A Senate committee last week held a hearing on a bill that seeks to ban employment discrimination against LGBT workers, which a representative of President Obama’s administration called a “top legislative priority” of the president.
The Senate Committee on Health, Education, Labor and Pensions heard testimony Nov. 5 from seven witnesses on the proposed Employment Nondiscrimination Act, which would make it illegal for employers to hire, fire or promote workers based on actual or perceived sexual orientation or gender identity.
“The issue here could not be more simple,” said committee chairman Sen. Tom Harkin (D-Iowa) at the beginning of the hearing. “We are talking about a fundamental American value — equal treatment for all — a principle that citizens who work hard, pay their taxes and contribute to their communities deserve fair treatment and should not be discriminated against.”
Notably, there were no Republican members of the 23-member committee present for the hearing, with only three Democrats taking part. The proceeding also did not include oral testimony from any transgender witnesses, although Diane Schroer, a transgender woman who successfully sued the Library of Congress, and transgender advocate Earline Budd spoke at a press conference prior to the hearing, alongside ENDA prime sponsor Sen. Jeff Merkley (D-Ore.).
Tom Perez, whom the Senate recently confirmed as the assistant attorney general for the Justice Department’s civil-rights division, testified on behalf of the Obama administration, saying his division regularly receives inquiries from LGBT Americans about workplace discrimination.
“It is painfully disappointing to have to tell these working men and women that, in the United States of America in 2009, they may well be without redress because our federal employment antidiscrimination laws either exclude them or fail clearly to protect them,” Perez said.
He likened the fight against LGBT-employment discrimination to the civil-rights battle of the 1960s and postured that, in that fight, true, sustainable change originated with the federal government in the form of the Civil Rights Act of 1964. Perez noted that 29 states, Pennsylvania included, do not offer employment protections for gay, lesbian and bisexual workers, and another 11 also do not ban discrimination against transgender employees.
Illinois Attorney General Lisa Madigan offered testimony on her state’s employment nondiscrimination law, which has been LGBT-inclusive since 2006, and which she said helped created a uniform business standard for the state. She said the law has encountered little backlash from employers, had no effect on religious freedoms within the state — noting that only a handful of the sexual-orientation complaints have been filed against religious institutions — and that the legislation has helped to “promote tolerance, fundamental equality and common humanity of all individuals” in Illinois.
Helen Norton, professor of law at the University of Colorado, presented a litany of examples of LGBT workplace discrimination and noted that, while some courts have held this type of discrimination can be included under the Civil Rights Act’s Title VII stipulation that bars discrimination based on sex, many courts do not interpret the law in this way, necessitating a comprehensive law that specifically bans LGBT discrimination.
More than 85 percent of Fortune 500 companies prohibit discrimination based on sexual orientation, while a third of those organizations also ban gender-identity discrimination. Virginia Nguyen, a member of the diversity and inclusion team at athletic manufacturer Nike, said her company’s nondiscrimination policy has helped to attract and retain the best and brightest employees and foster a sense of tolerance and acceptance, which fuels workplace morale.
Mike Carney, a police officer from Springfield, Mass., presented his own story of employment discrimination to the committee. Carney, a founder of Gay Officers Action League of New England, filed the first complaint of sexual-orientation discrimination against a law-enforcement agency in Massachusetts. Carney resigned from the force early in his career because of the strong antigay sentiment he encountered, but several years later attempted to reapply and was denied numerous times. The Massachusetts Commission Against Discrimination, which investigates bias claims based on such factors as sexual orientation and gender identity, found probable cause in his complaint, and he was later reinstated.
“Had I not been successful in fighting the bias that tried to prevent me from working, all the good that I have done for some of the most vulnerable people in my community would never have happened,” Carney said. “Workplace discrimination impacts the lives of everyone. It deprives people of jobs and safe working conditions, robs the federal government of an exceptional pool of specialists and robs our citizens of services they would have received from talented and dedicated GLBT workers.”
Testifying against ENDA was Craig Parshall, vice president and general counsel of the National Religious Broadcasters Association, who proffered that, despite ENDA’s religious exemption, the bill “would impose a substantial, unconstitutional burden on religious organizations and would interfere with their ability to effectively pursue their mission.”
Employment attorney Camille Olson, of Seyfarth Shaw LLP, also testified that ENDA needs to provide further clarification to employers on the bill’s stipulation that companies would have to offer transgender individuals “reasonable access to adequate facilities,” namely restrooms.
Harkin responded to her comments that the bill should only offer “broad guidance” and that “no legislation can cover every conceivable” situation.
ENDA, which has been introduced in every Congressional session since 1994 besides one, last came before a Senate panel in 2002, although that version was not inclusive of gender identity.
The U.S. House of Representatives approved ENDA in November 2007 only after it had been stripped of gender-identity protections. That version of the bill died in the Senate.
Merkley introduced ENDA in August, and the bill currently has 42 cosponsors. Harkin said he expects the Senate to take action on the bill in the spring.
Openly gay U.S. Rep. Barney Frank (D-Mass.) introduced ENDA in the House in June, and it has so far garnered cosponsorship from 189 legislators.
Jen Colletta can be reached at [email protected].