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110th Congress                                            Rept. 110-406
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
               EMPLOYMENT NON-DISCRIMINATION ACT OF 2007

                                _______
                                

October 22, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                     MINORITY AND DISSENTING VIEWS

                        [To accompany H.R. 3685]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 3685) to prohibit employment discrimination on 
the basis of sexual orientation, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                PURPOSE

    Millions of gay, lesbian, bisexual, and heterosexual 
Americans can be fired from their jobs, refused work, paid less 
and otherwise subjected to employment discrimination because of 
their actual or perceived sexual orientation with no recourse 
under Federal law. Currently, it is legal in 30 states\1\ to 
fire someone based on their sexual orientation.
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    \1\California, Colorado, Connecticut, District of Columbia, Hawaii, 
Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New 
Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, 
Vermont, Washington and Wisconsin have laws barring discrimination in 
employment (and other areas) based on sexual orientation. Oregon's law 
takes effect on January 1, 2008.
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    Workplace discrimination based on sexual orientation, 
affecting heterosexual, as well as gay, lesbian and bisexual 
(GLB) Americans, has been widespread and well-documented over 
the years. The Employment Non-Discrimination Act (ENDA) 
protects all Americans who are or may be perceived to be gay, 
lesbian, or bisexual by making it illegal to fire, refuse to 
hire, refuse to promote employees based on notions of a 
person's sexual orientation. Furthermore, employers are 
prohibited from requiring GLB employees to work in a 
discriminatorily hostile or abusive environment.
    Specifically, ENDA extends Federal employment protections 
to GLB workers similar to those protections provided to a 
person based on race, religion, sex, national origin, age or 
disability. The Act prohibits an employer from using an 
individual's sexual orientation as the basis for employment 
decisions, such as hiring, firing, promotion or compensation. 
ENDA also creates a cause of action for any individual--whether 
actually homosexual or heterosexual--who is discriminated 
against because that individual is ``perceived'' as homosexual 
due to the fact that the individual does not conform to the sex 
or gender stereotypes associated with that individual's sex. 
Furthermore, ENDA provides for the similar procedures, while 
giving somewhat more limited remedies as those under Title VII 
of the Civil Rights Act of 1964\2\ (``Title VII'') and the 
Americans with Disabilities Act (``ADA'').\3\ In addition, ENDA 
applies to Congress and the Federal government, as well as 
employees of state and local governments.
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    \2\42 U.S.C. Sec. Sec. 2000e-2000e-17.
    \3\42 U.S.C. Sec. Sec. 12101-12213.
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        COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES

94th Congress

    On January 14, 1975, Congresswoman Bella Abzug (D-NY) 
introduced the first bill to address sexual-orientation 
discrimination in the United States, H.R. 166, the Civil Rights 
Amendments. H.R. 166 would have amended the Civil Rights Act of 
1964 to prohibit discrimination on the basis of affectional or 
sexual orientation, sex, or marital status in public 
accommodations, public education, equal employment 
opportunities, the sale, rental and financing of housing, and 
education programs which receive Federal financial assistance. 
It garnered four cosponsors and was referred to the Judiciary 
Committee. The Committee did not consider H.R. 166.
    Representative Abzug on March 25, 1975 reintroduced the 
Civil Rights Amendments, as H.R. 5452 with 23 cosponsors. The 
Civil Rights Amendments was also introduced by Representative 
Richard Ottinger (D-NY) as H.R. 10389 on October 28, 1975 with 
no cosponsors. Both bills were referred to the Judiciary 
Committee and neither was considered by the Committee.
    On February 4, 1975 Representative Donald Fraser (D-MN) 
introduced H.R. 2667, A Bill to Prohibit Employment 
Discrimination on the Basis of Sexual Orientation, which also 
sought to amend the Civil Rights Act of 1964. However, in 
addition to covering discrimination in all the venues provided 
in the Civil Rights Act of 1964, H.R. 2667 also banned 
discrimination in public facilities and federally assisted 
opportunities. The bill had no co-sponsors and was referred to 
the Judiciary Committee. The Committee did not consider H.R. 
2667.
    The Civil Rights Amendments were reintroduced by 
Representative Phillip Burton (D-CA) as H.R. 13019, on March 5, 
1976 with no cosponsors. H.R. 13019 was substantively the same 
as H.R. 2667, A Bill to Prohibit Employment Discrimination on 
the Basis of Sexual Orientation. Representative Abzug 
subsequently introduced the Civil Rights Amendments, H.R. 13928 
on May 20, 1976 with 4 cosponsors. Both bills were referred to 
the House Judiciary Committee, where no further action was 
taken.

96th Congress

    On February 8, 1979 the Civil Rights Amendments Act of 
1979, H.R. 2074 was introduced by Representative Ted Weiss (D-
NY). In addition to prohibiting discrimination on the basis of 
affectional or sexual orientation, it prescribed penalties for 
non-compliance and authorized the Attorney General to 
intervene. It garnered 56 cosponsors and was referred to the 
House Judiciary and House Education and Labor Committees. No 
further action was taken.
    On December 5, 1979, Senator Paul Tsongas (D-MA) introduced 
the first bill in the Senate to address sexual-orientation 
discrimination, A Bill to Prohibit Employment Discrimination on 
the Basis of Sexual Orientation, S. 2081. It had 3 cosponsors 
and was referred to the Senate Labor and Human Resources 
Committee. No further action was taken.

97th Congress

    On January 28, 1981, Representative Ted Weiss (D-NY) 
introduced the Civil Rights Amendments Act of 1981, H.R. 1454. 
It garnered 59 cosponsors and was referred to the House 
Committees on Judiciary and Education and Labor. However, no 
further action was taken on the bill.
    On May 1, 1981, Representative Phillip Burton (D-CA) 
introduced the Civil Rights Amendments Act of 1981, H.R. 3371, 
which had no cosponsors. It was referred to the House Judiciary 
Committee and the Committee on Education and Labor. It was 
subsequently referred to the Education and Labor Committee's 
Subcommittee on Employment Opportunities of the Committee on 
Education and Labor. No further action was taken in either 
Committee or in the Subcommittee.
    On October 6, 1981, Senator Paul Tsongas (D-MA) introduced 
A Bill To Prohibit Employment Discrimination on the Basis of 
Sexual Orientation, S. 1708, which garnered 6 cosponsors. It 
was referred to the Senate Labor and Human Resources Committee, 
but no further action was taken.

98th Congress

    On January 3, 1983, Representative Ted Weiss (D-NY) 
introduced the Civil Rights Amendments Act of 1983, H.R. 427. 
It garnered 38 cosponsors and was referred to the House 
Committees on Judiciary and Education and Labor. It was 
subsequently referred to the Subcommittee on Civil and 
Constitutional Rights of the Judiciary Committee.
    On February 3, 1983, Senator Paul Tsongas (D-MA) introduced 
A Bill To Prohibit Employment Discrimination on the Basis of 
Sexual Orientation, S. 430, which garnered 8 cosponsors. It was 
referred to the Senate Labor and Human Resources Committee. No 
further action was taken.
    On April 19, 1983, Representative Ted Weiss (D-NY) 
reintroduced the Civil Rights Amendments Act of 1983, H.R. 
2624. It garnered 75 cosponsors and was referred to the House 
Judiciary Committee and the Education and Labor Committee. H.R. 
2624 was subsequently referred to the Subcommittee on 
Employment Opportunities of the Committee on Education and 
Labor. No further action was taken in either Committee or the 
Subcommittee.

99th Congress

    On January 3, 1985, Representative Ted Weiss (D-NY) 
introduced the Civil Rights Amendments Act of 1985, H.R. 230. 
It garnered 72 cosponsors and was referred to the House 
Committees on Judiciary and Education and Labor. It was 
subsequently referred to the Subcommittee on Civil and 
Constitutional Rights of the Judiciary Committee.
    On July 15, 1985, Senator John Kerry (D-MA) introduced the 
Civil Rights Amendments Act of 1985, S. 1432, which garnered 5 
cosponsors. It was referred to the Senate Judiciary Committee. 
No further action was taken.

100th Congress

    On January 21, 1987, Representative Ted Weiss (D-NY) 
introduced the Civil Rights Amendments Act of 1987, H.R. 709. 
It garnered 73 cosponsors and was referred to the House 
Committees on Judiciary and Education and Labor. It was 
subsequently referred to the Subcommittee on Employment 
Opportunities of the Committee on Education and Labor, but no 
further action was taken.
    On February 2, 1987, Senator Alan Cranston (D-CA) 
introduced the Civil Rights Amendments Act of 1987, S. 464, 
which garnered 9 cosponsors. It was referred to the Senate 
Judiciary Committee, and the Committee's Subcommittee on the 
Constitution. No further action was taken.
    On February 29, 1988, Senator John Kerry (D-MA) introduced 
the Civil Rights Protection Act of 1988, S. 1432, which 
garnered 2 cosponsors. It was referred to the Senate Judiciary 
Committee, and the Committee's Subcommittee on the 
Constitution. Neither the Committee nor the Subcommittee 
considered the bill.

101st Congress

    On January 24, 1989, Representative Ted Weiss (D-NY) 
introduced the Civil Rights Amendments Act of 1989, H.R. 655. 
It garnered 79 cosponsors and was referred to the House 
Judiciary Committee and the Education and Labor Committee. H.R. 
655 was subsequently referred to the Judiciary Committee's 
Subcommittee on Civil and Constitutional Rights, but no further 
action was taken.
    On January 25, 1989, Senator Alan Cranston (D-CA) 
introduced the Civil Rights Amendments Act of 1989, S. 47, 
which garnered 11 cosponsors. It was referred to the Senate 
Judiciary Committee and the Committee's Subcommittee on 
Constitution. No further action was taken.

102nd Congress

    On March 6, 1991, Senator Alan Cranston (D-CA) introduced 
the Civil Rights Amendments Act of 1991, S. 47, which garnered 
16 cosponsors. It was referred to the Senate Judiciary 
Committee and then to the Subcommittee on Constitution. No 
further action was taken.
    On March 13, 1991, Representative Ted Weiss (D-NY) 
introduced the Civil Rights Amendments Act of 1991, H.R. 1430. 
It garnered 110 cosponsors and was referred to the House 
Judiciary Committee and Education and Labor Committee. H.R. 
1430 was subsequently referred to the Judiciary Committee's 
Subcommittee on Civil and Constitutional Rights, but no further 
action was taken.

103rd Congress

    On January 5, 1993, Representative Edolphus Towns (D-NY) 
introduced the Civil Rights Amendments Act of 1993, H.R. 423, 
which had no cosponsors. It was referred to the House 
Committees on Judiciary and Education and Labor. It was 
subsequently referred to the Subcommittee on Civil and 
Constitutional Rights of the Judiciary Committee, but no 
further action was taken.
    Also on January 5, 1993, Representative Henry Waxman (D-CA) 
introduced the Civil Rights Act of 1993, H.R. 431, which had 
garnered 76 cosponsors. It was referred to the House Committees 
on the Judiciary and Education and Labor. It was subsequently 
referred to the Subcommittee on Civil and Constitutional Rights 
of the Judiciary Committee, but no further action was taken.
    On June 23, 1994 Senator Edward Kennedy (D-MA) introduced 
the Employment Non-Discrimination Act of 1994 (ENDA), S. 2238. 
It was referred to the Senate Labor and Human Resources 
Committee, which held the first hearing on the issue entitled 
``Employment Non-Discrimination Act of 1994'' on July 29, 
1994.\4\
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    \4\S. Hrg. 103-703.
---------------------------------------------------------------------------
    The hearing featured testimony from witnesses, including: 
The Honorable Claiborne Pell, U.S. Senator from the State of 
Rhode Island; The Honorable Jeff Bingaman, U.S. Senator from 
the State of New Mexico; Ms. Cheryl Summerville, Bremen, 
Georgia; Ernest Dillon, Detroit, Michigan; Mr. Justin Dart, 
Jr., Chairman, President Bush's Committee on Employment of 
People with Disabilities; Warren Phillips, former publisher, 
the Wall Street Journal, and former CEO and Chairman, Dow Jones 
& Company, Inc.; Steven Coulter, Vice-President, Pacific Bell; 
and Richard Womack, Director of Civil Rights, AFL-CIO; Mr. 
Joeseph E. Broadus, George Mason School of Law; Robert H. 
Knight, Family Research Council; and Chai Feldblum, Georgetown 
University Law Center, on behalf of Leadership Conference on 
Civil Rights.
    Written statements were provided by: Mr. Philippe Kahn, 
President, Chairman, and CEO, Borland, International; 
Leadership Conference on Civil Rights, Washington, D.C.; Mr. 
Deval Patrick, Assistant Attorney General, Department of 
Justice; The Honorable John Chafee, U.S. Senator from the State 
of Rhode Island; The Honorable Barry Goldwater, U.S. Senator 
from the State of Arizona; Reverend Edmond Browning, Presiding 
Bishop, Episcopal Church; Mrs. Coretta Scott King, President, 
Martin Luther King Jr. Center for Non-Violent Social Change; 
Ms. Mary Frances Berry, Chairperson, U.S. Commission on Civil 
Rights; and Mr. Anthony Carnevale, Chair, National Commission 
on Employment Policy.
    On June 23, 1994, Representative Gerry Studds (D-MA) 
introduced the Employment Non-Discrimination Act, H.R. 1430, 
which garnered 110 cosponsors. It was referred to the House 
Committees on the Judiciary and Education and Labor. It was 
subsequently referred to the Subcommittee on Civil and 
Constitutional Rights of the Judiciary Committee, but no 
further action was taken.

104th Congress

    On January 4, 1995, Representative Edolphus Towns (D-NY) 
introduced the Civil Rights Amendments Act of 1995, H.R. 382, 
which had 1 cosponsor. It was referred to the House Judiciary 
Committee, the Economic and Educational Opportunities Committee 
and subsequently referred to the Subcommittee on Employer-
Employee Relations of the Committee on Economic and Educational 
Opportunities. No further action was taken in either Committee 
or the Subcommittee.
    On June 15, 1995, Representative Gerry Studds (D-MA) 
introduced the Employment Non-discrimination Act of 1995, H.R. 
1863, which garnered 142 cosponsors. It was referred to the 
House Committees on Educational and Economic Opportunities, 
Oversight, Judiciary, and Government Reform and Oversight. It 
was subsequently referred to the Subcommittee on the 
Constitution of the Judiciary Committee, but no further action 
was taken.
    On June 15, 1995, Senator James Jeffords (R-VT) introduced 
the Employment Non-Discrimination Act of 1995, S. 932, which 
garnered 30 cosponsors. It was referred to the Committee on 
Labor and Human Resources.
    On September 5, 1995, Senator Edward Kennedy (D-MA) 
introduced the Employment Non-Discrimination Act of 1995, S. 
2056, which garnered 3 cosponsors. It was brought before the 
Senate by unanimous consent. The Senate narrowly rejected S. 
932 on September 10, 1996 by a 50-49 vote.\5\ It marked the 
first time that the idea of a Federal non-discrimination clause 
protecting gays and lesbians in employment was voted on in the 
Congress.
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    \5\Rollcall No. 281.
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105th Congress

    On January 7, 1997, Representative Edolphus Towns (D-NY) 
introduced the Civil Rights Amendments Act of 1998, H.R. 365, 
which had no cosponsors. It was referred to the House Judiciary 
Committee, and Education and the Workforce Committee. H.R. 365 
was subsequently referred to the Subcommittee on Employer-
Employee Relations of the Committee on Education and the 
Workforce, but no further action was taken.
    On June 10, 1997, Senator James Jeffords (R-VT) introduced 
the Employment Non-Discrimination Act of 1997, S. 869, which 
garnered 34 cosponsors. It was referred to the Committee on 
Labor and Human Resources.
    On October 23, 1997, a hearing was held by the Committee on 
Labor and Human Resources entitled ``The Employment Non-
discrimination Act of 1997''.\6\ The following persons and 
organizations presented testimony: Ms. Kendall Hamilton, 
Oklahoma City, Oklahoma; Mr. David N. Horowitz, Phoenix, 
Arizona; Raymond W. Smith, Chairman of the Board and CEO, Bell 
Atlantic Corporation, Arlington, Virginia; Mr. Thomas J. Grote, 
Chief Operating Officer, Donato's Pizza, Blacklick, Ohio; Mr. 
Herbert D. Valentine, Executive Presbyter, Baltimore 
Presbytery, Moderator of the 203rd General Assembly, the 
Presbyterian Church (USA); National Council of the Churches of 
Christ in the U.S. A.; Mr. Oliver Thomas, Special Counsel for 
Civil and Religious Liberties; Ms. Chai Feldblum, Associate 
Professor of Law, Georgetown University Law Center; American 
Civil Liberties Union; Ann McBride, President, Common Cause; 
America Psychological Association; Elizabeth Birch, Executive 
Director, Human Rights Campaign; Parents, Families, and Friends 
of Lesbians and Gays.
---------------------------------------------------------------------------
    \6\S. Hrg. 105-279.
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    On June 10, 1997, Representative Chris Shays (R-CT) 
introduced the Employment Non-discrimination Act of 1997, H.R. 
1858, which garnered 160 cosponsors. It was referred to the 
House Committees on Education and the Workforce, Oversight, 
Judiciary, and Government Reform and Oversight. It was 
subsequently referred to the Subcommittee on Employer-Employee 
Relations of the Education and the Workforce Committee, but no 
further action was taken.

106th Congress

    On January 6, 1999, Representative Edolphus Towns (D-NY) 
introduced Civil Rights Amendments Act of 1999, H.R. 311, which 
had one cosponsor. It was referred to the House Committees on 
Judiciary, and Education and the Workforce. It was subsequently 
referred to the Subcommittee on the Constitution of the 
Committee on Judiciary, but no further action was taken.
    On June 24, 1999, Senator James Jeffords (R-VT) introduced 
the Employment Non-Discrimination Act of 1999, S. 1276, which 
garnered 36 cosponsors. It was referred to the Committee on 
Health, Education, Labor, and Pensions (HELP). No further 
action was taken.
    On June 24, 1999, Representative Chris Shays (R-CT) 
introduced the Employment Non-Discrimination Act of 1999, H.R. 
2355, which garnered 173 cosponsors. It was referred to the 
Education and the Workforce Committee, House Administration 
Committee, Judiciary Committee, and Government Reform 
Committee. It was subsequently referred to the Subcommittee on 
Employer-Employee Relations of the Education and the Workforce 
Committee, but no further action was taken.

107th Congress

    On January 3, 2001, Representative Edolphus Towns (D-NY) 
introduced Civil Rights Amendments Act of 2001, H.R. 217, which 
had no cosponsors. It was referred to the House Committees on 
Judiciary and Education and the Workforce. It was subsequently 
referred to the Subcommittee on Employer-Employee Relations of 
the Committee on Education and the Workforce, but no further 
action was taken.
    On July 31, 2001, Senator Edward Kennedy (D-MA) introduced 
the Employment Non-Discrimination Act of 2002, S. 1274, which 
garnered 44 cosponsors. It was referred to the HELP Committee.
    The HELP Committee held a hearing on the legislation on 
February 27, 2002 entitled ``The Employment Non-Discrimination 
Act.''\7\ The following persons presented testimony: Mr. 
Charles K. Gifford, President and CEO FleetBoston Financial, 
Boston, Massachusetts; Lucy Billingsley, Partner, Billingsley 
Company, Carrollton, Texas; Robert L. Berman, Director of Human 
Resources and Vice President, Eastman Kodak Company, Rochester, 
New York; Richard Womack, Director, Department of Civil Rights, 
AFL-CIO, Washington, D.C.; Lawrence Lane, Long Island, New 
York; and Matthew Coles, Director, National Lesbian and Gay 
Rights Project, American Civil Liberties Union, New York, New 
York.
---------------------------------------------------------------------------
    \7\S. Hrg. 107-307.
---------------------------------------------------------------------------
    Written statements were provided by: The American 
Psychological Association; Kim Wisckol, Vice-President and 
Director of Human Resources of the Consumer Business 
Association, Hewlett-Packard Company; Elizabeth Birch, 
Executive Director, Human Rights Campaign; and the Honorable 
Patty Murray, U.S. Senator from the State of Washington. A 
letter was provided from the President of New Balance Athletic 
Shoe, Inc., James Davis, to Senators Kennedy and Gregg, dated 
April 18, 2002.
    The bill was reported out of committee by voice vote\8\ and 
placed on the legislative calendar. However, no vote was taken 
in the Senate.
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    \8\S. Rep. 107-341.
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    On July 31, 2001, Representative Chris Shays (R-CT) 
introduced the Employment Non-discrimination Act of 2001, H.R. 
2692, which garnered 193 cosponsors. It was referred to the 
House Committees on Education and the Workforce, 
Administration, Judiciary, and Government Reform. It was 
subsequently referred to the Subcommittee on Employer-Employee 
Relations of the Education and the Workforce Committee, but no 
further action was taken.

108th Congress

    On October 2, 2003, Senator Edward Kennedy (D-MA) 
introduced the Employment Non-Discrimination Act of 2003, S. 
1705, which garnered 43 cosponsors. It was referred to the HELP 
Committee however, no further action was taken.
    On January 7, 2003, Representative Edolphus Towns (D-NY) 
introduced the Civil Rights Amendments Act of 2003, H.R. 214, 
which had no cosponsors. It was referred to the Judiciary 
Committee, and the Education and the Workforce Committee. H.R. 
214 was subsequently referred to the Subcommittee on 
Constitution of the Committee on Judiciary, but no further 
action was taken.
    On October 8, 2003, Representative Chris Shays (R-CT) 
introduced the Employment Non-discrimination Act of 2003, H.R. 
3285, which garnered 180 cosponsors. It was referred to the 
House Committees on Education and the Workforce, House 
Administration, Judiciary, and Government Reform. It was 
subsequently referred to the Subcommittee on Employer-Employee 
Relations of the Education and the Workforce Committee, but no 
further action was taken.

109th Congress

    On January 6, 2005, Representative Edolphus Towns (D-NY) 
introduced the Civil Rights Amendments Act of 2003, H.R. 214, 
which had no cosponsors. It was referred to the House 
Committees on Judiciary, and Education and the Workforce. It 
was subsequently referred to the Subcommittee on Constitution 
of the Committee on Judiciary, but no further action was taken.

110th Congress

    On March 24, 2007, Representative Barney Frank (D-MA) 
introduced the Employment Non-Discrimination Act of 2007, H.R. 
2015, which currently has 165 cosponsors. It was referred to 
the House Committees on Education and Labor, Administration, 
Judiciary, and Oversight and Government Reform. It was 
subsequently referred to the Subcommittee on Health, 
Employment, Labor and Pensions (HELP) of the Education and 
Labor Committee.
    On September 28, 2007, Representative Barney Frank (D-MA) 
and Deborah Pryce (R-OH) introduced H.R. 3685, the Employment 
Non-Discrimination Act of 2007. It was referred to House 
Committees on Education and Labor, Administration, Judiciary, 
and Oversight and Government Reform.
            Subcommittee Hearing on H.R. 2015
    On September 5, 2007, the Education and Labor Committee's 
HELP Subcommittee held a hearing on ``The Employment Non-
Discrimination Act of 2007 (H.R. 2015).'' Witnesses testifying 
before the Committee included: Representative Barney Frank; 
Representative Tammy Baldwin; Representative Emmanuel Cleaver; 
Michael Carney of Springfield, MA; Brooke Waits of Dallas, TX; 
Mark Fahleson, Attorney at Rembolt Ludtke LLP; Lee Badgett, 
Research Director of Williams Institute at the UCLA School of 
Law; Helen Norton, Associate Professor of Law, University of 
Colorado School of Law; Nancy Kramer, Founder and CEO of 
Resource Interactive; Kelly Baker, Vice President of Diversity 
of General Mills; and Larry Lorber, Partner at Proskauer Rose 
LLP.
            Full Committee Markup of H.R. 3685
    On October 18, 2007, the Committee on Education and Labor 
met to mark up H.R. 3685, the Employee Non-Discrimination Act 
of 2007. The Committee reported the bill favorably by a vote of 
27-21 to the House of Representatives.
    Four amendments were offered and debated. None of the 
amendments were adopted.
    Representative Souder (R-IN) offered three amendments. The 
first Souder amendment was defeated by a vote of 18-30. The 
amendment would have struck ``perceived'' from the protection 
against discrimination based on ``actual or perceived sexual 
orientation.'' The term sexual orientation is expressly defined 
in H.R. 3685 as including only: ``homosexuality, 
heterosexuality, or bisexuality.'' The Committee strongly 
believes that prohibiting discrimination based on ``perceived'' 
sexual orientation is necessary to protect the rights of 
employees. The Souder amendment would permit an employer who 
believes an employee may be gay, when in fact he or she is not, 
to lawfully fire that employee based on that perception. 
Furthermore, including protections based on an individual's 
perceived sexual orientation ensures that employers will not be 
able to defend its actions by alleging it did not know the 
``actual'' sexual orientation of the employee but nevertheless 
discriminated against the employee on the basis of his/her 
perceived sexual orientation.
    The second Souder amendment was defeated by a vote of 18-
30. The amendment would have permitted employers to condition 
employment on being married or being eligible to marry. The 
``Actions Conditioned on Marriage'' provision is necessary to 
protect against an easy subterfuge for anti-gay discrimination. 
A marriage ability job requirement would be a deceptive way in 
which employers could intentionally discriminate against gay 
employees in states without same-sex marriage.
    The third Souder amendment was defeated by a vote of 19-29. 
The third amendment offered by Congressman Souder would 
prohibit retaliation against an employee who refuses to sign an 
employer's anti-discrimination or anti-harassment policy or 
refused to participate in diversity training because such 
policy is against the individual's religious beliefs regarding 
sexual orientation.
    The fourth amendment was offered by Representative Hoekstra 
(R-MI) and defeated by a vote of 21-27. The Hoekstra amendment 
would have expanded the religious exemption to include 
institutions that maintain a faith-based mission. H.R. 3685 
adopts Title VII's definition of a religious organization and 
thereby imports long-standing existing law on who is or is not 
a religious organization. The scope of its religious exemption 
is to those organizations who are covered by Title VII's 
exemption, no more and no less.

                                SUMMARY

    The Employment Non-Discrimination Act of 2007 prohibits 
employers of fifteen or more persons, including government 
employers, employment agencies and labor organizations, from 
discriminating in employment or employment opportunities on the 
basis of actual or perceived sexual orientation. Employment 
opportunities include: firing, hiring, compensation, terms, 
conditions and privileges of employment or union membership.
    The Act prohibits the imposition of affirmative action and 
the adoption of quotas or granting preferential treatment to an 
individual based on their sexual orientation by an employer. 
H.R. 3685 does not require employers to provide benefits to 
their employees or their domestic partners. It prohibits the 
Equal Employment Opportunity Commission (EEOC) from collecting 
statistics and does not require the collection of statistics by 
employers. Religious organizations, including religious 
corporations, associations, societies, or educational 
institutions are exempted. In addition, H.R. 3685 does not 
apply to members of the Armed Forces.
    The enforcement powers, procedures, and remedies that exist 
under current Federal employment discrimination law are 
included under the Act. This means a plaintiff must go through 
the administrative mechanism of the EEOC. A plaintiff may then 
file a lawsuit in Federal court and, if the plaintiff prevails, 
may receive injunctive relief such as reinstatement and/or back 
pay. A plaintiff may also receive compensatory and punitive 
damages, to the extent such damages are allowed under Title 
VII. Similar to Title VII, attorney's fees are also available. 
However, unlike the protections contained under Title VII, ENDA 
does not allow an individual to bring a traditional ``disparate 
impact'' claim, which is a claim that a facially neutral 
practice of the employer has a disproportionate adverse effect 
on persons of a protected class.

                     STATEMENT AND COMMITTEE VIEWS

    The Committee on Education and Labor of the 110th Congress 
is committed to guaranteeing equality and opportunity in the 
workplace and to ensuring that American workers have access to 
remedies if they are discriminated against. ENDA is a critical 
step toward ensuring that Americans are not discriminated 
against because of their sexual orientation. Despite the 
tremendous progress this country has made in securing the 
rights of Americans to be free from discrimination, GLB workers 
remain vulnerable to discrimination. Without any Federal 
protection, GLB workers can be fired simply for being gay. The 
Employment Non-Discrimination Act will ensure that in the same 
tradition of this country's civil rights laws, the fundamental 
principles of fairness and equality at work will be protected 
regardless of an individual's sexual orientation.
    Title VII of the 1964 Civil Rights Act generally makes it 
unlawful for employers with 15 or more employees, employment 
agencies, and labor organizations to discriminate against 
employees or applicants on the basis of race, color, religion, 
sex, or national origin. While many forms of employment and 
pre-employment bias are forbidden under Title VII, 
discrimination based on sexual orientation is currently an 
unprotected class which represents millions of working 
Americans.
    H.R. 3685 furthers the spirit of civil rights law by 
extending protections to GLB workers. In the same way that 
Title VII, the Age Discrimination in Employment Act (ADEA), and 
the Americans with Disabilities Act (ADA) prohibit other forms 
of employment discrimination, ENDA would prohibit intentional 
discrimination based on sexual orientation. The legislation 
would create no ``special rights,'' but will guarantee equal 
rights. ``Sexual orientation'' is defined by the bill as 
``homosexuality, bisexuality, or heterosexuality.''
    In addition to prohibiting discrimination based on a 
person's actual sexual orientation, ENDA also prohibits 
discrimination based on a person's perceived sexual 
orientation. Both forms of discrimination--because of a 
person's actual sexual orientation and because of a person's 
perceived sexual orientation--are invidious. For this reason, 
ENDA creates a cause of action for an individual, for example, 
who is actually heterosexual, but who is discriminated against 
because that individual is perceived as homosexual.
    By providing workplace protections and remedies to these 
workers who experience discrimination, ENDA will help to end 
the insidious and irrational job discrimination inflicted upon 
GLB workers each day.

   Anti-Discrimination Protections Must Extend to Sexual Orientation


Historical overview of sexual orientation discrimination

    In the majority of states, it is entirely legal for 
employers to openly discriminate on the grounds of sexual 
orientation. The existence of sexual orientation discrimination 
in American employment illustrates half a century's worth of 
severe anti-gay bias in both the state and private employment 
contexts.\9\ A pattern of anti-gay discrimination began to 
emerge throughout the 1940's and 1950's, both in the public and 
private employment contexts. In many instances, such 
discrimination was a matter of policy in areas of Federal 
employment, as well as in many police forces, fire departments, 
schools, and public agencies of our country. Even where no 
government policies mandated sexual orientation discrimination, 
unchecked private anti-gay biases cost the careers of thousands 
of GLB workers.\10\
---------------------------------------------------------------------------
    \9\S. Rep. 107-341.
    \10\Id. See generally Russell J. Davis, Refusal to Hire, or 
Dismissal From Employment, On Account of Plaintiff's Sexual Lifestyle 
or Sexual Preference as a Violation of Federal Constitution or Federal 
Civil Rights Statutes, 42 A.L.R. Fed. 189 (2002); Robin Cheryl Miller, 
Federal and State Constitutional Provisions As Prohibiting 
Discrimination in Employment on the Basis of Gay, Lesbian or Bisexual 
Orientation or Conduct, 96 A.L.R. 5th 391 (2002); The Human Rights 
Campaign, Documenting Discrimination (2001); William D. Rubenstein, Do 
Gay Rights Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65 
(2001).
---------------------------------------------------------------------------
    On July 2, 1964 the Civil Rights Act of 1964 was signed 
into law, prohibiting discrimination based on race, sex, color, 
national origin, and religion. Despite a growing awareness that 
anti-discrimination law should include protections based on 
sexual orientation, Title VII did not extend such protection to 
GLB workers. However, the implementation of Title VII 
demonstrated the positive impact anti-discrimination laws can 
have,\11\ while fueling a widening belief that sexual 
orientation discrimination should no longer be legally 
permissible. Events, particularly the Stonewall uprising of 
1969\12\ further highlighted the plight of GLB individuals and 
the need to protect them under Federal anti-discrimination law.
---------------------------------------------------------------------------
    \11\The Employment Non-Discrimination Act of 2007, hearing before 
the Subcommittee on Health, Employment, Labor and Pensions, 110th 
Cong., 1st Sess. (2007) (written testimony of Representative Emanuel 
Cleaver II (D-MO)) [Hereinafter Cleaver testimony].
    \12\On Friday evening, June 27, 1969, the New York City tactical 
police force raided a popular Greenwich Village gay bar, the Stonewall 
Inn. Raids were not unusual in 1969; in fact, they were conducted 
regularly without much resistance. However, that night the street 
erupted into violent protest as the crowds in the bar fought back. The 
backlash and several nights of protest that followed have come to be 
known as the Stonewall Riots. The Stonewall uprising marked the arrival 
of the modern mass movement for equality for lesbians, gay men, 
transgender and bisexual men and women.
---------------------------------------------------------------------------
    In 1975, Congresswoman Bella Abzug (D-NY) introduced the 
first Federal legislation\13\ to address sexual orientation 
discrimination in America. This legislation was modeled after 
the succession of previous civil rights legislation that 
prohibited employment discrimination based on race and sex. 
Despite these early efforts, severe discrimination has 
continued throughout the years, with private anti-gay biases 
fortified by the lack of a Federal pronouncement on sexual 
orientation discrimination. Federal courts have been rendered 
virtually powerless to remedy the discrimination for want of a 
proper Federal cause of action.\14\
---------------------------------------------------------------------------
    \13\H.R. 166. Congresswoman Abzug introduced a bill of the same 
nature two additional times during the 94th Congress, H.R. 5452, H.R. 
13928.
    \14\S. Rep. 107-341.
---------------------------------------------------------------------------
    The Civil Service Reform Act of 1978\15\ put into law 
regulatory changes and prohibited discrimination against 
Federal employees for ``conduct which does not adversely 
affect'' their job performance. This was interpreted to mean 
that sexual orientation discrimination is a prohibited 
personnel practice.\16\
---------------------------------------------------------------------------
    \15\Pub. L. 95-454.
    \16\The law did not affect the issuing of security clearances by 
agencies including the FBI and CIA because they denied clearances based 
on sexual orientation on the grounds that homosexuality might subject 
them to blackmail. See, Peter Freiberg, President's Order Protects 
Workers, the Wash. Blade (June 5, 1998).
---------------------------------------------------------------------------
    Despite the reach of the Civil Service Reform Act, formal 
protections for GLB workers are still lacking. In response to 
the lack of recourse, the Clinton Administration encouraged 
individual Federal agencies to issue policies banning sexual 
orientation discrimination.\17\ However agencies failed to 
adopt such policies or notify employees that non-discrimination 
policies were adopted. Consequently, in 1998 President Clinton 
issued Executive Order (E.O.) 13087, formally adding sexual 
orientation to an existing E.O.\18\ which banned job 
discrimination against Federal workers based on race, color, 
religion, sex, national origin, disability and age.\19\ While 
E.O. 13087 was a crucial step, Federal law applicable to non-
federal employers was still needed.
---------------------------------------------------------------------------
    \17\President Clinton did not initially issue an Executive Order 
requiring these policies because of a fear that Congress would overturn 
it.
    \18\Executive Order 11478.
    \19\Peter Freiberg, President's Order Protects Workers, the Wash. 
Blade (June 5, 1998).
---------------------------------------------------------------------------
    President Clinton highlighted that the Order failed to 
create any new enforcement rights, such as the ability to bring 
bias complaints to the Equal Employment Opportunity Commission 
(EEOC). However Federal employees like Rob Sadler, an attorney 
with the Department of Commerce and president of the Federal 
GLOBE (gay, lesbian, or bisexual employees) stated the Order 
would bring major change to the workplace by telling ``agencies 
to explicitly detail and distribute the complaint procedures 
for employees who believe they have been subject to anti-gay 
discrimination.''
    President Clinton urged Congress to pass ENDA to extend 
these basic employment protections to all GLB workers. He 
argued, ``individuals should not be denied a job on the basis 
that has no relationship to their ability to perform 
work.''\20\
---------------------------------------------------------------------------
    \20\Id.
---------------------------------------------------------------------------

Sexual orientation discrimination by State and local governments

    In addition, the State and local governments throughout the 
United States have demonstrated a long and troubling history of 
unconstitutional discrimination against GLB workers who are 
employed by those government entities. Examples of 
discrimination by state or local government employers include:
     In 1973, Steven Childers was denied a job with the 
Dallas Police Department because of his sexual orientation, 
despite the fact that he earned the highest score of any 
candidate who took the civil service examination for that 
position.\21\ During the relevant job interview, the police 
department official with sole authority for hiring for that 
particular opening asked Childers various questions intended to 
determine Childers' sexual orientation. At the conclusion of 
the interview, the interviewer told Childers, ``I think you 
should know there are a lot of cops who like to bust fags.'' 
After he was denied the job, Childers filed suit against the 
local government employer in the U.S. District Court for the 
Northern District of Texas, but he was denied relief.
---------------------------------------------------------------------------
    \21\Childers v. Dallas Police Dep't, 513 F. Supp. 134 (N.D. Tex. 
1981).
---------------------------------------------------------------------------
     In December 1974, Ms. Rowland was suspended from 
her position as a high school guidance counselor in the Mad 
River Local School District in Montgomery County, Ohio.\22\ 
Rowland ``was fired because she was a homosexual who revealed 
her sexual preference--and, as the jury found, for no other 
reason.''\23\ Indeed, the federal jury that heard her case 
ruled in her favor and awarded her damages, however, that 
ruling was later overturned by the U.S. Court of Appeals for 
the Sixth Circuit. Although the U.S. Supreme Court later 
declined to hear Rowland's appeal, Justice William Brennan 
offered a powerful opinion dissenting from the denial of 
certiorari, in which he explained why classifications based on 
sexual orientation are suspect and should be carefully 
scrutinized by the courts.\24\
---------------------------------------------------------------------------
    \22\Rowland v. Mad River Local School Dist., 730 F.2d 444 (6th Cir. 
1984).
    \23\Id. at 454 (Edwards, J., dissenting).
    \24\470 U.S. 1009, 105 S. Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan, 
J. and Marshall, J. dissenting from the denial of cert.).
---------------------------------------------------------------------------
     Joseph Acanfora III, a public junior high school 
science teacher in Montgomery County, Maryland, was transferred 
to a nonteaching position in 1972 when the school district 
learned he was gay. Acanfora filed a constitutional challenge 
and the U.S. District Court for the District of Maryland ruled 
in his favor, holding that the school officials wrongfully 
transferred him to a nonteaching position when they discovered 
that he was gay.\25\ However, the U.S. Court of Appeals for the 
Fourth Circuit overturned this ruling without even considering 
the equal protection arguments presented in Acanfora's case. 
Instead, the Fourth Circuit oddly focused on the fact that 
Acanfora had not outed himself in his application for 
employment.\26\
---------------------------------------------------------------------------
    \25\Acanfora v. Board of Ed. of Montgomery County, 359 F. Supp. 843 
(D.Md. 1973).
    \26\Acanfora v. Board of Ed. of Montgomery County, 491 F.2d 498 
(4th Cir. 1974).
---------------------------------------------------------------------------
     Richard Aumiller, a lecturer at the University of 
Delaware, served as the faculty advisor to the University's Gay 
Community group.\27\ Aumiller's employment contract was not 
renewed in 1975 after he made positive statements in newspaper 
articles about homosexuality which the University, president, 
and officials found to be offensive. The U.S. District Court 
for the District of Delaware found that these statements in no 
way impeded Aumiller's ability to perform his daily duties, nor 
did they substantially disrupt the University or his working 
relationship with his superiors. Therefore, the Court held that 
the University's discriminatory actions violated Aumiller's 
constitutional rights.
---------------------------------------------------------------------------
    \27\Aumiller v. the University of Delaware, 434 F. Supp. 1273 
(D.Del. 1977).
---------------------------------------------------------------------------
     Vernon R. Jantz had regularly worked as a 
substitute teacher at the Wichita North High School in Wichita, 
Kansas, but he was denied fulltime employment as a social 
studies teacher in 1988 because the principal of that high 
school had perceived that Jantz might have ``homosexual 
tendencies.''\28\ Jantz filed suit against the local government 
employer in the U.S. District Court for the District of Kansas, 
and he was initially successful as that court ruled in his 
favor. However, his victory was later overturned by the U.S. 
Court of Appeals for the Tenth Circuit.
---------------------------------------------------------------------------
    \28\Jantz v. Muci, 759 F.Supp. 1543 (D.Kan. 1991), reversed by, 976 
F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952, 113 S. Ct. 2445, 
124 L.Ed.2d 662 (1993).
---------------------------------------------------------------------------
     Robin Joy Shahar--a lawyer who was employed by the 
Georgia Attorney General's Office--was terminated from her job 
in 1991 when her State employer discovered that she was a 
lesbian and had held a private religious ceremony with her 
lesbian partner.\29\ Attorney General Michael Bowers--who had 
previously achieved notoriety by promoting the discriminatory 
legal position in the now-discredited case of Bowers v. 
Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 
(1986)--personally wrote to Shahar to inform her that he could 
not continue to employ her because--in his opinion--her life 
did not reflect appropriately on the Attorney General's Office. 
Shahar brought a constitutional challenge in the federal 
courts, but was ultimately unsuccessful in getting reinstated 
by her State employer.
---------------------------------------------------------------------------
    \29\Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), vacated en 
banc, 114 F.3d 1097 (1997), writ of certiorari denied, 522 U.S. 1049, 
118 S. Ct. 693, 139 L.Ed.2d 638 (1998).
---------------------------------------------------------------------------
     Thomas Figenshu worked as an officer with the 
California Highway Patrol from 1983 to 1993.\30\ After he was 
promoted to sergeant and transferred to West Los Angeles in 
1988, co-workers began to harass him by taping anti-gay 
pornographic cartoons to his mailbox and leaving a ticket for 
``sex with dead animals'' on his windshield. Figenshu also 
found urine on his clothes and his locker, and was commonly the 
object of anti-gay slurs. To remove himself from the hostile 
work environment, Figenshu resigned in 1993 and brought a 
successful claim pursuant to California law. However, he had no 
Federal remedy to address the discriminatory workplace 
environment created by his State employer.
---------------------------------------------------------------------------
    \30\See Figenshu v. State, 1999 Cal. LEXIS 4666, No. S079219 (Cal. 
Jul. 14, 1999).
---------------------------------------------------------------------------
     James Shermer worked as a building tradesman for 
the Illinois Department of Transportation.\31\ Shermer's 
supervisor constantly made offensive homophobic remarks about 
Shermer at the workplace, thus creating a hostile work 
environment. In 1995, Shermer filed suit against his State 
employer pursuant to Title VII of the Civil Rights Act of 1964, 
however, the U.S. District Court for the Central District of 
Illinois and the U.S. Court of Appeals for the Seventh Circuit 
ruled against Shermer because the harassment was based on 
sexual orientation and not prohibited by Title VII.\32\
---------------------------------------------------------------------------
    \31\Shermer v. Illinois DOT, 937 F. Supp. 781 (C.D. Ill. 1996).
    \32\Id.; Shermer v. Illinois DOT, 171 F.3d 475 (7th Cir. 1999).
---------------------------------------------------------------------------
     Wendy Weaver was a teacher at Spanish Fork High 
School in Utah for 19 years, and served as the school's 
volleyball coach since 1979.\33\ Weaver consistently received 
good to excellent evaluations, was never subject to any 
discipline and was considered an effective and capable teacher. 
After it was discovered in 1997 that Weaver was a lesbian, the 
school directed her to refrain from making comments to or 
answering questions from students, staff or parents about her 
``homosexual orientation or lifestyle,'' and she was removed 
from her position as volleyball coach. The U.S. District Court 
for the District of Utah held that because the school attempted 
to infringe upon Weaver's First Amendment rights, she was 
entitled to summary judgment. Weaver was reinstated to her 
coaching position and awarded damages.
---------------------------------------------------------------------------
    \33\Weaver v. Nebo School District, 29 F. Supp. 2d 1279 (C.D. Ut. 
1998).
---------------------------------------------------------------------------
    After reviewing this long history of workplace 
discrimination by State and local government employers, 
Congress finds that the States do not possess even a rational 
basis--and certainly not a compelling reason--for 
discriminating against GLB workers merely because of their 
sexual orientation. Any such discrimination by State and local 
governments is completely irrational.
            Discrimination based on sexual orientation continues
    Employment discrimination based on actual or perceived 
sexual orientation continues in America's workplaces. Studies 
find that while a majority of GLB workers believe there is more 
acceptance of them in today's society compared to years 
previous, they also report an equally significant amount of 
prejudice and discrimination.\34\ Many well documented 
cases\35\ illustrate the need to protect workers who experience 
discrimination with regard to unfair hiring and termination 
practices, inequitable benefits, and hostile and oppressive 
working conditions.\36\
---------------------------------------------------------------------------
    \34\Inside Out: A Report on the Experience of Lesbians, Gays and 
Bisexuals in America and the Public's Views on Issues and Policies 
Related to Sexual Orientation, The Kaiser Family Foundation (2001).
    \35\See generally, Bias in the Workplace: Consistent Evidence of 
Sexual Orientation and Gender Identity Discrimination; Badgett, Lau, 
Sears, Ho; The Williams Institute (2007) at Executive Summary 
[hereinafter Williams Institute Report]; Sexual Orientation-Based 
Employment Discrimination; GAO-02-878R [hereinafter GAO Report]; 
Inside-Out: A Report on the Experiences of Lesbians, Gays, and 
Bisexuals in America and the Public's Views on Issues and Policies 
Related to Sexual Orientation; The Kaiser Family Foundation (2001) 
[hereinafter Kaiser Report].
    \36\Employment Non-Discrimination Act (H.R. 2015), Hearing before 
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 
1st Sess. (2007) (written testimony of Prof. Helen Norton). In this 
testimony, the witness cited cases where workers suffered oppressive 
conditions and discrimination due to their sexual orientation, but were 
denied legal recourse under 42 U.S. C. 2000e-2000e-17 (Title VII of the 
Civil Rights Act of 1964), citing Vickers v. Fairfield Medical Center, 
453 F.3d 757, 759 (6th Cir. 2006) cert. denied, 127 S. Ct. 2910 (2007); 
Simonton v. Runyon, 232 F.3d 33, 34-35 (2 Cir. 2000); Medina v. Income 
Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) 
(rejecting heterosexual woman's Title VII claim challenging her lesbian 
supervisor's sexually explicit remarks and e-mail: ``We construe Ms. 
Medina's argument as alleging that she was discriminated against 
because she is a heterosexual. Title VII's protections, however, do not 
extend to harassment due to a person's sexuality.''); Bibby v. 
Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001) 
(``Harassment on the basis of sexual orientation has no place in our 
society. Congress has not yet seen fit, however, to provide protection 
against such harassment.'') (citations omitted).
---------------------------------------------------------------------------
    Numerous studies\37\ show that discrimination in the 
workplace based on sexual orientation is a national problem. 
Sexual orientation discrimination occurs in small and large 
companies, public agencies, schools, and municipalities across 
the nation. It impacts all levels of the workforce from minimum 
wage employees to corporate executives, affecting all races, 
ages, religions and skill levels of workers. Basic protections 
are long overdue, as homosexual and bisexual--as well as 
heterosexual\38\--workers have been vulnerable to unfair 
treatment through the years. The lack of basic rights leaves 
millions of hardworking tax-payers without Federal protection 
from discriminatory practices.
---------------------------------------------------------------------------
    \37\See generally, Williams Institute Report; GAO Report; Kaiser 
Report.
    \38\Referring to documented cases where heterosexuals who are 
either perceived to be gay or simply befriend gay co-workers, resulting 
in workplace harassment and/or discrimination--as in the case of 
Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006) 
cert. denied, 127 S. Ct. 2910 (2007).
---------------------------------------------------------------------------
    A considerable amount of evidence has been presented before 
both the House and Senate demonstrating that intentional 
employment discrimination on the basis of sexual orientation 
causes severe economic and psychological harm. Many employees 
who have experienced discrimination demonstrated an exemplary 
work ethic, received above-average evaluations and have made 
significant contributions to the workplace and their 
communities. However, a prejudice towards their sexual 
orientation ensues irrespective of job performance.\39\ 
Consequently, GLB employees are put at an economic disadvantage 
as an entire class of workers. The lack of Federal protection 
fosters hostile work environments where GLB employees fear that 
their sexual orientation could be revealed to the detriment of 
their careers.
---------------------------------------------------------------------------
    \39\I.e. Denying promotions, paying GLB workers a lower wage than 
their heterosexual counterparts, and/or termination.
---------------------------------------------------------------------------
    To learn more about this problem, the HELP Subcommittee 
heard testimony from police officer Michael Carney, a highly 
decorated police officer who was denied reinstatement to the 
Springfield, Massachusetts Police Department because he is gay. 
Despite his solid record as an officer, and despite the Police 
Chief's recommendations, Carney was denied reinstatement three 
times after informing the Police Commission that he was gay. 
Fortunately for Mr. Carney, Massachusetts has a law prohibiting 
such discrimination.\40\ As a result, he filed a claim under 
state law. After an investigation, the Massachusetts Commission 
against Discrimination ruled probable cause existed that the 
police commission discriminated against Officer Carney on the 
basis of sexual orientation. A settlement was subsequently 
reached and Officer Carney was reinstated.\41\ Mr. Carney's 
experience demonstrates that state and local government 
employers continue to discriminate against GLB workers, even 
though such discrimination is completely irrational and serves 
no conceivable government purpose.
---------------------------------------------------------------------------
    \40\Mass. Gen. Law Chpt. 151B.
    \41\Employment Non-Discrimination Act (H.R. 2015) hearing before 
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 
1st Sess. (2007) (written testimony of Officer Michael Carney).
---------------------------------------------------------------------------
    The Subcommittee also heard from Brooke Waits, who was 
praised for her job performance at Cellular Sales in Texas, as 
an inventory control manager. She received a raise within 
several weeks after joining the company, and was lauded for her 
performance. However, when her supervisor discovered that she 
was a lesbian, Brooke was fired the very next day. 
Unfortunately Brooke had no recourse under Texas law, and thus 
could not assert a valid claim against her employer's 
discriminatory conduct.\42\
---------------------------------------------------------------------------
    \42\Employment Non-Discrimination Act (H.R. 2015), hearing before 
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 
1st Sess. (2007) (written testimony of Brooke Waits).
---------------------------------------------------------------------------
    The Senate HELP Committee heard testimony from Larry Lane 
who worked as the regional manager for the New York region of 
Collins and Aikman Floor Coverings, Inc. For over two-years 
Larry's work was praised. In the only written evaluation he 
received, Larry's manager stated ``Larry is doing an 
outstanding job. He is already having a positive impact on the 
New York zone.''\43\ However, when colleagues discovered Larry 
was gay they began a campaign to get rid of him. Without 
warning he was placed on probation. Shortly thereafter he 
admitted to colleagues that he was in fact gay and within weeks 
he was formally fired. Recounting his experience Larry 
testified, ``one's success in the workplace should depend on 
performance and ability and not be subject to the ignorant 
views and lack of acceptance that many times still exists 
toward lesbians and gay men.''\44\
---------------------------------------------------------------------------
    \43\The Employment Non-Discrimination Act, hearing before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 
2nd Sess. (2002) (written testimony of Lawrence Lane, at 22) 
[hereinafter Lane Testimony].
    \44\Lane Testimony at 23.
---------------------------------------------------------------------------
    Cases such as these are not isolated. Unfortunately, many 
GLB workers who have been discriminated against are frightened 
to speak up after the discriminatory act for fear that it could 
happen again by a subsequent employer. Studies show that up to 
68 percent of GLB respondents have experienced some kind of 
workplace discrimination ranging from the denial of employment 
promotion, to termination without cause.\45\ States that ban 
this type of discrimination, report that the number of sexual 
orientation discrimination suits is proportional to that of sex 
and race discrimination complaints, pro rata.\46\ Thus, there 
is a substantial need for Federal protection of these workers, 
particularly in the majority of states that do not already 
protect them.
---------------------------------------------------------------------------
    \45\Bias in the Workplace: Consistent Evidence of Sexual 
Orientation and Gender Identity Discrimination; Badgett, Lau, Sears, 
Ho; The Williams Institute; (2007) at Executive Summary [hereinafter 
Williams Institute].
    \46\Id.
---------------------------------------------------------------------------

The impact of sexual orientation discrimination

            Economic impact on GLB workers
    GLB workers experience significant wage disparities, higher 
unemployment rates, and inequitable public accommodations and 
benefits.\47\ Economists and sociologists who study these 
patterns also conclude that due to discrimination based on 
sexual orientation, gay men earn less money than heterosexual 
men who have similar experience, education, and 
credentials.\48\ Another study showed that when job applicants 
submitted applications or resumes that were coded with language 
suggesting the applicants' involvement in a gay rights 
organization, those applicants were consistently denied 
employment more often than applicants of equivalent quality 
that did not have any ``gay code'' in their applications.\49\
---------------------------------------------------------------------------
    \47\Id. at 12, 15, 18-20.
    \48\Id. 13.
    \49\Id.
---------------------------------------------------------------------------
    In addition to economic harms, GLB workers tend to 
experience substantially impaired ability to obtain affordable 
healthcare and employment related benefits.\50\ Without stable 
employment, income, and access to jobs, the effects of 
discrimination are felt in almost every aspect of life, 
including one's own health and well-being.
---------------------------------------------------------------------------
    \50\Human Rights Campaign at 15.
---------------------------------------------------------------------------
            Psychological impact
    The discrimination and/or fear of discrimination that many 
GLB workers face can have far-reaching consequences. The 
American Psychological Association testified to the Senate HELP 
Committee that researchers have found that GLB workers suffer 
psychological distress because they are often persecuted and in 
a constant state of fear of being discovered.\51\ The study 
reported ``research has indicated that social stigma based upon 
sexual orientation may be a risk factor for psychological 
depression, and anxiety.\52\ Brooke Waites testified that her 
co-workers frequently made jabs and other derogatory comments 
about GLB people. Fearing for her job and not wanting to 
``cause problems,''\53\ Waites carefully avoided using pronouns 
when talking about her girlfriend. Although Waites was openly 
lesbian in every aspect of her life outside of her job, this 
work environment ``kept [her] * * * from being [herself] with 
coworkers.''\54\ Despite her efforts, Waites was ultimately 
fired when her manager discovered that she was a lesbian. She 
testified ``the experience has been difficult for me, as it has 
altered not only how I feel about the world but also, how I 
feel in the world. Work was more than work to me: it was a part 
of what I know about myself and how I feel about myself.''\55\
---------------------------------------------------------------------------
    \51\The Employment Non-Discrimination Act, hearing before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 
2nd Sess. (2002) (testimony submitted by the American Psychological 
Association (APA), at 40) [hereinafter APA Testimony].
    \52\Id.
    \53\Waites Testimony at 1.
    \54\Id.
    \55\Id.
---------------------------------------------------------------------------
    Researchers have found that the experience of Brooke Waites 
is not isolated. In fact GLB workers who place a high value on 
career advancement and success fear being `outed' at work. 
Disclosure at work ``may be related to the relative importance 
a [GLB] employee places on certain aspects of work and life 
domains.''\56\ A 2006 study found that ``gay men who emphasized 
quality of work life and relationship quality were more likely 
to disclose at work than those who emphasized job security or 
career success.\57\
---------------------------------------------------------------------------
    \56\Shaun Pichler, ``Heterosexism in the Workplace,'' Sloan Work 
and Family Research Network at 7 (Apr. 3, 2007). See also, Y.B. Chung, 
``Career Decision Making of Lesbian, Gay, and Bisexual Individuals,'' 
Career Development Quarterly at 44 (1995).
    \57\R.N.C. Trau & C.E.J. Hartel, ``Impact of career-life conflict 
on disclosure and attitudes towards organization among gay men'' Sexual 
Orientation in the Workplace: Current Issues. Symposium Presented at 
the National Academy of Management Meeting, Atlanta, GA. See also, 
Shaun Pichler, ``Heterosexism in the Workplace,'' Sloan Work and Family 
Research Network at 7 (Apr. 3, 2007). 
---------------------------------------------------------------------------
    The American Psychological Association concludes that 
psychological research findings indicate that GLB individuals 
experience ``significantly higher levels of discrimination 
based upon sexual orientation than do heterosexual 
individuals.''\58\ Stigmatization and discrimination can lead 
to increased vulnerability of negative mental health 
conditions.
---------------------------------------------------------------------------
    \58\APA Testimony at 41.
---------------------------------------------------------------------------
    The APA further states that ``anti-discrimination policies 
in the workplace can * * * [positively] affect job satisfaction 
and productivity.''\59\ Researchers have found ``a significant 
relationship between self-disclosure, anti-discrimination 
policies and top management support for equal rights and 
organizational commitment.''\60\ Enactment of ENDA would 
decrease the fear and stigmatization GLB workers feel and would 
promote the mental welfare of these individuals as well as the 
public good.
---------------------------------------------------------------------------
    \59\Id.
    \60\Id.
---------------------------------------------------------------------------

     Existing Federal and State Laws Provide Inadequate Protections


Federal law

    Federal law today provides the American worker with the 
necessary safeguards to protect them against workplace 
discrimination with regard to race, color, sex, national 
origin, religion, age and disability.\61\ Courts have 
interpreted Title VII to prohibit associative discrimination in 
employment (i.e., discrimination against a person with whom the 
employee associates). Title VII and other Federal laws have 
been interpreted to prohibit discrimination based on the 
perceived characteristics of an employee or applicant for 
employment.\62\
---------------------------------------------------------------------------
    \61\42 U.S. C. Sec. Sec. 2000e-2000e-17 (Title VII of the Civil 
Rights Act of 1964); 29 U.S. C. Sec. Sec. 621-634 (Age Discrimination 
in Employment Act); 42 U.S. C. Sec. Sec. 12101-12102, 12111-12117, 
12201-12213 (Americans with Disabilities Act).
    \62\Courtney Joslin. ``Protection for Lesbians, Gay, Bisexual, and 
Transgender Employees Under Title VII of the 1964 Civil Rights Act.'' 
http://www.abanet.org/irr/hr/summer04/protectlgbt.html.
---------------------------------------------------------------------------
    Unfortunately, however, current Federal law fails to 
address discrimination on the basis of sexual orientation in 
the workplace. Federal case law is ``replete with decisions 
where Federal judges have characterized egregious acts of 
discrimination targeted at GLB workers as morally reprehensible 
yet utterly beyond the law's reach.''\63\ Furthermore, only 20 
states, plus the District of Columbia, prohibit employment 
discrimination based on sexual orientation,\64\ leaving 
millions of GLB Americans vulnerable to blatant employment 
discrimination.
---------------------------------------------------------------------------
    \63\The Employment Non-Discrimination Act of 2007 (H.R. 2015), 
hearing before the Subcommittee on Health, Employment, Labor & 
Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Professor 
Helen Louise Norton) [hereinafter Norton Testimony]. See, Higgens v. 
New Balance Athletic Shoes, Inc., 194 F.3d 252, 258 (1st Cir. 1999) 
(The court held that harassment because of sexual orientation is a 
noxious practice but the court is called upon to construe a statute, 
not to make a moral judgment--Title VII does not proscribe harassment 
simply of sexual orientation); Simonton v. Runyon, 232 F.3d 33, 34-35 
(2nd Cir. 2000) (The court stated the conduct allegedly engaged in by 
[Simonton's] co-workers is morally reprehensible * * * particularly in 
the modern workplace. However, the court held that Simonton had no 
cause of action under Title VII.
    \64\California, Colorado, District of Columbia, Illinois, Iowa, 
Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, 
Vermont, Washington, Connecticut, Hawaii, Maryland, Massachusetts, 
Nevada, New Hampshire, New York and Wisconsin.
---------------------------------------------------------------------------
    Over the past several decades, some courts have held that 
dismissing an individual from Federal employment because of 
their sexual orientation without a rational connection between 
the employee's behavior and the efficiency of the government 
service is a violation of the constitutional guarantee of due 
process.\65\ Conversely, other Federal courts have upheld 
Federal regulations that allowed for dismissal based on what 
those misguided courts have labeled as ``immoral'' 
sexuality.\66\
---------------------------------------------------------------------------
    \65\Russell Davis, ``Refusal to hire, or dismissal from employment, 
on account of plaintiff's sexual lifestyle or sexual preference as 
violation of Federal constitution or Federal civil rights statutes.'' 
42 A.L.R. Fed.189. at 4.
    \66\Id.
---------------------------------------------------------------------------
    Many plaintiffs have attempted to bring sexual orientation 
claims pursuant to Title VII's sex discrimination provision 
however they have done so without success.\67\ Federal courts 
have asserted that they do not have the legal authority to 
remedy workplace discrimination based on sexual orientation 
under Title VII. Although a few Federal courts have broadly 
applied Title VII's prohibition on sex discrimination, GLB 
workers were held not to be covered by civil rights law.\68\
---------------------------------------------------------------------------
    \67\Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 
(3rd Cir. 2001). (``Harassment on the basis of sexual orientation has 
no place in our society. Congress has not yet seen fit, however, to 
provide protection against such harassment.'')
    \68\Id.
---------------------------------------------------------------------------
    The first Title VII cases filed for employment 
discrimination based on sexual orientation emerged in the 
1970s. In 1979, the U.S. Court of Appeals for the Fifth Circuit 
ruled that ``discharge for homosexuality is not prohibited by 
Title VII.''\69\ In the same year, the U.S. Court of Appeals 
for the Ninth Circuit issued a similar ruling in what is 
considered the most clearly established precedent, clarifying 
that sexual orientation discrimination was not actionable under 
Title VII.
---------------------------------------------------------------------------
    \69\Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Circuit 1979).
---------------------------------------------------------------------------
    In DeSantis v. Pacific Telephone & Telegraph Co., the 
plaintiffs argued that Title VII should be interpreted to cover 
discrimination on the basis of sexual orientation and that 
Title VII should be interpreted to encompass discrimination 
directed at a male employee because he is perceived to be 
``effeminate.''\70\Both arguments were rejected by the Ninth 
Circuit on the basis that that court believed Congress never 
intended to provide protection for persons discriminated 
against based on sexual orientation or perceived sexual 
orientation.\71\ Rather, the court held that Title VII was only 
intended to cover ``traditional notions of [gender].''\72\
---------------------------------------------------------------------------
    \70\DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 
(9th Cir. 1979).
    \71\Id.
    \72\Id.
---------------------------------------------------------------------------
    In 1989, the U.S. Court of Appeals for the Eighth Circuit 
Court of Appeals ruled in accordance with the previous courts' 
rulings on the matter by issuing an opinion which clearly 
stated: ``Title VII does not prohibit discrimination against 
homosexuals.''\73\ And in 1997, the U.S. Court of Appeals for 
the Eleventh Circuit ruled in a similar manner when it held in 
Fredette v. BVP Management Associates that
---------------------------------------------------------------------------
    \73\Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th 
Circuit 1989).

        finally, we address concerns raised by the appellee 
        regarding the implication of this case for the law 
        regarding discrimination based on sexual orientation. 
        BVP argues that to hold in favor of the appellant is, 
        in effect, to protect against discrimination on the 
        basis of sexual orientation. The short but complete 
        answer to this argument is to make clear the narrowness 
        of our holding today. We do not hold that 
        discrimination based on sexual orientation is 
        actionable * * * We note at the EEOC has also drawn a 
        distinction between [what is] actionable as gender 
        discrimination, and discrimination because of sexual 
        orientation.\74\
---------------------------------------------------------------------------
    \74\Fredette v. BVP Management Associates, 112 F.3d 1503, 1510 
(11th Cir. 1997).

    While many U.S. District Courts and U.S. Courts of Appeals 
have made it clear that they do not have the legal authority to 
remedy workplace discrimination based on sexual orientation 
under Title VII of the Civil Rights Act of 1964, two decisions 
by the U.S. Supreme Court clearly display the Court's intent to 
protect against certain types of gender-role discrimination.
    In Price Waterhouse v. Hopkins,\75\ plaintiff Ann Hopkins 
claimed she had been denied partnership at the firm because she 
was not feminine enough. In order to increase her chances of 
making partner, Hopkins was told she should ``walk more 
femininely, talk more femininely, dress more femininely, wear 
make-up, have her hair styled, and wear jewelry.''\76\ While 
the employer argued that Title VII did not prohibit 
discrimination based on gender stereotypes, the Supreme Court 
disagreed and held that Title VII is not simply limited to 
discrimination based on the biological makeup of an individual 
but also includes discrimination based on gender 
stereotypes.\77\
---------------------------------------------------------------------------
    \75\490 U.S. 228 (1989).
    \76\Joslin, supra note 63 at 2.
    \77\Id.

          As for the legal relevance of sex stereotyping, we 
        are beyond the day when an employer could evaluate 
        employees by assuming or insisting that they matched 
        the stereotype associated with Their group, for in 
        forbidding employers to discriminate against 
        individuals because of their sex Congress intended to 
        strike at the entire spectrum of disparate treatment of 
        men and women resulting from sex stereotypes.\78\
---------------------------------------------------------------------------
    \78\Id.

    In addition, the Supreme Court's decision in Oncale v. 
Sundowner further expanded previous interpretations of Title 
VII.\79\ In Oncale, the Supreme Court held that a plaintiff 
could state a Title VII claim where sexual harassment was 
perpetrated by a person of the same sex.\80\
---------------------------------------------------------------------------
    \79\523 U.S. 75 (1998).
    \80\Id.
---------------------------------------------------------------------------
    These two important Supreme Court cases influenced 
contemporary courts to more vigorously scrutinize cases 
involving sexual orientation discrimination under a variety of 
state and Federal constitutional theories. For example, in 
2002, the U.S. District Court for the District of Oregon denied 
the defendant-employer's motion for summary judgment in a Title 
VII suit brought by a lesbian who claimed her female supervisor 
made disparaging and harassing comments based on gender 
stereotypes.\81\ The Ninth Circuit issued a similar ruling in 
the Rene v. MGM Grand Hotel, Inc.,\82\ where a gay male 
plaintiff presented evidence that his former coworkers harassed 
and taunted him by calling him feminine names and saying he 
walked like a woman.\83\
---------------------------------------------------------------------------
    \81\Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 
(D. Or. 2002).
    \82\305 F.3d 1061 (9th Cir. 2002).
    \83\Id.
---------------------------------------------------------------------------
    Despite what may be seen as progress in the direction of 
protecting GLB Americans from employment discrimination, 
millions of workers still face the prospect of being fired 
because they are gay, lesbian, or bisexual. Therefore, Congress 
finds it important to protect GLB workers in all states in 
order to end the irrational practice of workplace 
discrimination based on sexual orientation.

State laws

    The first jurisdiction to prohibit sexual orientation 
discrimination in employment was East Lansing, Michigan in 
1972. Wisconsin enacted its gay-rights law in 1983, leading the 
way for states passing laws that ban sexual orientation 
discrimination in employment.\84\ Since then, a significant 
number of cities and counties that have enacted similar laws, 
but as of today, only 20 states and the District of Columbia 
prohibit discrimination based on sexual orientation.
---------------------------------------------------------------------------
    \84\William Rubenstein. ``Do Gay Rights Laws Matter? An Empirical 
Assessment.'' (November 2001) at 3.
---------------------------------------------------------------------------
    State laws that prohibit employment discrimination on the 
basis of sexual orientation can be divided into two groups. In 
some states, sexual orientation is deemed a protected class in 
a general anti-discrimination law. In other states, sexual 
orientation is protected under a provision separate from those 
protecting other categories such as race or sex.\85\
---------------------------------------------------------------------------
    \85\Joslin, supra note 63 at 3.
---------------------------------------------------------------------------
    According to the General Accounting Office's (GAO) report 
on ``Sexual Orientation--Based Employment Discrimination: 
States' Experience with Statutory Prohibitions,'' states that 
protect against employment discrimination based on sexual 
orientation have generally established the basis for the 
protection they provide. Most of these states define ``sexual 
orientation'' as heterosexuality, homosexuality, or 
bisexuality. Besides Vermont and the District of Columbia, all 
other state definitions include people who are perceived by 
others to be in, or are identified with, those three 
categories. These states have expanded their definition to not 
only prohibit discrimination against employees who actually are 
homosexual, but also against employees whom the employer 
incorrectly believes are homosexual.\86\
---------------------------------------------------------------------------
    \86\The Government Accounting Office (GAO). ``Sexual Orientation 
``Based Employment Discrimination: States' Experience with Statutory 
Prohibitions,'' (July 2002) at 1.
---------------------------------------------------------------------------
    California and Minnesota provide protections to its 
citizens that expressly prohibit associational discrimination. 
Specifically, California's statute prohibits unlawful 
employment practices on the basis of sexual orientation 
including instances where ``the [employee] is associated with a 
person who has, or is perceived to have `any of the 
characteristics on which basis it is illegal to discriminate,' 
such as sexual orientation.'' Minnesota deems it an unfair 
discriminatory practice for an individual who participated in 
alleged discrimination to intentionally engage in a reprisal 
against any person because that person associated with a person 
or group of persons who are of a different sexual 
orientation.\87\
---------------------------------------------------------------------------
    \87\Id at 4-5.
---------------------------------------------------------------------------
    Under the state laws the size of the employer's business is 
a factor in determining coverage.\88\ GAO found that in the 
states they reviewed with laws prohibiting discrimination on 
the basis of sexual orientation, six included all employers 
regardless of business size. In seven other states, the minimum 
number of employees that trigger coverage ranges from as few as 
three (Connecticut) to as many as fifteen (Maryland and 
Nevada).\89\
---------------------------------------------------------------------------
    \88\This is also the case under existing Federal laws and ENDA.
    \89\GAO, supra note 86 at 5.
---------------------------------------------------------------------------
    The nature of an employer's business or activity is another 
factor states have used to determine whether nondiscrimination 
protections apply. In particular, all states have found it 
necessary to provide an exemption for religious organizations. 
Though the religious exemption language varies from state to 
state, most states have exemptions that are broad in scope. 
Under these broad exemptions, religious organizations are 
permitted to give preference to individuals of the same 
religion or to those people whose employment is in accordance 
with the tenets of their particular religion. However, 
Minnesota has an exemption that does not apply to secular 
business activities engaged in by religious associations.\90\
---------------------------------------------------------------------------
    \90\Id. at 5.
---------------------------------------------------------------------------

                      ENDA Is the Necessary Remedy

    Congress has the responsibility to pass ENDA to ensure that 
all GLB individuals, regardless of where they live or work, are 
protected from sexual orientation discrimination. The lack of 
Federal protection leaves GLB workers reliant on a patchwork of 
local and state laws that have failed to protect them. While 
certain states, municipalities and businesses should be 
commended for adopting anti-discrimination policies, their 
efforts do not extend far enough to negate the need for federal 
intervention.
    In addition to state and local support for fair and equal 
treatment of GLB individuals, business leaders have widely 
adopted workplace anti-discrimination policies protecting GLB 
rights. According to a recent survey, over 2000 companies, 
colleges, universities, state and local governments and Federal 
agencies have non-discrimination policies encompassing sexual 
orientation of their employees.\91\
---------------------------------------------------------------------------
    \91\S. Rpt. 107-341.
---------------------------------------------------------------------------
    Despite some progress to secure the rights of GLB workers, 
millions of Americans remain vulnerable to workplace 
discrimination. In her testimony before the HELP Subcommittee's 
September 5, 2007 hearing, Professor Helen Norton stated that 
the patchwork of state and local laws leaves a wide range of 
injuries and injustices unaddressed and that ENDA would ``fill 
these gaps'' by extending a ``national commitment to equal 
employment opportunity'' for these workers.\92\ Opponents of 
this legislation have argued that GLB anti-discrimination 
policies should be left to the states and/or individual 
businesses. However, as Richard Womack, Director of the AFL-CIO 
Department on Civil and Human Rights testified to the Senate 
HELP Committee in reflection of the debate over the Civil 
Rights Act in the 1960's where there was disagreement over 
bill, ``if we had waited for the states to say this was the 
right thing to do, we would not have had a civil rights bill 
[at all].''\93\
---------------------------------------------------------------------------
    \92\The Employment Non-Discrimination Act of 2007, hearing before 
the Subcommittee on Health, Employment, Labor and Pensions, 110th 
Cong., 1st Sess. (2007) (written testimony of Helen Norton, Associate 
Professor, University of Colorado School of Law, at 3) [Hereinafter 
Norton Testimony].
    \93\The Employment Non-Discrimination Act, hearing before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 
2nd Sess. (2002) (written testimony of Richard Womack, Director of the 
AFL-CIO Department on Civil and Human Rights Charles at 22) 
[hereinafter Womack Testimony].
---------------------------------------------------------------------------
    Moreover, the gaps in the state and municipal protections 
leave the majority of GLB workers defenseless against 
discrimination. This reality was directly evidenced by the 
experience with discrimination described by Officer Michael 
Carney and Brooke Waites before the HELP Subcommittee. While 
both were discriminated against for being gay, the outcomes of 
their experiences are dramatically different. As previously 
discussed, Michael Carney--a Springfield, Massachusetts police 
officer--was denied reinstatement to the police force because 
he was gay. However, because Officer Carney was protected under 
a Massachusetts anti-discrimination law, he was reinstated. 
Unfortunately, Brook Waites of Dallas, Texas, had no right to 
fight for her job because Texas does not have an anti-
discrimination statute to protect the rights of GLB workers. 
Ms. Waites testified that while ENDA may not change people's 
minds, Congress has the power to help stop the devastating 
effects of discrimination. She explained no one ``should be 
exposed to a workplace where they have to worry that simply and 
honestly being who they are could cost them their 
livelihood.''\94\ ENDA will close the loopholes that currently 
exist in anti-discrimination laws so that people like Brooke 
Waites have the right to fight an employer's discrimination 
regardless of the state in which she lives.
---------------------------------------------------------------------------
    \94\The Employment Non Discrimination Act of 2007, hearing before 
the Subcommittee on Health, Employment, Labor and Pensions, 110th 
Cong., 1st Sess. (2007) (written testimony of Brooke Waits, at 2) 
[Hereinafter Waites Testimony].
---------------------------------------------------------------------------
    The Act will not only extend fair employment practices, it 
will also foster workplaces where creativity, knowledge and 
life experiences are exchanged freely. This type of environment 
unquestionably benefits employers and employees. Nancy Kramer, 
Founder and CEO of Resource Interactive, testified that in her 
twenty-six years running a small business, she ``ha[s] learned 
that an inclusive workplace, which judges people on their 
merits, not on unrelated matters like sexual orientation * * * 
is the key to success in a competitive, ever-changing 
marketplace.''\95\
---------------------------------------------------------------------------
    \95\The Employment Non Discrimination Act of 2007, hearing before 
the Subcommittee on Health, Employment, Labor and Pensions, 110th 
Cong., 1st Sess. (2007) (written testimony of Nancy Kramer, Founder and 
CEO, Resource Interactive, at 1) [Hereinafter Kramer Testimony].
---------------------------------------------------------------------------
    In addition, business leaders like Lucy Billingsley believe 
that failing to enact ENDA would be more costly to business 
than having businesses comply with its non-discrimination 
requirements.\96\ Discrimination in the workplace burdens 
companies and gives rise to costly grievances and lawsuits.\97\ 
A Federal law banning sexual orientation discrimination will 
actually give businesses the right focus. Ms. Billingsley 
testified: ``By directing attention to only factors of 
performance and productivity * * * all of America's businesses 
will perform better.''\98\ Accordingly, Congress finds that 
employment discrimination against GLB workers--whether in the 
private or public sector--is completely irrational.
---------------------------------------------------------------------------
    \96\Id.
    \97\Id.
    \98\The Employment Non-Discrimination Act, hearing Before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 
2nd Sess. (2002) (written testimony of Lucy Billingsley, founder and 
partner of Billingsley Company, at 32) [hereinafter Billingsley 
Testimony].
---------------------------------------------------------------------------

                  Broad Support for Federal Protection


Business leaders support equality in the workplace

    A significant number of large and small businesses support 
the goals of ENDA, and many have already adopted their own 
corporate non-discrimination policies.\99\ Employers promote 
equality not only because it is the right and moral thing to 
do, but also because it makes good business sense. Today, 
nearly 90 percent of the Fortune 500 ranked corporations 
include workplace protections based on sexual orientation.\100\ 
Charles Gifford, Chairman and CEO of FleetBoston Financial, 
testified before the Senate that the trend among businesses 
indicates that corporate leaders view anti-discrimination 
policies to protect GLB workers as good for business noting 
``the closer a company is to the top of the Fortune list, the 
more likely it is to include sexual orientation in its non-
discrimination policy.''\101\
---------------------------------------------------------------------------
    \99\The State of the Workplace 2006-2007, The Human Rights Campaign 
(2007) at 7. [hereinafter Human Rights Campaign Report]
    \100\Human Rights Campaign Report.
    \101\The Employment Non-Discrimination Act, hearing Before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 2 
Sess. (2002) (written testimony of Charles Gifford, Chairman and CEO, 
FleetBoston Corporation, at 30) [hereinafter Gifford Testimony].
---------------------------------------------------------------------------
    In an effort to attract and retain GLB workers and fair 
minded employees and consumers, companies acknowledge that such 
internal and public policies are necessary to preserve a stable 
and developing economy. More than half of the nation's 
employers in 2007 assert that one of their primary business 
goals is to retain employees.\102\ Hayward Bell, Chief 
Diversity Officer of Raytheon (73,000 employees) stated that 
``over the next 10 years we're going to need anywhere from 
30,000 to 40,000 new employees. We can't afford to turn our 
back on anyone in the talent pool.''\103\
---------------------------------------------------------------------------
    \102\Human Rights Campaign at 13.
    \103\Id.
---------------------------------------------------------------------------
    Maintaining a satisfied and productive workforce within any 
company is critical to a business' success, and forward-
thinking employers are taking crucial steps to ensure as much 
productivity in this area as possible. General Mills, Inc., 
with over 28,500 employees worldwide, voluntarily holds as its 
policy that GLB inclusion in the workplace ``only makes good 
business sense to create a work environment where every 
employee is respected, valued, challenged, and rewarded for 
their individual contribution and performance. Because when you 
do this, good things happen.''\104\
---------------------------------------------------------------------------
    \104\Employment Non-Discrimination Act (H.R. 2015), Hearing Before 
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 
1st Sess. (2007) (written testimony of Kelly Baker, Vice President of 
Diversity, General Mills, Inc.) [hereinafter Baker Testimony]
---------------------------------------------------------------------------
    Testifying before the Senate HELP Committee hearing, 
Charles Gifford, Chairman and CEO of FleetBoston Financial 
stated that members of his company's gay and lesbian community 
``remind [him] of how tiring it can be to stay `in the closet' 
and how much energy is wasted and how focus is diverted from 
their job when they feel they must conceal so much of who they 
are.''\105\ Robert Berman, senior Vice President of Eastman 
Kodak, testified that one key reason for Kodak's success has 
been the company's work environment ``in which [our] employees 
can perform to their full potential. In the same way [we] value 
each and every one of [our customers], we also value each and 
every one of [our] employees.''\106\ Berman testified that 
while it was unusual for companies to support legislation that 
would invite further Federal regulation, ``the protection 
against discrimination because of one's sexual orientation is a 
basic civil right. [The] issue is so fundamental to core 
principles of fairness that [we] believe the value of Federal 
leadership outweighs [any] concerns.''\107\
---------------------------------------------------------------------------
    \105\Gifford Testimony at 31.
    \106\The Employment Non-Discrimination Act, hearing Before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 2 
Sess. (2002) (written testimony of Robert Berman, Senior Vice 
President, Eastman Kodak, at 32) [hereinafter Berman Testimony].
    \107\Id.
---------------------------------------------------------------------------
    Smaller employers also testified to the positive impact of 
implementing acceptance policies, stating that such policy 
represents the ``importance of creating a workplace that 
welcomes the best and the brightest, from all walks of 
life.''\108\ Lucy Billingsley, founder and partner of 
Billingsley Company in Dallas Texas testified to the Senate 
HELP Committee that her ``workplace is a collaborative 
environment where employees can work hard together to beat the 
competition, regardless of sexual orientation. As a small 
business [we] can afford nothing less.''\109\
    Businesses such as IBM Corp., Eastman Kodak Co., American 
Express and Microsoft also provide comprehensive health 
benefits specific to GLB needs.\110\
---------------------------------------------------------------------------
    \108\Employment Non-Discrimination Act (H.R. 2015), Hearing Before 
the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 
1st Sess. (2007) (written testimony of Nancy Kramer, Founder & CEO, 
Resource Interactive (200 employees), at 1) [hearinafter Kramer 
Testimony]
    \109\Billingsley Testimony at 31.
    \110\Id.
---------------------------------------------------------------------------
    All of the evidence above provides persuasive evidence--
which Congress credits--that from the perspective of business 
efficiency, discrimination based on irrelevant characteristics 
such as sexual orientation is completely irrational.

Civil rights & religious leaders support a federal non-discrimination 
        law

    ENDA has been endorsed by over 180 civil rights, religious, 
labor, and women's rights organizations.\111\ These communities 
have articulated their support on moral and economic grounds. 
As a moral issue, extending workplace protections to GLB 
workers will further the goals of equality and fairness in the 
workplace to all people. Many faith organizations of various 
denominations have taken part in a strong movement against 
discrimination: including the Episcopal Church, the Union for 
Reform Judaism; the United Church of Christ; the United 
Methodist Church; the American Friends Service Committee as 
well as many individual Quaker institutions; the Unitarian 
Universalists; the Universal Fellowship of Metropolitan 
Community Churches; and the Interfaith Alliance.
---------------------------------------------------------------------------
    \111\As represented by the Leadership Conference on Civil Rights 
(Coalition).
---------------------------------------------------------------------------
    Representative Emanuel Cleaver, an ordained minister in the 
United Methodist Church, spoke candidly about the legislation 
during the HELP Subcommittee hearing, stating ``[as a 
minister], no one has yet explained to me how keeping someone 
from gaining equal consideration based on their individual 
skill set to obtain lawful employment pleases God.''\112\ He 
and others in the civil rights and religious community agree 
that ENDA seeks simply to ``further extend the rights of 
individuals who have been marginalized and discriminated 
against and denied legal Federal protection for an equal 
playing field when they seek employment.''\113\
---------------------------------------------------------------------------
    \112\The Employment Non-Discrimination Act, hearing Before the 
Senate Health, Education, Labor and Pensions Committee, 107th Cong., 
2nd Sess. (2002) (written testimony of Rep. Emanuel Cleaver, II).
    \113\Id.
---------------------------------------------------------------------------

                        Constitutional Authority

    Congress has the authority to enact ENDA through the 
Commerce Clause and the Fourteenth Amendment of the United 
States Constitution. In addition, the Act's authorization of 
individual suits against state governmental employers is 
derived from Congress' enforcement power under Section 5 of the 
Fourteenth Amendment as well as Congress' Spending Power under 
Article 1.

Commerce clause and fourteenth amendment authority for ENDA

    The Supreme Court has acknowledged that Congress has 
considerable discretion to determine what activities affect 
interstate commerce, to the extent that the Court has held 
events of purely local commerce (such as local working 
conditions) might, because of market forces, negatively affect 
interstate commerce, and thus could be regulated.\114\ 
Protecting the employment rights of GLB workers is a valid 
exercise of Congress' authority to regulate commerce pursuant 
to Article 1, Section 8 of the Constitution.
---------------------------------------------------------------------------
    \114\U.S.  v. Darby, 312 U.S. 100 (1941) (upholding the Fair Labor 
Standards Act as applied to a local employer); Wickard v. Filburn, 317 
U.S. 111 (1942) (upholding federal limits on farm production as applied 
to a local farmer who grew wheat for family consumption).
---------------------------------------------------------------------------
    Congress has a long-history of enacting civil rights 
legislation based on its Constitutional authority granted in 
the Commerce Clause of Article 1, Section 8. This power is the 
same power exercised when enacting Title VII of the Civil 
Rights of 1964, the ADA, and the ADEA. The costs of sexual 
orientation discrimination in the workplace are significant and 
have regional and national economic impacts for which the 
federal government must be responsive. Sexual orientation 
discrimination is a detriment to American commerce because it 
impedes employers' productivity, and has significant 
psychological and economic costs on GLB workers in the form of 
lost and lower wages, and unfair terms and conditions of 
employment to sustain themselves and their families.
    The Fourteenth Amendment of the United States Constitution 
entitles all persons to equal protection under the law. 
Congress possesses the authority to enforce the substantive 
provisions of the Fourteenth Amendment through Section 5 of the 
Amendment: ``The Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article.'' 
Section 5 of the Fourteenth Amendment is an affirmative grant 
of legislative power to Congress.\115\ The Supreme Court has 
ruled that Congress' authority to legislate under the 
Fourteenth Amendment is broader than the Amendment's language, 
holding that Congress has the ability to deter and remedy 
conduct which is not by itself forbidden under the Fourteenth 
Amendment.\116\
---------------------------------------------------------------------------
    \115\Katzenbach v. Morgan, 384 U.S. 641 (1966).
    \116\Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
---------------------------------------------------------------------------
    Protecting and ensuring civil rights in this country has 
long been recognized as an essential element to national 
citizenship and the Federal government has sought to enforce 
and guarantee those rights through the Fourteenth Amendment. 
Similar to discrimination based on race, sex, national origin, 
religion, age, or disability, sexual orientation discrimination 
stands wholly contrary to the fundamental principles of equal 
protection. The Fourteenth Amendment's Equal Protection Clause 
prohibits a State government from engaging in intentional 
discrimination--even when that basis is sexual orientation--
absent some rational basis for doing so.\117\ The Supreme Court 
has recognized that ``irrational prejudice'' does not create a 
rational basis to support a state action against an equal 
protection challenge. Sexual orientation discrimination 
predominately reflects prejudices and stereotypes, not actual 
differences.\118\ Consequently, it is well within Congress' 
power to properly address the unfairness and irrationality of 
workplace discrimination through the enforcement powers granted 
to it pursuant to this Amendment.
---------------------------------------------------------------------------
    \117\Weaver, supra note 34 at 1287.
    \118\Janet E. Halley, ``The Politics of the Closet: Towards Equal 
Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. Rev. 
915, 937 (1989). See also, Erwin Chemerinsky, Constitutional Law: 
Principles and Policies, Aspen Publ. (2002).
---------------------------------------------------------------------------

Fourteenth Amendment and spending clause authority for abrogating the 
        State's sovereign immunity

    Section 5 of the Fourteenth Amendment clearly provides 
Congress with the power to enforce ENDA against state and local 
governments. Congress possesses the authority to remedy sexual 
orientation discrimination in state government employment by 
abrogating the states' sovereign immunity in private suits for 
damages under ENDA. This action is congruent and proportional 
to the problem addressed by ENDA. Indeed, Congress' action 
specifically targets the pattern of irrational and 
unconstitutional discriminatory conduct--discussed earlier in 
this Report--on the part of State and local government 
employers. Congress finds that the states do not possess even a 
rational basis--and certainly not a compelling reason--for 
discriminating against GLB workers merely because of their 
sexual orientation. Any such discrimination by state and local 
governments is completely irrational.
    Sexual orientation discrimination has been held 
unconstitutional in many cases when perpetrated through State 
action.\119\ The outcome of these cases is not surprising given 
that GLB Americans are a discrete and insular minority that has 
been subjected to a history of purposeful unequal treatment 
based on characteristics that are beyond the control of such 
individuals and resulting from stereotypic assumptions not 
truly indicative of the ability of such individuals to 
participate in, and contribute to, society. Thus, in the 
absence of Congressional action, invidious and irrational 
discrimination on the part of state employers would continue to 
deprive hard-working GLB Americans of the fundamental fairness 
to which all American workers are entitled: the right to be 
judged on one's merits, not upon irrelevant factors such as 
sexual orientation.
---------------------------------------------------------------------------
    \119\See, e.g., Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 
156 L.Ed. 2d 508 (2003); Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 
134 L.Ed. 2d 855 (1996).
---------------------------------------------------------------------------
    As the Supreme Court noted in Garret,\120\ [Congress] has 
the power ``both to remedy and to deter violation of rights 
guaranteed [by the Fourteenth Amendment] * * *. Furthermore, 
``legislation reaching beyond the scope of Section 1's actual 
guarantees must exhibit `congruence and proportionality between 
the injury to be prevented or remedied and the means adopted to 
that end.'''\121\ Unlike Garret where the Court held that the 
Americans with Disabilities Act exceeds Congress' authority 
because a State may have a rational reason to not provide a 
reasonable accommodation (i.e. saving money), as cruel as that 
decision might be,\122\ employment discrimination against gays, 
lesbians and bisexuals is entirely irrational. Thirty states 
legally permit state-sponsored discrimination by allowing state 
employers to refuse to hire, fire or harass GLB workers because 
of their sexual orientation. The evidence presented before 
Congress demonstrates that state conduct in the area of sexual 
orientation discrimination is marked by pervasive unequal 
treatment of GLB workers who have no legal protections.
---------------------------------------------------------------------------
    \120\Board of Trustees of the University of Alabama v. Garrett, 121 
S. Ct. 955 (2001).
    \121\Id.
    \122\Id. at 964.
---------------------------------------------------------------------------
    The Supreme Court continues to assert its respect for 
Congress' determinations concerning what is necessary to 
guarantee Fourteenth Amendment rights.\123\ However, the Court 
places the onus on Congress to limit legislation so as to 
correspond to the constitutional violations that it seeks to 
address. ENDA is narrowly tailored. The Act exempts certain 
categories of employers from liability to ensure that the bill 
does not reach beyond Congress' authority. ENDA has no 
application to the military; it exempts businesses with fewer 
than 15 employees; and it exempts religious organizations. ENDA 
also prohibits the imposition of affirmative action and the 
adoption of quotas or granting preferential treatment to an 
individual based on their sexual orientation. Moreover, ENDA is 
further limited because it does not allow GLB plaintiffs to 
bring disparate impact claims. In sum, these limitations 
demonstrate the Act's concern for targeting conduct which is in 
need of redress and which serves no possible rational 
purpose.\124\ Consequently, ENDA is a congruent and 
proportional response to the problem of workplace 
discrimination based on sexual orientation.
---------------------------------------------------------------------------
    \123\Kimel, 528 U.S. at 81; City of Bourne, 521 U.S. at 518.
    \124\William D. Araiza, ENDA Before it Starts: Section 5 of the 
Fourteenth Amendment and the Availability of Damages Awards to Gay 
State Employees under the Proposed Employment Non-Discrimination Act,'' 
22 B.C. Third World L.J. 1 (2002).
---------------------------------------------------------------------------
    In addition to its authority under Section 5 of the 
Fourteenth Amendment, Congress has the power to apply ENDA to 
the states and localities under its Spending Power authority. 
States that wish to obtain Federal funds for their programs or 
activities must comply with reasonable, constitutional 
conditions placed on the receipt of such funds.\125\ Through 
this power, Congress has the authority to provide a private 
cause of action for damages against states to those state 
employees who are affected by discrimination based on their 
sexual orientation. The Supreme Court has recognized that 
``Congress may, in the exercise of its spending power, 
condition its grant of funds to the states upon their taking 
certain actions that Congress could not require them to take, 
and that acceptance of the funds entails an agreement to the 
actions.\126\
---------------------------------------------------------------------------
    \125\42 U.S.C. 2000d-4a (2002).
    \126\Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Say. 
Bank, 527 U.S. 627, 686 (1999).
---------------------------------------------------------------------------
    The Supreme Court has identified five limitations on 
Congressional power to condition funds, including: (1) 
conditions placed on funds may not be ``so coercive as to pass 
the point at which pressure turns into compulsion\127\; (2) the 
plain language of the Spending Clause indicates the use of the 
spending power must be aimed at the ``public welfare'' of the 
country, and thus have ``a general public purpose''\128\; (3) 
the receipt of funds must be ``unambiguous'' in the statute so 
that a state may make an informed choice as to whether to 
adhere to conditions upon which the receipt of funds are 
contingent\129\; (4) conditions must be reasonably related to 
the purpose for which the funds are expended\130\; and (5) the 
conditional grant of funds should not be barred by any 
provision of the Constitution.\131\ Congress intends, 
consistent with the guidelines set forth, to use its spending 
power to condition the receipt of Federal funding in State 
programs and activities upon the availability of a private 
cause of action for damages against the state under ENDA to 
state employees.
---------------------------------------------------------------------------
    \127\South Dakota v. Dole, 483 U.S. 203, 211 (1987).
    \128\Id. at 207.
    \129\Id. at 207.
    \130\Id. at 213.
    \131\Id. at 208.
---------------------------------------------------------------------------
    ENDA constitutes historic civil rights legislation that 
will provide critical workplace protections to millions of 
Americans who have lived in fear of being fired, not being 
hired, or otherwise being discriminated against because of 
their sexual orientation. This Act ensures equal opportunity 
for gay, lesbian, and bisexual Americans and thus enshrines a 
fundamental American principle. Its passage by the Congress and 
its enactment are long overdue.

                      SECTION-BY-SECTION ANALYSIS

    Section 1: This section of the bill designates it as the 
``Employment Non-Discrimination Act of 2007.''
    Section 2: Defines the purposes of the Act, namely: to 
provide a comprehensive Federal prohibition on employment 
discrimination on the basis of sexual orientation; to provide 
meaningful remedies against such discrimination; and to invoke 
congressional powers, including the enforcement clause of the 
Fourteenth Amendment to the Constitution, the Commerce Clause 
and the Spending Clause.
    Section 3: Provides definitions of key terms used in the 
Act, most of which come directly from existing Federal civil 
rights laws, primarily Title VII of the Civil Rights Act of 
1964 (``Title VII''). The Act defines ``sexual orientation'' as 
``homosexuality, heterosexuality, or bisexuality.'' The term 
employer includes a person engaged in an industry affecting 
commerce who has 15 or more employees for each working day in 
each of 20 or more calendar weeks in the current or preceding 
calendar year, and any agent of such person. The definitions of 
``employee'' and ``employer'' exclude volunteers and private 
membership clubs from the coverage of the Act. The term 
religious organization means a religious corporation, 
association or society; or a school, college, university or 
other educational institution or institution if the institution 
is in whole or substantial part controlled, managed, owned, or 
supported by a particular religion, religious corporation, 
association or society; or the curriculum of the institution is 
directed toward the propagation of a particular religion. This 
definition of a religious organization is taken directly from 
Title VIPs descriptions of religious organizations exempt from 
that law's religious discrimination prohibitions. If an 
organization qualifies for Title VII's religious exemption from 
religious discrimination claims, it would qualify for ENDA's 
religious organization exemption as well.
    Section 4: Prohibits employers, employment agencies, labor 
organizations, and joint labor-management committees from 
discriminating in employment or employment opportunities on the 
basis of actual or perceived sexual orientation. With respect 
to the latter, ENDA creates a cause of action for any 
individual--whether actually homosexual or heterosexual--who is 
discriminated against because that individual is ``perceived'' 
as homosexual due to the fact that the individual does not 
conform to the sex or gender stereotypes associated with that 
individual's sex. Employment opportunities include hiring, 
firing, compensation, and other terms, conditions, or 
privileges of employment or union membership. In accordance 
with Title VII, the phrase ``terms, conditions, or privileges 
of employment'' includes requiring GLB people to work in a 
discriminatorily hostile or abusive environment. In other 
words, ENDA creates an actionable discrimination claim based on 
hostile work environment when, for example, the workplace is 
permeated with discriminatory intimidation, ridicule, or insult 
that is 33 sufficiently severe or pervasive to alter the 
conditions of the victim's employment and create an abusive 
working environment.\132\
---------------------------------------------------------------------------
    \132\See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
---------------------------------------------------------------------------
    Modeled after a provision of the Americans with 
Disabilities Act (``ADA'') and case law under Title VII, 
Section 4 also prohibits discrimination based on the actual or 
perceived sexual orientation of someone with whom an employee 
associates. Section 4 sets forth the Act's prohibition on 
quotas and preferential treatment based on sexual orientation. 
ENDA does not require employers to justify neutral practices 
that may result in a disparate impact against people of a 
particular sexual orientation. As a result, the disparate 
impact claim available under Title VII is not available under 
this Act.
    Section 5: Prohibits retaliation against individuals 
because they oppose any practice prohibited by the Act or 
participate in an investigation or other proceeding authorized 
by the Act. This section is modeled on Title VII's retaliation 
prohibition, and retaliation claims under the act will be 
treated like similar claims under Title VII, including 
providing protection from retaliation where a person reasonably 
believes the practice in question is an unlawful employment 
practice.\133\
---------------------------------------------------------------------------
    \133\See Clark County School District v. Breeden, 532 U.S. 268 
(2001).
---------------------------------------------------------------------------
    Section 6: This section provides that the Act shall not 
apply to religious organizations. Religious organizations, 
defined in Section 2 above, are identical to religious 
organizations described in Title VII. In other words, insofar 
as a religious organization is exempt from Title VII religious 
discrimination claims, it is exempt from sexual orientation 
discrimination claims under ENDA.
    Section 7: Explicitly provides that the Act does not apply 
to uniformed members of the Armed Forces. The Act does not 
affect current law on gay men, lesbians, and bisexuals in the 
military. Similar to Title VII, section 7 further provides that 
the act does not repeal or modify any other law that gives 
special preferences to veterans.
    Section 8: Defines how the Act would apply to employer 
workplace rules and policies and employee benefits. Section 8 
clarifies that the Act does not affect an employer's authority 
to regulate employee conduct (including, explicitly, sexual 
harassment) to same the extent currently allowed under law, so 
long as that regulation does not intentionally circumvent the 
purposes of the Act and is neutral with regard to sexual 
orientation in both design and implementation. The term 
``intentionally'' here carries no further import than the 
intentionality required to make a disparate treatment claim, as 
opposed to a disparate impact claim. This section clarifies 
that it is unlawful to condition a term or condition of 
employment either on being married or being eligible to marry 
in states where same-sex marriage is not permitted, as such a 
condition would constitute a subterfuge for disparate treatment 
against GLB workers. This section also makes clear that nothing 
in the Act shall be construed to require that an employer treat 
a couple who are not married, including a same-sex couple, in 
the same manner as an employer treats a married couple for 
purposes of employee benefits.
    Section 9: Expressly prohibits the EEOC from collecting 
statistics on sexual orientation or requiring employers to 
collect such statistics.
    Section 10: Authorizes the same enforcement powers, 
procedures, and remedies that currently exist in Federal 
employment law. All individual relief that is available under 
Title VII is available under ENDA, although disparate impact 
claims are not permitted.
    Section 11: Waives the states' Eleventh Amendment immunity 
from suit for discrimination based on sexual orientation. This 
section is based on Congress' enforcement powers pursuant to 
Section 5 of the Fourteenth Amendment to the U.S. Constitution, 
as well as Congress' spending power under Article I. If the 
Federal government or the states violate this Act, they are 
subject to the same action and remedies as other employers, 
except that punitive damages are not available.
    Section 12: Provides that a successful party, other than 
the EEOC or the United States, is entitled to attorneys' fees 
and litigation expenses.
    Section 13: Sets forth a covered entity's duty to post 
notices describing the requirements of the law.
    Section 14: Authorizes, but does not require, the issuance 
of regulations to enforce the Act.
    Section 15: Preserves provisions in other Federal, state, 
or local laws that currently provide protection from 
discrimination. For example, Congress does not intend to 
overrule, displace, or in any other way affect any U.S. Supreme 
Court or other federal court opinion that has interpreted Title 
VII in such a way that protects individuals who are 
discriminated against because they do not conform to sex or 
gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 
U.S. 228 (1989) (female plaintiff brought successful Title VII 
claim after she was denied partnership in an accounting firm 
because she did not conform to female sex stereotype); Nichols 
v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male 
plaintiff brought successful Title VII claim after he was 
subjected to a hostile work environment because he failed to 
conform to a male stereotype).
    Section 16: Ensures that if one or more provisions of the 
Act are held invalid by a court, the balance of the Act will 
remain in effect.
    Section 17: Provides that ENDA will take effect sixty days 
after its enactment and will not apply retroactively.

                       EXPLANATION OF AMENDMENTS

    No amendments to the legislation were adopted.

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 3685 includes in 
its definition of employer any employing office as defined in 
section 101 of the Congressional Accountability Act of 1995, as 
well as entities covered by Section 717(a) of the Civil Rights 
Act of 1964, which include the Library of Congress.

                      REGULATORY IMPACT STATEMENT

    As H.R. 3685 merely adds ``actual or perceived sexual 
orientation'' to the categories of discrimination already 
prohibited by federal employment law, does not create any new 
enforcement structures but merely utilizes those already in 
existence, and authorizes, but does not require, further 
regulation by the appropriate agencies to carry out the Act, 
the Committee has determined that H.R. 3685 will have minimal 
impact on the regulatory burden.

                       UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. (The CBO letter will address this issue.)

                           EARMARK STATEMENT

    H.R. 3685 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                                ROLLCALL


  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of Clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 3685 from the Director of the 
Congressional Budget Office:

                                                  October 22, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3685, the 
Employment Non-Discrimination Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 3685--Employment Non-Discrimination Act of 2007

    Summary: H.R. 3685 would prohibit employment discrimination 
based on sexual orientation. Assuming appropriation of the 
necessary amounts, CBO estimates that implementing H.R. 3685 
would cost $28 million over the 2008-2012 period for the Equal 
Employment Opportunity Commission (EEOC) to handle additional 
discrimination cases. The bill could affect direct spending, 
but we estimate that any such effects would be less than 
$500,000 annually. H.R. 3685 would not affect revenues.
    H.R. 3685 would prohibit state, local, and tribal 
governments from discriminating against employees and 
applicants for employment based on sexual orientation, and it 
would require those governments to post notices regarding such 
prohibitions. Those requirements would be intergovernmental 
mandates as defined in the Unfunded Mandates Reform Act (UMRA). 
However, CBO estimates that the costs of complying with those 
mandates would not be significant and would not exceed the 
thresholds established in UMRA ($66 million in 2007, adjusted 
annually for inflation).
    The bill also would impose a number of mandates on private-
sector employers, employment agencies, and labor organizations. 
CBO estimates that the direct cost of those requirements would 
not exceed the annual threshold specified in UMRA ($131 million 
in 2007, adjusted annually for inflation) in any of the first 
five years the mandates would be effective.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3685 is shown in the following table. 
The costs of this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2008     2009     2010     2011     2012
----------------------------------------------------------------------------------------------------------------
                                      SPENDING SUBJECT TO APPROPRIATION\1\

EEOC Spending Under Current Law:
    Estimated Authorization Level\2\...............................      339      351      362      375      387
    Estimated Outlays..............................................      338      350      361      374      386
Proposed Changes:
    Estimated Authorization Level..................................        4        6        6        6        6
    Estimated Outlays..............................................        4        6        6        6        6
EEOC Spending Under H.R. 3685:
    Estimated Authorization Level\2\...............................      343      357      368      381      393
    Estimated Outlays..............................................      342      356      367      380     392
----------------------------------------------------------------------------------------------------------------
\1\In addition to the bill's discretionary cost, H.R. 3685 could affect direct spending, but CBO estimates that
  any such effects would be less than $500,000 annually.
\2\The estimated authorization levels for 2008 through 2012 are CBO baseline estimates. A full-year
  appropriation for 2008 for EEOC has not yet been enacted, so we adjusted the amount appropriated for the
  agency in 2007 for anticipated inflation.

    Basis of estimate: CBO estimates that implementing H.R. 
3685 would cost $28 million over the 2008-2012 period, assuming 
appropriation of the necessary amounts. For this estimate, CBO 
assumes that the necessary amounts will be appropriated near 
the start of each fiscal year and that outlays will follow the 
historical spending pattern of those activities. The bill could 
affect direct spending, but we estimate that any such effects 
would be less than $500,000 annually.

Spending subject to appropriation

    The EEOC expects that implementing H.R. 3685 would increase 
its annual caseload (currently about 90,000 cases) by about 5 
percent and would require an additional 60 to 80 staff. CBO 
estimates that the costs to hire an additional 70 employees 
would reach $6 million annually by fiscal year 2009, subject to 
the appropriation of the necessary amounts. We expect that 
enacting H.R. 3685 also would increase the workload for a few 
other agencies, such as the Merit Systems Protection Board, but 
any increase in costs for those agencies would not be 
significant because of the small number of additional cases.
    The additional cases resulting from H.R. 3685 also would 
increase the workload of the Department of Justice's Civil 
Rights Division and the federal judiciary. However, CBO 
estimates that increased costs for those agencies would also 
not be significant because of the relatively small number of 
cases referred to them.

Direct spending

    Enacting H.R. 3685 could increase payments from the 
Treasury's Judgment Fund for settlements against federal 
agencies in discrimination cases based on sexual orientation. 
However, CBO estimates that any increases in direct spending 
would be less than $500,000 annually.
    Estimated impact on state, local, and tribal governments: 
H.R. 3685 would prohibit state, local, and tribal governments 
from discriminating against employees and applicants for 
employment based on sexual orientation, and it would require 
those governments to post notices regarding such prohibitions. 
Those requirements would be intergovernmental mandates as 
defined in UMRA. The costs of the mandates would include the 
costs of posting notices and modifying employment procedures to 
avoid discriminatory practices. CBO assumes that the costs of 
notices would likely be relatively minor and would be made in 
the course of other routine updates. Similarly, changes to 
employment procedures likely would build on such things as 
ongoing training and updates to personnel manuals. Thus, CBO 
estimates that compliance costs would not be significant and 
would not exceed the thresholds established in UMRA ($66 
million in 2007, adjusted annually for inflation).
    Under H.R. 3685, by accepting any federal financial 
assistance, states would waive their sovereign immunity under 
the 11th Amendment and would be subject to suit for 
discriminatory practices. Because UMRA excludes conditions of 
federal assistance from the definition of an intergovernmental 
mandate, any costs resulting from potential suits would not be 
the result of complying with an intergovernmental mandate as 
defined in UMRA. In any event, the number of such cases likely 
would be very small, and states would not be subject to 
punitive damages.
    Estimated impact on the private sector: The bill would 
impose a number of mandates on many private-sector employers, 
employment agencies, and labor organizations. It would prohibit 
employers from discriminating against any worker on the basis 
of sexual orientation in hiring, firing, pay, and other aspects 
of employment. The bill would also require employers to modify 
the notices they are required to post regarding federal laws 
that protect employees from discrimination and set minimum 
wages. CBO estimates that the direct costs of complying with 
those mandates would not exceed the annual threshold specified 
in UMRA ($131 million in 2007, adjusted annually for inflation) 
in any of the first five years the mandates would be effective.
    Estimate prepared by: Federal Costs: Mark Grabowicz; Impact 
on State, local, and Tribal Governments: Melissa Merrell; 
Impact on the Private Sector: Nabeel Alsalam.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c) of House rule XIII, the goal 
of H.R. 3685 is to prohibit employment discrimination on the 
basis of sexual orientation.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 3685. Congress 
has the authority to enact ENDA through the Commerce Clause, 
the Fourteenth Amendment of the United States Constitution. The 
Act's authorization of individual suits against state 
governmental employers is derived from Congress' enforcement 
power under Section 5 of the Fourteenth Amendment as well as 
Congress' Spending Power under Article 1.

                           COMMITTEE ESTIMATE

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3685. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

                        COMMITTEE CORRESPONDENCE

    None.

                            DISSENTING VIEWS

    We dissent from H.R. 3685, a narrow version of the 
Employment Non-Discrimination Act (ENDA) that excludes 
protections based on gender identity. We are co-sponsors of 
H.R. 2015, the original version of ENDA introduced earlier this 
year, that would prohibit workplace discrimination based on 
sexual orientation and gender identity. While we agree with 
H.R. 3685's objective of prohibiting workplace discrimination 
on the basis of sexual orientation, we do not support the 
decision to remove gender identity from the bill because it 
leaves this legislation woefully incomplete. H.R. 3685 fails to 
expressly protect transgender people, who are among the most at 
risk for discrimination. The decision to strip gender identity 
from the bill was not based on substantive concerns about the 
bill's language but rather on a perception that protecting this 
vulnerable group might jeopardize the bill's chances for clean 
passage on the House floor. We cannot support this rationale, 
which reinforces the very bias and discrimination that ENDA 
seeks to prohibit.
    Transgender individuals and their families aspire to the 
same basic rights as other Americans, including equal access to 
gainful employment and fair housing in safe communities. Yet 
across this country, transgender people face extremely high 
rates of unemployment, poverty, and homelessness. Studies 
across the country reveal that transgender people suffer a 35% 
unemployment rate, with 60% earning less than $15,300 a year. 
As a result of this disparity in income and employment levels, 
a disproportionate number of transgender people cannot support 
themselves or their families, and many are literally forced 
onto the streets. Every American has the right to be free from 
discrimination in employment and to be judged solely on one's 
performance in the workplace--not on irrelevant characteristics 
such as sexual orientation and gender identity. We are eager to 
support legislation that addresses such discrimination, and we 
wish that we would have had an opportunity to do so in 
Committee.
    We believe that Congress should pursue the path that state 
legislatures have uniformly followed for the past several 
years, which is to pass measures that include both sexual 
orientation and gender identity. Such inclusive laws have 
passed on the local and state level in jurisdictions in every 
region of the country. Nationally, 37% of the U.S. population 
lives in jurisdictions that prohibit gender identity 
discrimination. Currently, there are inclusive laws in twelve 
states and over 90 local jurisdictions, including Iowa, New 
Jersey, Colorado, and Oregon, which passed inclusive laws just 
this year. Congress should be reinforcing these efforts instead 
of undermining advancement on the state and local level.
    We have heard overwhelmingly from constituents and civil 
rights organizations that passage of this non-inclusive bill 
will undermine the ultimate attainment of full employment 
protections for all LGBT individuals. We are not aware of a 
single gay or LGBT organization that has endorsed this bill. In 
contrast, over 300 organizations have formally opposed H.R. 
3685 because it omits gender identity protections. These 
include national groups such as the National Gay and Lesbian 
Task Force, National Center for Lesbian Rights, Equality 
Federation, National Black Justice Coalition, National 
Association of LGBT Community Centers, Pride At Work (AFL-CIO), 
PFLAG (Parents, Families and Friends of Lesbians and Gays), and 
the National Center for Transgender Equality. Also in 
opposition is nearly every single statewide organization that 
represents the LGBT community in their state, including 
Equality Alabama, Equality California, Equality Illinois, 
Equality Maryland, Equality Advocates Pennsylvania, Garden 
State Equality, Empire State Pride Agenda, Equality Florida, 
Equality Maine, Equality Ohio, Equal Rights Washington, and 
Equality Texas.
    For the reasons set forth herein, we respectfully dissent 
from H.R. 3685.

                                   Rush Holt.
                                   Yvette D. Clarke.
                                   Linda T. Sanchez.
                                   Dennis J. Kucinich.

                             MINORITY VIEWS

                              INTRODUCTION

    At the federal level, numerous civil rights statutes exist 
to protect individuals from discrimination. Although these laws 
share similar features, each statute differs based upon the 
type of discrimination that it prohibits and the circumstances 
under which it operates. Arguably the most prominent among 
these various laws is the Civil Rights Act (``CRA'') of 1964, 
which expanded civil rights protections to many different 
settings and served as a model for subsequent anti-
discrimination laws. Among the provisions of the CRA, Title VII 
specifically prohibits discrimination in employment on the 
basis of race, color, religion, national origin, or sex.\1\ 
Title VII applies to employers with 15 or more employees, 
including the federal government and state and local 
governments.
---------------------------------------------------------------------------
    \1\42 U.S.C. Sec. 2000e.
---------------------------------------------------------------------------
    For more than two decades, a number of bills have been 
introduced in Congress that sought to protect individuals from 
workplace discrimination on the basis of sexual orientation, 
Very recently, in the 110th Congress, Rep. Barney Frank (D-MA) 
introduced H.R. 2015, The Employment Non-Discrimination Act of 
2007 (``H.R. 2015''). This bill, introduced on April 24, 2007, 
purports to protect against discrimination on the basis of 
sexual orientation and, for the first time, gender identity. On 
September 5, 2007, the Committee on Education and Labor, 
Subcommittee on Health, Employment, Labor, and Pensions held a 
hearing on H.R. 2015. On September 27, 2007, because of 
questions raised at that hearing and questionable support for 
H.R. 2015, Rep. Frank introduced two new bills, H.R. 3685 and 
H.R. 3686, which split the protections for sexual orientation 
and gender identity, respectively. On October 18, 2007, the 
full Committee on Education and Labor proceeded to markup H.R. 
3685, which provides protections on the basis of sexual 
orientation only. Subsequently, the Committee on Education and 
Labor ordered reported H.R. 3685.
    The Minority Members of this Committee have consistently 
stated their opposition to intentional workplace 
discrimination. However, H.R. 3685 as reported out of Committee 
raises many legitimate concerns that remain unresolved. For 
example, the bill's religious exemption fails to adequately 
protect certain religious employers from liability. Also, the 
bill provides unprecedented protection against discrimination 
based on ``perceived'' sexual orientation. For these reasons 
and others detailed later in this document, the majority of 
Committee Republicans reject this legislation, and urge its 
defeat on the House Floor. Further, the House should reject any 
attempt to amend this bill to add protections for gender 
identity.

                      FEDERAL LEGISLATIVE HISTORY

    A variety of federal proposals have been introduced over 
the last two decades that sought to protect against workplace 
discrimination on the basis of sexual orientation. Included in 
these efforts were relatively simple proposals to amend Title 
VII of the CRA to add the term ``sexual orientation'' to 
existing categories afforded protection, such as race.\2\ Since 
it was first introduced in the House and the Senate in the 
103rd Congress, the Employment Non-Discrimination Act (ENDA) 
has been the primary legislative vehicle for extending federal 
employment discrimination protections to employees on the basis 
of their sexual orientation. While many Democrats and some 
Republicans have supported ENDA legislation, the bill has not 
garnered the support necessary to move through Congress. In 
September 1996, the Senate voted on a prior version of ENDA, 
but the bill was defeated by a vote of 50-49 (Roll Call Vote 
No. 281). The last major action on this issue took place in the 
Senate during the 107th Congress, when the Senate Health, 
Education, Labor, and Pensions (HELP) Committee under Chairman 
Kennedy held a hearing, marked up a bill, and reported it 
favorably out of Committee. Despite reporting the bill 
favorably, Senate HELP Committee Republicans, who did not 
support the legislation, voiced concerns and claimed that ``* * 
* the legislation remains overly broad and unclear in many 
respects, specifically, with regard to its effect on 
individual, constitutional, and States' rights.''\3\ That bill 
was placed on the Senate Legislative Calendar under General 
Orders, but did not move any further.
---------------------------------------------------------------------------
    \2\See, CRS Report RL31863, Sexual Orientation Discrimination in 
Employment: Legal Analysis of Title VII of S. 16, the Employment 
Nondiscrimination Act of 2003.
    \3\``Minority Views'', S. Report 107-341, p. 39 (2001).
---------------------------------------------------------------------------
    In the 108th Congress, an ENDA bill (H.R. 3285) was 
introduced by Rep. Christopher Shays (R-CT), but there was no 
action taken on that bill. Subsequently, legislation was not 
introduced during the 109th Congress. In the 110th Congress, 
Rep. Frank introduced three separate ENDA bills that included 
protection against discrimination on the basis of gender 
identity (defined below), as well as sexual orientation. Given 
the considerable policy and political questions raised by this 
legislation, a discussion of these three ENDA bills is 
appropriate to illustrate its progression.
H.R. 2015, the Employment Non-Discrimination Act of 2007
    Rather than amend existing civil rights laws, H.R. 2015 was 
drafted as a stand-alone anti-discrimination law, but generally 
has the same enforcement scheme and remedies as Title VII of 
the CRA (Title VII) and the Americans with Disabilities Act 
(ADA). Central to its purpose, the bill, at Section 3(a)(9), 
defines ``sexual orientation'' as ``homosexuality, 
heterosexuality, or bisexuality.'' Also, Section 3(a)(6) 
defines gender identity as ``the gender-related identity, 
appearance, mannerisms or other gender-related characteristics 
of an individual, with or without regard to the individual's 
designated sex at birth.''
    H.R. 2015 would address employment discrimination in four 
areas. First, the legislation would make it unlawful to fire, 
refuse to hire or take any other action that would adversely 
affect a person's status as an employee based on his or her 
actual or perceived sexual orientation or gender identity.\4\ 
With language borrowed from the ADA, the legislation also 
prohibits ``association discrimination'' as a result of the 
actual or perceived sexual orientation or gender identity of 
someone with whom an employee associates. Second, H.R. 2015 
would prohibit discrimination against an individual who has 
opposed or spoken out against an unlawful employment practice. 
Third, the bill would not permit the creation or use of 
preferential treatment or employent quotas based on perceived 
sexual orientation or gender identity. Finally, H.R. 2015 
requires that employers must have policies in place to address 
dress standards and gender-segregated facilities (such as 
changing areas) in the workplace.
---------------------------------------------------------------------------
    \4\Employer actions that aversely affect a person's status as an 
employee relate to compensation, benefits, training programs and 
opportunities, and union membership.
---------------------------------------------------------------------------
    Similar to current requirements under Title VII, H.R. 2015 
would apply to private employers with 15 or more employees, 
labor unions, employment agencies, and federal, state, and 
local governments. The bill contains a number of exemptions, 
including those for members of the armed forces, private 
employers with less than 15 employees, and religious and 
religious-affiliated entities. Also, H.R. 2015 would grant the 
Equal Employment Opportunity Commission (EEOC) and other 
appropriate agencies the power to enforce the Act. If an 
employee's complaint is not resolved by the EEOC, the 
legislation would allow an individual to file suit seeking 
punitive and compensatory damages up to a cap of $300,000 and 
attorney's fees.
    Notably, H.R. 2015 differs in several significant respects 
from prior versions of ENDA. H.R. 2015 adds, for the first 
time, gender identity as a protected classification which would 
prohibit workplace discrimination against transgendered 
individuals.\5\ Section 4(b) of the bill makes it an unlawful 
employment practice to discriminate against an individual 
because of ``the actual or perceived sexual orientation or 
gender identity'' of the individual. The inclusion of 
protection based on ``perceived'' gender identity would likely 
raise issues as to how employers could accommodate individuals 
who perceive themselves to be of the opposite gender, and 
therefore comply with the legislation.
---------------------------------------------------------------------------
    \5\Transgendered individuals are individuals of one sex who, by 
surgery or other means, change their gender to the opposite sex.
---------------------------------------------------------------------------
    In addition, although the bill retains language from 
previous bills that would not require domestic partner 
benefits, H.R. 2015 would exempt any state and local rules from 
preemption under the Employee Retirement and Income Security 
Act (ERISA). This exemption would be contrary to longstanding 
precedent that prevents state and local mandates on employer-
provided benefits.
    Further, H.R. 2015 contains insufficient exemptions for 
religious organizations and actions based on religious beliefs, 
and actually narrowed the single broad exemption for religious-
affiliated organizations contained in the ENDA legislation 
introduced in the 108th Congress (H.R. 3285). First, under H.R. 
2015, all houses of worship, missions or schools that have the 
purpose of religious worship or teaching of religious doctrine 
would be completely exempt. Second, in religiously-affiliated 
entities, employees who teach or spread religion, take part in 
religious governance or supervise those who teach or spread 
religion are completely exempt. Third, a religiously-affiliated 
entity can require all or some employees to conform to 
religious tenets as set forth by the organization regardless of 
sexual orientation or gender identity.\6\ Although seemingly 
intended to cover a wide range of religious organizations and 
activities, the H.R. 2015 religious exemption is far more 
prescriptive than earlier versions and the existing exemption 
contained in Title VII of the CRA, and it therefore results in 
a far narrower religious exemption. Although a broader 
religious exemption had been proposed in a prior Congress, 
those who previously sponsored and supported H.R. 2015 chose, 
inexplicably, to narrow the exemption.
---------------------------------------------------------------------------
    \6\Since these exemption provisions are narrower than the religious 
exemptions contained in Title VII, this proposed exemption has raised 
significant concern among religious employers (detailed below).
---------------------------------------------------------------------------
    In addition to the Committee on Education and Labor, H.R. 
2015 was referred to three other committees of jurisdiction: 
the Committee on House Administration, the Committee on the 
Judiciary, and the Committee on Oversight and Government 
Reform. To date, none of the other committees of jurisdiction 
have taken any official action on H.R. 2015.
    On September 5, 2007, a legislative hearing on H.R. 2015 
took place before the Committee on Education and Labor, 
Subcommittee on Health, Education, Labor, and Pensions. Witness 
testimony at that hearing raised several substantive concerns 
about ENDA legislation in the 110th Congress, many of which 
have yet to be addressed by the Majority.

H.R. 3685, the Employment Non-Discrimination Act of 2007

    On September 27, 2007, in apparent recognition of the 
fundamental policy flaws contained in H.R. 2015 and diminishing 
support for that bill as a result of those flaws, 
Representative Barney Frank introduced two bills, H.R. 3685 and 
H.R. 3686 which, respectively, split the protections against 
discrimination based on sexual orientation and gender identity 
into two separate bills.
    Although H.R. 3685 attempts to address certain concerns, 
many of its provisions are similar to those contained in H.R. 
2015 and therefore continue to raise significant policy 
questions. H.R. 3685 removes ``gender identity'' as a protected 
classification, and conforms the retaliation provision to 
existing law under Title VII. However, H.R. 3685 revises the 
religious exemption, ostensibly to conform to the exemption 
under Title VII. The new provision, however, still fails to 
protect many religious organizations that would qualify for an 
exemption under Title VII. Further, H.R. 3685 retains vague and 
unworkable references to the ``perceived'' sexual orientation 
of individuals. The bill would still make it unlawful to 
condition employment, in a state in which a person cannot marry 
a person of the same sex, either on being married or being 
eligible to marry.

H.R. 3686, to prohibit employment discrimination based on gender 
        identity

    On September 27, 2007, Representative Frank also introduced 
H.R. 3686, legislation which is intended to complement the so-
called ``improved'' version of ENDA embodied in H.R. 3685. The 
stated purpose of H.R. 3686 is to prohibit employment 
discrimination based on gender identity.
    Again, many of the provisions of H.R. 3686 are similar to 
those contained in H.R. 2015; but the legislative language of 
H.R. 3686 contains fatal flaws and raises significant concerns 
that undermine the fundamental policy promoted by this bill. 
Like H.R. 3685, the revision to the religious exemption in 
effect fails to protect many religious organizations that would 
qualify for an exemption under Title VII. H.R. 3685 also 
retains the vague and unworkable reference to the ``perceived'' 
gender identity of individuals. This is arguably even more 
problematic than use of the term as applied to sexual 
orientation, since perception of one's gender could be 
inherently more difficult to ascertain from day to day. 
Further, H.R. 3686 contains language governing employer rules 
and policies with respect to certain shared facilities and 
dress and grooming standards, provisions that were initially 
included in H.R. 2015. Although the Majority attempts to 
address concerns regarding certain shared shower or dressing 
facilities by stating ``nothing in this Act shall be construed 
to require the construction of new or additional facilities,'' 
significant questions still remain regarding what constitutes 
reasonable access to such facilities, which will result in 
great uncertainty and litigation.

                          LEGISLATIVE ACTIVITY

Legislative hearing on H.R. 2015

    The only hearing on ENDA legislation during the 110th 
Congress occurred on September 5, 2007, before the Committee on 
Education and Labor, Subcommittee on Health, Education, Labor, 
and Pensions. The subject of the legislative hearing was H.R. 
2015. Notably, the full Committee on Education and Labor failed 
to hold a legislative hearing on that bill, or any other ENDA 
legislation, thereby depriving most Committee Members of the 
opportunity to hear testimony on the merits and/or flaws of the 
bills prior to their consideration.
    At the September 5, 2007 hearing, testimony was received 
from Representatives Barney Frank, Tammy Baldwin, and Emanuel 
Cleaver, II, along with two alleged victims of discrimination, 
two representatives from academic institutions, and two company 
representatives. Additional witnesses included Lawrence Lorber, 
Esq., an experienced labor and employment lawyer, and Mark 
Fahleson, Esq., a labor and employment lawyer who counsels 
small and medium-sized businesses, including religious colleges 
and universities. Although purported to be a legislative 
hearing on the provisions of H.R. 2015, most of the testimony 
from the Majority's witnesses focused on personal experiences 
and opinions concerning discrimination. By contrast, most of 
the discussion of substantive problems and concerns with the 
actual legislative language was provided by the Republican 
witnesses, Mr. Lorber and Mr. Fahleson.
    The two witnesses who testified on behalf of private 
business, Ms. Kelly Baker from General Mills and Ms. Nancy 
Kramer, owner of an Ohio marketing services company, stated 
that promoting a diverse work environment, that respects 
individuals' sexual orientation, helps their businesses improve 
productivity and compete more effectively.\7\ This testimony 
raises the question of whether a federal directive applied to 
the free market is necessary in light of voluntary (and 
apparently successful) private-sector efforts to promote 
diversity and improve business performance.
---------------------------------------------------------------------------
    \7\See generally, Testimony of Nancy Kramer, Founder and Chief 
Executive Officer, Resource Interactive, and Testimony of Kelly Baker, 
General Mills, Inc., Committee on Education and Labor, Subcommittee on 
Health, Education, Labor and Pensions Hearing, ``The Employment Non-
Discrimination Act of 2007 (H.R. 2015)'' (September 5, 2007).
---------------------------------------------------------------------------
    Mr. Lorber and Mr. Fahleson focused their written testimony 
and verbal comments on substantive concerns with H.R. 2015. Mr. 
Lorber initially noted that the ``[g]reatest single area of 
growth in federal civil litigation involves employment and 
labor law. Therefore the Congress should be cautious in adding 
to this growing and complex list of laws, and thereby the 
potential for increased litigation.''\8\ He then went on to 
highlight concerns with various provisions of the bill, 
including the need to appropriately define the term ``disparate 
impact'' and clarify that only intentional circumvention of the 
Act is implicated in order to avoid attacks on neutral employer 
rules and policies. Also, Mr. Lorber raised multiple technical 
concerns resulting from inclusion of gender identity as a new 
protected class, and the need to conform the bill's prohibition 
against retaliation with existing Title VII language.
---------------------------------------------------------------------------
    \8\Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP, 
Committee on Education and Labor, Subcommittee on Health, Education, 
Labor and Pensions Hearing, ``The Employment Non-Discrimination Act of 
2007 (H.R. 2015)'' (September 5, 2007), at 2.
---------------------------------------------------------------------------
    Mr. Fahleson began his testimony by raising a threshold 
question as to whether there was a need for a federal remedy at 
this time. In his own words:

          I believe it is appropriate to ask the question: is a 
        broad, new federal remedy for sexual orientation and 
        gender identity employment discrimination such as that 
        embodied in H.R. 2015 necessary at this time? As the 
        Committee is aware, a significant number of employers 
        have voluntarily adopted policies barring 
        discrimination on the basis of sexual orientation and 
        transgender status. In addition, several states and 
        municipalities have enacted local regulatory schemes 
        addressing sexual orientation and/or transgender 
        discrimination in the workplace. For the last 32 years 
        legislation has been introduced in Congress seeking to 
        prohibit sexual orientation discrimination in 
        employment. Meanwhile, it appears that the free market 
        and local regulators are already addressing the issues 
        raised by this legislation.\9\
---------------------------------------------------------------------------
    \9\Testimony of Mark A. Fahleson, Esq., testifying individually, 
Committee on Education and Labor, Subcommittee on Health, Education, 
Labor and Pensions Hearing, ``The Employment Non-Discrimination Act of 
2007 (H.R. 2015)'' (September 5, 2007), at 1.

    Mr. Fahleson also raised concerns regarding the cost of 
this legislation, especially the potential impact on smaller 
employers that have less ability to absorb financial costs 
associated with this regulation. Further, he expressed concerns 
that the exemption for religious organizations was far narrower 
than the current exemption under Title VII, and raised a number 
of hypothetical situations in which eligibility for the 
exemption was questionable. Mr. Fahleson opined that ``[t]he 
blanket exemption for religious organizations found in prior 
versions of ENDA provides greater certainty and is less 
problematic for religious and faith-based employers, as well as 
the judiciary.''\10\
---------------------------------------------------------------------------
    \10\Id., at 4.
---------------------------------------------------------------------------
    Committee Republicans share the concerns expressed by Mr. 
Lorber and Mr. Fahleson that H.R. 2015 creates significant 
policy questions on the issue of extending federal protections 
based on sexual orientation and gender identity. Left 
unanswered, these questions could result in severe burdens 
being placed on employees and employers. Such questions must be 
addressed before extending new federal protections and 
requirements in this area.

Committee legislative action

    Despite the fact that a legislative hearing was held on 
H.R. 2015, the Committee did not further consider H.R. 2015.
    Instead, on Thursday, October 18, 2007, the Committee on 
Education and Labor met to consider H.R. 3685, without the 
benefit of any legislative hearing on the bill or the ways in 
which it differs from H.R. 2015, the bill that did receive some 
limited scrutiny from the Committee. Republican Members offered 
four (4) amendments designed to: (1) broaden the exemption for 
religious schools not covered under H.R. 3685; (2) strike the 
term ``perceived'' sexual orientation, which is vague and will 
create uncertainty in the workplace; (3) prohibit retaliation 
against employees who may not agree with employer policies 
relating to the Act on the basis of sincerely held beliefs; and 
(4) remove the provision making it unlawful to condition 
employment, in a state in which a person cannot marry a person 
of the same sex, either on being married or being eligible to 
marry. These amendments were rejected by the Committee. The 
Committee favorably reported H.R. 3685 on a roll call vote of 
27 to 21.

                      REPUBLICAN VIEWS, H.R. 3685

    Committee Republicans are generally committed to the 
principle that discrimination in the workplace is unacceptable. 
It is for that reason that we support the current-law 
protections provided under Title VII of the Civil Rights Act. 
However, we also believe that before imposing any new federal 
mandates in this area, even those cloaked in the honorable 
moniker of ``non-discrimination,'' the Committee and Congress 
must thoroughly and thoughtfully examine the need for such 
mandates and must evaluate the substantive implications of the 
legislative proposals. In this regard, the Committee has fallen 
short. Not only has the Majority provided little compelling 
evidence as to the need for this legislation, but they have 
also failed to fully address the substantive concerns it 
raises.
    Remarkably, although absent from the bill reported by the 
Committee, the issue of providing discrimination protections on 
the basis of gender identity remains clearly on the Majority's 
agenda for future consideration. Indeed, at the conclusion of 
the Committee's consideration of H.R. 3685, several Committee 
Democrats voiced their intent to amend the bill during its 
consideration by the full House of Representatives by inserting 
additional protections for gender identity. While we do not 
question the right of our Democrat colleagues to offer such 
amendments, we do believe their expressed intention to do so 
begs an important question: Why was an amendment to include 
protections from discrimination on the basis gender identity 
not offered by these Members during the Committee's 
consideration of the bill? Indeed, why were gender identity 
protections--expressly provided in H.R. 2015--dropped from the 
bill that was brought before the Committee? The answer, of 
course, is rooted in the fact that extending non-discrimination 
protections to gender identity not only raises substantive and 
policy-related questions that the Majority cannot answer, it is 
also politically untenable. That Committee Democrats would 
forgo the opportunity to include such protections during the 
Committee's consideration of the bill merely underscores this 
fact.
    Finally, we are troubled by the fact this legislation is 
proceeding to the House floor without adequately resolving 
outstanding issues and urge that the House of Representatives 
reject it, along with any amendments that seek to include 
protections based on gender identity.

The bill fails to protect the hiring prerogatives of religious schools

    H.R. 3685 attempts to provide an exemption for religious 
organizations, including religious educational institutions. 
However, the bill's definition of ``religious organizations'' 
contains a two-part test used to determine if an educational 
institution qualifies for an exemption. This test, found in 
Section 3(a)(8) of the bill, requires that the school be 
``controlled, managed, owned, or supported by a particular 
religion''; or, have its curriculum ``directed toward the 
propagation of a particular religion.'' (emphasis added). 
Although this exemption is broader than that contained in H.R. 
2015, it still does not provide the broad protections that 
exist under current law. Moreover, it fails to cover non-
denominational religious schools and invites the federal 
government to investigate the religious nature of schools' 
curricula, effects we find unacceptable.
    Despite assertions by the Majority that the exemption in 
H.R. 3685 is the same as the exemption found in Title VII, a 
plain reading of both reveals the Majority's assertion is 
incorrect. Current law, under Title VII, as amended, broadly 
exempts religious corporations, associations, societies, and 
educational institutions.\11\ Title VII also contains a 
provision, the so-called ``bona fide occupational 
qualification'' (BFOQ), which provides further protections 
applicable to educational institutions in certain rare 
circumstances.\12\ The BFOQ provision is rarely utilized in 
practice, because of the initially broad protections for 
educational institutions contained in Title VII. However, H.R. 
3685 changes the nature of the exemption under Title VII with 
respect to educational institutions because, rather than simply 
providing a broad exemption for ``educational institutions,'' 
it qualifies the exemption for such institutions by using the 
BFOA provision exclusively. This creates several unresolved 
problems.
---------------------------------------------------------------------------
    \11\See, 42 U.S.C. Section 2000e-1.
    \12\See, 42 U.S.C. Section 2000e-2(e)(2).
---------------------------------------------------------------------------
    For example, a non-denominational, independent faith-based 
school that is not controlled or supported by a ``particular'' 
religion, or whose curriculum is not directed toward 
propagation of a ``particular'' religion, may not be exempt 
from this legislation, even though religion forms the 
foundation of its mission. Unfortunately, there are many 
schools that may be penalized by this provision. One such 
institution, Wheaton College in Wheaton, Illinois, expressed 
serious concerns about the religious exemption in H.R. 3685. In 
a letter dated October 3, 2007 to Congressman Tim Walberg, the 
President of Wheaton College, Duane Litfin, stated as follows:

    On behalf of Wheaton College I want to register our concern 
about a bill that has been introduced in the U.S. House titled 
``To prohibit employment discrimination on the basis of sexual 
orientation or gender identity,'' and referred to as the 
Employment Non-Discrimination Act or ENDA (HR 3685), 
Appropriately, the Act provides a religious exemption 
consistent with the Civil Rights Act as Amended in 1972. 
However, the categorical religious exemption is undermined in 
Section 3(a)(8) of the Act by a problematic definition of 
religious organization that casts doubt on whether Wheaton 
College would be exempt. As I understand the definition 
language, educational institutions that are themselves 
religious but that are not controlled by some other religious 
organization, such as a church or a denomination, may not be 
covered by the religious exemption.
    Wheaton College has a clearly defined religious identity, 
dating back to its founding in 1860, including a Statement of 
Faith to which all of our employees give assent, and a 
Community Covenant to which all of the members of our community 
adhere, Nevertheless, Wheaton College is not controlled by a 
religious corporation, but rather by a self-perpetuating Board 
of Trustees.
    Surely a religious college such as Wheaton should be 
permitted the same protection of its religiously motivated 
hiring rights as those colleges that are controlled by churches 
or other religious organizations.
    Since 1972 when the Civil Rights Act was amended to 
forthrightly protect the mission-critical hiring rights of 
religious organizations, including religious higher education, 
we have been able to grow and expand our service to our 
communities with a robust religious mission and distinctive 
approach because we have had the ability to select all of our 
staff on a religious, mission-critical basis. Our continued 
existence as a distinctively religious institution, and with 
it, a diverse and thriving higher education sector, is 
threatened because the proposed ENDA, with its limiting and 
non-categorical religious exemption, does not clearly and fully 
ensure our religious, mission-critical staffing freedom.
    I urge you to remove the problematic religious definition 
language currently in ENDA and ensure that the Act 
categorically exempts religious organizations as in Section 
702(a) of Title VII of the Civil Rights Act of 1964, as 
amended.

    The concerns expressed by Mr. Litfin are not unique to 
Wheaton College. Indeed, the impact of the insufficient 
religious exemption has engendered comments from numerous 
organizations, who expressed serious reservations similar to 
those expressed by Wheaton College. Those commentators 
included:

The Council for Christian Colleges & Universities
Agudath Israel of America
The American Association of Christian Colleges & Seminaries, Inc.
The American Association of Christian Schools
The Family Research Council
The Ethics & Religious Liberty Commission of the Southern Baptist 
        Convention
The Traditional Values Coalition
The American Center for Law and Justice

    This is by no means a comprehensive list of concerned 
parties, but reflects the concern of many impacted institutions 
and organizations who find the current exemption to be wholly 
insufficient.
    Additional concerns regarding the so-called religious 
exemption are also worthy of mention. For example, if the 
current exemption were to be enacted, religious schools would 
likely be subjected to a ``denominational'' test. Such a test 
would inevitably ``entangle'' the federal government in the 
practice of religion, since it invites courts to examine the 
beliefs and practices of religious schools to determine if they 
are ``religious enough.'' In addition, H.R. 3685 would vest the 
EEOC with regulatory, enforcement, and investigatory powers. 
This would require the EEOC to investigate and determine 
whether institutions are associated with ``particular'' 
religions or whether the curriculum of an institution is 
directed toward the propagation of a ``particular'' religion. 
In doing so, the provisions would entangle a Federal agency in 
complex questions involving religious missions and doctrine and 
would require promulgation of Federal rules governing this area 
of inquiry. This intrusive federal inquiry into the religious 
beliefs of schools arguably violates the constitutional 
separation of church and state. Religious schools and faith-
based institutions should be free to exercise their religious 
beliefs without government intrusion.
    Also, in an effort to qualify for the exemption, religious 
schools may be forced to alter their curricula in an attempt to 
focus it on the ``propagation of a particular religion.'' 
Forcing schools to choose between adopting a ``particular 
religion'' or relinquishing hiring prerogatives would be 
antithetical to, and in conflict with, the mission of many of 
these faith-based schools.
    Uncertainties associated with the new exemption would 
result in lengthy and expensive litigation to uphold religious 
freedoms and the separation of church and state. Litigants 
would use this loophole to bring suits against the schools, 
forcing them to hire individuals whose lifestyles might violate 
the schools' core principles.
    In an effort to address the insufficient religious 
exemption, Republican Members overwhelmingly supported an 
amendment by Rep. Hoekstra at the full Committee markup that 
would appropriately expand the exemption to include religious 
and faith-based schools. More specifically, the amendment would 
have stricken the requirement to associate with a 
``particular'' religion, and would have provided an exemption 
for institutions that maintain a faith-based mission. 
Unfortunately, the Majority refused to address the legitimate 
concerns regarding the religious exemption, and the amendment 
failed.

The bill provides vague prohibitions based on ``perceived'' sexual 
        orientation

    H.R. 3685 prohibits--as did its predecessor, H.R. 2015--
employers from discriminating against an individual because of 
an individual's actual or ``perceived'' sexual orientation. The 
bill also makes it unlawful to discriminate against an 
individual based on the actual or ``perceived'' sexual 
orientation of a person with whom the individual associates or 
has associated. Despite its significance to the bill's 
underlying policy, the term ``perceived'' is not defined 
anywhere in H.R. 3685. Its inclusion raises a number of 
practical and legal concerns that remain unaddressed.
    At the Subcommittee hearing on H.R. 2015, one of the 
witnesses, Mr. Lorber, expressed general concern regarding 
legal protections based on perception, which would be 
applicable to perception as applied to both sexual orientation 
and gender identity. In his own words, Mr. Lorber states:

         Section 4(e) is modeled after the ADA, 42 U.S.C. sect. 
        12112(b)(4) and is understandable when applied to 
        defined characteristics. It is less than clear, 
        however, when applied to non-inherent characteristics 
        which may be self-perceived by the individual but not 
        apparent to the employer. This will seem to create the 
        potential for difficult enforcement and even more 
        potentially difficult litigation since the underlying 
        issue may be ephemeral or not readily apparent to the 
        employer. Again, understanding the law makes compliance 
        with the law an acceptable undertaking.\13\
---------------------------------------------------------------------------
    \13\Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP, 
Committee on Education and Labor, Subcommittee on Health, Education, 
Labor and Pensions Hearing, ``The Employment Non-Discrimination Act of 
2007 (H.R. 2015)'' (September 5, 2007), at 3.

    The issue raised by Mr. Lorber highlights the fact that a 
perception of an individual being homosexual or bisexual is a 
highly subjective determination. An individual may ``perceive'' 
themselves to be homosexual, but this may not be apparent to 
others. Yet, notwithstanding the lack of clarity, this could 
still provide the basis for a discrimination claim. In the 
litigation context, determinations would have to be made 
involving consideration of evidence that is highly subjective, 
circumstantial, or contradictory. This would make it virtually 
impossible to make factual determinations with a high degree of 
certainty and confidence.
    The potential impact on employers is profound. Even though 
employers would have difficulty in identifying non-inherent 
characteristics of a person, they would still be subjected to 
claims and potential liability. Even though an employer may not 
be capable of perceiving a person to be homosexual, if they 
have fifteen or more employees and are otherwise subject to 
this bill, they would have to defend themselves in lawsuits by 
having to prove a negative; that they did not ``perceive'' the 
person to be part of a protected class. Difficulty in enforcing 
this provision will undoubtedly lead to costly litigation. Or, 
in the alternative, employers--especially small employers with 
limited resources--may simply choose to settle these cases 
regardless of the merits, in order to avoid lengthy and costly 
litigation.
    It is worth noting that the term ``perceived'' does not 
appear in any other civil rights legislation, including Title 
VII, which protects race, color, religion, sex, and national 
origin. As such, there is simply no reason to provide more 
statutory protection for one protected class over other 
protected classes. Although the Majority may claim that the ADA 
protects persons ``regarded as'' having a disability, that term 
is different from ``perceived'' and is applied to protect 
situations that are different from those to be addressed by 
this bill. Their analogy to the ADA is off the mark. For 
example, an employer may more easily be able to identify an 
apparent condition, for example the fact that a worker suffered 
a treatable heart attack, and ``regard'' that employee as being 
disabled. A person's sexual orientation may not be so readily 
apparent to an employer, and thus protection against 
discrimination based on ``perceived'' sexual orientation is not 
appropriate.
    The Majority denies these valid concerns, by simply stating 
that the inclusion of this term is necessary to protect the 
rights of employees, and that employers could use the absence 
of this term to defend against lawsuits by claiming they did 
not know the ``actual'' sexual orientation of the individual. 
However, this explanation evades and ignores the expansion of 
statutory rights based on sexual orientation, beyond the 
current statutory protections for race, color, sex, religion 
and national origin.
    At markup, Rep. Souder offered an amendment to strike the 
term ``perceived'' from the bill. This amendment was rejected. 
Inclusion of the statutory extension of protection on the basis 
of ``perceived'' sexual orientation is justification to reject 
this bill.\14\
---------------------------------------------------------------------------
    \14\If protection based on ``perceived'' gender identity were added 
to this bill, it would raise similar significant, and perhaps even 
greater, concerns regarding its application in the workplace. For 
example, questions regarding employee privacy and reasonable 
accommodation of transgendered individuals and coworkers would arise. 
Such an extension of the law, if attempted, is wholly inappropriate and 
should be rejected.
---------------------------------------------------------------------------

Policies conditioning employment on marriage

    Under the bill it is unlawful to condition employment, in a 
state in which a person cannot marry a person of the same sex, 
either on being married or being eligible to marry.\15\ The 
Majority claims that this provision purports to protect against 
instances where an employer would use marriage as a pretext for 
discrimination. On its face, the inclusion of such a provision 
would suggest that employers routinely engage in such pretext, 
and that they regularly condition employment with their 
companies for the sole purpose of engaging in discrimination. 
Yet, the Committee heard no testimony, nor is there any history 
of case law, to suggest that employers use such a pretext in 
order to discriminate on this basis. As such, the provision is 
unnecessary, in the first instance.
---------------------------------------------------------------------------
    \15\H.R. 3685, Section 8(a)(3).
---------------------------------------------------------------------------
    Beyond the apparent lack of need for the provision, its 
practical implications are significant. Current law permits 
employers to adopt policies on the basis of behavior 
expectations, if such policies are applied equally to all 
employees. In some work environments--or for some specific 
jobs--it may be entirely appropriate to condition employment on 
marital status. Take, for instance, certain groups, such as 
Boys and Girls Ranch organizations, which provide residential 
treatment programs designed to help at-risk children and 
families. If this provision of the bill were enacted, these 
organizations could be precluded from using married couples for 
``house parent'' positions. In short, the provision could 
prevent employers from hiring people they believe to be best-
suited to the job.
    In addition, employers could be precluded from implementing 
codes of ethics with respect to employees' behavior. One such 
example would be a policy that discourages any form of extra-
marital conduct, both homosexual and heterosexual. Such codes 
are reasonable and legal under current law. The provision would 
limit the ability of employers from instituting such policies 
or others they believe to be in the best interest of their 
companies and their workers.
    Finally, the provision undermines the ability of states to 
define, preserve and protect the institution of marriage. Only 
one state, Massachusetts, permits same-sex marriage. The other 
49 states currently have chosen to prohibit same-sex marriage. 
This provision directly challenges and circumvents independent 
state determinations to define and protect their definitions of 
marriage. At least one commentator, the American Center for Law 
and Justice (ACLJ), in an October 1, 2007 memorandum to the 
Chairman and Ranking Member of the Committee's HELP 
Subcommittee, highlighted this concern.\16\
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    \16\See, Comments of the ACLJ on the Employment Non-Discrimination 
Act of 2007, addressed to the Hon. Robert Andrews, Chairman, Hon. John 
Kline, Ranking Member (October 1, 2007).
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    In order to maintain the current legal right of employers 
to maintain codes of conduct, and to preserve 49 independent 
state determinations regarding the definition of marriage, 
Republican Rep. Souder offered an amendment to strike the 
provision at markup. Unfortunately, this amendment was rejected 
by the Majority.

Protection from retaliation

    The bill makes it unlawful to discriminate or retaliate 
against an individual because the individual opposed any 
practice made unlawful by the bill, or participated in a 
proceeding relating to the bill. However, the bill fails to 
protect those who may not agree with employer policies relating 
to this Act, because of sincerely held beliefs regarding sexual 
orientation. This creates an imbalance with respect to 
protections from retaliation by excluding certain individuals 
from those protections.
    This is not some theoretical concern, proffered merely to 
provide yet another reason to oppose this bill. In fact, 
Members were provided with substantial anecdotal evidence of 
instances where employees were disciplined, or even terminated, 
for failing to embrace their employers' policies, irrespective 
of whether those policies conflicted with the employee's 
sincerely held religious beliefs.
    It is simply unfair to provide legal protections relating 
to sexual orientation, without also protecting the rights of 
individuals to be free from retaliation for disagreeing or 
refusing to consent to employer policies on this issue. Certain 
people, because of sincerely held beliefs, may have great 
difficulty consenting to employer rules, policies--such as 
diversity training programs--related to treatment of sexual 
orientation in the workplace. It is unfair to leave these 
employees open to punishment or retaliation, while at the same 
time providing new protections to another class of workers. 
Further, freedom of speech and free exercise of religious 
beliefs may be at issue. The failure to provide protections 
against retaliation would place a severe, unjustified, and 
wholly unnecessary burden on an individual.
    In an effort to restore this balance of protections, Rep. 
Souder offered an amendment that would have clearly and 
unambiguously extended protection against retaliation to 
employees who, because of burdens on sincerely held beliefs, 
may choose not to provide consent to employer policies on this 
issue. Unfortunately, the Souder amendment was rejected by the 
Committee.

Protection against discrimination based on gender identity

    Although absent from the bill under consideration, H.R. 
3685, the issue of extending non-discrimination protections 
based on gender identity is clearly on the agenda for future 
consideration by the House. In fact, several Members at markup 
expressed the intent to offer an amendment to this bill to 
extent such protection prior to or during a House Floor vote on 
this bill. Accordingly, it is appropriate to raise concerns 
regarding this issue at this time.
    Evidence presented for the record at the September 5, 2007 
HELP Subcommittee hearing on H.R. 2015 raised numerous concerns 
associated with gender identity. The problems associated with 
providing protection based on ``perceived'' status are more 
compounded in the case of gender identity. The question of 
providing reasonable accommodation for such employees is 
extremely problematic. Employee privacy issues are significant, 
Litigation concerns abound.
    Simply put, it is premature to consider extending 
protections based on gender identity, a fact grudgingly 
acknowledged by the bill's own sponsor. This becomes more 
apparent in light of the sparse legislative history and 
consideration of this issue. Any attempt to amend this bill to 
add protections based on gender identity should be rejected by 
the House.

                               CONCLUSION

    As noted repeatedly throughout these Views, Committee 
Republican Members strongly oppose intentional discrimination 
in the workplace. We also believe the protections found in 
Title VII of the Civil Rights Act to be, on balance, sufficient 
for guarding against such discrimination. We therefore find 
H.R. 3685, the Employment Non-Discrimination Act, to be 
unnecessary in the first instance. Moreover, we find many of 
the bill's provisions, and the policy questions they raise, to 
be troubling. Among its more obvious flaws, the bill fails to 
provide an adequate exemption for religious organizations, 
including many faith-based educational institutions. It also 
includes questionable protections based on ``perceived'' sexual 
orientation, which will result in great uncertainty as to the 
meaning and application of this term, leading to costly and 
unnecessary litigation. The bill also precludes employers from 
regulating workplace conduct, despite the lack of evidence 
supporting the need for such a provision and the adverse impact 
on employers' ability to institute policies for the benefit of 
companies and their workers. Finally, the bill fails to provide 
a proper balance with respect to retaliation, unfairly 
according protections to one class of employees but not others. 
In every instance, Republican Members offered viable and 
entirely reasonable proposals to address these concerns. 
Unfortunately, those proposals were rejected by the Majority. 
The result of these legislative machinations is a bill that, 
however well-intended, favors a certain protected class of 
individual over other classes already protected under current 
civil rights law, and over individuals with sincerely-held 
moral and religious beliefs. It is for these reasons that 
Republicans opposed the bill during its consideration by the 
Committee on Education and Labor, and why we urge its defeat 
when considered by the full House of Representatives.

                                   Howard P. ``Buck'' McKeon.
                                   Pete Hoekstra.
                                   Mark Souder.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   Tom Price.
                                   C. W. Boustany, Jr.
                                   David Davis.
                                   Tim Walberg.