Senator Tom Harkin promised Iowa Democrats Saturday night that the U.S. Senate would soon approve the Employment Non-Discrimination Act (ENDA) to protect the workplace rights of LGBT Americans. Today a fifth Republican senator indicated that he will vote for the ENDA. Those five plus the 55 members of the Democratic caucus (including newly sworn-in Cory Booker of New Jersey) will give supporters the 60 votes needed to break the inevitable Republican filibuster. President Barack Obama has called on Congress to pass the law.
Passing ENDA was a priority for Senator Ted Kennedy, the longtime chair of the Senate Health, Education, Labor & Pension committee Harkin now leads. In 1996, an earlier version of this legislation fell just short of passage on the Senate floor. Harkin voted yes, while Iowa Republican Chuck Grassley voted no. In recent years, most Congressional Democrats have supported a version of ENDA that protects transgender employees as well as gays, lesbians, and bisexuals. Such a bill passed the U.S. House in 2007 but died in the Senate.
More details on the current bill’s provisions are after the jump. House Speaker John Boehner opposes ENDA and would be unlikely to put it to a vote in the lower chamber.
UPDATE: On Monday night the Senate approved a motion to proceed with debating the bill by 61 votes to 30 (roll call). Grassley was one of the 30 Republicans who attempted to filibuster. After the jump I’ve posted a video of Harkin’s floor statement supporting ENDA, which he called “another step in the direction of opening America up and making our society more inclusive rather than exclusive.”
From Pete Kasperowicz’s report for The Hill:
The bill from Sen. Jeff Merkley (D-Ore.) would make it illegal for companies, associations and government employers at all levels to use sexual orientation and gender identity as a basis for hiring and firing decisions, or to use these factors to discriminate against employees or applicants.
But the bill goes further than that by including language meant to protect people from discrimination when in “gender transition.” The bill gets at the idea of gender transition in Section 8, which deals with workplace dress and grooming standards.
That section says employers are allowed to enforce “reasonable dress or grooming standards.” But that right is conditional – employees who have gone through gender transition, and employees who notify employers that they are “undergoing gender transition,” must be allowed to dress in the manner of the gender “to which the employee has transitioned or is transitioning.” […]
It exempts religious organizations. Section 6 of the bill says it does not apply to “a corporation, association, educational institution or institution of learning, or society” that is already exempt from religious discrimination language in the Civil Rights Act of 1964.
However, Democratic supporters of the bill made it clear in report language accompanying the legislation that ENDA would apply to groups that are “not primarily religious in purpose and character.”
Additionally, the bill exempts the military. Section 7 says employment relationships covered by the bill “does not apply to the relationship between the United States and members of the Armed Forces.”
Floor statement by Senator Tom Harkin in support of ENDA, November 4:
Text of Harkin’s floor statement:
WASHINGTON, D.C.-On the floor of the U.S. Senate this afternoon, U.S. Senator Tom Harkin (D-IA) welcomed a historic Senate vote on the Employment Non-Discrimination Act (ENDA), a bill that would prohibit workplace discrimination based on sexual orientation and gender identity. Harkin, as Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, oversaw the bipartisan passage of ENDA in the Committee this July.
“Despite the passage of laws at the state and local levels, discrimination in the workplace continues to be all too real. Forty-two percent of lesbian gay and bisexual workers report having experienced some form of discrimination at work. Even with the progress that has been made at the state and local levels, too many hardworking Americans, whether employed by private companies or by public entities, are being judged not by their ability and qualifications, but by their sexual orientation or gender identity,” Chairman Harkin said. “Lesbian, gay, bisexual and transgender Americans deserve the same civil rights protections from discrimination as all other Americans. This bill will accomplish that. It will say to millions of LGBT Americans that they are full and welcome members of our American family, and that they deserve the same civil rights protections as all other Americans.”
The legislation is sponsored in the Senate by Chairman Harkin and Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Susan Collins (R-ME) and Tammy Baldwin (D-WI). In the House, Congressman Jared Polis (D-CO) and Congresswoman Ileana Ros-Lehtinen (R-FL) have introduced a companion bill. The bill would prohibit employers 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. Such protections are already in place prohibiting discrimination based on race, religion, gender, national origin, age, and disability. As of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 282 (57 percent) had policies that include gender identity.
The full text of Harkin’s remarks, as prepared for delivery, is below.
“Today, for the first time in 17 years, we are going to begin debate on the Employment Non-Discrimination Act. When Senator Kennedy, the longtime champion of this bill, last brought it to the floor in 1996, it was just one vote shy of passage. In the meantime, our country has changed significantly in its attitude about the rights of lesbian, gay, bisexual and transgender Americans. In a nutshell, Americans believe in the right of individuals to earn a living free from discrimination and to be judged in the workplace based on talent, ability and qualifications.
“Since 1996, 17 states, including Iowa, have passed legislation that includes basic employment protections for all LGBT Americans. Eighty-eight percent of Fortune 500 businesses have included protections in their non-discrimination policies, as have the majority of small businesses. Over 100 major businesses, including pharmaceutical companies, technology companies, banks, manufacturing companies and chemical companies, have announced their support for this bill. In fact eight in 10 Americans believe it is already illegal to fire someone for being gay.
“So why are we here today? We are here because, even though most Americans believe firing or refusing to hire someone based their sexual orientation is illegal, they are incorrect. The majority of Americans, more than 56 percent, live in states where it is perfectly legal to fire someone or to refuse to hire them because of who they are, a lesbian, gay, bisexual or transgender citizen.
“Unfortunately, the United States Senate has also changed quite a bit in the 17 years since we last considered this bill. That last vote was an up or down vote, 49 to 50, with no amendments, and a majority of Senators would have been enough to pass the Employment Non-Discrimination Act. Later today, however, we will have a vote that will require the support of 60 United State Senators before we can even begin debating this legislation.
“It is a tribute to the leadership of the bill’s sponsors, Senator Jeff Merkley and Senator Mark Kirk, that we have 55 cosponsors of this bill. And, earlier today, we learned that we will have the 60 votes necessary to begin debate. Senator Kirk, who is managing the bill for the minority, has been a supporter of this legislation since before he was elected to the House. He played a critical role in ensuring that the bill before us today was voted out of the HELP Committee in July with a strong bipartisan vote of 15 to 7, including the support of three members of the minority.
“Mr. President, despite the passage of laws at the state and local levels, discrimination in the workplace continues to be all too real. Forty-two percent of lesbian gay and bisexual workers report having experienced some form of discrimination at work. Even with the progress that has been made at the state and local levels, too many hardworking Americans, whether employed by private companies or by public entities, are being judged not by their ability and qualifications, but by their sexual orientation or gender identity.
“Consider the example of Michael Carney, who was denied reinstatement as a police officer three times before successfully using the protections of the state law to get his job back; this is a job in which he has now served with distinction for many years. Or consider Sam Hall, a West Virginia miner, who suffered destruction of property and verbal harassment from his coworkers because of his identity as a gay man. Sam is one of those millions of Americans who currently have no legal recourse without this law.
“Discrimination against transgender Americans is even more common, with 78 percent reporting harassment at work. I was fortunate enough to hear from Kylar Broadus as a witness at our HELP Committee hearing on the bill last year. Kylar faced intense harassment at work as he transitioned from female to male. He has never fully recovered financially from the loss of his well-paid position. Allyson Robinson also provided written testimony to the Committee regarding the painful separation from her family that she endured because of financial hardships while she searched for her first job as an openly transgendered female.
“Too many of our fellow citizens are being judged not by what they can contribute in the workplace, but by who they are or whom they choose to love. Unfortunately, we can cite countless cases of bigotry and blatant job discrimination based on sexual orientation or gender identity. Equal opportunity is not just an abstract principle or a matter of statistics. Decent, hardworking Americans are being hurt by discrimination every day.
“It has been almost 50 years since we first took steps to eliminate discrimination at work. While we still have a long way to go, our country is a far better place because of laws against discrimination based on race, sex, national origin, religion, age and disability, among others. It is time, at long last, for us to also prohibit discrimination on the basis of sexual orientation and gender identity. Such discrimination is fundamentally wrong and cannot be tolerated.
“Lesbian, gay, bisexual and transgender Americans deserve the same civil rights protections from discrimination as all other Americans. This bill will accomplish that. It will say to millions of LGBT Americans that they are full and welcome members of our American family, and that they deserve the same civil rights protections as all other Americans.
“This bill is simple and clear. It states that private businesses, public employers and labor unions cannot make employment decisions – hiring, firing, promotion or compensation – because of a person’s actual or perceived sexual orientation or gender identity. It contains exemptions for small businesses and religious organizations, and current rules applicable to the armed forces are not affected. The bill expressly prohibits disparate impact claims. It is modeled on Title VII of the Civil Rights Act, a law that has been in place since 1964. And this bill also incorporates many suggestions from Republicans on the HELP Committee. I am glad we could work on a bipartisan basis to improve the bill.
“The Employment Non-Discrimination Act has unprecedented support from major American businesses. I would like to enter into the record a letter of support from over 100 businesses including Dow Chemical, General Electric, Hilton Hotels, Glaxco Smith Kline, Chevron, Wells Faro, Marriott, Coca Cola, Cisco and Kaiser.
“In the course of Committee hearings on this bill, we heard from executives of Nike and General Mills. Asked why they had chosen to implement strong non-discrimination policies, the Nike executive testified that “ENDA is good for business because teams thrive in an open and welcoming work environment, where individuals are bringing their full selves to work.”
“The bill we are debating today specifically protects religious liberty with a substantial exemption that allows specific religious organizations to continue to take sexual orientation and gender identity into account when making employment decisions. ENDA’s religious exemption is actually broader than that in any other federal civil rights law.
“This is a compromise that has been hard for strong advocates of civil rights and civil liberties, including me, to accept. But it is an exemption that has helped to persuade some members of strong faith that ENDA should become law. I would point to my friend Senator Hatch, who supported this bill in Committee, as just one important example of Senators who are satisfied that this exemption serves to reconcile the strictures of their faith with fundamental fairness in the workplace.
“ENDA is supported by 60 faith-based organizations, including congregations and organizations ranging from the Presbyterian Church and the Episcopal Church to the Progressive National Baptist Convention, the Union of Reform Judaism, the Union Synagogue of Conservative Judaism, and the Islamic Society of North America.
“Seventy-six percent of American Catholics support basic workplace protections for gay and transgender workers, and almost 70 percent of evangelical Christians support LGBT employment protections. There is overwhelming support for this bill amongst people of faith and religious organizations.
“In addition to acknowledging the leadership of Senator Kirk, I also salute the bill’s lead sponsor, Senator Jeff Merkley of Oregon, who has championed this bill through the Senate and without whom we would not be starting this debate today. In addition, we are fortunate that the lead Democratic sponsor of the bill in the House in previous Congresses, is now a Member of the Senate, and I hope that she will soon be able to say that she helped pass this bill in both the House and the Senate: Senator Tammy Baldwin of Wisconsin.
“I look forward to a robust debate on this bill. I am certain that we will have some amendments. That is how we do business here in the Senate. We had several amendments filed in Committee that members of the HELP Committee reserved for the floor. I am confident we can work through those if they are offered again. I would hope that the amendments offered will be directed at improving this important civil rights legislation and not focusing on unrelated matters.
“Mr. President, this is critically needed, common-sense legislation that has overwhelming support from corporate Americana and from small business, from faith based organizations, and from ordinary Americans.
“American workers – whether they work for a private company, an association or a public entity — should not be turned away or have to fear losing their means of support for reasons that are irrelevant to their ability to do the job.
“This bill ensures that the same basic employment protections against discrimination and prejudice that already protect American workers on the basis of race sex and disability apply to lesbian, gay, bisexual and transgender Americans. I encourage all Senators to join with us in passing this important civil rights legislation, and continuing our nation’s advance toward freedom and inclusion for everyone in our American family.”