1st Session

Part 1

--EMPLOYMENT NON-DISCRIMINATION ACT OF 2007

[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

[Footnote] to fire someone based on their sexual orientation.

[Footnote 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.]

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

[Footnote] (`Title VII') and the Americans with Disabilities Act (`ADA'). 3

[Footnote] In addition, ENDA applies to Congress and the Federal government, as well as employees of state and local governments.

[Footnote 2: 42 U.S.C. Sec. 2000e-2000e-17.]

[Footnote 3: 42 U.S.C. Sec. 12101-12213.]

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

[Footnote]

[Footnote 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

[Footnote] 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.

[Footnote 5: Rollcall No. 281.]

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

[Footnote] 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.

[Footnote 6: S. Hrg. 105-279.]

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

[Footnote] 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.

[Footnote 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

[Footnote] and placed on the legislative calendar. However, no vote was taken in the Senate.

[Footnote 8: S. Rep. 107-341.]

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.