The Employment Non-Discrimination Act (ENDA) is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.
ENDA has been introduced in every Congress since 1994 (except the 109th) while previous employment anti-discrimination legislation has been proposed since 1974.[1] The bill gained its best chance at passing after the Democratic Party broke twelve years of Republican Congressional rule in the 2006 midterm elections. In 2007, gender identity protections were added to the legislation for the first time ever. However, some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion, and dropped it from the bill, which passed and subsequently died in the Senate. LGBT advocacy organizations, and the community, were divided over support of the changed bill.
In 2009, on the heels of the 2008 elections that strengthened the Democratic majority, and after the divisiveness of the 2007 debate, a transgender-inclusive ENDA was introduced by House representative Barney Frank. Frank reintroduced the bill in 2011. Shortly thereafter, the bill was introduced in the Senate by Jeff Merkley.
President Barack Obama supports the bill's passage; former President George W. Bush threatened to veto the measure.
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Evidence Discrimination based on sexual orientation occurs at a similar rate as sex and race at 4.7 per 10,000, as compared to discrimination based on sex at 5.4 and race at 6.5.[2] In states that have discrimination policies in place, LGB complaints are equivalent to the number of complaints filed based on sex and less than the number of complaints filed based on race.[3]
The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government. Thirty percent of state and local LGBT employees live in California and New York. In comparison, LGB people make up only one half of one percent of state and local employees in Montana, North Dakota and Wyoming combined.[4] This suggests that the need for policy to address discrimination may vary across the country. Surveys which seek to document discrimination on the basis of perceived sexual orientation and/or gender identity are often conducted with a pool of self identified LGBT people, making it difficult to ascertain the impact of this type of discrimination on non-LGBT individuals.
Transgender people may experience higher rates of discrimination than the LGB population. A survey of transgender and gender non-conforming people Conducted by the National Center for Transgender Equality found 90 percent of respondents experienced harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it.[5] In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.[6]
It is unclear whether LGBT individuals earn more or less than the general population. In a survey conducted by Harris Interactive, 38 percent of LGBT people report incomes less than $35,000,compared to 33 of all US adults over age 18.[7] Some organizations believe that no such gap exists, and that LGBT people may in fact have higher incomes than non-LGBT families. The American Family Association (AFA) argues that homosexuals as a class enjoy privileged, rather than disadvantaged economic and cultural positions in society and that their household income is above average.[8]
Wisconsin was the first state to ban employment discrimination based on sexual orientation, in 1982, while Minnesota was the first state to ban employment discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993.[9] Currently, 16 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment: California,[10] Colorado,[11] Connecticut, Hawaii,[12] Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada,[13] New Jersey (see Law Against Discrimination), New Mexico, Oregon, Rhode Island, Vermont, and Washington in the public and private sector. An additional five states -- Delaware,[14][15] Maryland, New Hampshire, New York, and Wisconsin -- have state laws that protect against discrimination based on sexual orientation only.
Five states have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity: Indiana, Kansas, Kentucky, Michigan, and Pennsylvania. Delaware, Maryland, and New York prohibit discrimination based on gender identity in public employment only. An additional five states prohibit discrimination against public employees based on sexual orientation only: Alaska, Arizona, Missouri [16], Montana and Ohio. Ohio previously included gender identity, Governor Kasich let this executive order expire in January 2011.[17]
Fifteen other states have laws[18] that have been interpreted to protect transgender persons.
A number of cities and counties have implemented non-discrimination laws. As of April 27, 2011, at least 137 cities and counties prohibit discrimination on the basis of gender identity for both public and private employees. By and large, these city and county laws exist in states that already have a statewide non-discrimination policy for sexual orientation and/or gender identity. However, this is not true in all cases. The following localities have local laws prohibiting discrimination on the basis of gender identity in the absence of a comparable state law:[19]
As with other employers in most states, there is no federal statute addressing employment discrimination based on sexual orientation or gender identity in the federal government. However, in 1998, the administration of President Bill Clinton interpreted the Civil Service Reform Act of 1978, prohibiting federal government workplace discrimination "on the basis of conduct not related to job performance", as meaning sexual orientation [as a factor not related to job performance], and issued an executive order to more strongly cover the executive branch, over which the President has more control.[20] In 2009 Barack Obama did the same for gender identity[21]. However, remedies pursued under this law are limited.[22]
Many large companies already provide equal rights and benefits to their lesbian, gay, bisexual and transgender employees, as measured by the Human Rights Campaign (HRC) through their Corporate Equality Index. The 2011 report found that 337 large companies received a 100% rating.[23] These businesses employ a total of over 8.3 million full-time U.S. workers.[24] When the Rights Campaign’s Corporate Equality Index was first utilized in 2002, 13 companies were rated 100 percent.[25] Additionally, each year, corporations send thousands of employees to the Out & Equal Regional Summit, a conference that intends to create a more inclusive work environment for lesbian, gay, bisexual and transgender employees.[26] Furthermore, there are workplace resources for how allies can create a more inclusive work environment, including programs available through PFLAG and the Out & Equal publication, Allies at Work, by David M. Hall.[27]
Widespread adoption of private workplace policies may be motivated by good business sense, the Williams Institute suggests. Its conclusion is based on a set of studies that show that lesbians and gay men who have come out at work report lower levels of anxiety, less conflict between work and personal life, greater job satisfaction, more sharing of employers' goals, higher levels of satisfaction with their co-workers, more self-esteem, and better physical health.[28]
The current version of the bill under consideration in Congress would prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity.
Religious organizations are provided a special exception to this protection, similar to the principles of the Civil Rights Act. Non-profit membership-only clubs (except labor unions) are likewise not bound to this rule.
The bill defines that service in the military is not "employment" and thus it does not affect the Don't ask, don't tell (DADT) policy of the United States military. DADT was repealed by the Don't Ask, Don't Tell Repeal Act of 2010, signed by President Barack Obama on December 22, 2010. DADT will remain in place until President Obama, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff can certify that repeal will not harm military readiness, followed by a 60-day waiting period. On April 8, 2011, Adm. Gary Roughead, chief of naval operations reported to the House Armed Services Committee that "Our training is going very well." "In those areas that we detected that there may be some areas of moderate risk...it is not at the level that we had originally forecasted." The training may be completed as early as June 2011.[29]
While the first bill on the subject of sexual orientation discrimination was introduced in Congress in 1974, the first bill using the current title of "Employment Non-Discrimination Act" was introduced in 1994. It failed in 1994 and 1995, though by 1996, missed passage in the Senate by a 49-50 vote.[30] Versions of ENDA introduced in the 103rd through 108th Congresses did not include provisions that protect transgender people from discrimination.[31]
ENDA was not introduced in the 109th Congress.
In the 110th United States Congress there were two versions of the bill:
Under both versions, the bill provided employment protections similar to those of the Civil Rights Act of 1964[33] (the employment section is also known as "Title VII"), but specifically directed to gay, lesbian, bisexual (and under HR 2015, transgender) employees. The bills were different from Title VII in that they contained exemptions concerning employer dress codes.
H.R. 2015 does contain provisions that protect transgender people from discrimination, including a specific definition of gender identity, as well as exemptions for employer dress codes and locker rooms[34] The bill defines gender identity as "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." The bill also specifically allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."
After H.R. 2015 died in committee, Frank proposed two new bills: one that contained only prohibitions on sexual orientation discrimination, H.R. 3685, and a second that contained only prohibitions on gender identity discrimination.[35] Some LGBT activist organizations responded by refusing to support H.R. 3685.[36][37] An exception was the Human Rights Campaign.[38]
Some in the LGBT community argued that not including transgender people would undermine the underlying principle of ENDA, which is that fairness is a fundamental American principle.[39] In addition, they claimed that failure to include gender identity/expression would weaken the protection for the portion of the gay population that they felt needed it most: gender non-conforming gays, who they claimed are discriminated against in greater numbers than their gender-conforming compatriots. Others in the community argued that this was ENDA's best chance of passing Congress since the bill was conceived thirty years ago, that civil rights victories have historically always been incremental, that concerns about the legislation's protections were unfounded, and that forgoing a chance to immediately provide workplace protections to millions of lesbian, gay and bisexual Americans was both politically and morally wrong.[40]
The Washington Blade reported on June 17, 2009 that Rep. Barney Frank (D-MA) had announced plans to introduce an ENDA bill (H.R. 2981) that includes gender identity in June 2009, with original cosponsors slated to include 4 Republicans.[41] The lead Republican cosponsor is Rep. Ileana Ros-Lehtinen (R-FL).[41]
On June 24, 2009, Rep. Barney Frank introduced H.R. 3017 to ban workplace discrimination based on sexual orientation and gender identity.[42] The Advocate reported that "the 2009 Employment Nondiscrimination Act (ENDA) has 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007." [42] Republican Main Street Partnership members Mark Kirk (R-IL), Mike Castle (R-DE), Todd Russell Platts (R-PA), Judy Biggert (R-IL), and Leonard Lance (R-NJ) were among the original cosponsors.[43] Earlier in June Frank had introduced H.R. 2981 for the same purpose.[44] H.R. 3017 was referred to the House Education and Labor Committee; a hearing was held before the committee on September 23, 2009[45] but no further action was taken.
At the end of the 111th Congress, H.R. 3017 had 203 cosponsors in the House.[46]
The Washington Blade reported on August 5, 2009 that Sen. Jeff Merkley introduced an ENDA bill (S. 1584) that included gender identity, with 38 original cosponsors[47] including Sens. Ted Kennedy (D-MA), Susan Collins (R-ME), Olympia Snowe (R-ME) and Chris Dodd (D-CT), according to a statement released by Merkley’s office.[48] Sen. Merkley was quoted by The Advocate as noting that while he has yet to consult with others, “[i]t’s certainly possible that this could be passed by year’s end, though the [congressional] schedule is very crowded."[49]
Blue Oregon, a progressive Oregon blog, commented on the suitability of Sen. Merkley to be lead sponsor of ENDA, noting that as Speaker of the Oregon House of Representatives Merkley had successfully guided Oregon's state version of ENDA, the Oregon Equality Act, to become law.[50]
As of March 13, 2010, S. 1584 had 45 co-sponsors and was pending before the Health, Education, Labor, and Pensions (HELP) Committee.[47] A hearing was held before the committee on November 5, 2009.[51]
On April 6, 2011, Rep. Barney Frank introduced an ENDA bill (H.R. 1397) to the 112th Congress House of Representatives to ban workplace discrimination based on sexual orientation and gender identity.[52]
On April 14, 2011, Sen. Jeff Merkley introduced an ENDA bill (S. 811) to the 112th Congress Senate[53]. The bill had 39 original cosponsors.
Most proponents of the law intend it to address cases where gay, lesbian, bisexual, and transgender employees have been discriminated against by their employers because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the United States Constitution's guarantees of equal protection and due process to all. Advocates argue that homosexuality is not a “choice” but a personal identity, a claim supported by the American Psychology Association (APA), and that all working people have a right to be judged by the quality of their work performance and not by completely unrelated factors.[54] According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender.[55] The APA also states that there is significant discrimination against homosexuals in the workforce.[54] There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.[56]
Cost estimates from the Congressional Budget Office from 2002 show that the EEOC estimated that their complaint caseload would rise by only 5 to 7%.[57] Assessments of the impact of comparable state policies also show a minimal impact on caseload.[58] Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964,[33] which has consistently been upheld by the courts.
Opponents of ENDA sometimes argue that gay people should not be considered a “protected class of employees” by law.[59] However, ENDA would not protect "homosexuals" as a class; rather, the law would ban discrimination in employment based on any sexual orientation (including heterosexual orientation). Consumer surveys show that self-identified gay individuals likely have higher incomes than the average US household,[60] and ENDA opponents argue that many gay people hold positions of cultural influence as well.[59] The conservative Christian organization American Family Association's (AFA) Journal concluded in 2007 that there was “no real problem of discrimination against homosexuals.”[59] Additionally, AFA is concerned about how non-discrimination laws impact religious organizations. The organization cites a lack of clarity around whether the narrow exemption would apply to support staff and lay employees in addition to churches and clergy.[61]
The Traditional Values Coalition bases its argument against additional legal protections for gender identity on fears that it will have a negative impact on school children, claiming that ENDA would threaten a stable and supportive learning environment. A non-discrimination policy would eliminate schools' ability to discriminate against transgender teachers. Likewise, the Traditional Values Coalition is concerned that parents are not being adequately informed of the presence of transgender teachers in their children's classrooms.[62] It argues that children should not be “subjected to [a transgendered] man’s [sic] bizarre sexual transformation,” as it claims transgender individuals are “seriously mentally disturbed.” The Traditional Values Coalition argues that individuals cannot change their sex, even with surgery, and do not believe it is possible to successfully transition from one sex to another.[63]
On May 14, 1974, the fifth anniversary of the Stonewall Rebellion, Representatives Bella Abzug and Ed Koch[64] introduced H.R. 14752, the "Gay Rights Bill." The bill would have added "sexual orientation" to the Civil Rights Act of 1964.
In the early 1990s, a new strategy emerged. Rather than trying to obtain all of the rights in the Civil Rights Act, the legislative efforts focused on employment rights, and the "Equality Act" was renamed the "Employment Non-Discrimination Act," (H.R. 4636/S.2238) and introduced by Rep. Gerry Studds on June 23, 1994. [Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).] The legislation failed in 1994 and 1995.[65] In 1996, the bill came within one vote passage in the Senate and was not voted on in the House,[66] its success perhaps spurred by backlash from the recently passed DOMA, the "Defense of Marriage Act" that permitted the states and mandated the federal government to ignore same sex marriages from other states. HRC sets out the timeline of ENDA introductions.
| Congress | Short title | Bill number(s) | Gender identity included? | Date introduced | Sponsor(s) | # of cosponsors | Latest status |
|---|---|---|---|---|---|---|---|
| 112th Congress | Employment Non-Discrimination Act | H.R. 1397 | Yes | April 6, 2011 | Rep. Barney Frank (D-MA) | 154 | Referred to the Education and the Workforce, House Administration, Oversight and Government Reform, and Judiciary committees. |
| S. 811 | Yes | April 14, 2011 | Sen. Jeff Merkley (D-OR) | 41 | Referred to the Health, Education, Labor, and Pensions committee. | ||
| 111th Congress | Employment Non-Discrimination Act of 2009 | H.R. 3017 | Yes | June 24, 2009 | Rep. Barney Frank (D-MA) | 203 | Died in the Judiciary, House Administration, Education and Labor, and Oversight and Government Reform committees. Hearings held September 23, 2009 in Education and Labor committee. |
| H.R. 2981 | Yes | June 19, 2009 | Rep. Barney Frank (D-MA) | 12 | Died in the House Judiciary Committee | ||
| S. 1584 | Yes | August 5, 2009 | Sen. Jeff Merkley (D-OR) | 45 | Died in the Senate Health, Education, Labor, and Pensions Committee Hearings held November 5, 2009. | ||
| 110th Congress | Employment Non-Discrimination Act of 2007 | H.R. 2015 | Yes | April 24, 2007 | Rep. Barney Frank (D-MA) | 184 | Died in the House Subcommittee on the Constitution, Civil Rights and Civil Liberties |
| H.R. 3681 | No | September 27, 2007 | Rep. Barney Frank (D-MA) | 9 | Passed the House (235–184), died in the Senate | ||
| 108th Congress | Employment Non-Discrimination Act of 2003 | H.R. 3285 | No | October 8, 2003 | Rep. Christopher Shays (R-CT) | 180 | Died in the House Subcommittee on Employer-Employee Relations |
| S. 1705 | No | October 2, 2003 | Sen. Ted Kennedy (D-MA) | 43 | Died in the Senate Committee on Health, Education, Labor, and Pensions | ||
| 107th Congress | Employment Non-Discrimination Act of 2001 | H.R. 2692 | No | July 31, 2001 | Rep. Christopher Shays (R-CT) | 193 | Died in the House Subcommittee on Employer-Employee Relations |
| S. 1284 | No | July 31, 2001 | Sen. Ted Kennedy (D-MA) | 44 | Died in the Senate | ||
| 106th Congress | Employment Non-Discrimination Act of 1999 | H.R. 2355 | No | June 24, 1999 | Rep. Christopher Shays (R-CT) | 173 | Died in the House Subcommittee on Employer-Employee Relations |
| S. 1276 | No | June 24, 1999 | Sen. Jim Jeffords (R-VT) | 36 | Died in the Senate Committee on Health, Education, Labor, and Pensions | ||
| 105th Congress | Employment Non-Discrimination Act of 1997 | H.R. 1858 | No | June 10, 1997 | Rep. Christopher Shays (R-CT) | 140 | Died in the House Subcommittee on Employer-Employee Relations |
| S. 869 | No | June 10, 1997 | Sen. Jim Jeffords (R-VT) | 34 | Died in the Senate Committee on Labor and Human Resources | ||
| 104th Congress | Employment Non-Discrimination Act of 1995 | H.R. 1863 | No | June 15, 1995 | Rep. Gerry Studds (D-MA) | 142 | Died in the House Subcommittee on the Constitution |
| S. 932 | No | June 15, 1995 | Sen. Jim Jeffords (R-VT) | 30 | Died in the Senate Committee on Labor and Human Resources | ||
| S. 2056 | No | September 5, 1996 | Sen. Ted Kennedy (D-MA) | 3 | Failed in Senate (49-50) | ||
| 103rd Congress | Employment Non-Discrimination Act of 1994 | H.R. 4636 | No | June 23, 1994 | Rep. Gerry Studds (D-MA) | 137 | Died in the House Subcommittee on Select Education and Civil Rights |
| S. 2238 | No | July 29, 1994 | Sen. Ted Kennedy (D-MA) | 30 | Died in the Senate Committee on Labor and Human Resources |