Employment Non-Discrimination Acts (ENDA)

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About ENDA laws in general:

"ENDA" refers here to various employment non-discrimination acts intended to give employment protection to persons of all sexual orientations. It should not be confused with the following unrelated entities:

Any law which criminalizes discrimination in employment on the basis of sexual orientation has two effects:

It is impossible to protect one group's right to be considered fairly for jobs without interfering with another group's right to discriminate. Connie Mackey, vice president of government affairs with the Family Research Council, (a fundamentalist Christian organization) said in 2002-APR that the ENDA bill to criminalize discrimination on the basis of sexual orientation runs counter to the Bill of Rights. "ENDA will require Americans to hire people they believe to be committing immoral acts, precisely because they commit those acts. It violates employers' and employees' freedom of religion, of speech and association." ₁

It is worth noting that much of the discussion on this bill is factually incorrect. For example, another fundamentalist Christian organization, Focus on the Family, reported that "Senators have renewed their push to grant special rights for homosexuals in the workplace." ₁ In reality, the bill would give no more rights to persons with a homosexual orientation than it would to a person with a heterosexual or bisexual orientation. A heterosexual who was refused a job as a bartender in a gay bar on the basis of his sexual orientation could sue for damages just as a homosexual could sue if she or he were refused a manufacturing job making widgets in a factory on the basis of their sexual orientation. If gays and lesbians receive "special rights" as a result of this bill, then heterosexuals and bisexuals would receive those same "special rights."

About the Employment Non-Discrimination Act (ENDA):

A bill was introduced into the US congress in the mid 1970's which would do for gays and lesbians what various civil rights bills had done for African-Americans, women and others. It went nowhere.

In 1994, a stripped-down version of the bill was introduced to Congress; it had limited range, guaranteeing only freedom from discrimination in employment. It was called the Employment Non-Discrimination Act or ENDA, and was widely viewed as a bill supported only by the fantasies of liberals in the Democratic party. It also did not progress.

In 1995, Rep. Studds introduced H.R.1863. The "digest" section of the bill stated:

1. This Act does not apply to the provision of employee benefits for the benefit of an employee's partner; and
2. A disparate impact does not establish a prima facie violation of this Act. Prohibits quotas and preferential treatment.
3. Declares that this Act does not apply to:
   1. religious organizations (except in their for-profit activities);
   2. the Armed Forces; or
   3. laws creating special rights or preferences for veterans.

Provides for enforcement. Disallows State immunity. Makes the United States liable for all remedies (except punitive damages) to the same extent as a private person. Allows recovery of attorney's fees. Prohibits retaliation and coercion. Requires posting notices for employees and applicants.

This bill was supported by President Clinton in 1995-OCT. He said that if the bill were passed, it would guarantee that "all Americans, regardless of their sexual orientation, can find and keep their jobs based on their ability to work and the quality of their work." It was also supported by: the Leadership Conference on Civil Rights, by many large corporations (AT&T, Eastman Kodak, Microsoft, RJR Nabisco, Quaker Oats, and Xerox), and by many liberal and mainline religious organizations, including the National Council of Churches, National Catholic Conference for Interracial Justice, Southern Christian Leadership Conference, and the Union of American Hebrew Congregations.

When the Defense of Marriage Act (the anti-gay marriage bill) was considered by the Senate, a bipartisan coalition attempted to attach the ENDA bill, as an amendment. Republican leaders eventually compromised by separating the two bills and allowing ENDA to be brought forward for a separate vote. It was reintroduced in 1996-SEP with the backing of the House and Senate Democratic minority leaders. The bill was characterized by conservative Republicans as controversial, immoral, and un-American. This time, it actually made it to a Senate vote; it was narrowly defeated 49 to 50. Although it was not passed in the Senate, and would not have had any chance at all in the House, this close vote still represents a stunning victory for basic lesbian/gay civil rights in a Republican controlled Senate.

The critical wording in ENDA (1996 version) is contained in its Section 2:

"A covered entity, in connection with employment or employment opportunities, shall not --

1. subject an individual to different standards or treatment on the basis of sexual orientation;
2. discriminate against an individual based on the sexual orientation of persons with whom such an individual is believed to associate or to have associated; or
3. otherwise discriminate against an individual on the basis of sexual orientation"

The bill would ban any affirmative action policy which might benefit gays and lesbians. The Military, religious organizations, and employers with fewer than 15 employees would be allowed to continue to discriminate against workers on the basis of their sexual orientation. In practice, this would victimize bisexuals and homosexuals. It would not require companies to give equal employee benefits to all workers, regardless of sexual orientation. The bill would not be retroactive.

Many opponents of ENDA are either hopelessly misinformed or intentionally lie about the bill's precise contents. It is worth noting that the bill will protect the rights of heterosexual and bisexual workers as well as gays and lesbians.

Internet references:

None of the following links are still online. We are attempting to resurrect them.

References used in the above essay:

1. Stuart Shepard, "ENDA passes Senate committee," 2002-APR-30, at: http://www.family.org/ This report is no longer online.