Employment discrimination due to sexual orientation

Employment Non-Discrimination Act 2007
(ENDA): Progress of the bill

Sponsored link.

Status of the bill:

Reps. Barney Frank (D-MA), Deborah Pryce (R-OH), Tammy Baldwin (D-WI) and Chris Shays (R-CT) introduced H.R. 2015 -- the federal Employment Non-Discrimination Act of 2007 (ENDA) into the House on 2007-APR-24. Unlike previous versions, it initially would have protected against workplace discrimination based on gender identity as well as sexual orientation. Protection for persons on the basis of gender identity was subsequently dropped.

The bill's text is available online. ₁

During early 2007-SEP, the House Health, Employment, Labor and Pensions Subcommittee held a hearing on the bill.

Facts, misinformation, and disinformation about the bill:

As in the case of the hate-crimes bill that was also introduced to the Congress in 2007, there has been a massive amount of misinformation and disinformation circulated about this bill.

Contrary to claims by those opposed to the bill:

CitizenLink, a publication of Focus on the Family Action, a fundamentalist Christian group, published an article on their web site titled: "U.S. House Set to Vote on Special Rights for Gay Employees. Under the Employment Non-Discrimination Act, even churches may be forced to comply." They quoted Tony Perkins, president of the Family Research Council, who said that ENDA "... could put the rights of homosexuals above employers." ₂ That is true. It could also put the rights of heterosexuals and bisexuals above those of employers by saying that employers cannot discriminate in employment because of the actual or perceived sexual orientation of an employee or potential employee. This is similar to other laws already on the books that prohibit discrimination on the basis of race, gender, etc.

Perkins continued: "Once this law goes into effect, I don't think you can guarantee that even churches themselves would be exempt." ₂

House Minority Whip Rep. Roy Blunt, (R-MO) said:

"This Employment Non-Discrimination Act would do terrible things. [While the bill purports to exempt religious groups] It really doesn't do that. The court has to decide if your purpose is sufficiently religious enough in character. Are you a church? Are you only a church? Do you do other things? Do you have a daycare center?

"It's a terrible policy. We've worked hard over the years to continue to strengthen rather than weaken the ability of faith-based organizations to truly be faith-based in their hiring. And I think that's important, and it's a big part of the debate we need to have on this bill."

The term "faith-based in their hiring" is a reference to the policies of many religious denomination to discriminate in hiring against people on the basis of their gender, marital status, sexual orientation, sexual identity,race, and disability.

Perkins and Blunt are referring to Section 6 of the bill, titled "Exemption for religious organizations." Sections a and b state:

"a) In General- This Act shall not apply to any of the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief."

"(b) Certain Employees- For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship." ₁

So, in the example cited by Blunt, a day care operated by a church would be exempt as long as the primary purpose of the church is religious. That is, a church could discriminate against heterosexuals, homosexuals, and/or bisexuals unless its day care activities are the church's main purpose. There is probably no church in the U.S. whose main function is day care.

Bill gutted:

On 2007-SEP-27, Rep. Barney Frank (D-MA) announced that he was introducing new ENDA legislation that would only provide protections on the basis of sexual orientation.

On 2007-OCT-02, Equality Maryland -- an organization promoting equal rights for persons of all sexual orientations and sexual identities issued a newsletter stating:

"Late last week, leadership in the U.S. House abandoned a transgender-inclusive Employment Non-Discrimination Act (ENDA) by splitting the legislation into two bills - one for sexual orientation and another for gender identity and expression."

"In an unprecedented show of unity, more than 90 leading national and state [lesbian, gay, bisexual and transgender (LGBT)] groups, including Equality Maryland, signed onto a letter in support of one inclusive ENDA. This letter was delivered to Congress yesterday. ... As a result, Democratic leadership has postponed mark-up of the bill, giving our community a renewed opportunity to pass an inclusive ENDA. If you have not already done so, please urge your member of Congress to support only an inclusive ENDA." ₃₆

The letter of support for an inclusive ENDA is online at: http://thetaskforce.org/

Bill passes the House; to be introduced into the Senate:

On 2007-NOV-07, the House passed the ENDA bill by a vote of 235 to 184. Twenty-five Democrats voted against the legislation; 35 Republicans voted for it.

Some reactions:

Senator Edward Kennedy (D-MA) plans to introduce a similar bill in the Senate.

All indications are that President Bush will veto the bill, and that Congress does not have sufficient votes to override the veto.

References used in the above essay:

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

1. "H.R. 2015: Employment Non-Discrimination Act of 2007," text, at: http://www.govtrack.us/
2. Jennifer Mesko, "U.S. House Set to Vote on Special Rights for Gay Employees," CitizenLink, 2007-SEP-12, at: http://www.citizenlink.org/
3. "One, United Community," Equality Maryland, 2007-OCT-02, at: http://www.equalitymaryland.org/
4. Jennifer Mesko, "Republicans Switch Over to Pass Dangerous ENDA Bill," CitizenLink, Focus on the Family Action, 2007-NOV-08, at: http://www.citizenlink.org/