STATEMENT AND COMMITTEE VIEWS

The Committee on Education and Labor of the 110th Congress is committed to guaranteeing equality and opportunity in the workplace and to ensuring that American workers have access to remedies if they are discriminated against. ENDA is a critical step toward ensuring that Americans are not discriminated against because of their sexual orientation. Despite the tremendous progress this country has made in securing the rights of Americans to be free from discrimination, GLB workers remain vulnerable to discrimination. Without any Federal protection, GLB workers can be fired simply for being gay. The Employment Non-Discrimination Act will ensure that in the same tradition of this country's civil rights laws, the fundamental principles of fairness and equality at work will be protected regardless of an individual's sexual orientation.

Title VII of the 1964 Civil Rights Act generally makes it unlawful for employers with 15 or more employees, employment agencies, and labor organizations to discriminate against employees or applicants on the basis of race, color, religion, sex, or national origin. While many forms of employment and pre-employment bias are forbidden under Title VII, discrimination based on sexual orientation is currently an unprotected class which represents millions of working Americans.

H.R. 3685 furthers the spirit of civil rights law by extending protections to GLB workers. In the same way that Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) prohibit other forms of employment discrimination, ENDA would prohibit intentional discrimination based on sexual orientation. The legislation would create no `special rights,' but will guarantee equal rights. `Sexual orientation' is defined by the bill as `homosexuality, bisexuality, or heterosexuality.'

In addition to prohibiting discrimination based on a person's actual sexual orientation, ENDA also prohibits discrimination based on a person's perceived sexual orientation. Both forms of discrimination--because of a person's actual sexual orientation and because of a person's perceived sexual orientation--are invidious. For this reason, ENDA creates a cause of action for an individual, for example, who is actually heterosexual, but who is discriminated against because that individual is perceived as homosexual.

By providing workplace protections and remedies to these workers who experience discrimination, ENDA will help to end the insidious and irrational job discrimination inflicted upon GLB workers each day.

ANTI-DISCRIMINATION PROTECTIONS MUST EXTEND TO SEXUAL ORIENTATION

Historical overview of sexual orientation discrimination

In the majority of states, it is entirely legal for employers to openly discriminate on the grounds of sexual orientation. The existence of sexual orientation discrimination in American employment illustrates half a century's worth of severe anti-gay bias in both the state and private employment contexts. 9

[Footnote] A pattern of anti-gay discrimination began to emerge throughout the 1940's and 1950's, both in the public and private employment contexts. In many instances, such discrimination was a matter of policy in areas of Federal employment, as well as in many police forces, fire departments, schools, and public agencies of our country. Even where no government policies mandated sexual orientation discrimination, unchecked private anti-gay biases cost the careers of thousands of GLB workers. 10

[Footnote]

[Footnote 9: S. Rep. 107-341.]

[Footnote 10: Id. See generally Russell J. Davis, Refusal to Hire, or Dismissal From Employment, On Account of Plaintiff's Sexual Lifestyle or Sexual Preference as a Violation of Federal Constitution or Federal Civil Rights Statutes, 42 A.L.R. Fed. 189 (2002); Robin Cheryl Miller, Federal and State Constitutional Provisions As Prohibiting Discrimination in Employment on the Basis of Gay, Lesbian or Bisexual Orientation or Conduct, 96 A.L.R. 5th 391 (2002); The Human Rights Campaign, Documenting Discrimination (2001); William D. Rubenstein, Do Gay Rights Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65 (2001).]

On July 2, 1964 the Civil Rights Act of 1964 was signed into law, prohibiting discrimination based on race, sex, color, national origin, and religion. Despite a growing awareness that anti-discrimination law should include protections based on sexual orientation, Title VII did not extend such protection to GLB workers. However, the implementation of Title VII demonstrated the positive impact anti-discrimination laws can have, 11

[Footnote] while fueling a widening belief that sexual orientation discrimination should no longer be legally permissible. Events, particularly the Stonewall uprising of 1969 12

[Footnote] further highlighted the plight of GLB individuals and the need to protect them under Federal anti-discrimination law.

[Footnote 11: The Employment Non-Discrimination Act of 2007, hearing before the Subcommittee on Health, Employment, Labor and Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Representative Emanuel Cleaver II (D-MO)) [Hereinafter Cleaver testimony].]

[Footnote 12: On Friday evening, June 27, 1969, the New York City tactical police force raided a popular Greenwich Village gay bar, the Stonewall Inn. Raids were not unusual in 1969; in fact, they were conducted regularly without much resistance. However, that night the street erupted into violent protest as the crowds in the bar fought back. The backlash and several nights of protest that followed have come to be known as the Stonewall Riots. The Stonewall uprising marked the arrival of the modern mass movement for equality for lesbians, gay men, transgender and bisexual men and women.]

In 1975, Congresswoman Bella Abzug (D-NY) introduced the first Federal legislation 13

[Footnote] to address sexual orientation discrimination in America. This legislation was modeled after the succession of previous civil rights legislation that prohibited employment discrimination based on race and sex. Despite these early efforts, severe discrimination has continued throughout the years, with private anti-gay biases fortified by the lack of a Federal pronouncement on sexual orientation discrimination. Federal courts have been rendered virtually powerless to remedy the discrimination for want of a proper Federal cause of action. 14

[Footnote]

[Footnote 13: H.R. 166. Congresswoman Abzug introduced a bill of the same nature two additional times during the 94th Congress, H.R. 5452, H.R. 13928.]

[Footnote 14: S. Rep. 107-341.]

The Civil Service Reform Act of 1978 15

[Footnote] put into law regulatory changes and prohibited discrimination against Federal employees for `conduct which does not adversely affect' their job performance. This was interpreted to mean that sexual orientation discrimination is a prohibited personnel practice. 16

[Footnote]

[Footnote 15: Pub. L. 95-454.]

[Footnote 16: The law did not affect the issuing of security clearances by agencies including the FBI and CIA because they denied clearances based on sexual orientation on the grounds that homosexuality might subject them to blackmail. See, Peter Freiberg, President's Order Protects Workers, the Wash. Blade (June 5, 1998).]

Despite the reach of the Civil Service Reform Act, formal protections for GLB workers are still lacking. In response to the lack of recourse, the Clinton Administration encouraged individual Federal agencies to issue policies banning sexual orientation discrimination. 17

[Footnote] However agencies failed to adopt such policies or notify employees that non-discrimination policies were adopted. Consequently, in 1998 President Clinton issued Executive Order (E.O.) 13087, formally adding sexual orientation to an existing E.O. 18

[Footnote] which banned job discrimination against Federal workers based on race, color, religion, sex, national origin, disability and age. 19

[Footnote] While E.O. 13087 was a crucial step, Federal law applicable to non-federal employers was still needed.

[Footnote 17: President Clinton did not initially issue an Executive Order requiring these policies because of a fear that Congress would overturn it.]

[Footnote 18: Executive Order 11478.]

[Footnote 19: Peter Freiberg, President's Order Protects Workers, the Wash. Blade (June 5, 1998).]

President Clinton highlighted that the Order failed to create any new enforcement rights, such as the ability to bring bias complaints to the Equal Employment Opportunity Commission (EEOC). However Federal employees like Rob Sadler, an attorney with the Department of Commerce and president of the Federal GLOBE (gay, lesbian, or bisexual employees) stated the Order would bring major change to the workplace by telling `agencies to explicitly detail and distribute the complaint procedures for employees who believe they have been subject to anti-gay discrimination.'

President Clinton urged Congress to pass ENDA to extend these basic employment protections to all GLB workers. He argued, `individuals should not be denied a job on the basis that has no relationship to their ability to perform work.' 20

[Footnote]

[Footnote 20: Id.]

Sexual orientation discrimination by State and local governments

In addition, the State and local governments throughout the United States have demonstrated a long and troubling history of unconstitutional discrimination against GLB workers who are employed by those government entities. Examples of discrimination by state or local government employers include:

In 1973, Steven Childers was denied a job with the Dallas Police Department because of his sexual orientation, despite the fact that he earned the highest score of any candidate who took the civil service examination for that position. 21

[Footnote] During the relevant job interview, the police department official with sole authority for hiring for that particular opening asked Childers various questions intended to determine Childers' sexual orientation. At the conclusion of the interview, the interviewer told Childers, `I think you should know there are a lot of cops who like to bust fags.' After he was denied the job, Childers filed suit against the local government employer in the U.S. District Court for the Northern District of Texas, but he was denied relief.

[Footnote 21: Childers v. Dallas Police Dep't, 513 F. Supp. 134 (N.D. Tex. 1981).]

In December 1974, Ms. Rowland was suspended from her position as a high school guidance counselor in the Mad River Local School District in Montgomery County, Ohio. 22

[Footnote] Rowland `was fired because she was a homosexual who revealed her sexual preference--and, as the jury found, for no other reason.' 23

[Footnote] Indeed, the federal jury that heard her case ruled in her favor and awarded her damages, however, that ruling was later overturned by the U.S. Court of Appeals for the Sixth Circuit. Although the U.S. Supreme Court later declined to hear Rowland's appeal, Justice William Brennan offered a powerful opinion dissenting from the denial of certiorari, in which he explained why classifications based on sexual orientation are suspect and should be carefully scrutinized by the courts. 24

[Footnote]

[Footnote 22: Rowland v. Mad River Local School Dist., 730 F.2d 444 (6th Cir. 1984).]

[Footnote 23: Id. at 454 (Edwards, J., dissenting).]

[Footnote 24: 470 U.S. 1009, 105 S. Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan, J. and Marshall, J. dissenting from the denial of cert.).]

Joseph Acanfora III, a public junior high school science teacher in Montgomery County, Maryland, was transferred to a nonteaching position in 1972 when the school district learned he was gay. Acanfora filed a constitutional challenge and the U.S. District Court for the District of Maryland ruled in his favor, holding that the school officials wrongfully transferred him to a nonteaching position when they discovered that he was gay. 25

[Footnote] However, the U.S. Court of Appeals for the Fourth Circuit overturned this ruling without even considering the equal protection arguments presented in Acanfora's case. Instead, the Fourth Circuit oddly focused on the fact that Acanfora had not outed himself in his application for employment. 26

[Footnote]

[Footnote 25: Acanfora v. Board of Ed. of Montgomery County, 359 F. Supp. 843 (D.Md. 1973).]

[Footnote 26: Acanfora v. Board of Ed. of Montgomery County, 491 F.2d 498 (4th Cir. 1974).]

Richard Aumiller, a lecturer at the University of Delaware, served as the faculty advisor to the University's Gay Community group. 27

[Footnote] Aumiller's employment contract was not renewed in 1975 after he made positive statements in newspaper articles about homosexuality which the University, president, and officials found to be offensive. The U.S. District Court for the District of Delaware found that these statements in no way impeded Aumiller's ability to perform his daily duties, nor did they substantially disrupt the University or his working relationship with his superiors. Therefore, the Court held that the University's discriminatory actions violated Aumiller's constitutional rights.

[Footnote 27: Aumiller v. the University of Delaware, 434 F. Supp. 1273 (D.Del. 1977).]

Vernon R. Jantz had regularly worked as a substitute teacher at the Wichita North High School in Wichita, Kansas, but he was denied fulltime employment as a social studies teacher in 1988 because the principal of that high school had perceived that Jantz might have `homosexual tendencies.' 28

[Footnote] Jantz filed suit against the local government employer in the U.S. District Court for the District of Kansas, and he was initially successful as that court ruled in his favor. However, his victory was later overturned by the U.S. Court of Appeals for the Tenth Circuit.

[Footnote 28: Jantz v. Muci, 759 F.Supp. 1543 (D.Kan. 1991), reversed by, 976 F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952, 113 S. Ct. 2445, 124 L.Ed.2d 662 (1993).]

Robin Joy Shahar--a lawyer who was employed by the Georgia Attorney General's Office--was terminated from her job in 1991 when her State employer discovered that she was a lesbian and had held a private religious ceremony with her lesbian partner. 29

[Footnote] Attorney General Michael Bowers--who had previously achieved notoriety by promoting the discriminatory legal position in the now-discredited case of Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986)--personally wrote to Shahar to inform her that he could not continue to employ her because--in his opinion--her life did not reflect appropriately on the Attorney General's Office. Shahar brought a constitutional challenge in the federal courts, but was ultimately unsuccessful in getting reinstated by her State employer.

[Footnote 29: Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), vacated en banc, 114 F.3d 1097 (1997), writ of certiorari denied, 522 U.S. 1049, 118 S. Ct. 693, 139 L.Ed.2d 638 (1998).]

Thomas Figenshu worked as an officer with the California Highway Patrol from 1983 to 1993. 30

[Footnote] After he was promoted to sergeant and transferred to West Los Angeles in 1988, co-workers began to harass him by taping anti-gay pornographic cartoons to his mailbox and leaving a ticket for `sex with dead animals' on his windshield. Figenshu also found urine on his clothes and his locker, and was commonly the object of anti-gay slurs. To remove himself from the hostile work environment, Figenshu resigned in 1993 and brought a successful claim pursuant to California law. However, he had no Federal remedy to address the discriminatory workplace environment created by his State employer.

[Footnote 30: See Figenshu v. State, 1999 Cal. LEXIS 4666, No. S079219 (Cal. Jul. 14, 1999).]

James Shermer worked as a building tradesman for the Illinois Department of Transportation. 31

[Footnote] Shermer's supervisor constantly made offensive homophobic remarks about Shermer at the workplace, thus creating a hostile work environment. In 1995, Shermer filed suit against his State employer pursuant to Title VII of the Civil Rights Act of 1964, however, the U.S. District Court for the Central District of Illinois and the U.S. Court of Appeals for the Seventh Circuit ruled against Shermer because the harassment was based on sexual orientation and not prohibited by Title VII. 32

[Footnote]

[Footnote 31: Shermer v. Illinois DOT, 937 F. Supp. 781 (C.D. Ill. 1996).]

[Footnote 32: Id.; Shermer v. Illinois DOT, 171 F.3d 475 (7th Cir. 1999).]

Wendy Weaver was a teacher at Spanish Fork High School in Utah for 19 years, and served as the school's volleyball coach since 1979. 33

[Footnote] Weaver consistently received good to excellent evaluations, was never subject to any discipline and was considered an effective and capable teacher. After it was discovered in 1997 that Weaver was a lesbian, the school directed her to refrain from making comments to or answering questions from students, staff or parents about her `homosexual orientation or lifestyle,' and she was removed from her position as volleyball coach. The U.S. District Court for the District of Utah held that because the school attempted to infringe upon Weaver's First Amendment rights, she was entitled to summary judgment. Weaver was reinstated to her coaching position and awarded damages.

[Footnote 33: Weaver v. Nebo School District, 29 F. Supp. 2d 1279 (C.D. Ut. 1998).]

After reviewing this long history of workplace discrimination by State and local government employers, Congress finds that the States do not possess even a rational basis--and certainly not a compelling reason--for discriminating against GLB workers merely because of their sexual orientation. Any such discrimination by State and local governments is completely irrational.

Discrimination based on sexual orientation continues

Employment discrimination based on actual or perceived sexual orientation continues in America's workplaces. Studies find that while a majority of GLB workers believe there is more acceptance of them in today's society compared to years previous, they also report an equally significant amount of prejudice and discrimination. 34

[Footnote] Many well documented cases 35

[Footnote] illustrate the need to protect workers who experience discrimination with regard to unfair hiring and termination practices, inequitable benefits, and hostile and oppressive working conditions. 36

[Footnote]

[Footnote 34: Inside Out: A Report on the Experience of Lesbians, Gays and Bisexuals in America and the Public's Views on Issues and Policies Related to Sexual Orientation, The Kaiser Family Foundation (2001).]

[Footnote 35: See generally, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination; Badgett, Lau, Sears, Ho; The Williams Institute (2007) at Executive Summary [hereinafter Williams Institute Report]; Sexual Orientation-Based Employment Discrimination; GAO-02-878R [hereinafter GAO Report]; Inside-Out: A Report on the Experiences of Lesbians, Gays, and Bisexuals in America and the Public's Views on Issues and Policies Related to Sexual Orientation; The Kaiser Family Foundation (2001) [hereinafter Kaiser Report].]

[Footnote 36: Employment Non-Discrimination Act (H.R. 2015), Hearing before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Prof. Helen Norton). In this testimony, the witness cited cases where workers suffered oppressive conditions and discrimination due to their sexual orientation, but were denied legal recourse under 42 U.S. C. 2000e-2000e-17 (Title VII of the Civil Rights Act of 1964), citing Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006) cert. denied, 127 S. Ct. 2910 (2007); Simonton v. Runyon, 232 F.3d 33, 34-35 (2 Cir. 2000); Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) (rejecting heterosexual woman's Title VII claim challenging her lesbian supervisor's sexually explicit remarks and e-mail: `We construe Ms. Medina's argument as alleging that she was discriminated against because she is a heterosexual. Title VII's protections, however, do not extend to harassment due to a person's sexuality.'); Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001) (`Harassment on the basis of sexual orientation has no place in our society. Congress has not yet seen fit, however, to provide protection against such harassment.') (citations omitted).]

Numerous studies 37

[Footnote] show that discrimination in the workplace based on sexual orientation is a national problem. Sexual orientation discrimination occurs in small and large companies, public agencies, schools, and municipalities across the nation. It impacts all levels of the workforce from minimum wage employees to corporate executives, affecting all races, ages, religions and skill levels of workers. Basic protections are long overdue, as homosexual and bisexual--as well as heterosexual 38

[Footnote] --workers have been vulnerable to unfair treatment through the years. The lack of basic rights leaves millions of hardworking tax-payers without Federal protection from discriminatory practices.

[Footnote 37: See generally, Williams Institute Report; GAO Report; Kaiser Report.]

[Footnote 38: Referring to documented cases where heterosexuals who are either perceived to be gay or simply befriend gay co-workers, resulting in workplace harassment and/or discrimination--as in the case of Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006) cert. denied, 127 S. Ct. 2910 (2007).]

A considerable amount of evidence has been presented before both the House and Senate demonstrating that intentional employment discrimination on the basis of sexual orientation causes severe economic and psychological harm. Many employees who have experienced discrimination demonstrated an exemplary work ethic, received above-average evaluations and have made significant contributions to the workplace and their communities. However, a prejudice towards their sexual orientation ensues irrespective of job performance. 39

[Footnote] Consequently, GLB employees are put at an economic disadvantage as an entire class of workers. The lack of Federal protection fosters hostile work environments where GLB employees fear that their sexual orientation could be revealed to the detriment of their careers.

[Footnote 39: I.e. Denying promotions, paying GLB workers a lower wage than their heterosexual counterparts, and/or termination.]

To learn more about this problem, the HELP Subcommittee heard testimony from police officer Michael Carney, a highly decorated police officer who was denied reinstatement to the Springfield, Massachusetts Police Department because he is gay. Despite his solid record as an officer, and despite the Police Chief's recommendations, Carney was denied reinstatement three times after informing the Police Commission that he was gay. Fortunately for Mr. Carney, Massachusetts has a law prohibiting such discrimination. 40

[Footnote] As a result, he filed a claim under state law. After an investigation, the Massachusetts Commission against Discrimination ruled probable cause existed that the police commission discriminated against Officer Carney on the basis of sexual orientation. A settlement was subsequently reached and Officer Carney was reinstated. 41

[Footnote] Mr. Carney's experience demonstrates that state and local government employers continue to discriminate against GLB workers, even though such discrimination is completely irrational and serves no conceivable government purpose.

[Footnote 40: Mass. Gen. Law Chpt. 151B.]

[Footnote 41: Employment Non-Discrimination Act (H.R. 2015) hearing before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Officer Michael Carney).]

The Subcommittee also heard from Brooke Waits, who was praised for her job performance at Cellular Sales in Texas, as an inventory control manager. She received a raise within several weeks after joining the company, and was lauded for her performance. However, when her supervisor discovered that she was a lesbian, Brooke was fired the very next day. Unfortunately Brooke had no recourse under Texas law, and thus could not assert a valid claim against her employer's discriminatory conduct. 42

[Footnote]

[Footnote 42: Employment Non-Discrimination Act (H.R. 2015), hearing before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Brooke Waits).]

The Senate HELP Committee heard testimony from Larry Lane who worked as the regional manager for the New York region of Collins and Aikman Floor Coverings, Inc. For over two-years Larry's work was praised. In the only written evaluation he received, Larry's manager stated `Larry is doing an outstanding job. He is already having a positive impact on the New York zone.' 43

[Footnote] However, when colleagues discovered Larry was gay they began a campaign to get rid of him. Without warning he was placed on probation. Shortly thereafter he admitted to colleagues that he was in fact gay and within weeks he was formally fired. Recounting his experience Larry testified, `one's success in the workplace should depend on performance and ability and not be subject to the ignorant views and lack of acceptance that many times still exists toward lesbians and gay men.' 44

[Footnote]

[Footnote 43: The Employment Non-Discrimination Act, hearing before the Senate Health, Education, Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (written testimony of Lawrence Lane, at 22) [hereinafter Lane Testimony].]

[Footnote 44: Lane Testimony at 23.]

Cases such as these are not isolated. Unfortunately, many GLB workers who have been discriminated against are frightened to speak up after the discriminatory act for fear that it could happen again by a subsequent employer. Studies show that up to 68 percent of GLB respondents have experienced some kind of workplace discrimination ranging from the denial of employment promotion, to termination without cause. 45

[Footnote] States that ban this type of discrimination, report that the number of sexual orientation discrimination suits is proportional to that of sex and race discrimination complaints, pro rata. 46

[Footnote] Thus, there is a substantial need for Federal protection of these workers, particularly in the majority of states that do not already protect them.

[Footnote 45: Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination; Badgett, Lau, Sears, Ho; The Williams Institute; (2007) at Executive Summary [hereinafter Williams Institute].]

[Footnote 46: Id.]

The impact of sexual orientation discrimination

Economic impact on GLB workers

GLB workers experience significant wage disparities, higher unemployment rates, and inequitable public accommodations and benefits. 47

[Footnote] Economists and sociologists who study these patterns also conclude that due to discrimination based on sexual orientation, gay men earn less money than heterosexual men who have similar experience, education, and credentials. 48

[Footnote] Another study showed that when job applicants submitted applications or resumes that were coded with language suggesting the applicants' involvement in a gay rights organization, those applicants were consistently denied employment more often than applicants of equivalent quality that did not have any `gay code' in their applications. 49

[Footnote]

[Footnote 47: Id. at 12, 15, 18-20.]

[Footnote 48: Id. 13.]

[Footnote 49: Id.]

In addition to economic harms, GLB workers tend to experience substantially impaired ability to obtain affordable healthcare and employment related benefits. 50

[Footnote] Without stable employment, income, and access to jobs, the effects of discrimination are felt in almost every aspect of life, including one's own health and well-being.

[Footnote 50: Human Rights Campaign at 15.]

Psychological impact

The discrimination and/or fear of discrimination that many GLB workers face can have far-reaching consequences. The American Psychological Association testified to the Senate HELP Committee that researchers have found that GLB workers suffer psychological distress because they are often persecuted and in a constant state of fear of being discovered. 51

[Footnote] The study reported `research has indicated that social stigma based upon sexual orientation may be a risk factor for psychological depression, and anxiety. 52

[Footnote] Brooke Waites testified that her co-workers frequently made jabs and other derogatory comments about GLB people. Fearing for her job and not wanting to `cause problems,' 53

[Footnote] Waites carefully avoided using pronouns when talking about her girlfriend. Although Waites was openly lesbian in every aspect of her life outside of her job, this work environment `kept [her] * * * from being [herself] with coworkers.' 54

[Footnote] Despite her efforts, Waites was ultimately fired when her manager discovered that she was a lesbian. She testified `the experience has been difficult for me, as it has altered not only how I feel about the world but also, how I feel in the world. Work was more than work to me: it was a part of what I know about myself and how I feel about myself.' 55

[Footnote]

[Footnote 51: The Employment Non-Discrimination Act, hearing before the Senate Health, Education, Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (testimony submitted by the American Psychological Association (APA), at 40) [hereinafter APA Testimony].]

[Footnote 52: Id.]

[Footnote 53: Waites Testimony at 1.]

[Footnote 54: Id.]

[Footnote 55: Id.]

Researchers have found that the experience of Brooke Waites is not isolated. In fact GLB workers who place a high value on career advancement and success fear being `outed' at work. Disclosure at work `may be related to the relative importance a [GLB] employee places on certain aspects of work and life domains.' 56

[Footnote] A 2006 study found that `gay men who emphasized quality of work life and relationship quality were more likely to disclose at work than those who emphasized job security or career success. 57

[Footnote]

[Footnote 56: Shaun Pichler, `Heterosexism in the Workplace,' Sloan Work and Family Research Network at 7 (Apr. 3, 2007). See also, Y.B. Chung, `Career Decision Making of Lesbian, Gay, and Bisexual Individuals,' Career Development Quarterly at 44 (1995).]

[Footnote 57: R.N.C. Trau & C.E.J. Hartel, `Impact of career-life conflict on disclosure and attitudes towards organization among gay men' Sexual Orientation in the Workplace: Current Issues. Symposium Presented at the National Academy of Management Meeting, Atlanta, GA. See also, Shaun Pichler, `Heterosexism in the Workplace,' Sloan Work and Family Research Network at 7 (Apr. 3, 2007). ]

The American Psychological Association concludes that psychological research findings indicate that GLB individuals experience `significantly higher levels of discrimination based upon sexual orientation than do heterosexual individuals.' 58

[Footnote] Stigmatization and discrimination can lead to increased vulnerability of negative mental health conditions.

[Footnote 58: APA Testimony at 41.]

The APA further states that `anti-discrimination policies in the workplace can * * * [positively] affect job satisfaction and productivity.' 59

[Footnote] Researchers have found `a significant relationship between self-disclosure, anti-discrimination policies and top management support for equal rights and organizational commitment.' 60

[Footnote] Enactment of ENDA would decrease the fear and stigmatization GLB workers feel and would promote the mental welfare of these individuals as well as the public good.

[Footnote 59: Id.]

[Footnote 60: Id.]