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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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\5\Roll Call vote No. 281.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\6\The Employment Non-Discrimination Act of 1997 Before the S.
Comm. on Labor and Human Res., 105th Cong. 279 (1997).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\7\The Employment Non-Discrimination Act Before the S. Comm. on
Health, Educ., Labor, and Pensions, 107th Cong. 307 (2002).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\15\EEOC v. Townley, 859 F.2d 610 (9th Cir. 1988).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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)))
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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.
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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\
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\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\
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\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).
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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\
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\54\Lawrence, 539 U.S. 558.
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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.
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\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.
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\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).
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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.
