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Dead ENDA?

By Allen Smith  4/30/2013
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No one has yet put the Employment Non-Discrimination Act (ENDA) out of its misery or placed a “Do Not Resuscitate” tag on the bill, which has had more lives than a cat.

And so, on April 25, 2013, Sen. Jeff Merkley, D-Ore., reintroduced ENDA, which would prohibit job discrimination based on sexual orientation and gender identity. In the House, Rep. Jared Polis, D-Colo., the first openly gay parent in Congress, and Rep. Ileana Ros-Lehtinen, R-Fla., the first Hispanic woman in Congress, reintroduced the legislation.

“It is inherently unfair that many skilled, qualified and motivated LGBT [lesbian, gay, bisexual and transgender] members of our communities too often experience rejections at job interviews, are denied promotions or [subjected to] other forms of harassment in the workplace simply because of their sexual orientation or gender identity. This is unacceptable,” Ros-Lehtinen said.

A Perennial Underachiever

Civil rights laws have a tendency to spread as slowly as moss on trees.

The Americans with Disabilities Act (ADA), for example, was passed in 1990—26 years after Title VII of the Civil Rights Act prohibited discrimination based on race, color, sex, religion and national origin and 17 years after Section 504 of the Rehabilitation Act prohibited federal-fund recipients from discriminating based on disability.

But even by civil rights laws’ standards, ENDA is an underachiever. First introduced in Congress in 1994, after a similar bill (Equality Act of 1974) failed to gain momentum, ENDA was last considered by a Senate committee in 2002.

Sen. Tom Harkin, D-Iowa, a primary sponsor of the ADA, has pledged a committee markup, and Majority Leader Harry Reid, D-Nev., has said he wants to bring the bill to the floor, according to the Human Rights Campaign, a gay-civil-rights organization.

But, even if it reaches the Senate floor, the bill may not get the 60 votes needed to overcome a possible filibuster, and it is unlikely this year to garner the bipartisan support it needs to pass the House, where it has 150 co-sponsors—well under the 218 needed for a simple majority in that chamber.

President’s Support Questioned

Another factor is that President Barack Obama hasn’t pushed hard for the legislation so far. 

Obama did pledge, in 2012, to build support to pass ENDA, rather than issue an LGBT nondiscrimination executive order, a Washington Blade reporter noted at an April 23, 2013, White House press conference.

“Can you name one thing the president has done over the course of the past year to build support for LGBT nondiscrimination in the workplace protections?” a reporter for the gay-community newspaper asked press secretary Jay Carney.

“The administration will continue to work to build support for this important legislation because we believe that this is the right way, the right approach to take, because it is inclusive,” Carney said. “And that’s why we supported it then; that’s why we’re glad to see it being introduced.”

Dissatisfied with the answer, the reporter pressed Carney: “Can you give me one thing, any initiative, any action, the president has undertaken to build support for this legislation?”

Carney offered no details. “The president’s record on these issues has been pretty well documented. And it’s clear his commitment to the rights of LGBT Americans is very clear. His support for this specific legislation I think is reflected in the fact that it’s been introduced, as you said, in the House and the Senate.”

Supporters and Opponents Undeterred

“ENDA would prohibit employers from firing, refusing to hire or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity,” explained Sen. Tammy Baldwin, D-Wis., the first openly gay U.S. senator. She noted that more than 85 percent of Fortune 500 companies extend workplace protections based on sexual orientation and more than a third on the basis of gender identity.

“Similar to current law in several states, and the policies of many Fortune 500 companies, ENDA would close an important gap in federal civil rights laws and affirm the principle that employees should be judged solely on their skills and abilities,” added Sen. Susan Collins, R-Maine.

However, the Family Research Council is fighting the bill on the grounds that the legislation affords special protection to a group that is not disadvantaged, “would mandate the employment of homosexuals in inappropriate occupations” and “would approvingly bring private behavior considered immoral by many into the public square.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him on Twitter @SHRMlegaleditor.
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