Employment Non-Discrimination Act Is Proposed to U.S. Congress
The Employment Non-Discrimination Act (ENDA) is a proposed piece of legislation aimed at providing federal protections against employment discrimination based on sexual orientation. Envisioned to complement the Civil Rights Act of 1964, ENDA would prohibit bias in hiring, firing, and workplace practices for employers with more than fifteen employees. Despite some states and municipalities having their own non-discrimination laws in place, there remains no comprehensive federal law safeguarding LGBTQ+ individuals in employment. Initial attempts to incorporate sexual orientation into civil rights protections date back to the 1970s, but legislative success has been elusive.
Senator Edward M. Kennedy was a prominent advocate for ENDA when it was reintroduced in 1994, emphasizing the need for equality in the workplace. Although the bill gained traction, it faced significant opposition, particularly from conservative groups that argue such measures would unfairly elevate sexual orientation to a protected status akin to race or gender. Despite challenges, there has been considerable support from various sectors, including civil rights organizations, businesses, and some labor groups, suggesting a widespread recognition of the economic and social importance of addressing discrimination against LGBTQ+ individuals in the workplace.
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Employment Non-Discrimination Act Is Proposed to U.S. Congress
The Employment Non-Discrimination Act, still pending, would add the category of “sexual orientation” to antidiscrimination employment regulations of the U.S. government. Whereas early attempts to pass the act focused on amending the 1964 Civil Rights Act, later efforts targeted employment guidelines in a stand-alone measure. President Bill Clinton, in a partial victory for GLBT rights, issued an executive order in 1998 prohibiting discrimination based on sexual orientation in federal civilian employment.
Date 1994
Locale United States
Key Figures
Edward M. Kennedy (b. 1932), U.S. senatorBill Clinton (b. 1946), U.S. president, 1993-2001
Summary of Event
The proposed Employment Non-Discrimination Act (ENDA) would extend federal protection to gays and lesbians under a legal framework similar to Title VII of the Civil Rights Act of 1964. As of 2006, sixteen states and the District of Columbia have passed antidiscrimination measures based on sexual orientation in employment. Additionally, as of 2004, eighteen states have executive orders and eighty-seven counties or cities prohibit discrimination based on sexual orientation. There is no federal law, however, that protects lesbians and gays.
The earliest versions of ENDA date from between 1975 and 1993. These legislative proposals would have amended Title VII of the Civil Rights Act, adding sexual orientation to classes of prohibited discrimination. The attempts met with political rancor and failure. In 1994, a new approach had been taken, proposing a stand-alone regulation against discrimination in employment. The revised version was on the surface similar to the original versions of the bill forbidding discrimination based on sexual orientation regarding hiring, firing, employment, and workplace practices.
The stripped-down version of ENDA introduced to Congress in 1994 made a dramatic shift in achieving lesbian and gay rights. Previous attempts by activists and supporters to win civil rights protection under Title VII had failed. The bill would prohibit discrimination only in workplaces with more than fifteen employees, and it would exempt certain workplaces or organizations, such as religious organizations.
The chief sponsor of ENDA in 1994 had been Senator Edward M. Kennedy (D-MA), who chaired the Senate Committee on Labor and Human Resources. He was joined by 146 congressional cosponsors: 30 senators and 116 representatives. Democrats accounted for 116 of the sponsors.
Kennedy stated the bill was narrowly proscribed and crafted to avoid unneeded controversy. The issue was not the granting of special rights; instead, it was about righting senseless wrongs. Kennedy declared, “Federal law rightly prohibits job discrimination because of race, gender, religion, and national origin, age, and disability.” He continued, “We now seek to take the next step on this journey of justice by banning discrimination based on sexual orientation.”
ENDA would prohibit employers with more than fifteen workers from using an employee’s sexual orientation as a deciding factor in employment decisions, maintaining that sexual orientation has no relevancy in terms of contributions to the economic demands of society. Therefore, a person’s sexual orientation would not affect the economic success of business. The bill carried provisions for meaningful and effective remedies for proven discrimination, including rehiring and punitive damages.
Under proposed ENDA guidelines, employers also could not implement affirmative action programs, or utilize quota or goal systems, based on sexual orientation. Religious organizations have been exempted from ENDA regulations, but not church-operated businesses. The antidiscrimination measure would not apply to gays and lesbians in the military, however.
The new language helped bring the bill to a vote in Congress in 1996. The bill was nearly successful because it came to a vote at the same time as the highly controversial Defense of Marriage Act (1996), or DOMA, which banned federal recognition of same-gender marriages. Kennedy and lesbian and gay lobbyists agreed to bring both bills to a vote at the same time. They had hoped that doing this would make ENDA appear more palatable.
The approach nearly worked. While DOMA was approved by the Senate 85-14, ENDA lost 50-49. Senator David Pryor (D-AR) was absent from voting, attending to his son, who was undergoing surgery for cancer. Had Pryor been present to cast his intended vote for support, Vice President Al Gore would have returned from the campaign trail to cast the tie-breaking vote in favor of passage.
Because the act was just one vote shy of passing, gay and lesbian lobbyists declared that no longer was it the case of will sexual-orientation discrimination in employment be illegal, but when. Ensuing sessions of Congress with Republican-led majorities, however, were less likely to approve the act.
Support for ENDA comes from a diverse array of civil rights, political, business, and labor organizations. It has received endorsements from corporations such as Xerox, Harley-Davidson, AT&T, RJR Nabisco, and many others. It has received broad acceptance from organized labor groups and support from some religious groups.
Congress members opposed to the measure believe that the act would provide special legal status to lesbians and gays, and they believe the issue to be a moral one. Conservative groups such as the Family Research Council state that ENDA cannot be compared to civil rights legislation because the act would protect a sexual behavior rather than a nonbehavioral characteristic such as race or gender. Furthermore, they have argued that gays and lesbians have higher annual incomes and occupy greater percentages of professional and managerial positions. Because of this, they argue, lesbians and gays are not being “held back” by employment discrimination.
Significance
Since 1996, modified versions of ENDA have been introduced into successive sessions of Congress. The bill has languished in committee because of a lack of support from Republican and conservative members of Congress. Republican leadership did not want to bring the legislation to floor vote. President Bill Clinton expressed support for the passage of ENDA, and he issued Executive Order 13087 on May 28, 1998, which banned discrimination against lesbians and gays (specifically, it now includes “sexual orientation” as a protected status) in federal civilian employment. President George W. Bush has not rescinded Clinton’s executive order, but prospects for the passage of ENDA have diminished.
In June, 2005, Representatives Henry Waxman (D-CA), Chris Shays (R-CT), and others introduced the Clarification of Federal Employment Protections Act to Congress, legislation that simply asks for affirmation “that Federal employees are protected from discrimination on the basis of sexual orientation and to repudiate any assertion to the contrary.” The House Government Reform Committee passed the act in September; a Senate committee hearing was pending as of early 2006.
Aside from the discriminatory aspect of firing lesbians and gays from their jobs, or keeping them from being employed in the first place, there are economic reasons why the act should be passed. According to research done by the National Commission on Employment Policy, an estimated 42,000 gay and lesbian workers are dismissed every year in the United States. This, in turn, equals a loss of more than $47 million annually in training expenditures and unemployment payments. Meanwhile, discrimination in the American workplace against gays and lesbians is not uncommon. Also, a survey conducted in 2000 found that 83 percent of Americans believe lesbians and gays should be protected against discrimination in employment. ENDA would provide a comprehensive, uniform, federal standard for protections against sexual-orientation discrimination.
Bibliography
Bull, Christopher. “No ENDA in Sight.” The Advocate, May 13, 1997, 40.
Human Rights Campaign Foundation. The State of the Workplace for Gay, Lesbian, Bisexual, and Transgender Americans, 2005-2006. http://www.hrc.org.
Jasiunas, J. Banning. “Is ENDA the Answer? Can a ’Separate but Equal’ Federal Statute Adequately Protect Gays and Lesbians from Employment Discrimination?” Ohio State Law Journal 61 (2000): 1529.
Kovach, Kenneth. “Non-Discrimination ENDA Gains Support.” HR Focus 72, no. 7 (July, 1995): 15.
‗‗‗‗‗‗‗. “Proposal Would Expand Civil Rights Legislation.” Employment Relations Today 22, no. 3 (Autumn, 1995): 9.
Rimmerman, Craig. From Identity to Politics: The Lesbian and Gay Movements in the United States. Philadelphia: Temple University Press, 2002.