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LABOR & EMPLOYMENT LAW — 08/12/09

Fully inclusive Employment Non-Discrimination Act introduced in the Senate

A bipartisan bill (S. 1584) that would provide employment discrimination protections to individuals based on their sexual orientation and gender identity was introduced in the Senate on August 5, 2009. Called the Employment Non-Discrimination Act (ENDA), the bill would extend federal employment laws, which currently prevent employment discrimination on the basis of race, religion, gender, national origin, age and disability, to also cover sexual orientation and gender identity. The lead sponsors of the measure are Senators Jeff Merkley (D-OR), Edward Kennedy (D-MA), Olympia Snowe (R-ME) and Susan Collins (R-ME). They were joined in the August 5, 2009, introduction of the bill by 34 other members of the Senate. This is the first time that a transgender-inclusive version of the bill has been introduced in the Senate. The House introduced an inclusive version of ENDA in June 2009 (see ¶69,212D).

ENDA would prohibit employers, employment agencies, labor organizations and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.

The four main co-sponsors released statements regarding the bill.

"There is no place in the workplace for employment discrimination," said Senator Merkley. "No worker in America should be fired or denied a job based on who they are. Discrimination is wrong, period. I'm proud to join Senator Kennedy, who is a civil rights legend, and Senators Collins and Snowe, both champions for equality, in taking this next step in our ongoing effort to create a more perfect union and guarantee every American, regardless of sexual orientation or gender identity, the right to earn a living."

"The promise of America will never be fulfilled as long as justice is denied to even one among us. The Employment Non-Discrimination Act brings us closer to fulfilling that promise for gay, lesbian, bisexual, and transgender citizens. I'm proud to join Senators Merkley, Collins and Snowe in introducing this important legislation," said Senator Edward M. Kennedy.

"This legislation is long overdue. We cannot continue to allow two standards of rights in the workplace, based on sexual orientation or identity," said Senator Olympia Snowe. "Ensuring equality for all Americans is the least we can do in living up to the standards of inclusion that this nation is built upon. There is no place for discriminating against any of our citizens for whatever reason and I commend my colleagues for their willingness to champion equal rights for every American."

"Similar to the current law in several states, including Maine, and the policies of many Fortune 500 companies, the Employment Non-Discrimination Act would close an important gap in federal civil rights laws by making it illegal to discriminate in employment based on sexual orientation. Our legislation affirms the principle that individuals should be judged on their skills and abilities, and not by who they are."

Other original cosponsors of ENDA include: Assistant Majority Leader Richard Durbin (D-IL), Senators Daniel Akaka (D-HI), Jeff Bingaman (D-NM), Barbara Boxer (D-CA), Sherrod Brown (D-OH), Roland Burris (D-IL), Maria Cantwell (D-WA), Ben Cardin (D-MD), Bob Casey (D-PA), Chris Dodd (D-CT), Russ Feingold (D-WI), Diane Feinstein (D-CA), Al Franken (D-MN), Kirsten Gillibrand (D-NY), Tom Harkin (D-IA), Daniel Inouye (D-HI), John Kerry (D-MA), Amy Klobuchar (D-MN), Frank Lautenberg (D-NJ), Patrick Leahy (D-VT), Carl Levin (D-MI), Joe Lieberman (I-CT), Robert Menendez (D-NJ), Barbara Mikulski (D-MD), Patty Murray (D-WA), Jack Reed (D-RI), Bernie Sanders (D-VT), Chuck Schumer (D-NY), Jeanne Shaheen (D-NH), Arlen Specter (D-PA), Mark Udall (D-CO), Tom Udall (D-NM), Sheldon Whitehouse (D-RI) and Ron Wyden (D-OR).

Reactions. The Employment Non-Discrimination Act has been endorsed by national civil rights organizations such as the Human Rights Campaign, the Leadership Conference on Civil Rights, the ACLU, labor organizations and more than 50 Fortune 500 companies.

"We are thrilled the Senate has introduced, for the first time, an Employment Non-Discrimination Act that will protect the entire lesbian, gay, bisexual and transgender (LGBT) community. We applaud the leadership of Senators Merkley, Collins, Kennedy and Snowe and look forward to working with them to pass these critical protections," said Human Rights Campaign President Joe Solmonese.

"The Leadership Conference on Civil Rights strongly supports ENDA. We believe that civil rights should be measured by a single yardstick, which means that workers should be hired or fired based on performance and qualifications, not on immutable characteristics such as race, gender, sexual orientation, or gender identity. For too many Americans, this principle has little meaning, and this long overdue legislation will finally close a major gap in our nation's civil rights laws," said Wade Henderson, President of the Leadership Conference on Civil Rights (LCCR).

"We are so pleased that Senators Merkley, Collins, Kennedy and Snowe continue to take a lead role in advancing the rights of LGBT people. This bill will ensure that protections against workplace discrimination are extended to all Americans including the transgender community. There is no reason why people should lose their livelihood because of who they are. This bill is a major step toward fairness," said Mara Keisling, Executive Director of the National Center for Transgender Equality.

"ENDA reflects the core US values of fairness and ensuring everyone is allowed to participate on a level playing field in the workplace. People recognize that our nation as a whole benefits when everyone is allowed to contribute their talents and skills, free from discrimination, which is all ENDA seeks to do," said Rea Carey, Executive Director, National Gay and Lesbian Task Force Action Fund.

"Nike has been a long time supporter of the passage of ENDA and is very encouraged that under the leadership of Senators Merkley, Collins, Kennedy and Snowe we are moving a step closer towards passage of this essential piece of legislation. Diversity and inclusion at Nike is about respecting our differences, leveraging our strengths and maximizing opportunity for all. These values make Nike a better company, ardently supportive of our employees, respectful of our consumers and more competitive in our industry. In supporting ENDA, you support the conviction that every American deserves a chance to compete and prosper on a level playing field," said Orson Porter, US Director of Government and Public Affairs, Nike Inc.

"Nationwide Insurance is proud to align with the federal government and other employers supporting the Employment Non-Discrimination Act. This bill is an appropriate, no-cost measure that will have a positive impact on our country, by extending protection in the majority of US states where it remains legal to fire employees who are gay, lesbian, bisexual or transgender," said Steve Keyes, Vice President, Associate Relations & HR Policy, Nationwide Insurance.

"The Labor Movement holds as a guiding principle the belief that 'An injury to one is an injury to all.' We all suffer when a worker is discriminated against, fired or harassed simply because of their sexual orientation or gender identity. That is why labor unions representing millions of workers have been negotiating contracts with sexual orientation and gender identity protections since 1975 and have long fought for passage of the Employment Non-Discrimination Act (ENDA). It is a matter of simple fairness and workplace equality for which we in the Labor Movement have long fought. We are proud to stand with Senator Merkley and the other Senate supporters of ENDA and look forward to celebrating the passage of this important worker protection," said Annie Hill, Executive Vice President, Communications Workers of America (CWA), AFL-CIO.

"This bill, if passed, will ensure workplace equality for lesbian, gay, bisexual and transgender Americans," said Christopher Anders, ACLU Senior Legislative Counsel. "Protecting the right of all Americans to make a living free from discrimination is critically important, particularly in this economy. We're grateful to Senator Merkley for introducing this landmark civil rights bill."

The bill, which has 38 cosponsors, has been referred to the Senate Committee on Health, Education, Labor and Pensions.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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