Early bill to end employment discrimination based
on sexual orientation and gender identity

An early Federal 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:

	"ENDA third world." This refers to "environmental development action in the third world.
	"ENDA" the rock band.
	Saint Enda of Aran, an Irish saint in the Roman Catholic Church.

Any law which criminalizes discrimination in employment on the basis of sexual orientation and/or gender identity has two effects:

It requires that an employer consider each potential employee fairly on the basis of their ability to do the job, without regard to their sexual orientation and/or identity -- factors that that would generally have no significant bearing on the performance of their duties.

It interferes with the employers desire to discriminate against a specific group of individuals on the basis of their sexual orientation and/or orientation. Sometimes an employer's religious faith discrimination is based on bias that form part of their religious faith. This is not new:    Many religious groups in the 1960's taught that blacks were inferior and should be segregated from the rest of society on the basis of their race.   Many religious traditions to this day teach that women should be excluded from positions of authority and power because of their gender.   Many religious organizations refuse to hire a person of another religion, even to perform a non-religious task like sweeping the floor or sorting mail. Thus many employers may feel that their religious freedom to discriminate is being taken away by the ENDA law.

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. She said:

"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 media 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" -- making them universal rights, not special rights.

About early federal Employment Non-Discrimination bills (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 the 1996 version of ENDA 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:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

	The House version of the ENDA bill (H.R. 2015) can be read at: http://thomas.loc.gov/
	The Human Rights Campaign" has a resource page on ENDA at: http://www.hrc.org/
	M.D. Tooley, "ENDA: Forcing America to subsidize gay behavior," at: http://www.liberty.edu/ This is no longer online.
	Deb Price of the Detroit News had a column on ENDA on 1996-SEP-27, predicting the chances of its passage in 1997. This is no longer online. However, Googling "deb price" "detroit news" enda returns many dozens of her more recent articles.
	The American Civil Liberties Union (ACLU) has some material on ENDA at: Search for "ENDA " at http://www.aclu.org/
	The ACLU has a list of success stories against oppression and discrimination. See: http://action.aclu.org/

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.

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Latest update: 2009-AUG-07
Author: B.A. Robinson

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