Government 
employers; (2) to provide an explicit, comprehensive Federal 
prohibition against employment discrimination on the bases of 
sexual orientation and gender identity; (3) to provide 
meaningful and effective remedies against such discrimination; 
and (4) to invoke Congressional powers, including those 
pursuant to the Fourteenth Amendment of the Constitution, as 
well as the Commerce Clause and the Spending Clause.
Section 3. Definitions
    This section defines key terms used in the Act. Most of the 
definitions come directly from existing Federal civil rights 
laws, primarily title VII. The definitions of ``employee'' and 
``employer'' exclude volunteers and private membership clubs 
from the coverage of the Act.
    The committee believes the terms sexual orientation and 
gender identity, contained in section 4(7) and (10), are clear, 
and the terms homosexuality, bisexuality, heterosexuality and 
bisexuality are well understood in the courts and by the 
American people. Laws like ENDA exist in 22 States, including 
the District of Columbia, and hundreds of municipalities in 
this country and the definitions of sexual orientation and 
gender identity have not presented employers or the courts with 
any difficulty.
    With respect to gender identity, the committee notes that 
gender transition is the process of a transgender individual 
publicly changing his or her gender presentation to be 
consistent with his or her gender identity. This process 
usually involves changes to name, personal appearance, voice 
and mannerisms. In some cases, it could mean medical 
procedures, including hormone therapy, sex-reassignment 
surgeries, and other procedures that are generally conducted 
under medical supervision. The committee emphasizes that an 
individual's gender transition is unique and personal to each 
transgender employee. State laws that prohibit discrimination 
based on sexual orientation or gender identity do not include 
language defining gender transition; nor do they otherwise 
prescribe what steps a transgender employee must take in order 
to be treated in a nondiscriminatory manner that is consistent 
with his or her gender identity. The committee notes that every 
gender transition is unique. Therefore, it is the committee's 
intent that nothing in this Act be read as establishing what an 
individual's gender transition must entail.
    If an employee has undergone a gender transition prior to 
the time of employment, the duty of nondiscrimination applies 
on the basis of the employee's gender as established at the 
time of employment. The employer need not inquire, and the 
employee need not disclose, information regarding the 
employee's transition. The employer's obligation is simply not 
to discriminate in the event that the past transition comes to 
the employer's attention.
    However, the term ``notified'' in section 8(a) indicates 
that an employee who undergoes gender transition on the job 
must take some affirmative step to communicate the matter to 
the employer.\9\ Notification may be written or oral, and need 
not be in any specified form or use any ``magic words,'' so 
long as it is sufficient for the employer to understand.\10\
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    \9\See, e.g., Detroit Coil Co. v. Int'l Ass'n of Machinists & 
Aerospace Workers, 594 F.2d 575, 580 (6th Cir. 1979) (``the word 
`notified,' in its ordinary usage, means the completed act of bringing 
information to the attention of another'').
    \10\See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 
(10th Cir. 1999) (concluding that the ADA does not require an employee 
to use any ``magic words'' when notifying an employer of his or her 
disability and request for reasonable accommodations); Sarnowski v. Air 
Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007) (concluding 
that the FMLA does not require an employee to use any ``magic words'' 
when notifying an employer of his or her request to take leave for a 
serious health condition); EEOC Compliance Manual 12-IV.A.1 (``the 
applicant or employee must provide enough information to make the 
employer aware that there exists a conflict between the individual's 
religious practice or belief and a requirement for applying for or 
performing the job'').
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Section 4. Discrimination prohibited
    This section 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 or gender 
identity. Employment opportunities include hiring, firing, 
compensation and other terms, conditions, or privileges of 
employment or union membership.
    Similar to a similar provision of the Americans with 
Disabilities Act (``ADA'') and case law under title VII, this 
section also prohibits discrimination based on the perceived 
sexual orientation or gender identity of an individual. The use 
of the term ``perceived'' is intended to address employment 
discrimination directed at individuals because of their 
presumed sexual orientation or gender identity, whether or not 
that presumption is correct. It ensures that ENDA's 
prohibitions reach all discriminatory actions of an employer, 
regardless of whether the assumptions upon which the employer 
bases his or her discrimination are accurate.
    Also consistent with the ADA and case law under title VII, 
this section additionally prohibits discrimination against an 
employee because of whom he or she associates with.\11\ It is 
the intent of the committee that this provision be construed 
consistently with the associative discrimination jurisprudence 
developed under the ADA and title VII.
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    \11\See e.g., Americans with Disabilities Act, 42 U.S.C. 
12112(b)(4) (2012); Halcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) 
(Title VII); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC 
Trucks, Inc., 173 F.3d 988 (6th Cir. 1999) (same); Drake v. 3M, 134 
F.3d 878 (7th Cir. 1998) (same); McGinest v. GTE Serv. Corp., 360 F.3d 
1103 (9th Cir. 2004) (same); Parr v. Woodmen of World Life Ins. Co., 
791 F.2d 888 (11th Cir. 1986)(same).

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    Section 4(f) prohibits quotas and preferential treatment 
based on sexual orientation or gender identity.
    Section 4(g) makes clear that disparate impact claims are 
not available under this Act. Thus, ENDA does not require 
employers to justify neutral practices that may result in a 
disparate impact against people of a particular sexual 
orientation or gender identity. Evidence of disparate impact 
may be introduced in a proceeding to support a claim of 
disparate treatment, but there is no cause of action under ENDA 
for disparate impact.
    Section 4(h) provides that, consistent with title VII, in 
mixed motive cases, an unlawful employment practice is 
established when the complaining party demonstrates that sexual 
orientation or gender identity was a ``motivating factor'' for 
the adverse employment action, even if there were other factors 
motivating the adverse action.
    In doing so, the committee explicitly rejects the ``but 
for'' standard of proof enunciated in the Supreme Court's 
decision of Gross v. FBL Financial.\12\ As Professor Helen 
Norton testified to the committee, ``Gross entirely insulates 
from liability even an employer who confesses discrimination so 
long as that employer had another reason for its decision. By 
permitting employers to escape liability altogether even for a 
workplace admittedly infected by discrimination, with no 
incentive to refrain from similar discrimination in the future, 
the Gross rule thus undermines Congress' efforts to stop and 
deter workplace discrimination.''\13\
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    \12\Gross v. FBL Financial, 557 U.S. 167 (2009).
    \13\Ensuring Fairness for Older Workers: Hearing Before the Senate 
Health Educ., Labor, and Pensions Committee, 111th Cong. (2010) 
(written testimony of Helen Norton); see also, Gross, 557 U.S. at 190-
91 (Breyer, J., dissenting).
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    The committee believes requiring the plaintiff to prove 
``but for'' cause in a mixed motive case is particularly 
difficult. In these cases, the employer, rather than the 
employee, is in a better position to reconstruct history and 
prove whether an employer who has been proven to have engaged 
in discrimination would have taken the same action unaffected 
by bias. Therefore, shifting the burden of proof to the 
defendant is appropriate where the plaintiff has demonstrated 
that discrimination was a ``motivating factor'' in the 
defendant's employment decision. As Professor Norton testified, 
``[s]uch burden shifting appropriately recognizes and responds 
to employers' greater access to information that is key to 
proving or disproving an element of a particular claim. . . 
.''\14\
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    \14\Ensuring Fairness for Older Workers: Hearing Before the Senate 
Health Educ., Labor, and Pensions Committee, 111th Cong. (May 6, 2010) 
(Senator Harkin's Questions for the Record for Professor Helen Norton).
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Section 5. Retaliation prohibited
    This section prohibits retaliation against individuals 
because they oppose any practice prohibited by (or they 
reasonably believe to be prohibited by) the Act, or participate 
in an investigation or other proceeding authorized by the Act. 
This section is modeled directly on title VII's retaliation 
prohibition. Therefore, retaliation claims under the Act should 
be treated like similar claims under title VII.
Section 6. Religious organizations
    This section exempts from its coverage those religious 
institutions that are exempt under title VII's prohibition on 
discrimination based on religion. Title VII's language has been 
in effect since 1972, and thus the committee believes it is 
simple for organizations to understand who falls under the 
exemption.
    ENDA would apply, however, to entities that are not 
primarily religious in purpose and character.\15\ A non-
religious entity would not be able to not hire, fire, or 
otherwise take an adverse employment action against someone 
because of their sexual orientation or gender identity, even if 
his or her boss has a deeply held belief against homosexuality. 
For example, an entity that is for-profit, produces a secular 
product and is not affiliated with a church would not be exempt 
from the law.
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    \15\EEOC v. Townley, 859 F.2d 610 (9th Cir. 1988).
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    Despite the Act's religious exemption, some have expressed 
concern that the religious beliefs of employers and employees 
are not sufficiently protected. They argue that those whose 
religion dictates that homosexuality is wrong will be forced to 
hire or work with gay men and lesbians. Similar arguments are 
not new to the civil rights debate, but our Nation's civil 
rights laws rightly require non-religious organizations and 
entities, particularly those who participate in commercial 
activity, to adhere to broad principles of fairness and 
equality.\16\
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    \16\The committee further notes that the religious exemption 
contained in ENDA is broader than that contained in other civil rights 
laws. For example, under title VII, religious organizations are not 
permitted to discriminate based on race, sex and national origin.
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Section 7. Nonapplication to members of the armed forces; veterans' 
        preferences
    This section makes clear that the Act does not apply to 
members of the Armed Forces. The Act does not affect current 
law, regulation or policies applicable to members of the 
military. In addition, this section further provides that the 
Act does not repeal or modify any other law that gives special 
preferences to veterans.
Section 8. Construction
    Section 8(a) provides that an employer may establish and 
enforce reasonable and otherwise lawful dress and grooming 
standards for employees during work hours. Employers may 
require workers to abide by gender-specific dress codes and 
ensure that all employees dress in an office-appropriate 
manner. At the same time, the provision ensures that employees 
who have undergone or are undergoing gender transition are 
allowed to follow the dress code that applies to the gender to 
which they identify.
    Section 8(b) also provides that employers are not required 
to construct new or additional physical facilities in order to 
comply with the Act.
Section 9. Collection of statistics prohibited
    This section expressly prohibits the EEOC or Department of 
Labor (``DOL'') from requiring employers to collect statistics 
on the sexual orientation or gender identity of employees 
pursuant to this Act. ENDA allows a company to provide data on 
its workforce to the EEOC or DOL on a voluntary basis.
Section 10. Enforcement
    This section 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, other than disparate impact 
claims as noted in section 4 above.
    Section 10(d) also clarifies that double-recovery of 
damages is not permitted. This provision is intended to be a 
restatement of current law. A wide range of conduct often 
violates more than one statute, and this provision does not 
modify current standards which permit a plaintiff to plead 
alternative claims that challenge the same conduct under 
different legal theories. For example, Congress does not intend 
to overrule, displace, or in any other way affect a plaintiff's 
ability to bring suit under title VII, particularly given that 
Federal courts have interpreted title VII in such a way that 
protects LGBT individuals on the basis of sex.
    The law is clear, however, that double recovery for claims 
based on the same facts is not permitted, and this provision 
restates that well established principle.\17\
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    \17\See, e.g., EEOC. v. Waffle House, Inc., 534 U.S. 279, 297 
(2002) (``It goes without saying that the courts can and should 
preclude double recovery by an individual.'' (quoting Gen. Tel. Co. of 
the Northwest v. E.E.O.C., 446 U.S. 318, 333 (1980)))
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    Section 10(e) clarifies the availability of damages in 
mixed motive cases, as described in section 4. In a mixed 
motive case, if a plaintiff demonstrates that sexual 
orientation or gender identity was a ``motivating factor'' for 
the adverse employment action, but an employer demonstrates it 
would have made the same employment decision in the absence of 
discrimination damages are limited to injunctive and 
declaratory relief and attorney's fees and costs. This is 
consistent with language currently in the Civil Rights Act of 
1991 with respect to title VII.
Section 11. State and federal immunity
    This section abrogates State sovereign immunity. It makes 
clear that States are not immune from suit for employment 
discrimination based on sexual orientation or gender identity 
against employees or applicants within any State program or 
activity that receives Federal financial assistance.
    This section is based on Congress' enforcement power 
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. Attorney's fees
    This section provides that, subject to the same limits as 
existing in title VII, a successful party (other than the EEOC 
or the United States) is entitled to attorneys' fees and 
litigation expenses.
Section 13. Posting notices
    This section sets forth a covered entity's duty to post 
notices describing the requirements of the law. ENDA allows 
employers to post an amended notice rather than posting a 
separate notice.
Section 14. Regulations
    This section authorizes, but does not require, the issuance 
of regulations to enforce the Act.
Section 15. Relationship to other laws
    This section 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 LGBT individuals on the basis 
of gender.
Section 16. Severability
    This section ensures that if one or more provisions of the 
Act are held invalid by a court, the rest of the Act will 
remain in effect.
Section 17. Effective date
    This section provides that ENDA will take effect 6 months 
after its enactment and will not apply retroactively.

                          IV. Committee Action

    The committee met on July 10, 2013, to consider S. 815. The 
committee adopted an amendment in the nature of a substitute 
proposed by Senator Harkin. This amendment served as the 
original text for purposes of further amendment. The amendment 
clarified that disparate impact claims are not allowed under 
the Act; that a plaintiff cannot recover for the same offense 
under both title VII and ENDA; that it is sufficient for an 
employer to post an amended notice regarding antidiscrimination 
policy; that the only attorney fees allowed are those permitted 
under title VII; that neither the EEOC or Department of Labor 
is permitted to mandate the collection of statistics; and that 
in mixed motive cases, an employee only need establish that 
discrimination was a ``motivating factor'' for the adverse 
employment action.
    Three amendments were discussed but not offered, and an 
additional two amendments were filed and not offered. The bill, 
as amended, was adopted by rollcall vote of 15 ayes and 7 nays 
and the committee reported the bill favorably to the Senate.
Amendments discussed during the markup
    1. Senator Alexander discussed an amendment to provide 
rules of construction regarding employer responsibilities with 
respect to individuals undergoing or having undergone gender 
transition.
    2. Senator Alexander discussed an amendment to limit the 
application of the Act with respect to gender identity until 
regulations defining the term ``transition'' are issued.
    3. Senator Alexander discussed an amendment to eliminate a 
provision regarding relief in motivating factor cases.

                            V. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 11, 2013.
Hon. Tom Harkin,
Chairman, Committee on Health, Education, Labor, and Pensions,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 815, the Employment 
Non-Discrimination Act of 2013.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.

    Enclosure.
S. 815--Employment Non-Discrimination Act of 2013
    Summary: S. 815 would prohibit employment discrimination 
based on sexual orientation or gender identity. Assuming 
appropriation of the necessary amounts, CBO estimates that 
implementing S. 815 would cost $47 million over the 2014-18 
period mostly 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. Because 
the legislation would affect direct spending, pay-as-you-go 
procedures would apply. S. 815 would not affect revenues.
    The bill would impose a number of intergovernmental and 
private-sector mandates on employers, employment agencies, and 
labor organizations. CBO estimates that the costs of complying 
with those mandates would not exceed the annual thresholds 
specified in the Unfunded Mandates Reform Act (UMRA) for 
intergovernmental or private-sector mandates ($75 million and 
$150 million in 2013, respectively, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 815 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
                                                                 -----------------------------------------------
                                                                                                           2014-
                                                                   2014    2015    2016    2017    2018    2018
----------------------------------------------------------------------------------------------------------------
                                 CHANGES IN SPENDING SUBJECT TO APPROPRIATION\1\

Estimated Authorization Level...................................       7      10      10      10      10      47
Estimated Outlays...............................................       7      10      10      10      10      47
----------------------------------------------------------------------------------------------------------------
\1\In addition to the bill's discretionary cost, S. 815 could affect direct spending, but CBO estimates that any
  such effects would be less than $500,000 annually.

    Basis of estimate: 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.
Spending Subject to Appropriation
    The EEOC expects that implementing S. 815 would increase 
its annual caseload (currently about 100,000 cases) by 5 
percent and would require about 110 additional personnel. CBO 
estimates that the cost to hire those new employees would reach 
$9 million annually by fiscal year 2015, subject to the 
appropriation of the necessary amounts. For fiscal year 2013, 
the Congress provided $344 million for EEOC operations. We 
expect that enacting S. 815 also would increase the workload of 
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 
likely to be referred to them.
    The additional cases resulting from S. 815 also would 
increase the workload of the Department of Justice's Civil 
Rights Division. Based on information from the Department of 
Justice, CBO estimates that it would cost about $1 million 
annually for additional attorneys and support staff.
Direct Spending
    Enacting S. 815 could increase payments from the Treasury's 
Judgment Fund for settlements against Federal agencies in 
discrimination cases based on sexual orientation or gender 
identity. However, CBO estimates that any increases in direct 
spending would be less than $500,000 because of the small 
number of such payments that are likely to occur.
    Pay-as-you-go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. CBO estimates that the legislation would have an 
insignificant impact on direct spending.
    Intergovernmental and private-sector impact: S. 815 would 
prohibit public and private employers, employment agencies, and 
labor organizations from discriminating against any employee, 
member, and applicant on the basis of sexual orientation or 
gender identity. The bill also would require those public and 
private entities to post notices displaying the Federal laws 
that prohibit such discrimination. Those prohibitions and 
requirements would be intergovernmental and private-sector 
mandates as defined in UMRA.
    The costs of the mandates would include the costs of 
modifying employment procedures and posting notices to avoid 
discriminatory practices. CBO assumes that changes to 
employment procedures would likely build on ongoing training 
and updates to personnel manuals. Similarly, the costs of 
notices would probably be relatively minor and would be made in 
the course of other routine updates. Therefore, CBO estimates 
that the costs of complying with these mandates would not 
exceed the annual thresholds specified in the UMRA for 
intergovernmental or private-sector mandates ($75 million and 
$150 million in 2013, respectively, adjusted annually for 
inflation).
    Estimate prepared by: Federal Costs: Mark Grabowicz and 
Martin Von Gnechten; Impact on State, Local, and Tribal 
Governments: Melissa Merrell; Impact on the Private Sector: Vi 
Nguyen.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    VI. Regulatory Impact Statement

    The Act prohibits employers (including government 
employers), employment agencies, labor organizations, and 
joint-labor management committees from engaging in intentional 
discrimination in employment on the basis of sexual orientation 
or gender identity. The Act's requirements and enforcement 
mechanisms are similar to those found in title VII, and 
accordingly, its impact on individuals and businesses is 
similar. The direct impact would equal the value of the 
resources used by employers and others to become familiar with 
the law, post notices, and, if necessary, modify employment 
procedures to conform with the requirements of the Act.

         VII. Application of the Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act (CAA), requires a description of the 
application of the bill to the legislative branch. Consistent 
with the CAA's mandate that civil rights laws be applied to the 
legislative branch, ENDA prohibits employers--including those 
in the legislative branch--from engaging in intentional 
discrimination in employment on the basis of sexual orientation 
or gender identity.

                     VIII. Need for the Legislation

 A. DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IS 
                       WIDESPREAD AND PERSISTENT

    Thousands of hardworking Americans have lost their 
livelihoods simply because of who they are or who they love, 
and millions more go to work every day facing that threat. The 
committee believes the Federal Government should not permit 
unfettered bigotry to go unchecked, leading to the loss of 
jobs, fear in the workplace, economic instability, and personal 
hardship, while allowing employers and the economy to lose 
competent, qualified workers.
    Employment decisions should be made on individual merit and 
performance, not extraneous factors such as sexual orientation 
or gender identity. The committee believes that sexual 
orientation and gender identity are irrelevant to a person's 
ability to do his or her job and they only become factors when 
people's biases and prejudices determine employment actions 
such as hiring and firing.\18\ Just as it is unacceptable to 
fire or refuse to hire a person based on his or her race, sex, 
national origin, religion, age or disability, it is 
unacceptable to base employment decisions on an employee's or 
applicant's sexual orientation or gender identity.
---------------------------------------------------------------------------
    \18\As the Connecticut Supreme Court noted with respect to 
discrimination based on sexual orientation, ``[t]he characteristic that 
defines the members of this group--attraction to persons of the same 
sex--bears no logical relationship to their ability to perform in 
society, either in familial relations or otherwise as productive 
citizens.'' Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 432 (Conn. 
2008).
---------------------------------------------------------------------------
    Nevertheless, workplace discrimination targeting LGBT 
Americans, as well as those perceived to be LGBT, has been 
persistent and widespread. Indeed, there has historically been 
severe discrimination based on sexual orientation and gender 
identity in both the State and private employment contexts. As 
the Iowa Supreme Court recently noted, ``The County does not, 
and could not in good faith, dispute the historical reality 
that gay and lesbian people as a group have long been the 
victims of purposeful and invidious discrimination because of 
their sexual orientation.''\19\ And, in many instances, such 
discrimination was a matter of policy by public entities 
throughout the country.\20\
---------------------------------------------------------------------------
    \19\Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009); accord 
Kerrigan, 957 A.2d at 434 (``There is no question. . . . that gay 
persons historically have been, and continue to be, the target of 
purposeful and pernicious discrimination due solely to their sexual 
orientation.''); see also In re Marriage Cases, 183 P.3d 384, 442 (Cal. 
2009) (``[S]exual orientation is a characteristic . . . associated with 
a stigma of inferiority and second-class citizenship, manifested by the 
group's history of legal and social disabilities.'').
    \20\For a historical overview of discrimination based on sexual 
orientation, see, e.g., S. Rep. 107-341; H. Rep. 110-406. 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 (1979); 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); Edmund Reutter, Jr., The Law of Public Education, Fourth 
Edition 657 (New York Foundation Press, 1994) (describing 
discrimination faced by LGBT teachers due to State licensing 
requirements that included morality fitness tests); Laura S. 
Fitzgerald, Towards a Modern Art of Law, 96 Yale L. J. 2051 (1987).
---------------------------------------------------------------------------
    While much progress has been made, as the record 
demonstrates discrimination based on sexual orientation and 
gender identity remains widespread and persistent.\21\ For 
example:
---------------------------------------------------------------------------
    \21\For recent examinations of the widespread and persistent 
discrimination in the workplace that LGBT Americans face, see Movement 
Advancement Project, Center for American Progress, Human Rights 
Campaign, A Broken Bargain: Discrimination, Fewer Benefits and More 
Taxes for LGBT Workers (2013); Brad Sears & Christy Mallory, Williams 
Institute, Documented Evidence of Employment Discrimination & Its 
Effects on LGBT People (2011); Brad Sears, et al., Williams Institute, 
Documenting Discrimination on the Basis of Sexual Orientation & Gender 
Identity in State Employment (2009); M.V. Badgett et al., Bias in the 
Workplace: Consistent Evidence of Sexual Orientation and Gender 
Identity Discrimination 1998-2008, 84 Chi. Kent L. Rev. 559 (2009); 
Jaime M. Grant, et al., Injustice at Every Turn: A Report of the 
National Transgender Discrimination Survey (2011).

    
 According to a 2008 report, 42 percent of lesbian, 
gay, and bisexual people have experienced at least one form of 
employment discrimination because of their sexual orientation.
    
 A 2011 report found that 90 percent of transgender 
Americans experienced harassment, mistreatment or 
discrimination at work because of their gender identity or took 
actions like hiding who they are to avoid it. Forty-seven 
percent of transgender Americans said they experienced an 
adverse job outcome, such as being fired, not hired or denied a 
promotion because they were transgender or gender non-
conforming. Twenty-six percent of transgender Americans 
reported losing their jobs due to being transgender. Fifty 
percent of transgender Americans reported being harassed.\22\
---------------------------------------------------------------------------
    \22\Injustice at Every Turn, supra note 21 at 3.
---------------------------------------------------------------------------
    
 This year, the GAO found that in States that had 
laws protecting LGBT Americans from discrimination in the 
workplace, 4,991 administrative complaints were filed between 
2007-12 alleging discrimination based on sexual 
orientation.\23\
---------------------------------------------------------------------------
    \23\U.S. Gov't Accountability Office, GAO-13-700R, Update on State 
Statutes and Administrative Complaint Data on Employment Discrimination 
Based on Sexual Orientation and Gender Identity (2013); U.S. Gov't 
Accountability Office, GAO-10-135R, Sexual Orientation and Gender 
Identity Employment Discrimination: Overview of State Statutes and 
Complaint Data (2009) (noting over 2,300 complaints filed between 2006-
8 alleging discrimination based on sexual orientation or gender 
identity).

    Importantly, this problem does not just impact the private 
sector. Twenty-five percent of lesbian, gay, and bisexual 
individuals who were employed by Federal, State, or local 
government reported having experienced employment 
discrimination because of their sexual orientation. A 2009 
Williams Institute report found more than 380 documented 
examples of workplace discrimination by State and local 
employers from 1980 through 2009. The American Civil Liberties 
Union (ACLU) identified 87 examples of discrimination from 35 
States, including inquiries from LGBT employees alleging 16 
examples of discrimination by States and 48 stories of 
discrimination by municipalities in just one 18-month 
period.\24\
---------------------------------------------------------------------------
    \24\Brad Sears, et al., Documenting Discrimination, supra note 21; 
Employment Non-Discrimination Act: Ensuring Opportunity for All 
Americans Before the S. Comm. on Health, Educ., Labor, and Pensions, 
111th Cong. 129-43 (2009) (statement of ACLU). See also supra at 147 
(written statement of Gay & Lesbian Advocates & Defenders (``GLAD'')) 
(listing examples of employment discrimination against State employees; 
supra at 164 (written statement of LAMBDA legal); supra at 177 (written 
statement of National Center for Lesbian Rights); supra at 79 (written 
statement of National Gay and Lesbian Task Force) (same).
---------------------------------------------------------------------------
    These statistics, moreover, grossly undercount the level of 
discrimination that exists. Since most States and localities do 
not explicitly provide redress for discrimination, most 
individuals have little reason to report discrimination. 
Moreover, even where there are laws and a complaint process, 
LGBT employees often are reluctant to use these processes 
because they must ``out'' themselves to members of the 
community or to future employers.\25\
---------------------------------------------------------------------------
    \25\As just one example, in California, two-thirds of transgender 
Californians reported some form of workplace harassment or 
discrimination, but only 15 percent of those transgender Californians 
filed a complaint with the State. See 2009 Hearing, supra note 24 at 
90-1 (written statement of Transgender Law Center); also Kerrigan, 957 
A.3d at 446 n.40 (``Because of the immediate and severe opprobrium 
often manifested against homosexuals once so identified publicly, 
members of this group are particularly powerless to pursue their rights 
openly in the political arena.'' (quoting Rowland v. Mad River Local 
Sch. Dist., 470 U.S. 10009, 101 (1985) (Brennan, J., dissenting)); 2009 
Hearing, supra note 24, at 164 (written statement of LAMBDA Legal) 
(``For each year from 2004 to 2007, we received more calls regarding 
LGBT workplace discrimination than any other single issue. In each of 
those years, we received between 900 and 1,100 employment 
discrimination calls. Based on our experience with our legal help desk, 
we can say with confidence that these remarkable figures certainly 
understate the prevalence of the problem. Over the years, we have 
learned many reasons why employees choose not to pursue legal action, 
including that many people know how few legal remedies exist in most 
jurisdictions, and many others are afraid to come out publicly and 
therefore refrain from even considering pursuit of legal action.'')
---------------------------------------------------------------------------
    To learn more about the widespread and persistent 
discrimination faced by LGBT Americans, in recent years the 
committee heard testimony from individuals who directly 
experienced discrimination.
    In 2009, the committee heard from Michael Carney, a highly 
decorated police officer who was denied reinstatement to the 
Springfield, MA, police department because he is gay. Despite 
his solid record as an officer, and despite the police chief's 
recommendation, Carney was denied re-instatement three times 
after informing the police commission that he was gay. 
Fortunately for Mr. Carney, Massachusetts has a law prohibiting 
such discrimination. 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. Mr. Carney's 
experience demonstrates that State and local government 
employers continue to discriminate against LGBT workers, even 
though such discrimination is completely irrational and serves 
no conceivable government purpose.
    The committee also heard from Kylar Broadus. Mr. Broadus 
worked for a major financial institution. After he announced 
his gender transition, within 6 months he was constructively 
discharged. He testified that he was harassed until he was 
forced to leave. He repeatedly received harassing telephone 
calls from his supervisor, received unrealistic work demands, 
and was even forbidden from talking with certain people. Mr. 
Broadus ultimately ``was forced out and unemployed.''
    In addition to the financial and economic impact of the 
discrimination, including the difficulties of finding any 
employment once he was forced out, Mr. Broadus testified to the 
emotional consequences of the discrimination. As he said,

        ``I suffer from post-traumatic stress as a result of 
        the harassment that I encountered in the workplace from 
        my employer, from not being allowed to change my name 
        or use the name I used, not being allowed to wear my 
        hair a certain way, not being allowed to dress as me.''

    He continued,

    ``I cannot emphasize this enough as I still sit here today 
without almost tears in my eyes, it is devastating, it is 
demoralizing, and dehumanizing to be put in that position.''

    As the record makes clear, cases such as these are not 
isolated.
    This widespread and persistent discrimination, moreover, 
has very real world consequences.
    First, as the record overwhelmingly demonstrates, 
intentional employment discrimination on the basis of sexual 
orientation and gender identity causes severe economic harm. 
LGBT workers experience significant wage disparities, higher 
unemployment rates, and inequitable benefits. For example:

    
 Twelve studies conducted in the last decade show 
that gay male workers are paid less on average than their 
heterosexual male co-workers. The wage gap identified in these 
studies varies between 10 percent and 32 percent of the 
heterosexual men's earnings.\26\
---------------------------------------------------------------------------
    \26\Evidence that ENDA will make a difference: studies demonstrate 
that both a pay gap and the differential treatment of gay applicants is 
less in States that have ENDA type laws. See generally Equality at 
Work: The Employment Non-Discrimination Act, Before the S. Comm. on 
Health, Educ., Labor, and Pensions, 112th Cong. (2012) (testimony of 
M.V. Lee Badgett).
---------------------------------------------------------------------------
    
 Lesbian couples have a poverty rate of 6.9 percent 
compared to 5.4 percent for different-sex married couples. 
Poverty rates for children of same-sex couples are twice as 
high as poverty rates for children of married heterosexual 
couples.\27\
---------------------------------------------------------------------------
    \27\M.V. Lee Badgett et al., Williams Institute, Bias in the 
Workplace: Consistent Evidence of Sexual Orientation and Gender 
Identity Discrimination (2007); see also Randy Albelda et al., Williams 
Institute, Poverty in the Lesbian, Gay, and Bisexual Community (2009).
---------------------------------------------------------------------------
    
 Transgender respondents to a 2011 national survey 
were unemployed at twice the rate of the general population, 
and 15 percent reported a household income of under $10,000 a 
year, nearly four times the rate for the general 
population.\28\
---------------------------------------------------------------------------
    \28\Jamie M. Grant et al., Injustice at Every Turn: A Report of the 
National Transgender Discrimination Survey 18 (2011).
---------------------------------------------------------------------------
    
 Studies find that lesbians are more likely to live 
in poverty than are heterosexual women. For example, 24 percent 
of lesbians and bisexual women are living in poverty, compared 
to 19 percent of heterosexual women.\29\
---------------------------------------------------------------------------
    \29\Movement Advancement Project, American Progress, and Human 
Rights Campaign. A BROKEN BARGAIN: Discrimination, fewer Benefits, and 
More Taxes for LGBTQ Workers 8 (June 2013).

    In addition, LGBT workers tend to experience a 
substantially impaired ability to obtain employment-related 
benefits, including health insurance. As just one example, 
transgender Americans are uninsured at the same rate of the 
general population, but only 40 percent enjoy employer-based 
insurance coverage compared to 62 percent of the population at 
large. Without stable employment, income and access to jobs, 
the effects of discrimination are therefore felt in almost 
every aspect of life.\30\
---------------------------------------------------------------------------
    \30\2009 Hearing, supra note 24, at 95.
---------------------------------------------------------------------------
    This economic impact of discrimination, moreover, does not 
just impact individual LGBT Americans. Data show that 37 
percent of LGBT adults have had a child and between 2 million 
and 2.8 million American children are being raised by LGBT 
parents.\31\ Like other parents, LGBT parents need to work to 
support their families. Nevertheless, substantial numbers live 
in States where there is no explicit protection from workplace 
discrimination based on sexual orientation and gender identity. 
For these families, workplace discrimination has devastating 
consequences for the families that depend on them.\32\
---------------------------------------------------------------------------
    \31\Movement Advancement Project, supra note 29 at 6.
    \32\2009 Hearing, supra note 24, at 89 (testimony of Jennifer 
Chrisler, executive director, Family Equity Council).
---------------------------------------------------------------------------
    Such discrimination also impacts businesses and the economy 
as a whole. As Ken Charles, vice president of Diversity and 
Inclusion of General Mills, Inc., testified,

          ``[t]here is a real cost that all U.S. companies are 
        paying right now in terms of loss of engagement when 
        employees are in fear, loss of productivity when they 
        cannot concentrate on bringing their whole self to 
        their work every day, and loss of talent because of 
        these artificial barriers to entry.''\33\
---------------------------------------------------------------------------
    \33\2012 Hearing, supra note 26 at 56.

    The National Center on Employment Policies calculated that 
discrimination against LGBT employees translated into a $47 
million loss in profits attributable to training expenditures 
and unemployment benefits alone. Not including outright 
terminations, it has been projected that hostile work 
environments cost companies $1.4 billion in lost output each 
year because of a reduction in LGBT workers' productivity.\34\
---------------------------------------------------------------------------
    \34\2009 Hearing, supra note 24 at 186 (statement of Parents, 
Families and Friends of Lesbians and Gays (PFLAG) National).
---------------------------------------------------------------------------
    Second, in addition to severe economic consequences, the 
discrimination and/or fear of discrimination that LGBT workers 
face fosters hostile work environments and causes severe 
psychological impact.
    According to the American Psychological Association, 
researchers have found that LGBT workers suffer psychological 
distress because they are often persecuted and in constant 
state of fear of being discovered. `Research has indicated that 
social stigma based upon sexual orientation may be a risk 
factor for psychological depression, and anxiety.'' Kylar 
Broadus testified that he continues to suffer from post-
traumatic stress as a result of the harassment and 
discrimination he faced.

                  B. EXISTING LAWS ARE NOT SUFFICIENT

    Seventeen States and the District of Columbia currently 
explicitly prohibit workplace discrimination based on sexual 
orientation or gender identity. Another four States prohibit 
workplace discrimination based on sexual orientation but do not 
include a prohibition on gender identity. In addition, 88 
percent of Fortune 500 companies include sexual orientation in 
their nondiscrimination policies, and 57 percent include gender 
identity. Many other companies, colleges, universities, State 
and local governments have non-discrimination policies 
encompassing sexual orientation and gender identity.
    These explicit State and local laws apply to only 40 
percent of the population. This leaves 60 percent of Americans 
without critical, explicit job protections.
    Moreover, a number of Federal courts, and the EEOC, have 
found protections for some LGBT individuals under title VII's 
prohibition on discrimination on the basis of sex.\35\ 
Nevertheless, there remains uncertainty in the courts regarding 
the protection of LGBT individuals under title VII.
---------------------------------------------------------------------------
    \35\See, e.g., Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); 
Kastl v. Maricopa Cnty Cmty Coll. Dist., 325 Fed. App'x. 492 (9th Cir. 
2009); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); 
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008); Macy v. 
Holder, 2012 WL 1435995 (E.E.O.C. April 20, 2012); Castello v. Donahoe, 
2011 WL 6960810 (E.E.O.C. Dec. 20, 2011); Veretto v. Donahoe, 2011 WL 
2663401 (EEOC July 1, 2011).
---------------------------------------------------------------------------
    The committee believes that in order to provide clear and 
certain protection for all LGBT workers, such protections 
should be explicitly written into the law.

                       C. ENDA HAS BROAD SUPPORT

    Overwhelming majorities have indicated that they believe 
that LGBT Americans should have equal rights in terms of job 
opportunities, and that they support ENDA. In a 2011 poll, 73 
percent of voters expressed support for LGBT workplace 
nondiscrimination protections. Indeed, 89 percent of Americans 
believe such protections already exist.\36\
---------------------------------------------------------------------------
    \36\Jeff Krehely, Center for American Progress, Polls Show Huge 
Public Support for Gay and Transgender Workplace Protections (June 2, 
2011).
---------------------------------------------------------------------------
    In addition to the broad support this legislation enjoys 
among the American public, corporate America supports ENDA. 
Many of our Nation's most successful companies have 
specifically endorsed the bill including: Accenture, Ltd., 
Alcoa Inc., American Eagle Outfitters Inc., American Institute 
of Architects, Ameriprise Financial Inc., Amgen Inc, AMR Corp. 
(American Airlines), Bank of America Corp., The Bank of New 
York Mellon Corp., Barclays, BASF Corp., Bausch & Lomb Inc., 
Best Buy Co. Inc, Bingham McCutchen LLP, BMC Software Inc., 
Boehringer Ingelheim Pharmaceuticals Inc., BP America Inc., 
Bristol-Myers Squibb Co., CA Technologies Inc., Caesars 
Entertainment Corp., Capital One Financial Corp., CC Media 
Holdings Inc. (Clear Channel), Charles Schwab & Co., Chevron 
Corp., Choice Hotels International Inc., Chubb Corp., Cisco 
Systems Inc., Citigroup, Clorox Co., The Coca-Cola Co., Corning 
Inc., Darden Restaurants Inc., Dell Inc., Deloitte LLP, 
Deutsche Bank, Diageo North America, Dow Chemical Co., Eastman 
Kodak Co., Electronic Arts Inc., Eli Lilly & Co., EMC Corp., 
Ernst & Young LLP, Expedia Inc., Gap Inc., General Mills Inc., 
General Motors Corp., GlaxoSmithKline, Goldman Sachs Group 
Inc., Google Inc., Hanover Direct Inc., Herman Miller Inc., 
Hewlett-Packard Co., Hillshire Brands Co., Hilton Worldwide, 
Hospira Inc., HSBC, Hyatt Hotels Corp., Integrity Staffing 
Solutions Inc., InterContinental Hotels Group Americas, 
International Business Machines Corp., Jenner & Block LLP, 
JPMorgan Chase & Co., Kaiser Permanente, KeyCorp, Kimpton Hotel 
& Restaurant Group, KPMG LLP, Levi Strauss & Co., Marriott 
International Inc., Marsh & McLennan Companies Inc., Merck & 
Co. Inc., Microsoft Corp., MillerCoors Brewing Co., Mitchell 
Gold + Bob Williams, Morgan Stanley, Motorola Inc., Nationwide, 
The Nielsen Co., Nike Inc., Oracle Corp., Orbitz Worldwide 
Inc., Pfizer Inc., Pricewaterhouse-
Coopers LLP, QUALCOMM Inc., RBC Wealth Management, Replacements 
Ltd., Robins, Kaplan, Miller & Ciresi LLP, Ryder System Inc., 
Self-Help Credit Union Durham, SUPERVALU Inc., Teachers 
Insurance and Annuity Association, College Retirement Equities 
Fund, Tech Data Corp., Texas Instruments Inc., Thomson Reuters, 
Time Warner Inc., Travelers Companies Inc., US Airways Group 
Inc., WellPoint Inc., Wells Fargo & Co., Whirlpool Corp., Xerox 
Corp., and Yahoo! Inc.
    Corporate leaders believe that ENDA is not only the right 
thing to do, but is also good for business. Kenneth Charles, 
vice president at General Mills testified,

          ``ENDA will be good for business and good for 
        American by helping businesses attract and retain top 
        talent, helping provide a safe, comfortable and 
        productive work environment, free from any form of 
        discrimination, and helping create a culture that 
        fosters creativity and innovation that is vital to the 
        success of all businesses.''

    Likewise, Virginia Nguyen, vice president of Nike, 
testified that, ``ENDA is good for business.'' Robb Webb, chief 
human resources officer at Hyatt, wrote,

          ``[W]e believe that including sexual orientation and 
        gender identity protection in workplace non-
        discrimination legislation will have a positive impact 
        on our country's ability to compete on the world 
        stage.''

    While small businesses with less than 15 employees are 
exempt from ENDA, small businesses also support ENDA. A 2013 
poll found that 67 percent of small business owners support the 
bill. In fact, 81 percent of small business owners mistakenly 
believe that it is already illegal under Federal law to fire or 
refuse to hire someone because they are gay or lesbian.
    One reason businesses support ENDA is because, they note, 
the Act is unlikely to lead to excessive litigation. In a 2013 
report, the General Accounting Office wrote,

          ``the administrative complaint data reported by 
        States for 2007 through 2012 show relatively few 
        employment discrimination complaints based on sexual 
        orientation and gender identity.''

    Indeed, LGBT people are about as likely to file 
discrimination complaints as are people in groups that are 
currently protected against discrimination under Federal 
law.\37\
---------------------------------------------------------------------------
    \37\Indeed, adjusted for the population size of different groups, 
LGBT individuals are as likely to file complaints as women and people 
of color. The annual rate of complaints was 4.7 per 10,000 LGBT people 
on average in the States with LGBT protections, a number similar to the 
number of sex discrimination complaints per woman (5.4 per 10,000 
women) and race-based complaints per person of color (6.5 per 10,000). 
See 2012 Hearing, supra note 26 (statement of M.V. Lee Badgett).
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    Finally, while religious organizations are not covered by 
ENDA, many religious organizations also support enactment of 
this legislation. Nearly 50 religious organizations wrote to 
the committee endorsing the legislation. These organizations 
wrote:

          ``As a nation, we cannot tolerate arbitrary 
        discrimination against millions of Americans just 
        because of who they are. Lesbian, gay, bisexual and 
        transgender (LGBT) people should be able to earn a 
        living, provide for their families and contribute to 
        society without fear that who they are or who they love 
        could cost them a job. . . . We call on you to pass 
        this important legislation without delay.''

    These religious leaders also noted that,

          ``any claims that ENDA harms religious liberty are 
        misplaced. ENDA broadly exempts from its scope houses 
        of worship as well as religiously affiliated 
        organizations. This exemption--which covers the same 
        religious organizations already exempted from the 
        religious discrimination provisions of Title VII of the 
        Civil Rights Act of 1964--should ensure that religious 
        freedom concerns don't hinder the passage of this 
        critical legislation.''

    The letter was signed by: Affirmation--Gay and Lesbian 
Mormons, African-American Ministers in Action, American Jewish 
Committee, Anti-Defamation League, The Association of Welcoming 
& Affirming Baptists, Bend the Arc Jewish Action, B'nai B'rith 
International, Brethren Mennonite Council for Lesbian, Gay, 
Bisexual and Transgender Interests, Call To Action, Central 
Conference of American Rabbis, Dignity USA, Disciples Home 
Missions, The Episcopal Church, Equally Blessed, Evangelical 
Lutheran Church in America, Friends Committee on National 
Legislation, The Global Justice Institute, Hadassah, the 
Women's Zionist Organization of America, Inc., Integrity USA, 
Jewish Council for Public Affairs, Jewish Labor Committee, 
Jewish Women International, Keshet, Metropolitan Community 
Churches, More Light Presbyterians, Mormons for Equality, 
Mormons Building Bridges, Muslims for Progressive Values, 
Nehirim, New Ways Ministry, Presbyterian Church (U.S.A.), The 
Rabbinical Assembly, Reconciling Works, Lutherans for Full 
Participation, The Reconstructionist Rabbinical Association, 
Reconstructionist Rabbinical College, Religious Coalition for 
Reproductive Choice, Religious Institute, Sikh American Legal 
Defense and Education Fund (SALDEF), Soulforce, The Evangelical 
Network, The Fellowship of Affirming Ministries, The Interfaith 
Alliance, Union for Reform Judaism, United Church of Christ, 
Justice and Witness Ministries, United Church of Christ, Office 
for Lesbian, Gay, Bisexual and Transgender Ministries, United 
Church of Christ, Wider Church Ministries, United Methodist, 
General Board of Church and Society, United Synagogue of 
Conservative Judaism.
    ENDA has also been endorsed by civil rights, religious, 
labor, and women's organizations.\38\
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    \38\See Letter from The Leadership Conference on Civil and Human 
Rights (July 8, 2013).
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          IX. The Visibility of ENDA's Protections Will Make 
                a Difference in the Lives of LGBT People

    Apart from the legal remedies that ENDA will provide 
workers who have been wrongly discriminated against on the 
basis of sexual orientation and gender identity, the committee 
believes that passage of legislation that explicitly prohibits 
discrimination on the basis of sexual orientation and gender 
identity will send a strong signal that in American workplaces, 
people should be judged on their skills, abilities and 
accomplishments.
    The bill will clearly articulate a national commitment to 
equal employment opportunity regardless of sexual orientation 
and gender identity. And, just as passage of legislation such 
as title VII and the ADA helped to change attitudes and 
diminish the social acceptability of bias, prejudice and 
bigotry, the committee believes passage of ENDA will make clear 
that lesbian, gay, bisexual and transgender Americans are 
equal, first-class citizens. They are fully recognized and 
welcomed as members of our American family.

                      X. Constitutional Authority

    Congress has the authority to enact ENDA through the 
Commerce Clause and the Fourteenth Amendment of the U.S. 
Constitution. In addition, the Act's authorization of 
individual suits against State government employers is derived 
from Congress' enforcement power under Section Five of the 
Fourteenth Amendment as well as Congress' spending power under 
Article I.\39\
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    \39\For a thorough discussion of Congress' authority to enact ENDA, 
see S. Rep. No. 107-341; H. Rep. No. 110-406.
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    Section 11 of ENDA makes unmistakable congressional intent 
to abrogate State sovereign immunity. It makes clear that 
States are not immune from suit for employment discrimination 
based on sexual orientation or gender identity. The committee 
strongly believes that section 11 is a valid exercise of 
congressional power under Article I and Section Five of the 
Fourteenth Amendment (``section five'') and that ENDA properly 
abrogates sovereign immunity.
    Section Five gives Congress the power to enforce the 
substantive provisions of the Fourteenth Amendment: ``The 
Congress shall have power to enforce, by appropriate 
legislation, the provision of this article.'' Pursuant to this 
authority, the Supreme Court has recognized that section five 
is an affirmative grant of legislative power to Congress, and 
it is well established that when Congress enacts anti-
discrimination legislation it has the power to abrogate State 
sovereign immunity in order to provide a private right of 
action for damages against States.\40\ Indeed, the Federal 
Government has long recognized that ensuring civil rights is 
essential to national citizenship and has properly enforced and 
protected those rights under section five.
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    \40\United States v. Georgia, 546 U.S. 151 (2006); Tennessee v. 
Lane, 541 U.S. 509 (2004); Nevada Dep't of Human Res. v. Hibbs, 538 
U.S. 721 (2003); Fitzgerald v. Bitzer, 427 U.S. 445 (1976).
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    Notably, Congress may legislate, using its authority under 
section five, to deter or remedy Federal constitutional 
violations even if, in the process, the legislation prohibits 
conduct which itself is not unconstitutional.\41\ Further, 
Congressional legislative authority under section five is 
broader than the language of the Fourteenth Amendment itself. 
Thus, Congress has the ability to deter and remedy conduct 
which is not itself forbidden by the Fourteenth Amendment.\42\
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    \41\City of Boerne v. Flores, 521 U.S. 507 (1997).
    \42\Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
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    The Supreme Court has recognized that section five 
authorizes Congress to adopt ``[l]egislation which deters or 
remedies constitutional violation[s].''\43\ In doing so, 
``Congress is not limited to mere legislative repetition of 
[the Supreme] Court's constitutional jurisprudence.''\44\ 
Congress's power under section five ``includes the authority 
both to remedy and to deter violations of rights guaranteed [by 
the Constitution] by prohibiting somewhat broader swath of 
conduct, including that which is not forbidden by the 
[Fourteenth] Amendment's own text.''\45\ Congress has ``a wide 
berth in devising appropriate remedial and preventive measures 
for unconstitutional actions.''\46\
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    \43\City of Boerne, 521 U.S. at 518.
    \44\Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 
(2001).
    \45\Garrett, 531 U.S. at 365.
    \46\Tennessee v. Lane, 541 U.S. 509, 520 (2004).
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    Congress has the power to ``enact prophylactic legislation 
proscribing practices that are discriminatory in effect, if not 
intent, to carry out the basic objectives of the Equal 
Protection Clause.''\47\ And, here, the committee believes ENDA 
is centrally designed to prohibit violations of the Equal 
Protection Clause. Indeed, ENDA implicates discrimination based 
on sex\48\ as well as discrimination based on sexual 
orientation and gender identity.
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    \47\Lane, 541 U.S. at 520.
    \48\See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 
2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Schwenk v. 
Hartford, 204 F.3d 1187 (9th Cir. 2000); Higgins v. New Balance Shoe 
Co., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., 
Inc., 187 F.3d 862 (8th Cir. 1999).
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    LGBT Americans have been, and continue to be, subject to 
pervasive, purposeful unequal treatment based on 
characteristics that are beyond the control of such individuals 
and result from stereotypical assumptions irrelevant to an 
individuals' ability to participate in, and contribute to, 
society. Such discrimination deprives hard-working Americans 
basic equal protection--the right to be judged on one's merits 
and not upon irrelevant factors such as sexual orientation or 
gender identity.
    As is clear from the record and this report, there is 
overwhelming evidence of discrimination by State actors against 
LGBT individuals, which remains widespread and pervasive.\49\ 
As the Iowa Supreme Court recently noted,
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    \49\The committee also notes the overwhelming evidence of 
discrimination by municipal and private actors as well, which are 
relevant to the section 5 inquiry. Lane, 541 U.S. 509 at 527 n.16, 528.

          ``The county does not, and could not in good faith, 
        dispute the historical reality that gay and lesbian 
        people as a group have long been the victims of 
        purposeful and invidious discrimination because of 
        their sexual orientation.''\50\
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    \50\Varnum, 763 N.W.2d at 889.

---------------------------------------------------------------------------
    As the Connecticut Supreme Court also recognized,

          ``There is no question . . . that gay persons 
        historically have been, and continue to be, the target 
        of purposeful and pernicious discrimination due solely 
        to their sexual orientation.''\51\
---------------------------------------------------------------------------
    \51\Kerrigan, 957 A.2d at 434.

    Indeed, until recently, State laws criminalized same-sex 
sodomy, which translated into barriers to employment.\52\ 
Additionally, States laws explicitly permitted employment 
discrimination based on sexual orientation and gender identity, 
for example in the context of public school teachers and law 
enforcement.\53\
---------------------------------------------------------------------------
    \52\See Lawrence v. Texas, 539 U.S. 558, 575-76 (2003) (``The Texas 
criminal conviction carries with it the other collateral consequences 
always following a conviction, such as notations on job application 
forms).''
    \53\See, e.g., Nat'l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 
1273 (10th Cir. 1984) (``we see no constitutional problem in the 
statute's permitting a teacher to be fired for engaging in `public 
homosexual activity.'''); States fired law enforcement officials. See, 
e.g., Clearfield City v. Dep't of Employment Sec., 663 P.2d 440, 443 
(Utah 1983).
---------------------------------------------------------------------------
    Moreover, after reviewing the long history of 
discrimination by State and local employers, Congress finds 
that the States do not possess even a rational basis for 
discriminating against LGBT workers because of their sexual 
orientation or gender identity. Any such discrimination by 
State and local governments is completely irrational. The 
intentional discrimination based on sexual orientation and 
gender identity in the State workforce is never justified by a 
legitimate State interest.
    The committee also believes ENDA is necessary to prohibit 
violations of the Due Process Clause. Indeed, the Supreme Court 
has ruled that LGBT Americans have a right to engage in 
intimate consensual sexual activity between adults, and such 
conduct falls within the liberty protected by the Due Process 
Clause of the Fourteenth Amendment.\54\
---------------------------------------------------------------------------
    \54\Lawrence, 539 U.S. 558.
---------------------------------------------------------------------------
    Moreover, the committee firmly believes abrogating immunity 
in private suits for damages under ENDA is congruent and 
proportional to the problem addressed by the Act. ENDA 
specifically targets the pattern of irrational and 
unconstitutional discrimination on the part of State and local 
employers and it is narrowly tailored. The Act exempts certain 
categories of employers from liability. ENDA has no application 
to the military. It exempts businesses with fewer than 15 
employees. It exempts religious organizations. ENDA also 
prohibits the imposition of affirmative action and the adoption 
of quotas or granting preferential treatment. Moreover, 
plaintiffs cannot bring disparate impact claims. Further, with 
regard to money damages, ENDA provides for the same caps that 
exist in title VII and to which the States are already subject. 
It does not provide for punitive damages in suits against State 
employers. Finally, it requires State employees to exhaust all 
administrative remedies before bringing an action for money 
damages in court.
    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. Thus, ENDA is a congruent and 
proportional response to the problem of workplace 
discrimination based on sexual orientation and gender identity.
    Finally, in addition to its authority under section five, 
Congress has the power to apply ENDA to 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. 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 or gender identity.

                          XI. Additional Views

       SENATORS ALEXANDER, ENZI, ISAKSON, PAUL, ROBERTS AND SCOTT

    We voted against this legislation when the committee 
considered it and continue to oppose this legislation.
    To begin with, the legislation has not proceeded through 
regular order, and as a result there are far too many 
unanswered questions about the text and its application to 
American workplaces. The HELP Committee held no hearing on S. 
815. Instead, the bill proceeded directly to markup 3 months 
after it was introduced. This bypass of regular order deprived 
Senators of the opportunity to ask questions about the bill's 
language and explain concerns about its real-world application.
    Although the committee has held hearings on similar 
legislation in past Congresses, the text of S. 815 is not 
identical to previous versions. Indeed, significant changes 
have been made. Further, the HELP Committee now has at least 
five members who were not committee members in these past 
Congresses. Therefore, they have had no opportunity to air 
concerns about any version of the bill.
    One such concern relates to the potential for fraudulent 
abuse of the protections this bill would provide. S. 815 makes 
no provisions for, nor seems to in any way acknowledge the 
potential for, nefarious abuse of employment protections and 
gender-specific area access privileges. This oversight creates 
a gaping hole which could leave employers powerless and 
confused about how to prevent abuse and protect fellow 
employees, customers, and others present at the workplace.
    Among other workplaces, we are concerned about the 
application of S. 815 in schools, preschools, and other 
institutions serving children. Issues with the use of shared 
facilities by transgender students have already arisen in 
several States\55\ under State laws unrelated to ENDA. Under 
these State statutes the courts have largely dismissed the 
concerns of schools, teachers, parents, and fellow students 
regarding safety issues for the peers of transgender students, 
setting a precedent that leaves these groups powerless to raise 
or resolve such concerns.

---------------------------------------------------------------------------
    \55\Maine, Colorado and California.
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    We are concerned that this will be repeated in workplaces 
around the country. S. 815 would force employers to ignore and 
silence the concerns of fellow employees, customers, and other 
users of their facilities. The repercussions of disregarding 
such concerns could be devastating to an employer.
    The lack of a legislative hearing on S. 815 also reveals 
itself in the bill's poorly defined or completely undefined 
terms. The bill language is too vague for employers to 
understand--specifically in regard to when mandated protections 
are triggered, what response is required by law, and the extent 
of the liability they may face.
    In general, we object to additional employer mandates that 
impose individual values upon society and send the bill to 
employers. By reporting out S. 815 without fully defining the 
terms used in the bill, or giving stakeholders a chance to ask 
about them during a legislative hearing, this committee has 
sent a disturbing message to employers, and we strongly 
disagree with it.
    For some employers, the mandates of this legislation would 
conflict with deeply held religious beliefs. As reported, the 
bill singles out specific classes of employers for total 
exemption based on religious beliefs, but disregards others 
whose religiously-based opposition to the bill's mandates may 
be just as sincere. In our view, there is little basis for this 
distinction.
    The bill raises additional concerns with us because, in 
creating a new protected class, it actually affords that new 
class with rights that are elevated above those granted to 
existing protected classes of race, sex, national origin, 
religion, age and disability. In addition to creating a class 
based on what many consider to be non-immutable 
characteristics, the bill also codifies employment protection 
rights for people who are not members of this new protected 
class, but who simply associate or have associated with members 
of the protected class.
    Finally, we oppose S. 815 because the legislation is not 
necessary. As noted, 17 States and the District of Columbia 
have adopted similar legislation, as well as a number of 
cities. Some large employers have also adopted voluntary 
provisions. If accurate, the polling data cited in this report 
would seem to indicate that more States may choose to adopt 
such statutes. That is their choice, and in our system of 
government they are thankfully free to make it. However, in 
those States where the citizens do not see the need for such 
legislation, the Federal Government should not mandate it 
against their will.
    It is also noted that employment protections for LGBT 
individuals have been granted under Title VII of the Civil 
Rights Act of 1964.\56\ Although not comprehensive, courts do 
have the power to extend such protections under certain 
circumstances.
---------------------------------------------------------------------------
    \56\Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) 
(``[D]iscrimination against a transgender individual because of her 
gender-nonconformity is sex discrimination, whether it's described as 
being on the basis of sex or gender ... These instances of 
discrimination against plaintiffs because they fail to act according to 
socially prescribed gender roles constitute discrimination under title 
VII according to the rationale of Price Waterhouse.''); Barnes v. City 
of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) (plaintiff 
``established that he was a member of a protected class by alleging 
discrimination against the city for his failure to conform to sex 
stereotypes''); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 
2004) (``sex stereotyping based on a person's gender non-conforming 
behavior is impermissible discrimination'' under title VII); Nichols v. 
Azteca Rest. Enter., Inc., 256 F.3d 864 (9th Cir. 2001) (holding that 
an effeminate male employee who was abused by co-workers because of 
their belief, he ``did not act as a man should act,'' could claim 
actionable harassment under title VII); Koren v. Ohio Bell Tel. Co., 
894 F. Supp. 2d 1032 (N.D. Ohio 2012) (employer discriminated on the 
basis of sex because male employee took his husband's last name).
---------------------------------------------------------------------------

                               Amendments

    During committee consideration of S. 815, five amendments 
were filed but not offered at the markup.
    To address the bill's lack of direction on the use of 
shared facilities, an amendment was filed which would allow 
employers to view each situation individually and develop a 
resolution which the individual employer believes is least 
disruptive to the workplace. We would have supported this 
amendment.
    Since the bill's drafters failed to define the various 
terms used in gender identity provisions of S. 815, an 
amendment was filed which would require the Equal Employment 
Opportunity Commission to issue regulations defining undefined 
terms in the bill before any employer could face liability. We 
would have supported that amendment.
    Another amendment was filed to strike language added in the 
manager's amendment to allow lawsuits even when an employer had 
a legitimate reason for the employment action and would have 
taken the same action with or without the discrimination based 
on sexual orientation or gender identity. We would have 
supported that amendment.
    Senator Enzi filed an amendment which would exempt all 
schools from S. 815, and we would have supported that 
amendment.
    Senator Paul filed an amendment which would replace the 
bill's selective religious exemption with a comprehensive 
religious exemption for religious employers. We would have 
supported that amendment.
    For these reasons, we voted against reporting out S. 815, 
and we continue to oppose the legislation.