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

[Footnote] Title VII applies to employers with 15 or more employees, including the federal government and state and local governments.

[Footnote 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

[Footnote] 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

[Footnote] That bill was placed on the Senate Legislative Calendar under General Orders, but did not move any further.

[Footnote 2: See, CRS Report RL31863, Sexual Orientation Discrimination in Employment: Legal Analysis of Title VII of S. 16, the Employment Nondiscrimination Act of 2003.]

[Footnote 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

[Footnote] 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.

[Footnote 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

[Footnote] 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.

[Footnote 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

[Footnote] 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.

[Footnote 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.