Employment Non-Discrimination Act (ENDA)

The Employment Non-Discrimination Act (ENDA) is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.

ENDA has been introduced in every Congress, except the 109th, since 1994, albeit without gender identity protections, but gained its best chance at passing after the Democratic Party broke twelve years of Republican Congressional rule in the 2006 midterm elections. However, some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion, and dropped it from the bill, which passed and subsequently died in the Senate. LGBT advocacy organizations were divided over support of the changed bill.

In 2009, on the heels of the 2008 elections that strengthened the Democratic majority, and after the debacle of the 2007 ENDA divisions, only a transgender-inclusive ENDA was introduced by House representative Barney Frank. Frank reintroduced the bill in 2011. Shortly thereafter, the bill was introduced in the Senate by Jeff Merkley.

President Barack Obama supports the bill’s passage; former President George W. Bush threatened to veto the measure.

Evidence Discrimination based on sexual orientation occurs at a similar rate as sex and race at 4.7 per 10,000, as compared to discrimination based on sex at 5.4 and race at 6.5.   In states that have discrimination policies in place, LGB complaints are equivalent to the number of complaints filed based on sex and less than the number of complaints filed based on race.

Evidence of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity

The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government. Thirty percent of state and local LGBT employees live in California and New York. In comparison, LGB people make up only one half of one percent of state and local employees in Montana, North Dakota and Wyoming combined.   This suggests that the need for policy to address discrimination may vary across the country. Surveys which seek to document discrimination on the basis of perceived sexual orientation and/or gender identity are often conducted with a pool of self identified LGBT people, making it difficult to ascertain the impact of this type of discrimination on non-LGBT individuals.

Transgender people may experience higher rates of discrimination that the LGB population. A survey of transgender and gender non-conforming people Conducted by the National Center for Transgender Equality found 90 percent of respondents experienced harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it.   In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.

It is unclear whether LGBT individuals earn more or less than the general population. In a survey conducted by Harris Interactive, 38 percent of LGBT people report incomes less than $35,000,compared to 33 of all US adults over age 18.   Some organizations believe that no such gap exists, and that LGBT people may in fact have higher incomes than non-LGBT families. The American Family Association (AFA) argues that homosexuals as a class enjoy privileged, rather than disadvantaged economic and cultural positions in society and that their household income is above average.

Existing law

State law

Current U.S. LGBT employment discrimination laws.
All employment:

  Sexual orientation and gender identity

  Sexual orientation only

State employment:

  Sexual orientation and gender identity

  Sexual orientation only

  No state-level protection for LGBT employees

Animation showing the evolution of US LGBT civil rights policies

Wisconsin was the first state to ban employment discrimination based on sexual orientation, in 1982, while Minnesota was the first state to ban employment discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993.   Currently, 13 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment: California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington in the public and private sector. An additional eight states — Connecticut, Delaware, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin — have state laws that protect against discrimination based on sexual orientation only.

Five states have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity: Indiana, Kansas, Kentucky, Michigan, and Pennsylvania. Delaware,Maryland, Massachusetts, and New York prohibit discrimination based on gender identity in public employment only. An additional five states prohibit discrimination against public employees based on sexual orientation only: Alaska, Arizona, Missouri , Montana and Ohio. Ohio previously included gender identity, Governor Kasich let this executive order expire in January 2011.

Fifteen other states have laws that have been interpreted to protect transgender persons.

Local law

A number of cities and counties have implemented non-discrimination laws. As of April 27, 2011, at least 137 cities and counties prohibit discrimination on the basis of gender identity for both public and private employees. By and large, these city and county laws exist in states that already have a statewide non-discrimination policy for sexual orientation and/or gender identity. However, this is not true in all cases. The following localities have local laws prohibiting discrimination on the basis of gender identity in the absence of a comparable state law:

• Florida: County of Broward, City of Dunedin, City of Gainesville, City of Gulfport, City of Key West, City of Lake Worth, County of Leon, City of Miami Beach, City of Oakland Park, County of Palm Beach, City of Tampa, and City of West Palm Beach
• Georgia: City of Atlanta and City of Decatur
• Indiana: City of Bloomington, City of Indianapolis, County of Marion and County of Monroe
• Louisiana: City of New Orleans
• South Carolina: City of Charleston and City of Columbia
• Texas: City of Austin, City of Dallas, County of Dallas, City of El Paso and City of Fort Worth
• Utah: City of Logan, City of Park City, City of Salt Lake, County of Salt Lake, County of Summit and City of West Valley

Federal employees

As with other employers in most states, there is no federal statute addressing employment discrimination based on sexual orientation or gender identity in the federal government. However, in 1998, the administration of President Bill Clinton interpreted the Civil Service Reform Act of 1978, prohibiting federal government workplace discrimination “on the basis of conduct not related to job performance”, as meaning sexual orientation [as a factor not related to job performance], and issued an executive order to more strongly cover the executive branch, over which the President has more control.   In 2009 Barack Obama did the same for gender identity.   However, remedies pursued under this law are limited.

Existing workplace policies

Many large companies already provide equal rights and benefits to their lesbian, gay, bisexual and transgender employees, as measured by the Human Rights Campaign (HRC) through their Corporate Equality Index. The 2011 report found that 337 large companies received a 100% rating.   These businesses employ a total of over 8.3 million full-time U.S. workers.   When the Rights Campaign’s Corporate Equality Index was first utilized in 2002, 13 companies were rated 100 percent.   Additionally, each year, corporations send thousands of employees to the Out & Equal Regional Summit, a conference that intends to create a more inclusive work environment for lesbian, gay, bisexual and transgender employees.   Furthermore, there are workplace resources for how allies can create a more inclusive work environment, including programs available through PFLAG and the Out & Equal publication, Allies at Work, by David M. Hall.

Widespread adoption of private workplace policies may be motivated by good business sense, the Williams Institute suggests. It’s conclusion is based on a set of studies that show that lesbians and gay men who have come out at work report lower levels of anxiety, less conflict between work and personal life, greater job satisfaction, more sharing of employers’ goals, higher levels of satisfaction with their co-workers, more self-esteem, and better physical health.

Current version provisions

The current version of the bill under consideration in Congress would prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity.

Religious organizations are provided a special exception to this protection, similar to the principles of the Civil Rights Act. Non-profit membership-only clubs (except labor unions) are likewise not bound to this rule.

The bill defines that service in the military is not “employment” and thus it does not affect the don’t ask, don’t tell (DADT) policy of the United States military. DADT was repealed by the Don’t Ask, Don’t Tell Act of 2010, signed by President Barack Obama on December 22, 2010. DADT will remain in place until President Obama, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff can certify that repeal will not harm military readiness, followed by a 60-day waiting period. On April 8, 2011, Adm. Gary Roughead, chief of naval operations reported to the House Armed Services Committee that “Our training is going very well.” “In those areas that we detected that there may be some areas of moderate risk…it is not at the level that we had originally forecasted.” The training may be completed as early as June 2011.

Legislative progress

103rd through 108th Congresses

While the first bill on the subject of sexual orientation discrimination was introduced in Congress in 1974, the first bill using the current title of “Employment Non-Discrimination Act” was introduced in 1994. It failed in 1994 and 1995, though by 1996, missed passage in the Senate by a 49-50 vote.  Versions of ENDA introduced in the 103rd through 108th Congresses did not include provisions that protect transgender people from discrimination.

109th Congress

ENDA was not introduced in the 109th Congress.

110th Congress

In the 110th United States Congress there were two versions of the bill:

• H.R. 2015, introduced on April 24, 2007 by Representatives Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce, does include gender identity within its protections; and
• H.R. 3685, introduced by Representative Frank on September 27, 2007 and passed by the Education and Labor Committee on October 18, does not include gender identity within its scope. On November 7, 2007, H.R. 3685 was passed by the House of Representatives by a vote of 235 to 184 (14 members did not vote).

Under both versions, the bill provided employment protections similar to those of the Civil Rights Act of 1964 (the employment section is also known as “Title VII”), but specifically directed to gay, lesbian, bisexual (and under HR 2015, transgender) employees. The bills were different from Title VII in that they contained exemptions concerning employer dress codes.

H.R. 2015 does contain provisions that protect transgender people from discrimination, including a specific definition of gender identity, as well as exemptions for employer dress codes and locker rooms .   The bill defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” The bill also specifically allowed employers to require adherence “to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.”

After H.R. 2015 died in committee, Frank proposed a new bill, H.R. 3685, that contained only prohibitions on sexual orientation discrimination, excluding gender identity.   Some LGBT activist organizations responded by refusing to support H.R. 3685.   This version was protested against by many LGBT rights organizations in the United States, with the exception of theHuman Rights Campaign.

Many have claimed that excluding transgender people would undermine the underlying principle of ENDA, which is that fairness is a fundamental American principle.  In addition, failure to include gender identity/expression will weaken the protection for the portion of the gay population that needs it most: gender non-conforming gays, who are discriminated against in greater numbers than their gender-conforming compatriots^{[citation needed]}. The courts would narrowly interpret a sexual-orientation-only ENDA as not covering anti-gay discrimination that stems from gender expression. Those favoring exclusion counter that it will ease the process of passing some changes in civil rights. 

111th Congress

House

The Washington Blade reported on June 17, 2009 that Rep. Barney Frank (D-MA) had announced plans to introduce an ENDA bill (H.R. 2981) that includes gender identity in June 2009, with original cosponsors slated to include 4 Republicans.  The lead Republican cosponsor is Rep. Ileana Ros-Lehtinen (R-FL). 

On June 24, 2009, Rep. Barney Frank introduced H.R. 3017 to ban workplace discrimination based on sexual orientation and gender identity.   The Advocate reported that “the 2009 Employment Nondiscrimination Act (ENDA) has 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007.”    Republican Main Street Partnership members Mark Kirk (R-IL), Mike Castle (R-DE), Todd Russell Platts (R-PA), Judy Biggert (R-IL), and Leonard Lance (R-NJ) were among the original cosponsors.   Earlier in June Frank had introducedH.R. 2981 for the same purpose.   H.R. 3017 was referred to the House Education and Labor Committee; a hearing was held before the committee on September 23, 2009 but no further action was taken.

At the end of the 111th Congress, H.R. 3017 had 203 cosponsors in the House.

Senate

The Washington Blade reported on August 5, 2009 that Sen. Jeff Merkley introduced an ENDA bill (S. 1584) that included gender identity, with 38 original cosponsors   including Sens. Ted Kennedy (D-MA), Susan Collins (R-ME), Olympia Snowe (R-ME) and Chris Dodd (D-CT), according to a statement released by Merkley’s office.   Sen. Merkley was quoted by The Advocateas noting that while he has yet to consult with others, “[i]t’s certainly possible that this could be passed by year’s end, though the [congressional] schedule is very crowded.”

Blue Oregon, a progressive Oregon blog, commented on the suitability of Sen. Merkley to be lead sponsor of ENDA, noting that as Speaker of the Oregon House of Representatives Merkley had successfully guided Oregon’s state version of ENDA, the Oregon Equality Act, to become law.

As of March 13, 2010, S. 1584 had 45 co-sponsors and was pending before the Health, Education, Labor, and Pensions (HELP) Committee.  A hearing was held before the committee on November 5, 2009.

112th Congress

On April 6, 2011, Rep. Barney Frank introduced an ENDA bill (H.R. 1397) to the 112th Congress House of Representatives to ban workplace discrimination based on sexual orientation and gender identity.   The bill had 111 original cosponsors, compared to 203 cosponsors at the conclusion of the 111th Congress.

On April 14, 2011, Sen. Jeff Merkley introduced an ENDA bill (S. 811) to the 112th Congress Senate.   The bill had 39 original cosponsors.

Arguments in favor of ENDA

Most proponents of the law^[who?] intend it to address cases where gay, lesbian, bisexual, and transgender employees have been discriminated against by their employers because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the United States Constitution‘s guarantees of equal protection and due process to all. Advocates argue that homosexuality is not a “choice” but a personal identity, a claim supported by the American Psychology Association (APA), and that all working people have a right to be judged by the quality of their work performance and not by completely unrelated factors.   According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender.   The APA also states that there is significant discrimination against homosexuals in the workforce.   There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.

Cost estimates from the Congressional Budget Office from 2002 show that the EEOC estimated that their complaint caseload would rise by only 5 to 7%.  Assessments of the impact of comparable state policies also show a minimal impact on caseload.  Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964, which has consistently been upheld by the courts.

Arguments in opposition of ENDA

Gay people as a “protected class”

Opponents of ENDA sometimes argue that gay people should not be considered a “protected class of employees” by law.  However, ENDA would not protect “homosexuals” as a class; rather, the law would ban discrimination in employment based on any sexual orientation (including heterosexual orientation). Consumer surveys show that self-identified gay individuals likely have higher incomes than the average US household,  and ENDA opponents argue that many gay people hold positions of cultural influence as well.   The conservative Christian organization American Family Association‘s (AFA) Journal concluded in 2007 that there was “no real problem of discrimination against homosexuals.”   Additionally, AFA is concerned about how non-discrimination laws impact religious organizations. The organization cites a lack of clarity around whether the narrow exemption would apply to support staff and lay employees in addition to churches and clergy.

Transgender protection

The Traditional Values Coalition bases its argument against additional legal protections for gender identity on fears that it will have a negative impact on school children, claiming that ENDA would threaten a stable and supportive learning environment. A non-discrimination policy would eliminate schools’ ability to discriminate against transgender teachers. Likewise, the Traditional Values Coalition is concerned that parents are not being adequately informed of the presence of transgender teachers in their children’s classrooms.  It argues that children should not be “subjected to [a transgendered] man’s [sic] bizarre sexual transformation,” as it claims transgender individuals are “seriously mentally disturbed.” The Traditional Values Coalition argues that individuals cannot change their sex, even with surgery, and do not believe it is possible to successfully transition from one sex to another.

History

The “United ENDA” coalition protests the removal of gender identity from the 2007 bill at San Francisco City Hall.

On May 14, 1974, the fifth anniversary of the Stonewall Rebellion, Representatives Bella Abzug and Ed Koch introduced H.R. 14752, the “Gay Rights Bill.” The bill would have added “sexual orientation” to the Civil Rights Act of 1964.

In the early 1990s, a new strategy emerged. Rather than trying to obtain all of the rights in the Civil Rights Act, the legislative efforts focused on employment rights, and the “Equality Act” was renamed the “Employment Non-Discrimination Act,” (H.R. 4636/S.2238) and introduced by Rep.Gerry Studds on June 23, 1994. [Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).] The legislation failed in 1994 and 1995.  In 1996, the bill came within one vote passage in the Senate and was not voted on in the House, its success perhaps spurred by backlash from the recently passed DOMA, the “Defense of Marriage Act” that permitted the states and mandated the federal government to ignore same sex marriages from other states. HRC sets out the timeline of ENDA introductions.

Transgender inclusion in ENDA

The inclusion of transgender employees in ENDA has long been debated in the LGBT community. One argument is that transgender individuals are already covered under existing laws prohibiting employment based on gender stereotypes.

In 1999, the National Gay and Lesbian Task Force became the first LGBT civil rights organization to stop work on ENDA because of its lack of transgender-inclusion. From 1999 to 2007, it has worked to build a LGBT community consensus to only support a trans-inclusive bill, and participated in redrafting the fully trans-inclusive version for the 110th Congress. ENDA now enjoys the unequivocal support of a large coalition of civil rights, labor and religious organizations. In August 2004, the Human Rights Campaign – anLGBT organization that is among the primary lobbyists for the bill – announced that it will only support passage of ENDA if it included gender identity protections as well. However, in November 2007, it reneged on its stance and supported a non-inclusive ENDA instead.  A 2004 article by Matt Foreman, the executive director of the National Gay and Lesbian Task Force discusses this.

Legislative history

Congress	Short title	Bill number(s)	Gender identity included?	Date introduced	Sponsor(s)	# of cosponsors	Latest status
112th Congress	Employment Non-Discrimination Act	H.R. 1397	Yes	April 6, 2011	Rep. Barney Frank (D-MA)	133	Referred to the Education and the Workforce, House Administration, Oversight and Government Reform, and Judiciary committees.
		S. 811	Yes	April 14, 2011	Sen. Jeff Merkley (D-OR)	39	Referred to the Health, Education, Labor, and Pensions committee.
111th Congress	Employment Non-Discrimination Act of 2009	H.R. 3017	Yes	June 24, 2009	Rep. Barney Frank (D-MA)	203	Referred to the Judiciary, House Administration, Education and Labor, and Oversight and Government Reform committees. Hearings held September 23, 2009 in Education and Labor committee.
		H.R. 2981	Yes	June 19, 2009	Rep. Barney Frank (D-MA)	12	Referred to the House Judiciary Committee
		S. 1584	Yes	August 5, 2009	Sen. Jeff Merkley (D-OR)	45	Referred to the Senate Health, Education, Labor, and Pensions Committee Hearings held November 5, 2009.
110th Congress	Employment Non-Discrimination Act of 2007	H.R. 2015	Yes	April 24, 2007	Rep. Barney Frank (D-MA)	184	Died in the House Subcommittee on the Constitution, Civil Rights and Civil Liberties
		H.R. 3681	No	September 27, 2007	Rep. Barney Frank (D-MA)	9	Passed the House (235-184), died in the Senate
108th Congress	Employment Non-Discrimination Act of 2003	H.R. 3285	No	October 8, 2003	Rep.Christopher Shays (R-CT)	180	Died in the House Subcommittee on Employer-Employee Relations
		S. 1705	No	October 2, 2003	Sen. Ted Kennedy (D-MA)	43	Died in the Senate Committee on Health, Education, Labor, and Pensions
107th Congress	Employment Non-Discrimination Act of 2001	H.R. 2692	No	July 31, 2001	Rep.Christopher Shays (R-CT)	193	Died in the House Subcommittee on Employer-Employee Relations
		S. 1284	No	July 31, 2001	Sen. Ted Kennedy (D-MA)	44	Died in the Senate
106th Congress	Employment Non-Discrimination Act of 1999	H.R. 2355	No	June 24, 1999	Rep.Christopher Shays (R-CT)	173	Died in the House Subcommittee on Employer-Employee Relations
		S. 1276	No	June 24, 1999	Sen. Jim Jeffords (R-VT)	36	Died in the Senate Committee on Health, Education, Labor, and Pensions
105th Congress	Employment Non-Discrimination Act of 1997	H.R. 1858	No	June 10, 1997	Rep.Christopher Shays (R-CT)	140	Died in the House Subcommittee on Employer-Employee Relations
		S. 869	No	June 10, 1997	Sen. Jim Jeffords (R-VT)	34	Died in the Senate Committee on Labor and Human Resources
104th Congress	Employment Non-Discrimination Act of 1995	H.R. 1863	No	June 15, 1995	Rep. Gerry Studds (D-MA)	142	Died in the House Subcommittee on the Constitution
		S. 932	No	June 15, 1995	Sen. Jim Jeffords (R-VT)	30	Died in the Senate Committee on Labor and Human Resources
		S. 2056	No	September 5, 1996	Sen. Ted Kennedy (D-MA)	3	Failed in Senate (49-50)
103rd Congress	Employment Non-Discrimination Act of 1994	H.R. 4636	No	June 23, 1994	Rep. Gerry Studds (D-MA)	137	Died in the House Subcommittee on Select Education and Civil Rights
		S. 2238	No	July 29, 1994	Sen. Ted Kennedy (D-MA)	30	Died in the Senate Committee on Labor and Human Resources