Expand the Employment Non-Discrimination Act to include sexual orientation and gender identity

Employment Non-Discrimination Act ready for consideration in House, Senate

Updated: Monday, September 21st, 2009 | By Louis Jacobson

As a candidate, Barack Obama promised to "place the weight of (his) administration behind ... a fully inclusive Employment Non-Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity." This summer, lawmakers in the House and Senate introduced legislation to do just that.

The bills, known as ENDA for short, have been bubbling in Congress in one form or another for more than a decade. Broadly, the bills would make it illegal to fire, refuse to hire or refuse to promote an employee based on the employee's sexual orientation or gender identity.

Federal law already affords protections on the basis of race, religion, sex, national origin, age and disability; ENDA would have its most direct impact on the 29 states that do not offer any workplace discrimination protections for sexual orientation and the 38 states that offer no protections for transgender individuals. Exemptions are included for businesses with fewer than 15 employees, religious organizations and uniformed military personnel. It also precludes affirmative action and preferential treatment, and would not apply retroactively.

The gender identity provision is considered especially notable. In 2007, after the Democrats took the majority in the House, they offered legislation that included protections for transgender individuals as well as on the basis of sexual orientation, but after that provision sparked opposition, the sponsors removed the gender identity language. While some advocates for lesbian, gay, bisexual and transgender individuals complained about that move, the resulting bill passed the House by a 235-184 margin. The measure died when the Senate failed to act.

Now, with the election of a Democratic president who has expressed support for a more expansive bill, lawmakers in both chambers have offered ENDA bills with gender-identity provisions intact.

Rep. Barney Frank, D-Mass., is the primary sponsor of the House version, H.R. 3017. The measure had 117 original co-sponsors, including five Republican lead co-sponsors — Reps. Ileana Ros-Lehtinen of Florida, Mike Castle of Delaware, Mark Kirk of Illinois, Todd Platts of Pennsylvania and Leonard Lance of New Jersey.

The Senate version, S. 1584, is sponsored by Democratic Sen. Jeff Merkley of Oregon. It has been backed by two Republicans, Susan Collins and Olympia Snowe of Maine, with 38 original co-sponsors in all.

The House version is set to have a hearing at the House Education and Labor Committee on Sept. 23, 2009. An aide to Frank said the panel is expected to mark up and vote on the measure "soon after the hearing." No action has been scheduled in the Senate.

Both measures are still a long way from being ready for the president's signature — they must be passed in committee, approved by each chamber, and reconciled between the two chambers if necessary, all despite a crowded congressional calendar. In addition, conservatives are sure to raise concerns, particularly on the gender-identity provisions. Still, the groundwork has been laid for Obama's promise to become reality, so we consider it to be In the Works.

Sources: Rep. Barney Frank, "Reps. Frank, Baldwin and Polis Lead Introduction of the Employment Non-Discrimination Act (ENDA)" news release , June 24, 2009

Sen. Jeff Merkley, "Merkley, Collins, Kennedy, Snowe Introduce Legislation To End Workplace Discrimination" news release , Aug. 5, 2009

Human Rights Campaign, "Employment Non-Discrimination Act Introduced in U.S. House" news release , July 24, 2009 Human Rights Campaign, fact sheet on the Employment Non-Discrimination Act (S. 1584/H.R. 3017), accessed Sept. 21, 2009
 
Washington Blade, " Merkley introduces ENDA in Senate ," Aug. 5. 2009

E-mail interview with Harry Gural, spokesman for Rep. Barney Frank, Sept. 21, 2009

E-mail interviews with Inga Sarda-Sorensen, director of communications with the National Gay and Lesbian Task Force, September 2009