[Senate Hearing 107-307]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-307

                 THE EMPLOYMENT NON-DISCRIMINATION ACT

=======================================================================

                                HEARING

                               BEFORE THE

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

                                S. 1284

     TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS OF SEXUAL 
                              ORIENTATION

                               __________

                           FEBRUARY 27, 2002

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions

78-032              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
TOM HARKIN, Iowa                     BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             PAT ROBERTS, Kansas
JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio

           J. Michael Myers, Staff Director and Chief Counsel

             Townsend Lange McNitt, Minority Staff Director

                                  (ii)

  

                            C O N T E N T S

                               __________

                               STATEMENTS

                      Wednesday, February 27, 2002

                                                                   Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
Jeffords, Hon. James M., a U.S. Senator from the State of Vermont     3
Wellstone, Hon. Paul D., a U.S. Senator from the State of 
  Minnesota......................................................     4
Gifford, Charles K., President and Chief Executive Officer, 
  FleetBoston Financial Corp., Boston, MA; Lucy Billingsley, 
  partner, Billingsley Co., Dallas, TX; Robert L. Berman, 
  Director of Human Resources and Vice President, Eastmen Kodak 
  Co., Rochester, NY; and Richard G. Womack, Director, Department 
  of Civil Rights, AFL-CIO, Washington, DC.......................     7
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa..........     7
Lane, Lawrence, Long Island, NY; and Matthew Coles, Director, 
  National Lesbian and Gay Rights Project, American Civil 
  Liberties Union................................................    20

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Charles K. Gifford...........................................    30
    Lucy Billingsley.............................................    20
    Robert Berman................................................    21
    Richard Womack...............................................    33
    Larry Lane...................................................    34
    Matthew Coles................................................    36
    American Psychological Association...........................    37
    Letter to Senator Kennedy, dated March 7, 2002, from 
      Elizabeth J. Clark, Executive Director, NASW...............    39
    Department of the Treasury Report............................    40
    Response to questions of Senator Enzi from the Occupational 
      Safety and Health Administration...........................    45
    Letter to Senator Kennedy, dated February 27, 2002, from 
      Robert E. Higgins, Waterville, Maine.......................    48
    Letter to Senator Enzi, dated March 13, 2002, from Bobby 
      Jackson, Vice President, National Programs, National Safety 
      Council....................................................    51
    Letter to Ms. Elizabeth Birch, Human Rights Campaign, dated 
      February 25, 2002, from W. Leo Kiely, III, President and 
      CEO, Coors Brewing Co......................................    53
    Letter to Senator Kennedy, dated February 14, 2002, from Jack 
      Krumholtz, Microsoft Corp..................................    54
    Steven L. Miller.............................................    54
    New Balance Athletic Shoe, Inc...............................    55
    Letter to Senator Kennedy, dated February 28, 2002, from 
      Walden Asset Management, Boston, MA........................    57
    Kim Wisckol..................................................    58

                                 (iii)

  

 
                 THE EMPLOYMENT NON-DISCRIMINATION ACT

                              ----------                              


                      WEDNESDAY, FEBRUARY 27, 2002

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:20 a.m., in 
room SD-430, Dirksen Senate Office Building, Senator Kennedy 
(chairman of the committee) presiding.
    Present: Senators Kennedy, Harkin, Mikulski, Jeffords, 
Wellstone, Reed, Clinton, and Collins.

                  Opening Statement of Senator Kennedy

    The Chairman. We will come to order.
    We apologize to all the witnesses this morning. We had a 
vote that started and is continuing, so members will be coming 
to the hearing although some of them are engaged in the floor 
activity.
    I will put my full statement in the record and make just a 
very brief comment.
    The stains of discrimination in this country and in our 
society have really been there since the Constitution of the 
United States and are enshrined in the Constitution, and we 
have spent a great deal of time in national debate and 
discussion about how we are going to free ourselves from forms 
of discrimination. We fought a civil war, and then, with the 
brilliance of Dr. King and national leadership in the early 
1960's, we began to make progress in freeing ourselves of the 
forms of discrimination on race and religion, on ethnicity. We 
passed changes in the immigration law which eliminated the 
national origin quota system in the Asia-Pacific Triangle. We 
have made progress in eliminating discrimination on the basis 
of gender. And in recent years, we have made important progress 
in eliminating discrimination based on disability.
    There is an extremely important additional area whose roots 
are different from these other situations but are also deeply 
rooted in the same kind of intolerance and bigotry, and that is 
discrimination against gays and lesbians in the workplace and 
generally in terms of our society.
    This legislation is focused on discrimination in the 
workplace. This committee is very familiar with the challenges 
that we are facing in terms of discrimination in the workplace. 
This legislation has been before the Congress in one form or 
another for close to 25 years, and it is time we take the steps 
to enact it. It is my intention to move this legislation 
through our committee at a very early time in terms of our 
markup and to work with our leadership to get the time to pass 
this legislation.
    In each of the introductions to the legislation, we have 
addressed the concerns, alleged concerns, of those who have 
raised points that they thought needed further clarification. I 
do not think any piece of legislation has been reviewed and re-
reviewed and re-reviewed over a period of time, and all of 
these concerns have, I think, been addressed.
    So we are interested in hearing this morning from a number 
of leaders in our business community, financial services, and 
others in the workplace who know this issue in a very real way, 
and we look forward to their comments.
    If other members wish to make brief comments, we would 
welcome that, as long as we keep it to just those who are here. 
We are always glad to hear from all of our members, so we will 
recognize Senator Jeffords and Senator Wellstone for any 
comments they might have.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    Immigrant workers are vital to our nation as never before. 
In my home state of Massachusetts and across the country, the 
energy and dedication of immigrant workers has helped to 
reinvigorate communities and served as an engine of economic 
growth. In recognition of the important contributions of 
immigrant workers, we must do more to protect their health and 
safety on the job.
    It is simply unacceptable that fatalities for Latino 
workers increased by more than 11 percent in the year 2000. It 
is not right that more than one-quarter of workers in the 
meatpacking industry, primarily immigrants, experience a 
serious injury or illness on the job. It is outrageous that 
child farmworkers, who make up only 8 percent of working 
minors, account for 40 percent of work-related fatalities among 
minors.
    The workers who toil long hours in the fields each day to 
bring us the food we eat are overwhelmingly immigrant workers. 
The wages they earn are not enough to live on. Yet, the dangers 
they face on the job are enormous. The Environmental Protection 
Agency estimates that as many as 300,000 farmworkers suffer 
pesticide poisoning each year.
    Sadly, our health and safety laws offer little in the way 
of protections to farmworkers. Even the minimal guarantee of 
adequate drinking water and toilet facilities, is only offered 
to workers on larger farms. In agriculture, unlike in other 
occupations, children are allowed to perform hazardous work. 
Farmworkers are not protected by our safety standards when it 
comes to dangerous machinery or-the threat of electrocution.
    Immigrant workers face extreme hazards in many other areas 
of work, from construction to meatpacking to retail work. In 
addition, many of the heroes involved in the clean-up of Ground 
Zero were also immigrant workers. According to a recent report 
by the Natural Resources Defense Council, these workers were 
not provided nor required to wear the proper respiratory 
equipment to keep them safe. As late as October, the National 
Institute of Environmental Health Sciences found ``very few 
workers wearing even the most basic equipment.'' Nearly every 
one of the 350 mostly immigrant day laborers who worked at 
ground zero examined by the New York Committee on Safety and 
Health, suffered from respiratory problems.
    Ground Zero workers should have been told about the U.S. 
Geological Survey's findings that the air around Ground Zero 
was as caustic as liquid drain cleaner. These workers stepped 
up for our nation and we in Congress must now strengthen the 
protections for the safety and health of immigrant workers.
    Recently, the Administration proposed new initiatives to 
protect immigrant workers. While I am pleased that the 
Department of Labor will expand the range of bilingual services 
available to workers, I am struck that the Administration is 
slashing the budget for proven immigrant worker safety training 
programs at the same time.
    The Administration's budget cuts the Susan Harwood Training 
Grant program, which has been critical to training immigrant 
workers to protect themselves in my home state and around the 
country. The Administration proposes cutting these vital grants 
by nearly 65 percent. This is no way to show our commitment to 
protecting immigrant workers.
    It has been a year now that America's workers have been 
waiting for the Department of Labor to adopt a new ergonomics 
standard. We must act boldly to protect immigrant workers from 
the nation's leading cause of workplace injury. I look forward 
to hearing from the Secretary of Labor on this issue at the 
Committee's hearing on March 14th.
    It is time to end the double standard that endangers our 
nation's farmworkers. All farmworkers should have access to 
clean drinking water and toilets on the job. Child farmworkers 
should be protected against workplace hazards that we don't 
tolerate for other children and our approach to pesticides must 
put their health first.
    We must also do more to protect immigrant workers from 
unfair retaliation when they come forward to report unsafe 
working conditions. Effective enforcement of our safety and 
health laws depends on workers who bravely speak up, and we 
must insure that these voices are heard.
    The time is long overdue for strengthening the health and 
safety protections for immigrant workers who contribute so much 
to our nation. I look forward to the ideas of today's witnesses 
on the steps we must take to protect these important workers.

                 Opening Statement of Senator Jeffords

    Senator Jeffords. Thank you very much, Mr. Chairman. I will 
not be long.
    I am pleased that the full committee is having this hearing 
today on the Employment Non-Discrimination Act, ENDA. This is 
very important legislation. I believe the principles of 
equality and opportunity should be applied to all Americans and 
that success at work should stem from performance, not 
prejudice.
    I was pleased to have been the lead Republican sponsor on 
the bipartisan legislation with Senator Kennedy in the 103rd, 
104th, 105th, and 106th Congresses. I am now proud to be the 
lead Independent sponsor of this tripartisan legislation in the 
107th Congress.
    ENDA will help put an end to insidious job discrimination 
by extending to sexual orientation the same Federal employment 
discrimination protections already provided based on race, 
religion, gender, national origin, age, and disability.
    ENDA will achieve equal rights, not special rights, for 
gays and lesbians. ENDA simply protects a right that should 
belong to every American--the right to be free from 
discrimination in the workplace because of personal 
characteristics unrelated to successful performance on the job.
    Since we first introduced ENDA in 1994, we have listened to 
the concerns expressed about the legislation and made changes 
to address these issues while maintaining the overall 
substantive goal of the bill. We came within one vote of 
passing ENDA in 1996, and I remain hopeful that Congress will 
be able to pass this legislation in the very near future.
    Thank you again, Mr. Chairman, for holding this hearing, 
and I thank all those who are here today to demonstrate to this 
Nation what needs to be done and what should be done, and we 
cannot help but get it done.
    Thank you.
    The Chairman. Senator Wellstone has been a strong advocate 
on this issue from the first days he has been in the Senate, 
and we welcome his comments this morning.

                 Opening Statement of Senator Wellstone

    Senator Wellstone. Thank you, Mr. Chairman. I will be very, 
very brief.
    I was listening to Jim, and I am proud to have been an 
original cosponsor of the 103rd, 104th, 105th, and 106th, and I 
will be proud to be an original cosponsor of ENDA, which we 
will pass as the law of the land to end discrimination against 
people by sexual orientation.
    The Chairman. Good for you.
    Senator Wellstone. I am done.
    The Chairman. All right.
    Senator Jeffords. That is a record.
    Senator Wellstone. Wait a minute. If you feel that way, I 
have more to say. [Laughter.]
    Senator Jeffords. No, no. That is quite all right.
    The Chairman. It is a privilege to introduce the first 
panel of witnesses to discuss workplace discrimination and the 
Employment Non-Discrimination Act.
    Every witness on this panel has had extensive business or 
labor experience. It is good to see Chad Gifford from my home 
State of Massachusetts. Mr. Gifford is president and CEO of 
FleetBoston Financial Corporation, a company he has served 
since 1966. Mr. Gifford is also director of Massachusetts 
Mutual Life Insurance Company and NSTAR Corporation. We look 
forward to hearing why his years of business experience have 
led him to support ENDA. He has been a long-time friend as well 
to me and to my family.
    Lucy Billingsley is a business owner from Dallas, TX, where 
she co-founded Billingsley Company in 1978. Billingsley Company 
represents a diverse a group of companies that perform a broad 
range of real estate activities. We thank Ms. Billingsley for 
being here to share a small business owner's perspective on 
employment nondiscrimination. We are grateful for your 
presence.
    Robert Berman serves as director and vice president of 
Human Resources for Eastman Kodak Company. Mr. Berman has 19 
years of experience in a variety of key human resource 
positions. The committee looks forward to hearing about his 
experience with Kodak's nondiscrimination policy.
    Richard Womack is director of the AFL-CIO Department of 
Civil and Human Rights and serves as the primary spokesman for 
the AFL-CIO on a broad range of social issues involving 
workers' rights, human rights, and civil rights. We are 
extremely interested in hearing from Mr. Womack on behalf of 
the AFL-CIO.
    Before we begin I have a statement from Senator Murray.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Mr. Chairman: I want to personally extend my gratitude to 
you for scheduling this important hearing and for all your 
efforts on behalf of this important piece of legislation.
    Your leadership in this area is one of the main reasons 
that we have come so close to correcting this injustice. 
Today's hearing is another step in getting this important 
initiative enacted into law.
    I believe the testimony presented today will give us the 
clear evidence we need to make a forceful case that ENDA is 
long overdue and that Congress is well behind the curve of many 
in private industry in protecting gays, lesbians and bisexuals 
against employment discrimination based on sexual orientation.
    I have been pleased to be involved in the effort to get 
ENDA passed and signed by the President since its original 
introduction in June 1994.
    The current bill was introduced last July. I am proud to be 
one of the 43 cosponsors of this legislation.
    This is a bipartisan bill. Additionally, further changes 
have been made to accommodate recent Supreme Court decisions on 
state immunity and free association rights of voluntary, non-
profit organizations. The bill also further expands the 
exemption for religious organizations.
    These changes were made to perfect the legislation and to 
increase support for ENDA.
    ENDA is simply an effort to ensure basic civil rights for 
all workers regardless of sexual orientation. Passage of the 
Employment Non-Discrimination Act is a legislative 
accomplishment that we should all take great pride in.
    There are many examples of employment discrimination 
against gays and lesbians.
    A few years back I meet with two constituents who told a 
disturbing stories about discrimination in employment because 
of their personal sexual orientation decisions. These two 
individuals were denied basic employment protections that we 
all have come to take for granted. Sue Kirchofer from the 
Seattle area, was fired not simply because she was gay, but 
because she chose to use her own vacation time to attend the 
Gay Gaines as a soccer player. Mark Richards-Wetzel was fired 
for no reason other than being gay--his employer went so far as 
to point out to him that even if they had fired him because of 
his sexual orientation he would have no legal recourse as it 
was not illegal in Bellevue Washington. The employer basically 
said to Mark that it was OK to terminate him without cause 
because he was gay--discrimination of this kind is allowed.
    I cannot believe that there is one member of this Committee 
who would support open discrimination against honest, hard 
working Americans. I believe we are all united in our 
opposition to employment practices that discriminate against 
anyone based on race, religion, ethnic origin or sex. Not one 
member of this Committee would stand and claim that. the Civil 
Rights Act was a mistake or created too many problems for 
businesses. Yet without passage of ENDA we are in effect 
condoning gross violations of basic employment rights and 
guarantees.
    We came so close to passing ENDA in the 105th Congress. 
While the loss was disappointing, I think the message was 
clear--there is bi-partisan support in the U.S. Senate for 
extending basic civil rights and human. dignity to all workers. 
The vote in the last Congress while disappointing did serve to 
elevate this issue and generate a great deal of discussion 
about what ENDA is and what it is not.
    In fact, last month the Majority Leader indicated again 
that passage of ENDA is one of his legislative priorities for 
this year.
    ENDA simply extends fair employment practices to gays, 
lesbians and bisexuals--not special rights or protections, but 
fair employment practices. This is only about employment. It 
just guarantees workers that they will not be treated any 
differently because they are gay.
    Many companies, states and local governments have responded 
to this glaring hole in our civil rights statutes by enacting 
policies and laws that prohibit discrimination in the work 
place against gays, lesbians and bisexuals based on their 
sexual orientation.
    Fifty-nine percent of Fortune 500 companies include sexual 
orientation in their non-discrimination policies. I am proud 
that major companies in my state like Microsoft, Boeing, 
Costco, Nordstrom, Washington Mutual, Safeco, and the 
Weyerhaeuser Company have such policies. That is a who's who of 
companies in the Northwest.
    Governments have acted as well. Eleven states, the District 
of Columbia and 122 Cities and counties ban anti-gay 
discrimination in private work places, as well as in public-
sector jobs. Many county, state and local governments in my 
state have such a ban.
    It is obvious to me and it should be to members of this 
committee that the private sector and many of our local 
communities have rightfully corrected the wrong in our civil 
rights laws that offers no federal protection to gays, lesbians 
and bisexuals against work place discrimination because of 
their sexual orientation.
    Congress is far behind corporate America and local 
governments in doing what is right. We should act and pass ENDA 
as soon as possible.
    Furthermore, I applaud President Clinton for issuing in May 
1998 an executive order banning discrimination based on sexual 
orientation in the federal civilian work force. Once again, 
Congress needs to follow the lead of others by passing ENDA.
    I want to thank the Chairman for his leadership and support 
of this important issue. I want to thank the witnesses who have 
come here today to tell us about the discrimination that occurs 
and will continue to occur until we enact ENDA. I also want to 
thank the witnesses from many of our nation's top companies who 
have done the right thing and have banned discrimination based 
on sexual orientation.
    Finally I want to urge my Colleagues to support S. 1284 so 
we can move this bill out of Committee and on to the floor. 
Thank you.
    The Chairman. Mr. Gifford, we welcome you back to the 
committee. We always benefit from your comments and look 
forward to hearing from you now.

STATEMENTS OF CHARLES K. GIFFORD, PRESIDENT AND CHIEF EXECUTIVE 
 OFFICER, FLEETBOSTON FINANCIAL CORPORATION, BOSTON, MA; LUCY 
 BILLINGSLEY, PARTNER, BILLINGSLEY COMPANY, DALLAS, TX; ROBERT 
  L. BERMAN, DIRECTOR OF HUMAN RESOURCES AND VICE PRESIDENT, 
 EASTMAN KODAK COMPANY, ROCHESTER, NY; AND RICHARD G. WOMACK, 
 DIRECTOR, DEPARTMENT OF CIVIL RIGHTS, AFL-CIO, WASHINGTON, DC

    Mr. Gifford. Thank you, Senator Kennedy, and thanks to the 
committee for this opportunity, and I do think it is an 
opportunity.
    On behalf of FleetBoston Financial's 45,000 U.S. employees, 
I would like to thank you again for the opportunity to share 
our company's perspective----
    The Chairman. Excuse me, Chad. Could you hold for just a 
moment? We have been joined by Senator Harkin.
    Mr. Gifford. I certainly do not want to get ahead of a 
Senator.
    Senator Harkin. No, no. You have been ahead of me for a 
long time, Chad. [Laughter.]
    Mr. Gifford. I beg to differ.

                  Opening Statement of Senator Harkin

    Senator Harkin. Thanks, Mr. Chairman. I appreciate it.
    I am sorry that I have another Appropriations Committee 
meeting I have to attend, but I just want to say that I thank 
you, Mr. Chairman, for holding this important hearing and for 
starting to move this legislation. I hope we can get this 
legislation out and get it voted on and get it passed on the 
Senate floor in short order.
    This is basically about fundamental values in America. The 
people who do their jobs, pay their taxes, and contribute to 
their communities should not be singled out for unfair 
discrimination.
    We have made significant strides since the passage of the 
Equal Pay Act of 1963 and the Civil Rights Act of 1964, which 
prohibits job discrimination based on race, background, gender, 
or religion; and of course, in 1990, we passed the Americans 
with Disabilities Act, which prohibits discrimination based 
upon disability.
    But we are long past due to pass legislation to prohibit 
discrimination based on sexual orientation, and that is what 
ENDA is all about. Too many hard-working Americans are being 
judged today on their sexual orientation rather than on their 
ability and qualifications. All the work that Senator Kennedy 
and I and Senator Jeffords did over all these years on 
discrimination based on disability was the same kind of thing--
not based upon your abilities or what you can do, but based on 
something that had nothing to do with these fundamental 
American values.
    Now we should close this final chapter of discrimination 
against people in our society, and that is what this bill does. 
It closes that final chapter, and the sooner we get it closed, 
the better off I think our country will be.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Harkin. Thank you, Chad.
    Mr. Gifford. Thank you, Senator.
    Again, I am delighted to be here and thank you all and want 
to voice our unequivocal support for the Employment Non-
Discrimination Act.
    When FleetBoston Financial identified its core values, the 
decision to focus on diversity was clear and obvious. A 
competitive business strategy not only embraces diversity, it 
depends on it and takes full advantage of it. It is a strategy 
that requires us in a global economy to recruit and retain the 
best talent and to create an environment in which everyone can 
excel.
    As the number one retail bank in New England and the number 
one small business lender in the United States, we need our 
work force to reflect the increasingly pluralistic communities 
we serve. This includes the gay and lesbian community as well 
as members of many other minority groups.
    To adequately serve such diverse communities, we must 
ensure that each and every member of FleetBoston's work force 
has the opportunity to succeed. To do that, we have adopted 
policies that we believe foster a workplace where creativity, 
knowledge, and life experience are exchanged freely. As an 
essential element of those policies, our nondiscrimination 
policy expressly states, and has for many years, that the 
company will not discriminate on the basis of sexual 
orientation.
    The business reasons are compelling. I am reminded of this 
fact each time I meet with a member of the FleetBoston gay and 
lesbian family. When we talk, they remind me of how tiring it 
can be to stay in the closet and how much energy is wasted and 
how focus is diverted from their job when they feel they must 
conceal so much of who they are. Their lives and our business 
would be greatly diminished if a gay and lesbian employee only 
brought a piece of themselves and not their whole self to work 
every day because of the fear of discrimination.
    Our policy has been broadly embraced and we believe has 
resulted in a stronger, richer company whose satisfied and 
engaged employees better serve our customers, our shareholders, 
our employees, and our communities.
    The trend among corporations today indicates that this 
business rationale is widely shared by the most successful 
companies in America, some of whom join me here today. In fact, 
the closer a company is to the top of the Fortune list, the 
more likely it is to include sexual orientation in its 
nondiscrimination policy. While nearly 60 percent of the 
Fortune 500 have such policies, a full 86 percent of the 
Fortune 50 do.
    I am proud of the leadership that my corporate colleagues 
and our company have demonstrated on this front and encourage 
the Congress to follow this lead. This legislation is an 
opportunity to further advance the work we have already begun. 
FleetBoston stands with thousands of companies across America 
that have already successfully addressed discrimination based 
on sexual orientation in the workplace. ENDA will guarantee 
that this progress continues and accelerates.
    In the wake of the attacks on our country on September 11, 
we believe that we must be galvanized to a stronger collective 
purpose. The lack of workplace protections based on sexual 
orientation leaves a gaping hole in America's commitment to 
equal opportunity and is an invitation to the perpetuation of 
stereotype and prejudice.
    I urge the Congress to come together and see to it that 
discrimination against gays and lesbians in the workplace will 
soon be viewed as an unacceptable relic of another time.
    Thank you.
    The Chairman. Thank you very much.
    [The prepared statement of Mr. Gifford may be found in 
additional material.]
    The Chairman. We have been joined by Senator Collins. 
Welcome.
    Senator Collins. Thank you.
    The Chairman. Ms. Billingsley?
    Ms. Billingsley. Thank you for inviting me here today. I am 
proud to be here in strong support of ENDA.
    I am Lucy Billingsley. Our company, Billingsley Company, is 
in real estate in Dallas, TX. We are in multifamily 
development, industrial development, commercial office 
development, and master plan communities and have 30 employees.
    My role here today is to speak on behalf of small 
businesses. Small businesses represent over 40 million jobs in 
this country, the entrepreneurial spirit of this country, and 
is a source from which my significant neighbors on this panel 
once sprang.
    Mr. Gifford. True, true.
    Ms. Billingsley. OK, thank you. I wanted a little 
concession there. [Laughter.]
    Like countries, the essence of every business is our 
rights, the protection of our rights, and those establish the 
foundation of our culture. Equal opportunity is one such right.
    For small businesses, our people are clearly our biggest 
asset. We need as business owners their focus, their 
commitment, and their dedication to develop the future we dream 
of.
    So, selfishly, what do I want? I want employees who are 
talented, skilled, high-energy, high-integrity, and dedicated 
to my cause.
    What does that have to do with ENDA? ENDA does the right 
thing. It permits our people not to go to work with the burden, 
the fear, the distraction of discrimination and prejudice. And 
prejudice does not just impact the victim. It establishes a 
corporate culture. It impacts everybody in the culture.
    ENDA permits the employees in small businesses to trust 
their employers. And selfishly again for me, it gives me lower 
turnover, higher morale, and better productivity.
    What does ENDA not do? ENDA does not impact companies with 
fewer than 15 employees. ENDA does not require quotas. It does 
not collect statistics, and it does not give same sex benefits.
    There is no administrative burden whatsoever to my 
organization resulting from the passage of ENDA.
    One truth is that our country is a country of equal 
opportunity, and it is rare that an individual gets to stand up 
and speak on behalf of that, so it is a thrill to be able to do 
that. This is a truth that I am proud to speak for.
    I am also honored to be able to support a bill that 
represents the values that my children already live by.
    Thanks.
    The Chairman. Very good. Thank you.
    [The prepared statement of Ms. Billingsley may be found in 
additional material.]
    The Chairman. Mr. Berman?
    Mr. Berman. Mr. Chairman and members of the committee, on 
behalf of the Eastman Kodak Company and its more than 70,000 
employees, I would like to thank you for the opportunity to 
share with the committee my company's perspective on the value 
of including sexual orientation among the Federal protections 
from workplace discrimination.
    Kodak is the world leader in imaging and a major 
participant in the $225 billion info-imaging industry. For over 
100 years, when people think of pictures, they think of Kodak.
    Our company's mission begins with the following pledge. We 
will build a world-class, results-oriented culture based on our 
values of respect for the dignity of the individual, 
uncompromising integrity, trust, credibility, continuous 
improvement and personal renewal, and recognition and 
celebration.
    These values guide every action that we take as a company 
and as representatives of Kodak. We believe that conducting 
business according to these values is key to achieving an 
environment where every person matters and every person is 
fully enabled to contribute to his or her maximum potential.
    Kodak's dedication to these values has guided its 
relationship with employees throughout its history.
    In keeping with our statement of company values, we have 
included sexual orientation in our nondiscrimination policy 
since 1986. Since that time, we have officially recognized a 
network to support gay and lesbian employees--the Lambda 
Network at Kodak; added domestic partner coverage to our 
benefit plans in the United States; launched a winning and 
inclusive culture strategy to further integrate our policies 
with the day-to-day work of our major manufacturing facility in 
Rochester, NY; and have appointed the company's first chief 
diversity officer, who is guiding Kodak's progress toward its 
diversity goals.
    The positive Kodak experience coupled with our values leads 
us to the conclusion that a Federal law will positively 
reinforce the efforts of Kodak and the rest of American 
business to ensure the fair treatment of individuals regardless 
of sexual orientation.
    It is an understatement to say that it is unusual for a 
company to support legislation that invites further Federal 
regulation of our business. However, Kodak believes that 
protection against discrimination because of one's sexual 
orientation is a basic civil right.
    This issue is so fundamental to core principles of fairness 
that we believe the value of Federal leadership outweighs 
concerns we might otherwise have about Federal intervention 
with our business.
    It is key to point out that we do not view ENDA as creating 
a mandated benefit. Kodak does not support federally-mandated 
benefits. In our estimation, nondiscrimination on the basis of 
sexual orientation is among those basic principles inherent in 
our Nation's fundamental civil rights laws. Through those 
principles and laws, we have agreed as a nation that people 
should be treated fairly in the job market and the workplace.
    The Employment Non-Discrimination Act is in tune with the 
fundamental sense of fairness valued by Americans. A Federal 
declaration would provide important leadership pointing the way 
for individual companies.
    Since Kodak first testified in 1996, numerous improvements 
have been made to the legislation. We applaud efforts by the 
authors, the committee, and the Human Rights Campaign to 
address concerns raised by business, such as specifically 
stating that business does not have to provide domestic partner 
benefits. It is unmistakably clear that the goal here is to 
have individuals judged on merit rather than prejudice or 
stereotype.
    Kodak's review of the bill indicates that there has been a 
significant effort to ensure that ENDA's provisions are 
consistent with Title VII. This is extremely important to 
business. Language that is clear and has been interpreted by 
the courts is essential to avoiding confusion and inadvertent 
noncompliance with the law.
    We look forward to working with the chairman and the 
committee to bring additional positive change and clarification 
as you move through the markup process.
    ENDA embodies the values already contained in Kodak's 
corporate values, our nondiscrimination policy, as well as the 
principles intrinsic to our Nation's fundamental civil rights 
laws. The Employment Non-Discrimination Act is a logical 
extension of the fundamental value of fairness to an area that 
has been neglected for far too long.
    Thank you.
    The Chairman. Thank you very much.
    [The prepared statement of Mr. Berman may be found in 
additional material.]
    The Chairman. Mr. Womack?
    Mr. Womack. Chairman Kennedy and members, we would like to 
thank all of you for holding this important meeting today. And 
Mr. Chairman, we would also like to wish you a belated happy 
birthday.
    The Chairman. Thank you very much.
    Mr. Womack. As director of the AFL-CIO's Civil and Human 
Rights Department, we are here to reaffirm the AFL-CIO's 
strong, steadfast, and passionate support for this much-needed, 
long overdue civil rights bill. Why? Because when people have 
to go to work each day with fear in their hearts, our Nation 
fails to live up to its promise of basic fairness for all.
    Mr. Chairman, the AFL-CIO was founded on the belief that 
citizens should be treated equally in the workplace and 
throughout our democratic society. We further believe that 
trade unions and employees alike have a responsibility to 
ensure that workers are judged based on their performance, not 
on their real or perceived sexual orientation.
    Our steadfast support for the bipartisan Employment Non-
Discrimination Act is part of our commitment to these 
principles which are a fundamental American value--that people 
who do their jobs, pay their taxes, contribute to their 
communities should not be singled out for unfair 
discrimination. Most Americans and many employers believe that 
this kind of discrimination is wrong.
    So we are pleased and heartened to join with our employers 
here today to talk about the fact that it is wrong, it is un-
American, for people to be discriminated against based on their 
sexual orientation.
    I am also pleased that our collective fight against 
discrimination has already resulted in the enactment of 
employment nondiscrimination laws which cover sexual 
orientation in 12 States. Twelve States is not enough. There 
are 50 States in these United States, and all States should be 
covered. That is why we believe that enactment of this 
legislation is very key; that it is only a Federal law which 
will then level the playing field.
    We encourage you, and we will work with you to make sure 
that this happens. We believe that most folks--and we will say 
a resounding 83 percent of the American population--believe 
that discrimination based on sexual orientation is wrong. That 
says a lot, Mr. Chairman. When 83 percent of the population 
believe it is wrong, it is time for us to act and to do 
something about it.
    Yet despite State laws and public opinion, it is still 
legal to fire working men and women in 38 States. That is why 
we believe that we must enact this piece of legislation, and we 
must work together to make it happen.
    So I say to you and to other members who are here today 
that we must consciously choose to mold an America that 
believes in all of its people and treats all of its people 
fairly and equally. This can only happen if we--you and us--
work together collectively to make it happen.
    We are committed to this. We will work hard in terms of our 
own labor movement, working with our community allies and with 
like-minded employers to make this happen.
    Today we come here to say to all that America must change; 
America must do better. We must help America move toward the 
fact that it embraces all of its citizens, whether they be 
heterosexual, gay or lesbian. They must all be treated fairly. 
There is no reason in this America why anyone should be treated 
differently solely because of their sexual orientation.
    We know first-hand as African Americans what it is like to 
be treated differently. Therefore, we stand boldly and we say 
boldly that we will fight to enact this piece of legislation 
with you and with other members.
    And I would say that because of the leadership of Senator 
Jeffords, Senator Harkin, Senator Wellstone, and yes, Senator 
Collins, and others who are not here--I will mention Senator 
Specter as well--we know that these are the folks who will lead 
this fight and will fight to make this happen.
    So as I close, Mr. Chairman, let me say again that this is 
a fight worth fighting for, and we will fight with you to make 
it happen.
    Thank you very much.
    The Chairman. Thank you very much. I think we got the drift 
of your testimony.
    [The prepared statement of Mr. Womack may be found in 
additional material.]
    The Chairman. I think Ms. Billingsley pointed out very 
accurately, and it is probably worthwhile pointing out, exactly 
what this bill does and what it does not do. I does not 
authorize disparate impact claims; it does not mandate domestic 
partner benefits; it forbids quotas or affirmative action; and 
it prohibits the EEOC from gathering data on sexual 
orientation.
    So, Ms. Billingsley, let me ask you how much of a burden is 
it on small business to comply with this; how much of an 
administrative burden do you think it would be in terms of 
small businesses?
    Ms. Billingsley. There is really absolutely no 
administrative impact. All this bill does is say that I cannot 
fire someone solely because of their sexual orientation. That 
is not an administrative issue. That is an action of will.
    So all it does is say that I have to do the right thing. I 
can hire and fire people based on merit, performance, and all 
the standards that we all judge people by for every other 
discriminatory issue.
    The Chairman. Let me then ask the panel--there are those 
who say if we pass this, we will have an influx of lawsuits, 
and therefore, it will provide additional burdens on the 
private sector. Let me hear from the members of the panel on 
this.
    Mr. Gifford, you are in a State, Massachusetts, that has 
this law as a matter of law in the State. Tell me what has 
happened to your company, and what do you know about the 
businesses that you support. Has there been a notable influx of 
additional burdens on businesses in terms of legal cases 
brought against them?
    Mr. Gifford. No, Senator Kennedy.
    The Chairman. Do you think that is a red herring?
    Mr. Gifford. Based on my understanding of the law, there 
should not be a significant increase in litigation as we see 
it. Litigation, right or wrong--I have different views on that, 
sir--is here in this country, and a big company is going to 
face it continuously; but no, I do not think this would 
significantly increase that issue.
    The Chairman. Ms. Billingsley?
    Ms. Billingsley. Anyone can sue me today just as they could 
sue me tomorrow. This bill has no impact on the capacity to 
sue.
    The Chairman. Mr. Berman?
    Mr. Berman. I would echo that. We have had sexual 
orientation included in our nondiscrimination policy since 
1986, and since the incorporation of that into our policy, we 
have seen no additional major influx of activity surrounding 
that, and we have felt very strongly that it has had a very 
positive impact on our work environment.
    The Chairman. Mr. Womack?
    Mr. Womack. Mr. Chairman, let me say emphatically that 
anyone who discriminates should be sued. I will say that up 
front. People said it when we passed the Civil Rights Act of 
1964, that there would be massive lawsuits. They said it when 
we passed the disability rights act, that there would be 
massive lawsuits. And they will say it here. That does not make 
it real. Anyone who practices or indulges in discrimination, I 
say should be sued.
    Now, on the other hand, I will say that most Americans 
believe in fairness, so I do not see a massive amount of 
lawsuits. So I would say that those who preach this are wrong.
    The Chairman. Thank you.
    Senator Collins?
    Senator Collins. Thank you very much, Mr. Chairman.
    I appreciate your holding this hearing on this very 
important issue today. I have a hearing ongoing in Governmental 
Affairs Committee on Enron and a meeting with Maine's Governor 
who is in town, but I felt strongly that it was important that 
I come to this hearing for a while to explore some issues with 
our panelists today, and I appreciate the testimony of all of 
you.
    To me, the key issue before us is how we can best promote 
acceptance, true acceptance, of the underlying principle that 
we all endorse--or, I think virtually everyone here endorses--
of nondiscrimination. And the question for me is how best to 
achieve that goal.
    You have talked, Mr. Gifford, about the progress that has 
been made in the business community in adopting 
nondiscrimination policies in the workplace. Similarly, I, 
along with many of my colleagues in the Senate, have signed 
nondiscrimination pledges and just do not consider sexual 
orientation at all in hiring and as a result have benefited 
from the services of gay and lesbian employees.
    States also have acted to pass their own discrimination 
laws. But some States, including my home State of Maine, have 
repeatedly rejected laws that are similar to ENDA. In fact, the 
State of Maine, the voters of Maine--it was not the 
legislature; in fact, the legislature passed and the Governor 
signed a nondiscrimination law--but the voters of my State have 
three times rejected laws that are similar to ENDA at the State 
level. I supported those laws. In fact, when I ran for Governor 
in 1994, I was one of the few candidates who endorsed a gay 
rights law and said that I would sign one if I were elected 
Governor.
    So the question to me and the question I want to ask all of 
you is if we impose a Federal law which some may view as an 
unwanted edict imposed from Washington, is that really going to 
promote acceptance and compliance with the underlying principle 
that we all want to see? To me, that is the difficult issue 
here, particularly since the voters in my State have three 
times, and most recently just in the year 2000, a high-turnout 
election, rejected a similar attempt which I supported at the 
State level.
    Are we going to advance the cause by passing Federal 
legislation?
    Mr. Gifford?
    Mr. Gifford. Well, first of all, Senator, I am glad that I 
am a CEO at this hearing and not that other hearing you are 
about to attend. [Laughter.] And I prefer to stay with you, 
Senator Kennedy.
    Senator Collins, I am not a constitutional scholar. I am 
here to share the experience of one large company. And if we 
have a nondiscrimination policy that includes sexual 
orientation, our company is the better for it.
    To me, in terms of States' rights and so forth, again, I am 
not sure that I am equipped to handle that. However, I would 
say that I think it is a horrible message to the rest of the 
country, to all of us together, whether individual States have 
signed or not, where it is, as my colleague Mr. Womack said, 
legal to discriminate in some States. I just believe that is 
wrong.
    Senator Collins. Ms. Billingsley?
    Ms. Billingsley. We have the luxury of being the leaders of 
our businesses and leaders in our community; and if leadership 
can stand up and say, ``This is right; I will do it,'' then I 
think that we affect the culture positively. I think we bring 
the culture around to supporting it. Many, many people already 
support it, and the next generation, if we do not do it, they 
are going to do it, because they do not even see the question.
    Senator Collins. Mr. Berman?
    Mr. Berman. Again, from my standpoint, I agree. I think 
there is a positive opportunity here that emanates from a 
strong statement by Federal leadership, and I do believe that 
that strong statement can have a very positive impact on the 
workplaces throughout the country, and I believe it will 
fundamentally help our business and what we are trying to 
accomplish and help all of American business.
    Senator Collins. Mr. Womack?
    Mr. Womack. Senator, as I reflect and look back and think 
about what happened in the 1960's when there was the issue of 
passing a civil rights bill, if we had waited for the States to 
say this was the right thing to do, we would not have had a 
civil rights bill. If we had waited for every person in these 
United States to come to that point, where would we be today?
    I say the same thing today. When 83 percent of the American 
people say it is time to move forward, I believe that this 
Congress has a responsibility to act. One State or two States 
should not be the driving force in this whole mechanism.
    As my colleague has said, we must set the example. Elected 
officials represent all of the people, and I think that we must 
send a signal that this is the right time to do the right 
thing. It is time.
    Senator Collins. Thank you.
    Mr. Berman, I understand you have a couple of 
recommendations for changes in the bill. Could you very quickly 
tell us what those are?
    Mr. Berman. Yes. Essentially, we absolutely applaud the 
progress that has already been made in clarifying the bill's 
language. We would place very strong emphasis on ensuring the 
greatest possible consistency with the language in Title VII.
    Just to cite one example, looking at Section 5, Retaliation 
and Coercion Prohibited, we agree that no individual should be 
subject to threats or intimidation, especially in the 
workplace. The reference to ``a person'' in Section 5(b) with 
regard to coercion may unintentionally convey personal 
liability to employees in an individual capacity in the 
workplace rather than ``a covered entity'' which is a Title VII 
term. This would not be consistent with Title VII, which 
imposes liability on employers based on conduct by supervisory 
employees acting in their official capacity and not as 
individuals.
    We would suggest that ENDA should not change Title VII 
precedents.
    Senator Collins. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Harkin?
    Senator Harkin. Thank you, Mr. Chairman, and again, I thank 
all of you for being here this morning.
    This is not a very usual sight that this committee has 
leaders of industry and the AFL-CIO sitting at the same table 
agreeing on something, so this is a pretty significant day 
today.
    Every time ENDA has come up over the last few years, a 
certain buzz starts. There is a certain argument against it 
that floats around for a while, and that is put away; then, 
another one floats up and circulates for a while, and then it 
goes away. Now, it seems like the new buzz that is going around 
that I am hearing from those who are opposed to this is that 
this will be the first civil rights bill that we have ever 
passed that covers personal choice, and where is it going to 
end once you do that.
    They say disability, race, religion, and so on are 
different, but this is a personal choice--you choose to be gay, 
you choose to be lesbian--and this is going to cover it. So 
that is the new buzz that I have been hearing around now, and I 
just wonder how you might respond to that or if you have given 
it any thought; if you have not, fine. Think about it.
    Mr. Gifford. I think, Senator Harkin, that those who have 
studied this subject have spent some time trying to understand 
it, that the expression is not ``sexual preference'' but 
``sexual orientation,'' and I believe there is a very 
significant difference. When a person is gay and lesbian, that 
is who they are, and I think that is what they should be 
respected for, no more and no less.
    Senator Harkin. Very good.
    Any other observations on that?
    Mr. Womack. Senator Harkin, I agree with what my 
counterpart has said. I also agree that it is not what a person 
chooses to be. Just like in any other circumstance, people come 
with certain cultures and certain differences. We must respect 
those cultures and those differences. So I would say that in 
terms of being gay or lesbian, it is not a choice, that a 
person just chooses to be.
    From everything that I have known--they used to have a good 
saying that ``Some of my best friends are . . .,'' and I would 
say that having been associated with and working with and 
knowing individuals who come from a gay and lesbian background, 
I do not think it is a matter that they have chosen to do this 
whole thing; it is just a matter of lifestyle. Everybody has a 
lifestyle.
    So I would say again here that we look at things 
differently sometimes, and we do not look at it in the right 
vein. Some of folks are still in the dark ages and just need to 
be enlightened, and I am sure you will help do that.
    Senator Harkin. I was just checking my notes from my staff. 
In fact, religion is a personal choice, is it not?
    Ms. Billingsley. That is right.
    Mr. Womack. Yes.
    Senator Harkin. We choose what religion to belong to. So 
would we say, okay, then, we cannot have this covered in our 
discrimination laws? That is a personal choice, isn't it? Yet 
we do not permit discrimination based upon religion, either, do 
we?
    Mr. Womack. Right.
    Senator Harkin. So I hope that ends that. This just started 
buzzing around right now.
    The other issue is affirmative action, that somehow this 
mandates some kind of affirmative action. I want to ask the 
employers who are here about that. You do not see this as 
mandating some affirmative action proposal in ENDA?
    Mr. Gifford. We do not see that in any way whatsoever.
    Mr. Berman. Ditto.
    Ms. Billingsley. Absolutely not.
    Senator Harkin. I have one last question. Again, the 
opponents of this say this is going to hurt employee morale. I 
do not understand that, but that is what I hear. Has it had any 
effect on employee morale in your companies?
    Mr. Gifford. I would comment on that with some vigor, 
Senator Harkin--and again, I can only speak to the experience 
within our company--but the experience within our company is 
180 degrees different from that.
    I think our company and the overwhelming number of 
employees--of course, not everybody, but the overwhelming 
number--want a company that respects everybody. I can tell you 
that I probably have more letters on the pride they take in our 
diversity policy from people within the company than almost any 
other subject.
    Mr. Berman. I would echo that from the perspective of 
Kodak. We have put enormous resources into fostering an 
inclusive culture within our corporation. And the feedback that 
we receive from our employees is tremendous in terms of how 
those efforts have enabled them to be able to get things done 
more productively in the workplace than ever before.
    Mr. Womack. Senator Harkin, coming out of the labor 
movement, a labor movement of 13 million members, we know that 
everyone will not react the same. We understand that. We know 
that we have to fight discrimination wherever it is, even 
within our own ranks within the labor movement. We fought for 
the Civil Rights Act because it would help us to change some 
attitudes within our own movement. We believe that ENDA will do 
the same thing.
    You know, these questions that are being raised are not 
new. These questions were raised years and years ago--the same 
questions, just a different aspect of them. So I am saying here 
again that we have to address it the same way we did then, and 
we will do it now.
    Senator Harkin. Thank you all very much.
    Thank you, Mr. Chairman.
    The Chairman. Senator Clinton?
    Senator Clinton. Thank you very much, Mr. Chairman, and 
thank you for holding this hearing.
    Clearly, this is an issue that I believe is long overdue to 
be addressed and to pass ENDA, and I want to thank the panel. I 
am sorry I had to be late, but based on what I have heard since 
I arrived, this is one of the more distinguished and effective 
panels that I have had the privilege to hear.
    I particularly want to thank Mr. Berman, representing a 
wonderful company in New York which has had a policy that 
prohibits discrimination based on sexual orientation since 
1986. I hope the testimony from the business representatives 
here--Ms. Billingsley and Mr. Gifford, I thank you both for 
being here with Mr. Berman--will be widely distributed, because 
people need to hear what each of you has to say. And I thank 
you, Mr. Womack, for your passionate advocacy of this 
particular legislation.
    I think it is important to remind ourselves what ENDA does, 
because as Senator Harkin made reference, there is a lot of 
misconception about what this bill will do. It is not going to 
change people's attitudes overnight--we know that--neither did 
the civil rights laws of the 1960's, but that was not a reason 
to avoid doing what was right at that time, just as it is not a 
reason to avoid doing what is right at this time. And what ENDA 
does is extend Federal employment discrimination protections 
that are currently provided based on race, religion, sex, 
national origin, age, and disability to sexual orientation.
    I think we can all agree that it was not the end of the 
world when we ended employment discrimination as a matter of 
law on any of these other bases, and certainly it should be 
clear that the evidence supports this legislation, and even in 
the absence of the kind of strong evidence that we have heard 
testimony about today, it is simply the right thing to do, 
which is long overdue.
    We also know that it extends fair employment practices, not 
special rights, to lesbians, to gays, to bisexuals, to 
heterosexuals, to everybody. This should not be an issue. What 
should be an issue in your employment is your job performance--
can you or can you not do the job? Is your behavior connected 
appropriately with the job or not? We need to get beyond 
holding status in any way against someone who is seeking and 
holding employment.
    This also prohibits public and private employers, 
employment agencies, and labor unions from using an 
individual's sexual orientation as the basis for employment 
decisions. So it is not just a question of hiring, it is also 
firing, promotion, and compensation. On the next panel, we will 
hear very eloquent and moving testimony from Lawrence Lane, 
also from New York, about what happened in his experience.
    We also know that ENDA provides for the same procedures and 
similar but somewhat more limited remedies as are permitted 
under Title VII and the Americans with Disabilities Act. So 
even thought the law would say do not discriminate, the 
remedies available are actually not on the same level as they 
are under Title VII and ADA. And of course, it applies to the 
Congress the very same procedures, which is absolutely 
appropriate.
    Now, what ENDA does not do is cover small businesses with 
fewer than 15 employees; it does not cover religious 
organizations, including educational institutions; it does not 
apply to the uniformed members of the armed forces, although 
many of us believe that it should; it does not allow for quotas 
or preferential treatment; it does not allow for disparate 
impact or the imposition of affirmative action; and it does not 
allow the EEOC to collect statistics on sexual orientation or 
compel employers to do so, and does not apply retroactively.
    So it is very important that we clearly lay out what this 
bill does and what it does not do and that we take into account 
the evidence that we have heard today with respect to employers 
who actually practice diversity and hire and fire and 
compensate on the basis of job performance, not on the basis of 
one's status, one's religion, one's race, one's sexual 
orientation; that this is not as dramatic or revolutionary a 
step as many people have advocated that it is.
    And I hope that as we move forward with the consideration 
of ENDA--and the chairman has been the champion of its passage 
for several years now--we can get those facts out and make it 
absolutely clear what is done by the legislation and what is 
left undone and not covered at all.
    So Mr. Chairman, I thank you for bringing such effective 
and compelling witnesses to this committee, and I hope that 
their testimony is widely circulated, particularly to our 
colleagues who have doubts and concerns and, frankly, fears 
about what this would mean, because it is something that I 
think Senator Collins is absolutely right in addressing. We 
should just be honest about it, put it on the table, and make 
clear that people have some very deep concerns and fears that 
are not founded, and we can help to disabuse them.
    I hope that the testimony of our four witnesses today will 
be widely circulated and made available to all of our 
colleagues, and I thank the witnesses for being here.
    The Chairman. Well-said, expressing the feeling of all of 
us. It is very, very helpful. As I said, we have a very diverse 
group here representing a wide variety of different interests, 
all with a similar message and a very powerful and compelling 
one that ought to respond to many of the questions that have 
been raised, because they have real life experience and are 
really telling it like it is, and that is a very strong 
message, that we must continue to progress toward freeing 
ourselves from this form of discrimination, and that America 
will never be America until we do.
    So you have all been very helpful in moving this process 
forward.
    Ms. Billingsley, I was interested in a number of things 
that you said, but you also mentioned at the end of your 
testimony that this is a value that your children have learned 
to live by as well. How many children do you have?
    Ms. Billingsley. I have four children, and I think it is a 
value that they already live by. They were surprised that I was 
coming here to address this issue.
    The Chairman. There it is, there it is. We are surprised 
that we have to be here addressing it, too, and I think that 
once we get it passed and signed into law, we will ask why it 
took so long. But I think you have all been enormously helpful 
to us in bringing that day closer.
    Thank you very, very much.
    The Chairman. On the next panel, I am particularly pleased 
to welcome Lawrence Lane, who will share his personal 
experience with us. From June 1997 to September 1999, Mr. Lane 
was employed as a regional manager of the New York region for 
Collins and Aikman Floor Coverings. Despite his strong 
background in business and excellent job performance, Mr. Lane 
was fired because he is gay.
    Mr. Lane, I appreciate your willingness to testify about 
your personal experience.
    Matthew Coles has been director of the ACLU's National 
Lesbian and Gay Rights and AIDS/HIV Projects since January 1995 
and has been a leader in the lesbian and gay civil rights 
movement for over 20 years. Among his contributions, Mr. Coles 
wrote California's statewide law banning employment 
discrimination based on sexual orientation in 1992. He has 
taught at Stanford University, the University of California 
Boalt Hall School of Law. Mr. Coles, we are extremely 
interested in hearing your perspective.
    Mr. Lane?

   STATEMENTS OF LAWRENCE LANE, LONG ISLAND, NY; AND MATTHEW 
   COLES, DIRECTOR, NATIONAL LESBIAN AND GAY RIGHTS PROJECT, 
                 AMERICAN CIVIL LIBERTIES UNION

    Mr. Lane. Mr. Chairman, before I begin, I would like to 
thank you and all the members of the committee for holding 
today's hearing.
    As someone who has personally experienced employment 
discrimination on the basis of my sexual orientation, I know 
that I speak for many when I say that your leadership on this 
legislation and the leadership of Senators Lieberman, Jeffords, 
and Specter gives me hope that 1 day soon, employment 
discrimination on the basis of sexual orientation will be 
prohibited by Federal law.
    My name is Larry Lane, and I currently live in Long Island, 
NY. From June 1997 to September of 1999, I was employed as the 
regional manager for the New York region of Collins and Aikman 
Floor Coverings, Inc., corporately based in Dalton, GA.
    At the time I was hired, the New York region was viewed by 
company management as dysfunctional. Revenues were lower than 
desired, sales positions were unfilled, and so on.
    I worked to turn the region around and received nothing but 
considerable praise from my superiors for my outstanding 
performance. My first and only review rated my performance as 
``exceeds requirement.'' The review concluded: ``Larry is doing 
an outstanding job. He is already having a positive impact on 
the New York zone.''
    In the summer of 1998, I received a voice mail from the 
vice president of sales stating: ``I feel like you have really 
come into your own there in New York. You built a great team, 
and some pain along the way for sure, with people leaving you 
naked in some territories, but I swear it is amazing how much 
better we are there than we have ever been, so a big credit to 
you.''
    On a regular basis, I continued to receive positive praise. 
In the fall of 1998, the president of the company sent me a 
letter which stated: ``You have assembled a great team from the 
office to the field, and I have never felt better about our 
prospects in New York.''
    At one of our annual budget meetings in December of 1998, 
following my year-end presentation, my boss left me a voice 
mail stating: ``You did a great job.'' The positive feedback 
just continued.
    In late summer to early fall of 1998, an employee, one of 
the sales representatives that I supervised, learned that I was 
gay and ``outed'' me. This was done without my knowledge, told 
to a number of other direct reports in my region, again that I 
was gay.
    Thereafter, one of my direct reports confronted me about my 
homosexuality in an aggressive and threatening way. Another of 
my direct reports was similarly displeased by the news that he 
was working for a gay man. Both of these men openly used the 
term ``faggot'' in the C and A offices and informed one of 
their coworkers that they did not work for me and in fact 
wanted to get me out of the company.
    In the spring of 1999, these two sales representatives 
began a campaign to get rid of me. Without telling me they were 
doing so, they began writing and calling my supervisor with 
false complaints about me.
    On June 24, 1999, based on these complaints and 
unaccountably, without talking to me to get my side of the 
story at all, I was placed on probation and advised that my job 
was in jeopardy. They explained that I was hired to build the 
team in New York and that based on feedback from several of my 
people, I was failing to get this critical phase of my job 
done. They refused to provide any specific information to me 
but told me to return to New York and ``reflect on what may be 
causing this dissension among my people.''
    Until June 24, 1999, when I was suddenly and without 
warning placed on probation, I had received no negative 
feedback on my performance, received no discipline, oral or 
written, was not admonished, warned, or otherwise criticized, 
had not received any negative evaluations, was not accused of 
any wrongdoing, and was not cited for violating any company 
rules. In short, my performance was by all accounts excellent 
and faultless.
    After holding individual meetings with all those who 
reported to me, all evidence pointed to these two account 
managers as being the individuals who were causing the quote-
unquote ``dissension among my people.''
    Shortly after I was placed on probation, one of the account 
managers again called my supervisor, this time with the news 
that I had made a confession that I was gay. My supervisor 
immediately passed this information along, and soon, all of top 
management was aware of my sexual orientation.
    In the weeks that followed, management decided to terminate 
me. On September 1, 1999, my supervisor and the vice president 
of sales fired me. When asked if this had anything to do with 
my performance or work ethic, the vice president of sales 
turned to me and stated: ``Let us just say you do not fit.''
    I knew that in the majority of jurisdictions in this 
country, there would be nothing that I could do. Solely because 
of the anti-discrimination protection afforded by the City of 
New York was I able to challenge the discriminatory practices 
that caused me to lose my job by bringing suit under this New 
York City law.
    Mr. Chairperson, this is what happened to me. If I had 
worked in almost any other city in New York State or, 
unfortunately, in almost any other State in this country, I 
would have had absolutely no recourse. Frankly, I was 
fortunate. New York City law prohibits this kind of 
discrimination. But I do not believe that my right to work 
without fear of harassment or fear of being fired because of my 
sexual orientation should depend on where I live in the few 
limited areas that prohibit such discrimination.
    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.
    Greater awareness of this problem is needed. To my 
knowledge, a large part of the population believes that this 
protection already exists. Most of the people I have spoken 
with were shocked and indeed outraged to learn that this basic 
protection does not already exist nationally.
    I would like to thank you again for holding this hearing 
and for the leadership that you and other members of this 
committee and the U.S. Senate have shown in seeking to provide 
a remedy for those who, like me, are victims of sexual 
orientation discrimination in the workplace.
    Thank you.
    The Chairman. Thank you very much.
    [The prepared statement of Mr. Lane may be found in 
additional material.]
    The Chairman. Mr. Coles?
    Mr. Coles. Thank you, Mr. Chairman. I want to thank the 
committee for inviting me here.
    I would like to start by saying that the story that you 
just heard is an aberration and an isolated incident. I cannot 
do that.
    I am the director of the ACLU's Lesbian and Gay Rights and 
AIDS Projects, and I am here on behalf of my colleagues from 
the ACLU all across the country, and on behalf of my colleagues 
at Lambda Legal Defense Funds, Gay and Lesbian Advocates and 
Defenders in Boston, and the National Center for Lesbian 
Rights. We handle most of the sexual orientation discrimination 
complaints that come up in the country today, and I can tell 
you very sadly that the story that Mr. Lane just told you is 
far from isolated.
    We represent the x-ray technician in eastern Washington who 
never knew a single day of peace on her job until she was 
hounded out of it by an employer who told her frankly that he 
hated her because she was, in his words, ``a faggot.''
    We represent the inspirational choral teacher in Alabama 
who thought he had kept his family life completely private 
until the day that he lost his job--a choral teacher whose 
students begged the school board to hire back later on.
    We represent the shoe factory worker in Maine who, in the 
words of the Federal Circuit Court of Appeals, ``toiled in a 
frighteningly hostile work environment'' until he too lost his 
job.
    We represent the championship volleyball coach in Utah. We 
represent the talented young lawyer in Georgia. We represent 
the hardworking accountant in Pennsylvania--and on and on and 
on. We represent the people for whom the promise that what 
matters in the workplace in America is hard work and dedication 
has turned out to be an empty promise.
    And the people whom we represent are just the tip of the 
iceberg. For most lesbians and gay men, the price of survival 
in the workplace comes down to this. Separate the two things 
that matter most in your life--family and work--and make sure 
that one never knows anything about the other, and then do it 
all the time.
    You have to imagine the idea of a job where there is not a 
trace of the person who is the most important person in your 
life. You have to think about a workplace in which not only 
does the person who is the most important person in your life 
never shows up there--there are no phone messages, no 
pictures--nobody in the workplace knows that he or she exists. 
And you have to imagine a place where your career is on the 
line if you slip and talk about what she thought about a 
television show you both watched last night.
    You have to imagine a workplace there nobody can know that 
you are married or that you hang around with married people or 
that you go to the kinds of places that married people go. And 
then, you have to imagine doing this all the time, every day, 
for good. It is a balancing act that exacts in terms of human 
emotion a terrifying price.
    The answer to that problem both for the people whom we 
represent like Mr. Lang and for those people who protect 
themselves by splitting their lives in two is the legislation 
that you have in front of you. ENDA provides really what simple 
justice demands--that nobody should lose their job because of 
who they are.
    To the people we represent and people like Mr. Lane, it 
gives a remedy. To the vast remainder of people who protect 
themselves by splitting their lives, it gives them a promise, 
and the promise is the price of keeping your job is not denying 
your family.
    Now, look, I am a lawyer. That remedy is important, but the 
promise is much more important. Our civil rights laws in 
America do not work because we are able to haul people who 
violate them into court. Our civil rights laws work because 
Americans are decent, law-abiding people, and we decide as a 
matter of national policy that people will not lose their jobs 
because of religion. Businesses go along with it. They go along 
with it because our laws really are a statement about what kind 
of society we want to be.
    Senator Collins talked about mandates from Washington. I 
know that States and businesses do not like it when Washington 
micro-manages the way they work, but the American people look 
to the Federal Government for leadership on basic, fundamental 
American values. When you pass a law saying that you cannot 
lose your job because of your sexual orientation, you are not 
endorsing being lesbian or gay, and you are not endorsing 
heterosexuality, either. When we passed a law saying that you 
could not discriminate on the basis of religion, we were not 
endorsing Christianity or Judaism or being a Muslim or being an 
agnostic. We were endorsing that very basic value that says 
everybody deserves the same fair opportunity to go as far as 
their brains and their guts and their grit will take them. And 
if we pass a law saying that discrimination based on sexual 
orientation in the workplace is wrong, we will be saying that 
same thing, giving that same message, saying we really believe 
in that promise.
    Let me tell you, as Mr. Lane has told you and the 
spokespeople before told you, that that x-ray technician in 
eastern Washington, that volleyball coach in Utah, that shoe 
factory worker in Maine--they need that promise from the 
Federal Government. They and we all need a law making sexual 
orientation discrimination in employment illegal, and we need 
it now.
    Thank you.
    [The prepared statement of Mr. Coles may be found in 
additional material.]
    The Chairman. Thank you both very much.
    Mr. Lane, we know it is never easy to talk about the 
personal challenges that one faces, but you are enormously 
courageous to do so, and it is very helpful in terms of the 
whole understanding of the issue in very real human terms. You 
make an extraordinarily effective presentation, and the facts 
surrounding your circumstances are so overwhelming and 
compelling, it speaks again to the importance of having this 
kind of legislation.
    Let me ask you if you could talk a little bit about what 
happened in your workplace that made you believe you were being 
disciplined and fired from your job because of something other 
than job performance. You talked a little bit about that, but I 
am wondering if you might be able to spend another moment or 
two on that subject.
    Mr. Lane. Certainly. Thank you.
    What was so unusual about the situation was it coming so 
completely out of nowhere. In other words, there was no lead-up 
to the June 24th event in which I was put on notice. It took me 
by complete surprise.
    The other element was the fact that they would not provide 
any details. In other words, they would not say what happened, 
what led up to this, what they were told, what was said, who 
said it--no details whatsoever. ``Go back, and you figure it 
out.''
    The other aspect was that the entire meeting centered on 
the quote-unquote ``dissension'' among the group within the 
region. And I specifically asked ``Are you sure?''--because I 
knew I was already having some difficulties with both of these 
two individuals--``Are you sure that we are not talking about 
one or two individuals?'' And they got extremely defensive, 
coming back and saying, ``No, no, no; it is across the board. 
Go back, figure it out.''
    It was really through a process of elimination. It kept 
popping into my head, but I did not really want to focus on the 
fact that sexual orientation could have really been the issue. 
So by really systematically going around my region, 
interviewing, meeting with each individual person and people 
saying, ``You need to talk to So-and-So,'' brought the final 
conclusion, and then certainly through the discovery process 
and through the conversations that we have had since, it became 
crystal clear that this was the situation.
    The Chairman. And what did that mean to you? Was there a 
sort of disbelief? What can you tell us about your own internal 
reaction to this?
    Mr. Lane. Well, from the first meeting to the termination 
was about 90 days, and that was 3 months of hell. I am a 
businessperson. I love business, I love everything about 
business. I have always enjoyed it, and I do not do it halfway. 
I pour my entire soul into what I do, and I enjoy it. And I saw 
this particular position at Collins and Aikman as a great 
challenge and opportunity, and I had poured myself into it--
maybe you could call it ``workaholism'' or what-have-you--it 
encompassed me.
    So when this happened, and so out of the blue and again 
without any details, I really just beat myself up for 90 days, 
or shortly before that, when I started to realize that this was 
what this was all about. It was just devastating. And even the 
residual impact afterward has been very tough. I did not think 
I would start to get all choked up toward the end of my 
testimony, but I did, because that residual impact is still 
there.
    The Chairman. Let me ask you, Mr. Coles, why have you 
determined that ENDA as opposed to the patchwork of State and 
municipal laws currently in effect is necessary to sufficiently 
prevent discrimination and provide the remedies?
    Mr. Coles. Well, very basically, because a patchwork of 
State and municipal laws leaves the vast majority of people in 
this country uncovered. If you work for the Government, you can 
perhaps make a constitutional claim or a civil service claim. 
And there are now 12 States that prohibit sexual orientation 
discrimination in employment, and if you are lucky enough to 
live in one of them, you are protected. But if you are like the 
vast majority of Americans, and you live in those other 38 
States, and you work in private industry, there is basically no 
coverage, and unless we have Federal coverage--you know, 
Senator, when we passed the 1964 Civil Rights Act, just about 
half the States had civil rights laws that prohibited race and 
sex discrimination. And when this body passed the ADA, about 
one-third of the States had it.
    It has never been the case that the Federal Government has 
waited for all the States to act before moving on 
discrimination. The Federal Government has provided leadership, 
and we need that leadership to protect people.
    The Chairman. A recent poll found that 42 percent of 
Americans think that a Federal law prohibiting employment 
discrimination on the basis of sexual orientation already 
exists. What factors in your opinion lead to this 
misperception?
    Mr. Coles. Two things. I think Americans widely believe 
that if you do your job effectively, it cannot be taken away 
from you anyway, and most people are shocked to learn that 
employers actually do not need to have a reason to take away 
your job.
    But more than that, in the last 20 years, I think this 
country has gotten to see how little sexual orientation has to 
do with ability and how much of what we all grew up with 
thinking was the truth about lesbians and gay men turned out 
not to be the truth, and I think people just assume that of 
course this is a problem that we must have taken care of; it 
does not make any sense.
    The Chairman. Senator Mikulski?
    Senator Mikulski. Thank you very much, Mr. Chairman.
    I was not here earlier because I was chairing another 
hearing. A cordial welcome to the witnesses.
    Mr. Chairman, I ask unanimous consent that my full 
statement go into the record.
    Mr. Chairman, I am not going to ask any questions. I 
believe that our witnesses have been questioned all too often 
in their lives. I think their statements stand on their own and 
are most eloquent and most persuasive.
    Change never comes easily, and change particularly in civil 
rights does not come easily. On Sunday night, I was watching a 
movie about Rosa Parks and the Montgomery boycott. I lived 
during that period and I am a student of nonviolent movement. 
As a result of the Montgomery boycott, Dr. King made certain 
demands on the bus company in behalf of the African American 
community. When you read those demands, you are shocked by how 
modest they were. They asked for two things--one, that African 
Americans could sit anywhere they wanted on a bus; and second, 
that there would be the expansion of employment opportunities 
to African Americans to work in the bus company.
    Forty-4 years later, that seems so modest. And I believe 
that when we pass this legislation, this legislation in and of 
itself is quite modest. All it does is end discrimination. It 
bestows no further rights. I believe that this is only the 
first step that we need to take, but I believe it needs to be a 
quick step.
    So, Mr. Chairman, I hope we can move this through the 
committee expeditiously, I hope we can move it to the floor, 
and I hope we can close this very large gap in our civil rights 
laws.
    Thank you for appearing today.
    [The prepared statement of Senator Mikulski follows:]

                 Prepared Statement of Senator Mikulski

    I am proud to cosponsor the Employment Non-Discrimination 
Act. This bill would close a very large gap in our civil rights 
laws. Job discrimination on the basis or race, ethnicity, 
gender, and religion has long been prohibited. Yet it is still 
legal to hire and fire a person based on their sexual 
orientation. This is outrageous--for a country that prides 
itself in equal rights for all and believes in ``the American 
Dream.''
    Today, when I look back at the Civil Rights Movement of the 
1960's, I am shocked by how modest the demands of the African 
American Community actually were. If we can pass this piece of 
legislation, in the future we will look back and think what a 
modest, obvious step it was, and wonder why it took so long.
    All this bill does is to end workplace discrimination. It 
does not bestow special rights. It simply offers Gay and 
Lesbian Americans the same protection against unfair 
discrimination in the workplace that other groups have--no 
more, and no less.
    Why is ENDA Important? Americans believe hard-working 
people should be rewarded for their efforts, and commended for 
their skills. Yet all over the country, gays and lesbians are 
being held back at work--or even fired not because they are 
incompetent, but simply because they are gay.
    I firmly believe that people should be judged based on 
their individual skills, competence, and unique talents, and 
nothing else. Sexual orientation does not affect job 
performance, so it should not be a consideration.
    And most Americans agree. Eighty-five percent support 
equality in employment for gays and lesbians. Seventy-nine 
percent believe that we already have a federal law that makes 
it illegal to fire someone based on sexual orientation.
    What would ENDA mean to people? It means protection for the 
man from Cumberland, Maryland who was fired after years of 
working as a stockbroker for a financial services company after 
the company found out he was gay, saying he was not 
``compatible'' with the community. And protection for the man 
who worked at a New Carrollton hotel who was told by his 
manager not to tell clients where he lived, because that fact 
made it obvious that he was gay--and who was later fired 
without warning.
    The federal government is lagging behind. 10 states and the 
District of Columbia already have laws that prohibit job 
discrimination on the basis of sexual orientation. My own state 
of Maryland is one of 7 states with Executive Orders 
prohibiting discrimination in the public sector. And many 
companies already include sexual orientation in their non-
discrimination policies.
    Gay Americans are part of the American mosaic. They are 
entitled to the same rights and freedoms as every other 
American citizen--no more and no less. Change in civil rights 
comes slowly, but we are long overdue in making sure that they 
have protection against unfair discrimination in the workplace.
    My hope is that someday we will look back on this and 
wonder what took us so long. We all deserve to live in an 
environment where people are treated fairly and with the 
dignity they deserve.
    I urge my colleagues to vote for this important bill, and I 
hope we can move it quickly to the floor.
    The Chairman. Thank you very much.
    Senator Reed?
    Senator Reed. Thank you very much, Mr. Chairman, for 
holding this hearing. It is an extremely important topic, and 
let me echo the comments that Senator Mikulski has made and 
also apologize for not being here; I too had to chair another 
meeting today.
    This is an issue that is long overdue. It is about justice, 
and it is about, frankly, being smart about treating people and 
getting the best out of them. I would note that in my home 
State, we have an entire delegation that is a cosponsor of this 
legislation, and we have a statewide law which bans 
discrimination based on sexual orientation. We have Fortune 500 
companies that have already stepped to the plate, like CVS and 
Hasbro and Textron, and I think they have done it for two basic 
reasons--it is the right thing to do--it is about fairness and 
it is about justice--and it is also a very good way to get the 
very best workers to work for you.
    So on those two grounds, I would hope we could propel this 
legislation forward, and I am just sorry that I could not be 
here for the testimony. Thank you, Mr. Lane and Mr. Coles, for 
your testimony.
    I particularly regret not hearing Chad Gifford, who is a 
wonderful community leader in our part of the country.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Clinton?
    Senator Clinton. Thank you, Mr. Chairman, and I want to 
thank these witnesses as well.
    Mr. Lane, what is the status of your efforts to seek remedy 
under the New York City provisions?
    Mr. Lane. We are pretrial. We actually have a trial date of 
March 18. C and A did file for a summary judgment specifically 
as it relates to the sexual orientation, and thankfully, we did 
win that in our favor and now await trial.
    Senator Clinton. We wish you well. Of course, it is 
striking that you at least have the opportunity to make your 
case because of the New York City law. I greatly appreciate 
your willingness to come and speak with us about this. It will 
add to the arguments that we have as we try to take this 
legislation to the floor and to eventual passage.
    Mr. Coles, could you clarify for the record what the 
experience has been in States and cities that do prohibit 
discrimination based on sexual orientation? Have they been 
flooded with lawsuits and employers endlessly tied up in court? 
What has happened?
    Mr. Coles. What has happened is just about what you would 
expect. If you assume that lesbians and gay men are about 5 
percent of the work force, which is what most statisticians 
tell us is probably the right assumption, and you look at the 
number of complaints that have been filed under the existing 
laws--and we have had one law, Wisconsin, for over 20 years and 
several others throughout the nineties--you get just about as 
many complaints and lawsuits as you do based on race 
discrimination and gender discrimination.
    And I will say frankly that I think the number of lawsuits 
that you wind up having is certainly smaller than we had when 
the 1964 Civil Rights Act first passed. When Congress passed 
the 1964 Civil Rights Act, I think the idea of civil rights as 
a part of American life was a new idea, and there was a lot of 
resistance. I do not think that that is true now, and I think 
that when we make it clear that discrimination on a certain 
basis should not happen, most employers comply.
    Senator Clinton. Well, those have certainly been the 
reports that I have reviewed. I think there was a 2000 GAO 
study of litigation following the passage of 11 of the State 
laws which found that only 1.4 percent of the total 
discrimination claims in 1999 were based on sexual orientation. 
So it has not proven to be burdensome to courts or burdensome 
to employers, as some people had feared.
    Mr. Chairman, I think that your long-time support of civil 
rights legislation going back to the 1964 Act and so many ways 
since then gives you a standing that the rest of us do not have 
to support and champion this legislation, and I appreciate 
that, as is your custom, you are once again going forward with 
it, and I thank the witnesses for being here today to help us 
put this back on the legislative agenda and try to be 
successful in the Senate and hopefully in the House and have a 
signing ceremony perhaps sometime this year. Thank you very 
much.
    The Chairman. I want to thank Senator Clinton and thank our 
other colleagues for their participation. This has been a good 
hearing.
    It is my intention to mark up this legislation in March and 
get it on the agenda, and we will do the best we can to get it 
on the floor. I think it is one of the real priorities for us 
in this Congress, and we have every intention to press it and 
push it and further it.
    We thank our witnesses for being here and thank many of our 
national leaders who have joined us as witnesses to this 
hearing this morning in the audience and have been incredible 
advocates in helping move this country forward to the time when 
this legislation will become law.
    The committee stands in recess.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                Prepared Statement of Charles K. Gifford

    On behalf of FleetBoston Financial's 45,000 U.S. employees, I would 
like to thank the Committee for the opportunity to share our company's 
perspective on the issue of diversity and discrimination in the 
workplace and to voice our unequivocal support for the Employment Non-
Discrimination Act.
    When FleetBoston Financial identified its core values, the decision 
to focus on diversity was clear. A competitive business strategy not 
only embraces diversity, it depends on it and takes full advantage of 
it. It's a strategy that requires us, in a global economy, to recruit 
and retain the best talent and to create an environment in which 
everyone can excel.
    As the number one retail bank in New England and the number one 
small business lender in the United States, we need our workforce to 
reflect the increasingly pluralistic communities we serve. This 
includes the gay and lesbian community, as well as members of many 
other minority groups. To adequately serve such diverse communities, we 
must ensure that each and every member of FleetBoston's work force has 
the opportunity to succeed.
    To do that, FleetBoston Financial has adopted policies that we 
believe foster a workplace where creativity, knowledge and life 
experience are exchanged freely. As an essential element of those 
policies, our non-discrimination policy expressly states, and has for 
many years, that the company will not discriminate on the basis of 
sexual orientation.
    The business reasons for doing so are compelling. I am reminded of 
this fact each time I meet with a member of the FleetBoston Financial 
gay and lesbian community. When we talk, they remind me of how tiring 
it can be to stay ``in the closet and how much energy is wasted, and 
how focus is diverted from their job, when they feel they must conceal 
so much of who they are. Their lives and our business would be greatly 
diminished if a gay and lesbian employee only brought a piece of 
themselves, and not their whole self, to work every day because they 
lived in fear of discrimination
    Our policy has been broadly embraced and, we believe, has resulted 
in a stronger, richer company whose satisfied and engaged employees 
better serve our customers, our shareholders, our employees and our 
communities.
    The trend among corporations today indicates that this business 
rationale is widely shared by the most successful companies in 
America--some of whom I join here today. In fact, the closer a company 
is to the top of the Fortune list, the more likely it is to include 
sexual orientation in its non-discrimination policy. While nearly 60 
percent of the Fortune 500 have such policies, a full 86 percent of the 
Fortune 50 do.
    I am proud of the leadership my corporate colleagues and I have 
demonstrated on this front and encourage the Congress to follow our 
lead. This legislation is an opportunity to further advance the work we 
have already begun. FleetBoston Financial stands with thousands of 
companies across America that have already successfully addressed 
discrimination based on sexual orientation in the workplace. ENDA will 
guarantee that this progress continues and accelerates.
    This bill is about fairness, and it is more than fairly crafted. It 
upholds the values that make this country work, without imposing costly 
mandates that make our work harder. And, a well-enforced non-
discrimination law will have the net effect of discouraging the 
discriminatory behaviors that burden individuals, diminish morale and 
decrease the productivity that makes our nation, great.
    In the wake of the attacks on our country September 11, we all must 
be galvanized to a stronger collective purpose in this new era. The 
lack of workplace protections based on sexual orientation leaves a 
gaping hole in America's commitment to equal opportunity and is an 
invitation to the perpetuation of stereotype and prejudice. I urge the 
Congress to come together and see to it that discrimination against 
gays and lesbians in the workplace will soon be viewed as an 
unacceptable relic of another time.

                 Prepared Statement of Lucy Billingsley

    Thank you for the opportunity to share my views with the committee 
on the harmful effects that discrimination has on businesses in 
America. As a small business owner from Dallas, I want to express my 
strong support for the Employment Non-Discrimination Act.
    I am founder and partner of Billingsley Company, a dynamic, 
quality-driven firm that performs a broad range of real estate 
activities in the state of Texas including raw land acquisition, 
project development and property management. I am also a life-long 
Republican.
    My team of 30 employees manages a growing work load that includes 
commercial, residential and industrial development projects across the 
state of Texas. We have built 10 office buildings making a total of 1.2 
million square feet in International Business Park, a 300-acre office 
park west of the Dallas North Tollway. Two years ago we embarked on our 
first multi-family community development that consists of 548 units on 
24.4 acres in Austin Ranch. We are currently building the second phase 
of 455 additional townhouses and lofts. And our industrial holdings 
total nearly 5 million square feet in Texas in various stages of 
development.
    To accomplish our work, Billingsley Co. depends on each and every 
one of our employees giving 100 percent of themselves each day they are 
in the office. We have a business imperative to see to it that our 
workplace is a collaborative environment where employees can work hard 
together to beat the competition, regardless of individual differences 
including sexual orientation. As a small business, we can afford 
nothing less.
    Some might voice concern that adding federal workplace protections 
for gays and lesbians will be a costly burden to America's small 
business owners. But actually, not doing so would be the more costly 
route.
    When people trust their employer they will be more adaptable to 
changing business forces. Inclusive workplace policies can improve 
recruitment and lower turnover, boost productivity and lead to business 
opportunities.
    Rather than be a distraction, a uniform federal law banning sexual 
orientation discrimination will give businesses the right focus. By 
paying attention to the quality of the work being done and not to 
factors that have nothing to do with job performance, all of America's 
businesses will perform better. Our company wants to deal with other 
companies that are agile and can respond quickly to business needs. 
Discriminatory work environments can restrict openness and flexibility 
and reduce creativity and productivity.
    A federal non-discrimination law will help to prevent the type of 
discrimination that burdens companies and gives rise to costly 
grievances and lawsuits. That is why, in our view, companies that fail 
to offer real protection from discrimination or harassment are not just 
hurting their employees, but they are also hurting themselves and 
America.
    Moreover, we support this bill because it is narrowly tailored to 
address the specific problem that gays and lesbians face in the 
workplace. ENDA would not place an excessive burden on businesses. It 
already contains an exemption for the smallest businesses in America. 
It prohibits preferential treatment, including quotas. It does not 
compel employers to collect statistics on the sexual orientation of 
their employees. It does not require employers to provide benefits for 
same sex partners of employees.
    This bill upholds the American values of equal opportunity in the 
workplace, if not an equal guarantee of success. It is the law of the 
land that employment discrimination based on race, gender, religion, 
ethnic origin and other non-performance related considerations is 
unacceptable. It is time to include sexual orientation. It is the right 
thing to do. It is the sensible thing to do. Most importantly, it is 
good for business.

                  Prepared Statement of Robert Berman

    Mr. Chairman and Members of the Committee. On behalf of Eastman 
Kodak Company and its more than 70,000 employees, I would like to thank 
you for the opportunity to share with the Committee my company's 
perspective on the value of including sexual orientation among the 
federal protections from workplace discrimination.
    Kodak is the World Leader in Imaging and a major participant in the 
$225 billion ``infoimaging industry''. For over 100 years, when people 
think of pictures, they think of Kodak. Our objective as a company is 
for all our customers, from motion picture studios to photojournalists, 
records managers working with microfiche and digital storage, hospital 
radiology labs, graphics designers, young parents, our nation's defense 
and homeland security forces and many others, to be able to take, 
share, enhance, preserve, print and enjoy images--whether for memories, 
for information, or for entertainment.
    We have achieved and maintained our position as the industry leader 
in an increasingly competitive, global marketplace, by following two 
simple strategies: We provide to our customers the best value and 
highest quality products in the infoimaging industry, and we create an 
environment in which our employees can perform to their full potential. 
In the same way that we value each and every one of our customers, we 
also value each and every one of our employees.
    Our company's mission statement begins with the following pledge: 
We will build a world-class, results-oriented culture based on our six 
key values: Respect for the Individual; Uncompromising Integrity; 
Trust; Credibility; Continuous Improvement and Personal Renewal; and 
Recognition and Celebration. These values guide every action we take as 
a company and as representatives of Kodak. We believe that conducting 
business according to these values is key to achieving an environment 
where every person matters and every person is fully enabled to 
contribute to his or her maximum potential. Kodak's dedication to these 
values has guided its relationship with employees throughout its 
history.
    In keeping with our statement of company values we have included 
sexual orientation in our non-discrimination policy since 1986. By 
recognizing the need to protect our employees without regard to sexual 
orientation, Kodak was at the forefront of a rapidly growing trend in 
corporate America. Approximately sixty percent of the Fortune 500 
companies have now instituted similar policies, and that number grows 
steadily.
    In 1992, the company officially recognized a network to support gay 
and lesbian employees--the Lambda Network at Kodak. This Network has 
been extremely effective in raising awareness of workplace issues 
related to sexual orientation. This has been accomplished by membership 
focus in two important areas: education and support. As an example, 
since its inception, the Lambda Network has directly impacted several 
hundred senior Kodak managers through its Annual Management Educational 
Event. And, hundreds of other employees have been provided with 
education and support through numerous workshops, presentations, and 
other forms of direct interaction.
    As of January 1, 1997, Kodak's U.S. benefit plans allowed coverage 
for domestic partners. We recognized that employees in domestic 
partnerships also utilize and appreciate the benefits to address 
personal and family issues. Kodak believes that this coverage is an 
important part of our benefits package and is a tangible demonstration 
of our commitment to our corporate values.
    In addition, several years ago we launched a strategy to further 
integrate our policies with the day-to-day work of our major 
manufacturing facility in Rochester, New York. Our Winning and 
Inclusive Culture Strategy has been a critical element in the 
transformation process within Kodak. The strategy uses leadership 
capability building, employee education and realignment of many of our 
human resource practices to build an environment in which our employees 
feel valued, are respected, are able to make full use of their talents, 
and are recognized for their contributions.
    More recently, Kodak reaffirmed its commitment to diversity by 
appointing May Snowden the company's first Chief Diversity Officer. She 
is guiding Kodak's progress toward its diversity goals with the aims of 
fully engaging the talents of all employees and maximizing the support 
we enjoy from the external communities we serve.
    We strive to make Kodak an organization worthy of our employees' 
talent and participation where each of us can freely contribute ideas 
and do our best work. At Kodak, we know that our prime source of 
sustainable competitive advantage is our people and the effectiveness 
of their work together. Diverse opinions and fresh ideas create the 
most competitive solutions. We believe our work environment fosters 
diversity that is reflective of our customers and our community.
    The positive Kodak experience coupled with our values leads us to 
the conclusion that a federal law will positively reinforce the efforts 
of Kodak and the rest of American business to ensure the fair treatment 
of individuals regardless of sexual orientation.
    It is an understatement to say that it is unusual for a company to 
support legislation that invites further federal regulation of our 
business. However, Kodak believes that protection against 
discrimination because of one's sexual orientation is a basic civil 
right. This issue is so fundamental to core principles of fairness that 
we believe the value of federal leadership outweighs concerns we might 
otherwise have about federal intervention with our business.
    It is key to point out that we do not view ENDA as creating a 
mandated benefit. Kodak does not support federally mandated benefits. 
Our benefit package already includes a rich array of healthcare, 
retirement and other work-life options. In our estimation 
nondiscrimination on the basis of sexual orientation is among those 
basic principles inherent in our nation's fundamental civil rights 
laws. Through those principles and laws, we have agreed as a nation 
that people should be treated fairly in the job market and the 
workplace.
    The Employment Non-Discrimination Act is in step with trends in the 
nation's most successful businesses, and is in tune with the 
fundamental sense of fairness valued by Americans. A federal 
declaration would provide important leadership, pointing the way for 
individual companies.
    Since Kodak first testified in 1996 numerous improvements have been 
made to the legislation. We applaud efforts by the authors, the 
Committee and the Human Rights Campaign to address specific concerns 
raised by business. These changes, such as specifically stating that 
business does not have to provide domestic partner benefits, make clear 
that the goal here is to have individuals judged on merit rather than 
prejudice or stereotype.
    Kodak's review of the bill indicates that there has been a 
significant effort to ensure that ENDA Is provisions are consistent 
with Title VII. This is extremely important to business. Language that 
is clear and has been interpreted by the courts is essential to 
avoiding confusion and inadvertent noncompliance with the law.
    We believe there are still provisions of the bill that require 
amendment to ensure greater consistency with Title VII. I have outlined 
examples of the bill's provisions that we would ask the committee's 
attention. Regarding Section 5, Retaliation and Coercion Prohibited, we 
agree that no individual should be subject to threats and intimidation, 
especially in the workplace. The reference to ``a person'' in Section 
5(b) with regard to coercion may unintentionally convey personal 
liability to employees in an individual capacity in the workplace 
rather than a ``covered entity''--which is a Title VII term. This would 
not be consistent with Title VII which imposes liability on employers 
based on conduct by supervisory employees acting in their-6ffic'ial 
capacity, and not as individuals. We would suggest that ENDA should not 
change the Title VII precedents.
    Regarding Section 11, Construction, we bring to your attention the 
use of the term 66nonprivate'' conduct in Section 11(a). Our concern is 
that this is an ambiguous term that could be used to shield prohibited 
conduct and prevent employers from taking appropriate action. For 
example, harassment may occur in a private setting, off the employer's 
physical premises, while employees are engaged in company business or a 
company-sponsored event Under federal and state law and our company's 
policy, we would need to take prompt remedial action to end such 
conduct and prevent its reoccurrence. The ``nonprivate'' conduct 
language may significantly impair an employer's ability to do that We 
would suggest referring to non-business activity to be consistent with 
Title VII, state laws and our policy against sexual harassment.
    We look forward to further working with the Chairman and the 
Committee to bring additional positive change as you move through the 
mark-up process. All efforts to simplify and clarify its language are 
essential to avoiding confusion and inadvertent noncompliance with the 
law.
    ENDA embodies the values already contained in Kodak's corporate 
values, our nondiscrimination policy, as well as the principles 
intrinsic to our nation's fundamental civil rights laws. The Employment 
Non-Discrimination Act is a logical extension of the fundamental value 
of fairness to an area that has been neglected for far too long.

                  Prepared Statement of Richard Womack

    Chairman Kennedy, I would like to thank you and all of the Members 
of your Committee for holding today's important hearing on S. 1284, the 
bipartisan Employment Non-Discrimination Act (ENDA). As the director of 
the AFL-CIO's Civil Rights Department, I am here today to reaffirm the 
AFL-CIO's strong support for this much-needed and long-overdue civil 
rights bill.
    The AFL-CIO has long supported federal laws that prohibit 
discrimination in voting, housing, public accommodations, education, 
and employment. In fact, the 1964 Civil Rights Act specifically 
prohibits discrimination in employment largely due to the tireless 
efforts of former AFL-CIO President George Meany. Although the 1964 
Civil Rights Act didn't initially include an employment non-
discrimination provision, the AFL-CIO demanded and ultimately secured 
the inclusion of Title VII in this landmark civil rights law.
    Mr. Chairman, the AFL-CIO is founded on the belief that citizens 
should be treated equally in their workplaces and throughout our 
democratic society. We further believe that trade unions and employers 
alike have a responsibility to ensure that workers are judged based on 
their performance--not their real or perceived sexual orientation. Our 
steadfast support for the bipartisan employment non-discrimination act 
is part of our commitment to these principles.
    I am pleased to be joined at this hearing today by employers who 
recognize that employment discrimination based on sexual orientation is 
wrong and un-American. I am also pleased that our collective fight 
against discrimination has already resulted in the enactment of 
employment non-discrimination laws which cover sexual orientation in 12 
states: California, Connecticut, Hawaii, Maryland, Massachusetts, 
Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, 
Wisconsin, and Washington D.C..
    Mr. Chairman, what makes me the most hopeful about the future, 
however, is the fact that a resounding 83% of the American public now 
oppose employment discrimination based on sexual orientation.
    Yet, despite our advances in state law and public opinion, it is 
still legal to fire working men and women in 38 states because of their 
sexual orientation because there is no federal law that prohibits 
employment discrimination on the basis of sexual orientation. As a 
result, working people all across the country continue to be denied 
employment opportunities on the basis of something that has no 
relationship to their ability to perform their work.
    S. 1284 would address this problem by prohibiting discrimination in 
the workplace based on someone's real or perceived sexual orientation. 
This legislation would cover virtually all public and private sector 
employees except those employed by the military, religious 
organizations, and small businesses.
    Mr. Chairman, union members know all too well how many employers 
use dismissal, harassment, and intimidation of workers for reasons 
unrelated to job performance against their employees. Our experiences 
trying to give working families a voice at work have taught us why it 
is so important that workers be judged on their work, not their 
religious preference, not their race, not their national origin, or 
their gender. These experiences have also convinced us that while 
discriminating against someone in the workplace for those reasons is 
already against the law, discriminating against someone in the 
workplace because of their real or perceived sexual orientation should 
also be against the law.
    Mr. Chairman, I would like to end my remarks today by thanking you 
once again for holding this important hearing and by congratulating you 
and Senators Lieberman, Jeffords, and Specter for your leadership on 
this issue.
    We look forward to continuing to work with you to ensure that the 
Employment Non-Discrimination Act is passed by your Committee and the 
Senate this year. In our view, enacting this legislation is a matter of 
basic fairness and justice. Thank you.

                    Prepared Statement of Larry Lane

    Mr. Chairman, before I begin I would like to thank you and all of 
the Members of this Committee for holding today's hearing on the 
Employment Non-Discrimination Act. As someone who has personally 
experienced employment discrimination on the basis of my sexual 
orientation, I know that I speak for many when I say that your 
leadership on this legislation--and the leadership of Senators 
Lieberman, Jeffords, and Specter--gives me hope that one day soon, 
employment discrimination on the basis of sexual orientation will be 
prohibited by federal law and a thing of the past.
    My name is Larry Lane and I live in Long Island, New York. From 
June 1997 to September of 1999, I was employed as the Regional Manager 
of the New York region for Collins & Aikman Floorcoverings, Inc., 
corporately based in Dalton Georgia with approximately 800 employees. 
The company manufactures and sells carpeting. I was hired to supervise 
8 sales representatives in the New York region, which includes most of 
New York State, New Jersey, Delaware and parts of Pennsylvania.
    At the time I was hired, the New York region was viewed by company 
management as ``dysfunctional.'' Revenues were lower than desired, 
sales positions were unfilled, and the New York office had to be 
relocated. For the next 21 months, I worked to turn the region around, 
and received nothing but considerable praise from my superiors for my 
outstanding performance.
    My first and only review authored by my boss the Eastern Area Vice 
President and signed by his superior the Vice President of Sales rated 
my performance as ``Exceeds Requirement.'' It continued, that I was 
``extremely hard working,'' ``very focused on business,'' and ``very 
professional.'' The review concluded: ``Larry is doing an outstanding 
job . . . he is already having a positive impact on the New York 
zone.''
    In the summer of 1998, after having been at the job for about one 
year, I received a voice mail from my boss, stating, ``you're really 
doing a terrific job at this point.'' In the same time frame, I 
received a voice mail from the Vice President of Sales stating: ``I 
feel like you've really come into your own there in New York. You built 
a great team and some pain along the way for sure with people leaving 
and leaving you naked in some territories, but I swear it is amazing 
how much better we are there then we've ever been, so a big credit to 
you . . .'' I also received a voicemail from the Executive Vice 
President of the company stating, ``You're putting together a 
phenomenal team and (doing) just a great job . . .'' The positive voice 
mails continued.
    In the fall of 1998, after I had completed the job of relocating 
the NY office and having a showroom built, the President of the Company 
sent me a letter dated October 21''. which stated: ``Phenomenal job on 
the showroom . . . You've assembled a great team from the office to the 
field, and I have never felt better about our prospects in New York.''
    In December of each year, at annual budget meetings I would present 
a summary of the prior year and provide my game plan for the New Year. 
In December of 1998, after being on the job for 17 months, and 
following my year end presentation, my boss left me a voice mail 
stating: ``You did a great job yesterday, Larry . . . several people 
came up to me and frankly said, `. . . he did an excellent job'. . . 
and I think you really impressed a lot of people . . .'' The positive 
feedback continued.
    In the late summer--early fall of 1998, an employee, one of the 
sales representatives that I supervised learned that I was gay and 
``outed'' me--that is, told a number of other direct reports in my 
Region that I was gay--without my knowledge.
    Thereafter, one of my direct reports confronted me about my 
homosexuality in an aggressive and threatening way. He came up to me at 
a work party and said, ``You know that the whole region knows that 
you're gay and we don't got a problem with it, but if we were to let 
corporate know, there would be a problem.'' Another of my direct 
reports was similarly displeased by the news that he was working for a 
gay man. Both of these men openly used the term ``faggot'' in the C&A 
offices and informed one of their coworkers that they didn't want to 
work for me and--in fact--wanted to get me out of the Company. In.the 
spring of 1999, these two sales representatives began a campaign to get 
rid of me. Without telling me that they were doing so, they began 
writing and calling my supervisor, the Eastern Area Vice President, 
with false complaints about me. They questioned my integrity, told my 
supervisor that they could not trust me and said that I was secretive.
    On June 24, 1999, based on these complaints and, unaccountably, 
without talking to me to get my side of the story at all, my supervisor 
and his boss, the Vice President of Sales, placed me on probation and 
advised me that my ``job was in jeopardy.'' They explained that I was 
``hired to build the team in NY'' and that based on feedback from 
``several of [my] people'' I was failing to get this ``critical phase 
of [my] job done.'' They refused to provide any specific information to 
me, but told me to return to New York and ``reflect on what may be 
causing this dissension among my people.''
    Throughout my 21 month period of being with the company and, indeed 
up until June 24, 1999, when I was suddenly and without warning placed 
on probation, I had received no negative feedback on my performance, 
received no discipline, oral or written, was not admonished, warned, or 
otherwise criticized, had not received any negative evaluations, was 
not accused of any wrongdoing, and was not cited for violating any 
company rules. In short my performance was, by all accounts, excellent 
and faultless.
    After holding individual meetings with all those that reported to 
me, all evidence pointed to these two account managers as being the 
individuals that were causing the quote unquote ``dissension among my 
people.'' Shortly after I was placed on probation, one of the account 
managers again called my supervisor, in July 1999, this time with the 
news that I had made a ``confession'' that I was gay. My supervisor 
immediately passed this information along to the Vice President of 
Sales and soon the whole top management team was aware of my sexual 
orientation. In the weeks that followed, management decided to 
terminate me. On September 1, 1999, my supervisor and the Vice 
President of Sales fired me. When asked if this had anything to do with 
my performance or work ethic the Vice President of Sales stated, 
``Let's just say you don't fit'' at Collins & Aikman.
    I knew that in the majority of jurisdictions in this country there 
would be nothing that I could do. However, I thought I had heard there 
might be some protection for me under some New York City law. It was 
not until I started to.meet with several different attorneys that I 
found out that I was one of the lucky individuals that indeed would 
have protection under New York City's civil rights law that actually 
does cover Sexual Orientation. Solely because of the anti-
discrimination protection afforded by the City of New York was I able 
to challenge the discriminatory practices that caused me to lose my job 
by bringing suit under the New York City law.
    Mr. Chairperson, this is what happened to me. If I had worked in 
almost any other city in New York State, or unfortunately, in almost 
any other state in this country, I would have absolutely no recourse. I 
hope that hearing about what happened to me helps others to realize 
that there are many gay people who simply have no protection. Frankly, 
I was fortunate. I worked in New York City and New York City law 
prohibits this kind of discrimination. But I don't believe that my 
right to work without fear of harassment or fear of being fired because 
of my sexual orientation--should depend on whether I live in the few 
limited areas that prohibit such discrimination. 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.
    Greater awareness of this problem is needed. To my knowledge a 
large part of the population believes this protection already exists. 
Most of the people I have spoken with were shocked and outraged to 
learn that this basic protection does not already exist nationally.
    I would like to thank you again for holding this hearing and for 
the leadership you--and other members of this Committee, and the United 
States Senate--have shown in seeking to provide a remedy for those 
who--like me--are victims of sexual orientation discrimination in the 
workplace. Thank you.

                  Prepared Statement of Matthew Coles

    My name is Matthew Coles. I am the Director of the Lesbian & Gay 
Rights Project at the American Civil Liberties Union. I am here for my 
ACLU colleagues from across the nation, and for my colleagues at Lambda 
Legal Defense and Education Fund, Gay and Lesbian Advocates and 
Defenders and the National Center for Lesbian Rights.
    We are the lawyers who handle most of the cases involving 
discrimination against lesbians, gay men and bisexuals. We are the 
people who represent the X-Ray technician in eastern Washington who 
never knew a day of peace at work and was eventually hounded out of her 
job by a supervisor who hated her because she was, in his words, ``a 
faggot.'' We are the people who represent the shoe factory worker in 
Maine who, as the federal appeals court in Boston put it, ``toiled in a 
wretchedly hostile environment,'' before he lost his job. We are the 
people who represent an inspiration choral teacher in Alabama, who 
thought until the day he was fired that he'd successfully kept his 
family life private, and whose students begged the school board to 
bring him back. We are the people who represent the championship 
volleyball coach, the hard working accountant, the talented young 
lawyer, the world weary mechanic, and on and on and on all of whom 
learned to their shock that the American promise that talent and hard 
work are what matter was, for them at least, an empty promise.
    There is little that we can do for most of those people. If they 
work for government, they can claim limited protection under the 
constitution, and sometimes under civil service. In 12 states, they are 
fully protected by civil rights laws that prohibit discrimination based 
on sexual orientation. But if like most Americans, they work for 
private businesses in the other 38 states, they are just out of luck.
    But those people we represent are the tip of the iceberg. For most 
lesbian/gay Americans, survival comes down to this: separate the two 
most important parts of your life, work and family, so that neither 
ever knows anything about the other. And then pray that you never slip 
up.
    Imagine making certain there is no trace of the most important 
person in your life where you work; imagine not just that she or he 
never appears there, but that no one who works there can ever be 
allowed to know she or he exists. Imagine knowing that you risk your 
career if you slip and mention her name, much less casually say what 
she thought of the show you saw on tv last night. Imagine that your 
future depends on no one knowing that you are married, or that you hang 
around with other people who are married, or go to places where married 
people go. Now imagine that you have to keep this up. For good. It is a 
balancing act that exacts a price in human emotion that it is 
terrifying.
    The answer, for both the people we represent and the vast numbers 
who protect themselves by splitting their lives apart, is the bill you 
have before you. ENDA provides what simple justice demands; that no one 
should lose a job because of who they are. For the people we represent 
and others like them, it offers a remedy. For the rest, it provides a 
promise that denying family is not the price of having work.
    While the remedy is important, it is that promise that matters 
most. Civil rights laws work not because we are able to haul those who 
disobey them to court, but because most Americans are good, law abiding 
people. When we say that as a nation that no one should lose a job 
because of religion, most businesses accept that.
    Most people accept it because our laws are above all, a statement 
about what we believe as a people. So too with a law against sexual 
orientation discrimination. And what we say with a federal civil rights 
law banning employment discrimination based on sexual orientation is 
not that we endorse being gay, or being
    heterosexual, any more than our federal civil rights laws against 
religious discrimination endorse being Christian, or Jewish or Muslim 
or agnostic. A law against sexual orientation discrimination says that 
we really believe the American promise that every one should have a 
fair chance to go where their brains and guts and grit can take them. A 
law against sexual orientation discrimination says that we really 
believe in that promise, and that we want it to be real. That isn't 
much, and yet it is everything.
    The X-Ray technician in Washington, the shoe worker in Maine, the 
choral teacher in Alabama, and those silent thousands, they all need 
the promise. We all need a federal law banning employment 
discrimination based on sexual orientation and we need it now.

          Statement of the American Psychological Association

    The American Psychological Association (APA) is the largest 
scientific and professional organization representing psychology in the 
United States. Its membership includes more than 155,000 researchers, 
educators, clinicians, consultants, and students. Our mission is to 
advance psychology as a science, as a profession, and as a means of 
promoting human welfare. We are writing to express our support for the 
Employment Non-Discrimination Act. It is the empirically-based position 
of our association that discrimination based upon sexual orientation is 
``detrimental to mental health and the public good'' (APA Council 
resolution adopted February 1993).

        PREVALENCE OF DISCRIMINATION BASED ON SEXUAL ORIENTATION

    Research has found that over one-third of GLB African Americans and 
more than one-half of GLB whites have experienced discrimination based 
upon sexual orientation (Krieger & Signey, 1997). Furthermore, 
depending upon an individual's race/ethnicity, discrimination based 
upon sexual orientation may be coupled with various other forms of 
discrimination. Researchers examined biases against women, African 
Americans, and homosexuals in hiring practices and found that African 
American gay men were the most likely group to be discriminated against 
(Crow, Fok, & Hartman, 1998).
    Data on hate crimes further demonstrates how victimization based 
upon sexual orientation can have negative consequences for individuals. 
Discrimination and hatred directed at gay, lesbian, and bisexual (GLB) 
individuals is manifested through higher rates of victimization than 
that experienced by the general population. For instance, according to 
the FBI Uniform Crime Reports, of the 1,487 sexual hate crimes reported 
in 1999, nearly 69% (1,025) were directed toward male homosexuals.
    A recent study found high percentages of GLB individuals reported 
as being the victim of a hate crime (Herek, Gillis, & Cogan, 1999). Of 
the nearly 2,000 GLB individuals surveyed, roughly one-fifth of the 
women and one-fourth of the men reported being the victim of a hate 
crime since age 16. One woman in eight and one man in six had been 
victimized within the last five years. More than half the respondents 
reported anti-gay verbal threats and harassment in the year before the 
survey.
    Researchers at the University of California at Los Angeles (UCLA) 
found that of the 2,900 individuals surveyed, GLB persons were more 
likely to attribute their discrimination to sexual orientation than 
were heterosexual individuals (Mays & Cochran, 2001). Over 25% of GLB 
respondents (compared to 2% of heterosexual respondents) indicated 
sexual orientation as the basis for their being discriminated against. 
Additionally, GLB individuals were more likely than heterosexual 
individuals to report that discrimination made life harder and had 
interfered with their leading a full and productive life.

                MENTAL HEALTH EFFECTS OF DISCRIMINATION

    The effects of discrimination and victimization based upon sexual 
orientation can have far-reaching consequences. GLB individuals may 
experience more psychological distress than the general population, not 
as a result of innate biological etiology of sexual orientation, but as 
a result of a social context that stigmatizes homosexuality (Waldo, 
1995). According to researchers, psychological distress among GLB 
individuals may arise from a constant state of being in a minority 
status that is emphasized and condemned (Meyers, 1995). Research has 
indicated that social stigma based upon sexual orientation may be a 
risk factor for psychological distress, depression, and anxiety 
(Cochran, 2001). In a study of 741 adult gay men, there were 
significant relationships between those individuals who experienced 
prejudicial events (e.g., insults and discrimination) and negative 
mental health outcomes. Similarly, other studies have linked risk of 
depression and suicide among gay and lesbian adolescents and adults to 
anti-gay discrimination (Bradford, Ryan, & Rothblum, 1994; Cochran & 
Mays, 1994; Meyer, 1995).
    GLB individuals report higher rates of perceived discrimination 
than do heterosexuals (Mays & Cochran, 2001). Such perceived 
discrimination may interfere with an individual's psychological well-
being. Researchers at UCLA examined the prevalence of discriminatory 
experiences and their relationship with indicators of psychiatric 
morbidity among GLB and heterosexual individuals. Using data from a 
large, nationally representative survey, the researchers asked 
individuals who identified themselves as either GLB (73) or 
heterosexual (2844) about their lifetime and day-to-day experiences 
with discrimination (such as their interpersonal and work experiences). 
The researchers also assessed one-year prevalence of depressive, 
anxiety, substance dependence disorders, current psychological 
distress, and self-rated mental health. Perceived discrimination was 
not only associated with stressful life circumstances, but it was also 
related to mental health status. Individuals who reported higher levels 
of discrimination were also more likely to report ``poor'' or ``fair'' 
mental health, psychological distress, and mental disorders.
    Researchers have also examined the deleterious mental health 
effects of criminal victimization based upon sexual orientation. GLB 
persons suffer more serious psychological effects from victimization 
based upon sexual orientation than they do from other kinds of criminal 
injury (Otis & Skinner, 1996). In their case, the association between 
vulnerability and sexual orientation is particularly harmful because 
sexual identity is such an important part of one's self-concept. Gay 
men and lesbians who have been victimized due to their sexual 
orientation report feeling less safe in the world, view people as more 
malevolent, reveal a diminished sense of self-mastery and appear to 
attribute personal set-backs to sexual prejudice (Herek, Gillis, & 
Cochran, 1999). Hence, for gay men and lesbians, crimes based upon 
sexual orientation negatively impact their view of the world in 
addition to causing other harmful mental health outcomes (e.g., post-
traumatic stress disorder).

                    DISCRIMINATION IN THE WORKPLACE

    Discrimination against GLB individuals in the workplace is 
prevalent and has deleterious consequences. For instance, in a study of 
student affairs employees, over one-fourth of the 249 individuals 
surveyed reported having been discriminated against based upon sexual 
orientation during the job search process. Additionally, those 
individuals who disclosed their sexual orientation were more likely to 
report discrimination (Croteau & Destinon, 1994). Within medical 
settings, about one-third of the GLB physicians and medical students 
surveyed reported that, because of their sexual orientation, they had 
been denied employment, refused medical privileges, denied a promotion, 
loan, or referrals from other physicians, or were fired from their 
positions (Schatz & O'Hanlan, 1994).
    Anti-discrimination policies in the workplace can also affect job 
satisfaction and productivity. GLB individuals are more likely to 
report discrimination in organizations that do not have policies 
against GLB discrimination. Furthermore, such policies not only affect 
prevalence of discrimination but also impact worker performance. GLB 
individuals who report higher levels of perceived discrimination based 
upon sexual orientation are more likely to have negative work attitudes 
and fewer work promotions (Ragins & Cornwell, 2001). Research has found 
that an atmosphere of tolerance, as demonstrated by anti-discrimination 
policies, may lead to higher levels of job satisfaction and job 
commitment among GLB individuals (Burton, 2001). A survey of 744 GLB 
individuals indicated positive employee outcomes for supportive anti-
discrimination policies (Day & Schoenrade, 2000). The researchers found 
a significant relationship between self-disclosure, anti-discrimination 
policies, and top management support for equal rights and 
organizational commitment. Additionally, anti-discrimination policies 
and top management support were also related to job satisfaction.

                              CONCLUSIONS

    In sum, psychological research findings indicate that GLB 
individuals report significantly higher levels of discrimination based 
upon sexual orientation than do heterosexual individuals. These 
findings are especially troubling given that discrimination and 
stigmatization may lead to greater vulnerability of negative mental 
health outcomes. Research documents that workplace discrimination based 
upon sexual orientation is common and negatively affects employees, as 
well as employers. However, studies have found that supportive anti-
discrimination policies, as well as top management support, can help 
increase job satisfaction, as well as increase organizational 
commitment among GLB individuals. Thus, it is critical for employers to 
create a work environment that does not tolerate discrimination based 
upon sexual orientation.

                               REFERENCES

    Bradford, J., Ryan, C., & Rothblum, E.D. (1994). National lesbian 
health care survey: Implications for mental health care. Journal of 
Consulting Clinical Psychology, 62, 228-242.
    Burton, S. B. (2001). Organizational efforts to affirm sexual 
diversity: A cross-level examination. Journal of Applied Psychology, 
86(1), 17-28.
    Cochran, S. D. (2001). Emerging issues in research on lesbians' and 
gay men's mental health: Does sexual orientation really matter? 
American Psychologist, 56(11), 929-947.
    Cochran, S. D., & Mays, V. M. (1994). Depressive distress among 
homosexually active African American men and women. American Journal of 
Psychology, 151, 524-529.
    Croteau, J. M., & von Destinon, M. (1994). A national survey of job 
search experiences of lesbian, gay, and bisexual student affairs 
professionals. Journal of College Student Development, 35, 40-45.
    Crow, S. M., Fok, L., Y., & Hartman, S. J. (1998). Who is at 
greater risk of work-related discrimination: Women, Blacks, or 
homosexuals? Employee Responsibilities & Rights Journal, 11(1), 15-26.
    Day, N. E., & Schoenrade, P. (2000). The relationship among 
reported disclosure of sexual orientation, anti-discrimination 
policies, top management support and work attitudes of gay and lesbian 
employees. Personnel Review, 29(3), 346-363.
    Federal Bureau of Investigation, (2001). Hate Crime Statistics, 
1999.
    Herek, G., M., Gillis, J. R., & Cogan, J. C. (1999). Psychological 
sequelae of hate-crime victimization among lesbian, gay and bisexual 
adults. Journal of Consulting and Clinical Psychology, 57(6), 945-951.
    Krieger, N., & Sidney, S. (1997). Prevalence and health 
implications of anti-gay discrimination: A study of Black and White 
women and men in the CARDIA cohort. Journal of Health Services. 27(1), 
156-176.
    Mays, V. M., & Cochran, S. S. (2001). Mental health correlates of 
perceived discrimination among lesbian, gay, and bisexual adults in the 
United States. American Journal of Public Health, 91(11),1869-76.
    Meyer, I. H. (1995). Minority stress and mental health in gay men. 
Journal of Health Social Behavior, 36, 38-56.
    Otis, M. D. & Skinner, W. F. (1996). The prevalence of 
victimization and its effects on mental well-being among lesbian and 
gay people. Journal of Homosexuality, 30(30), 93-117.
    Ragins, B. R., & Cornwell, J. M. (2001). Pink triangles: 
Antecedents and consequences of perceived workplace discrimination 
against gay and lesbian employees. Journal of Applied Psychology, 
86(6),1244-1261.
    Schatz, B., & O'Hanlan, K. (1994). Anti-gay discrimination in 
medicine: Results of a national survey of lesbian, gay, and bisexual 
physicians. American Association of Physicians for Human Rights. San 
Francisco.
    Waldo, C. (1999). Working in a majority context: A structural model 
of heterosexism as minority stress in the workplace. Journal of 
Counseling Psychology, 46 (2), 218-232.
                                                      NASW,
                                                     March 7, 2002.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, DC 20510-2101.

    Dear Senator Kennedy: On behalf of the 150,000 members of the 
National Association of Social Workers (NASW), I am writing to urge you 
to support the Employment Non-Discrimination Act (ENDA). ENDA will 
prohibit employment discrimination on the basis of sexual orientation 
in the same way that existing legislation prohibits discrimination on 
the basis of religion, gender, national origin, age, and disability. 
ENDA remedies this gap in federal non-discrimination protection by 
prohibiting employers, labor unions, and employment agencies from using 
an'' individual's sexual orientation as the basis for employment 
decisions, including hiring, firing, and promotion. In many 
jurisdictions it is still perfectly legal to.discriminate against gay 
men and lesbians in the workplace because of their sexual orientation. 
In fact, qualified diligent Americans are denied employment 
opportunities because. they are, or are perceived to be gay, lesbian or 
bisexual.
    ENDA provides exemptions for small businesses and religious 
organizations that are consistent with the exemptions provided in Title 
VII of the Civil Rights Act. These exemptions do not create any 
``special rights'' for gay men and lesbians. They merely extend the 
same legal protections against discrimination provided for other 
individuals who have historically been denied equal employment 
opportunities. Employment decisions should be based entirely on one's 
performance and aptitude to do a job, not on an individual's sexual 
orientation. ENDA enjoys bipartisan support in both the House and 
Senate; moreover, it manifests nondiscrimination policies currently in 
place at major corporations such as AT&T and Xerox. Twelve states, and 
more than 205 cities and counties have legislation prohibiting 
employment discrimination.
    Professional social workers have a rich tradition 6f activist 
concern regarding societal inequities such as discrimination and 
racism. NASW works to improve the quality of life for women, children, 
families, and vulnerable populations as we ensure through prudent 
legislation that individual rights and liberties are not abrogated. 
NASW policy supports the enactment and enforcement of laws 
and.regulations that. protect civil rights and individual choice for 
all Americans.
    Discrimination in employment based on immutable characteristics is 
intolerable. We profoundly urge you to illustrate your commitment to 
the protection of civil liberties and to the interest of gay men and 
lesbians by supporting ENDA. NASW affirms that all human beings should 
have the right to work and pursue employment without unfair and 
prejudicial practices. ENDA engenders a better America for ill 
citizens.
            Sincerely,
                                        Elizabeth J. Clark,
                                                Executive Director.
                                 ______
                                 
                   Department of the Treasury Report

                           EXECUTIVE SUMMARY

    The Department of the Treasury, as head of the President's 
Retirement Security Task Force, has undertaken a review and analysis of 
the impact of placing a percentage cap on employer stock holdings by 
401(k) participants. In formulating its conclusions, the Treasury 
Department has examined information provided by the Department of 
Labor, reviewed surveys of 401(k) participants conducted by the 
Employee Benefits Research Institute (EBRI) and the Investment Company 
Institute, and held discussions with a number of benefit administrators 
of plans that hold employer stock. Based on this review, the Department 
concludes that placing arbitrary caps on individual 401(k) account 
holdings in employer stock would have a widespread impact on 401(k) 
plan participants and potentially severe disruptive effects on the 
stock prices of several major companies. Data show that as many as 1 in 
5 of 401(k) participants would be forced to change their investment 
allocations if employer stock holdings were limited to 20 percent. 
Moreover, at one major company, for example, enforcement of a 20 
percent limit on employer stock holding would precipitate the sale of 
hundreds of millions of shares, an amount equal to almost 16 times the 
daily trading volume. At another company, it would be 37 times daily 
trading volume.

                         BACKGROUND AND HISTORY

    Pension schemes in the United States have always been voluntary. 
Private pensions, as a form of employee compensation, have been a 
competitive tool employed by firms to attract employees. The nation's 
pension system has evolved in recent years into one that emphasizes two 
of the country's quintessential values: personal responsibility and 
freedom of choice. This evolution provides workers much greater 
opportunity than ever before to build retirement savings, but also 
imposes a greater degree of individual responsibility in preparing for 
retirement.
    Since 1974 the labor and financial markets have undergone major 
change. As the economy has evolved from one based on heavy industry to 
one based on the provision of information and services, the work force 
has become increasingly mobile and highly educated. For the typical 
American worker, job and even career changes have become commonplace. 
During the same period, as a result of deregulation, financial markets 
have made a wide array of new investment vehicles available to 
consumers. This has provided the average consumer the opportunity to 
build wealth through a broader range of investments offering higher 
rates of return for long-term savings than the traditional passbook 
account. As the relationships between workers and employers and 
consumers and financial markets have evolved so has the pension system. 
This is reflected through current federal policies that provide 
incentives for retirement wealth development through tax advantaged 
portable vehicles like Individual Retirement Accounts and defined 
contribution plans.
    Since today's workers are less likely to be tied to an individual 
firm for their entire careers than their parents were, they must 
increasingly look to their own resources to build sufficient wealth for 
a secure retirement. Today's workers need plans that allow them to 
undertake retirement planning independently. Under defined benefit 
plans, most retirement planning and investment decisions are left to 
the employer. Pension contributions for employees are placed in a 
common fund that is controlled by the employer. The employer decides on 
the size of contributions, their timing, and the choice of assets in 
which the fund is invested. This results in a one-size-fits-all type of 
system that does not account for differences in employees' preferences 
for saving and the timing of consumption during their lifetime. And 
because all contributions become part of a consolidated overall fund, 
employees may have no sense of ownership of pension assets and no 
feeling of building personal wealth for the future. Since defined 
benefit plans are tied directly to employment with a specific firm they 
tend not to be portable when employees change jobs. Defined benefit 
plans offer the advantage of security in that benefits are guaranteed 
at a certain level. However, moving to a new job from one with a 
defined benefit plan often means a major sacrifice in future benefits, 
whether or not the move is voluntary.

Defined Contribution Plans
    Defined contribution plans, about half of which are 401(k) plans, 
return most decision making to the individual. \1\ Under a defined 
contribution plan individual employees have their own accounts in which 
they can build their own wealth. Employees are allowed, within limits 
set in the tax code, to choose the level of their pension plan 
contributions. In order to encourage higher rates of retirement saving, 
these limits were expanded by the Economic Growth and Tax Relief 
Reconciliation Act signed by the President last year.
---------------------------------------------------------------------------
    \1\ For purposes of this report we will refer to 401(k) plans, but 
the discussion and recommendations generally apply to all defined 
contribution plans. There are about 50 million defined contribution 
plan participants, of which about 42 million are 401(k) participants. 
Some workers may participate in more than one type of defined 
contribution plan.
---------------------------------------------------------------------------
    Employees also have more latitude in choosing the timing of 
contributions with defined contribution plans. As an individual's 
circumstances change, 401(k) plans allow for higher contributions in 
some years than others. In virtually all plans, employees have the 
ability to choose the investment options in which their own 
contributions are invested, and in many others they can allocate both 
their own and their employer's contributions into investments of their 
own choosing. This freedom to allocate, among investments allows 
employees to choose the tradeoff between risk and return that suits 
them best. It also allows individuals to adjust their portfolios from 
one with higher potential returns and higher risk early in their 
careers to one that provides smaller but surer returns as they approach 
retirement.

The Role of Employer Stock in Defined Contribution Plans
    Employer stock is an integral part of many 401(k) plans, 
particularly among those sponsored by America's largest firms. It may 
be offered as one of a number of investment options to which employees 
may allocate 401(k) assets. Employers may make matching contributions 
to employees' accounts in the form of company stock. Employees may be 
given specific incentives to invest in company stock. For example, some 
firms offer matches in the form of company stock or cash, but provide a 
higher match if the employee chooses his or her employer's stock. Some 
plans allow employees to sell matching contributions of employer stock 
at any time. Other plans require that employer stock provided by the 
employer as a matching contribution be held for an extended period of 
time.
    Providing matching contributions in the form of company stock can 
have a number of benefits for both employers and employees. Companies 
may benefit from tax and cash flow advantages. Many companies believe 
that giving employees company stock builds their employees' loyalty to 
the company and gives them a greater economic incentive to work to 
promote the company's long-term economic prospects. Employees benefit 
directly when employers provide greater matching contributions to their 
401(k) accounts. Also, research shows that employees themselves are 
more likely to participate in their company's 401(k) plan when their 
employer offers matching contributions.
    Most defined contribution plans that include employer stock as an 
investment option or as a matching contribution are found in very large 
companies. For instance, for plans with fewer than 500 participants, 
the overall percentage of assets held in employer stock is less than I 
percent. In contrast, for plans with more than 5,000 participants, the 
overall percentage of assets held in employer stock is 26.6 percent. 
Large companies are also the ones more likely to offer their workers 
other retirement savings vehicles such as a defined benefit pension 
plan.

                         ISSUES AND CONCLUSION

    Recently introduced legislation on retirement security proposes to 
limit the holdings of company stock by individual plan participants in 
their 401(k) accounts. These proposed limits are expressed as a maximum 
percentage of the value of all 401(k) assets that an individual can 
hold in the form of company stock. The caps that have been discussed 
are 10 percent, which is the limit placed on company stock in defined 
benefits plans, or 20 percent. The proposals exempt employee stock 
ownership plans (ESOPs) from these restrictions.
    In preparing its recommendations on enhancing retirement security, 
the President's Retirement Security Task Force sought to enhance 
workers' investment options, including their ability to diversify their 
401(k) accounts according to their individual situations. The Task 
Force rejected the idea of imposing federal limitations on those 
options by arbitrarily setting a ceiling on the amount of employer 
stock a worker may hold in his or her own 401(k) plan. Also, the Task 
Force wanted to avoid establishing rules that discouraged employers 
from matching workers' own contributions to their 401(k) accounts. The 
Task Force--and the President--concluded that the most appropriate 
public policy is to give workers as much flexibility as possible while 
encouraging employers to provide matching contributions, and to give 
employees regular disclosures regarding their accounts and financial 
education so that employees make informed investment decisions.
    The next section explains the President's proposal and the 
following section sets forth in greater detail why the Administration 
opposes arbitrary, federally imposed caps on workers' holdings of 
employer stock in their 401(k) plans.

       THE PRESIDENT'S RECOMMENDATION FOR ENHANCING WORKER CHOICE

    Asset diversification is a bedrock principle of prudent long-term 
investing. Congress established 401(k) plans to promote individual 
retirement saving. But a plan requirement mandating that all or a 
portion of an employee's 401(k) account be invested in employer stock 
runs counter to this diversification principle. Concentration of 
employer stock in a worker's retirement plan creates a double risk for 
workers--if their company fails, they lose their jobs and that portion 
of their retirement savings. At the same time, employer matching 
contributions are a form of compensation and as such an employee should 
have a right to invest them as the employee sees fit.
    The President has recommended that Congress require that employees 
be free to sell company stock contributed to their 401(k) plan by their 
employer at any time after they have been participating in the 
company's 401(k) plan for three years. An employee stock ownership plan 
(ESOP) will not be subject to the diversification rules as long as no 
(1) participant elective contributions (i.e. 401(k) contributions), (2) 
matching contributions, or (3) employer contributions which are used to 
pass the 401(k) nondiscrimination tests, are made to the plan.
    This change balances the desire of some companies to offer company 
stock as matching contributions with employees' freedom to pursue a 
retirement savings plan appropriate to their situations. Allowing 
employees to freely hold or sell employer stock would have a 
disciplining effect on companies--employees will want to hold stock in 
good companies. In most 401(k) plans, workers already have considerable 
autonomy to diversify both their own contributions and their employer's 
matching contribution, except for employer stock. This change ensures 
that autonomy extends to all assets in a worker's 401(k) plan.
    The three-year period is not a requirement. Some companies today 
give their workers immediate freedom to sell employer stock. These 
companies should be applauded and their practices would be unaffected 
by the change we are proposing. For other companies, however, the 
proposed change is a substantial departure from their current practice. 
In particular, many of these companies want their workers to feel 
directly invested in their company's future prospects by giving them an 
equity stake in the company. A three-year wait before guaranteeing 
workers' freedom to diversify allows employers to build that incentive 
without locking in a substantial portion of a worker's retirement 
security to employer stock.

CONGRESS SHOULD NOT ARBITRARILY LIMIT EMPLOYEES' INVESTMENT OPTIONS IN 
                              401(K) PLANS

    Arbitrary caps have serious drawbacks. They fail to consider that 
workers make investment decisions regarding their 401(k) accounts in 
the broader context of their household's complete portfolio of 
retirement savings. Caps imposed on 401(k) accounts may be easily 
circumvented, both by employers and employees, and may in fact create 
incentives for both to do so. Arbitrary caps also would cause 
disruption in the market for certain large company stock, as 
substantial amounts of stock in certain companies would have to be sold 
at once. Caps may also discourage employer contributions to their 
employees' accounts, leaving the employees worse off. In turn, 
reduction in employer contributions may discourage workers' 
participation. Finally, assets in 401(k) accounts belong to the workers 
and the government should not arbitrarily restrict how they choose to 
invest their funds.

Arbitrary caps ignore workers total retirement portfolios
    For some individuals, holding higher levels of employer stock 
within their 401(k) plan may be desirable, particularly if they are 
well diversified outside of their 401(k) plan. Purchasing employer 
stock through a 401(k) plan is a tax-effective way for employees to 
make that investment.
    Many 401(k) participants also have defined benefit plans, profit 
sharing plans, IRAs and personal savings as part of their retirement 
savings. Thus, participants who may appear to be overly concentrated in 
employer stock when their 401(k) accounts are viewed alone may be. 
diversified over their portfolio of retirement assets. For instance, a 
spouse may have retirement assets that the couple took into account 
when deciding on their asset allocation in the other spouse's 401(k) 
account. Or a worker may have 401(k) or other retirement assets through 
a previous employer.
    Data gathered in a survey of 401(k) participants undertaken by the 
Investment Company Institute \2\ indicate that:
---------------------------------------------------------------------------
    \2\ 401(k) Plan Participants: Characteristics, Contributions, and 
Account Activity, Spring 2000, The Investment Company Institute. The 
study is based on a random digit dialing sample of telephone exchanges. 
Sample size is 1,181. Margin of error is plus or minus 2 percent. Half 
of all households surveyed had only bank or thrift deposits outside 
their company sponsored plans, 39 percent had stocks, bonds, annuities, 
mutual funds or real estate besides their primary residence.
---------------------------------------------------------------------------
    Thirty nine percent are covered by a defined benefit plan in 
addition to their 401(k) plan. (The same survey indicates that 
employees are likely to hold a higher percentage of total assets in 
company stock if their employer also offers a defined benefit plan. 
Respondents who have a defined benefit plan invest an average of 24 
percent of overall assets in company stock, while those with none 
invest only 13 percent in company stock.);
    Thirty three percent have IRAs; and
    Twenty eight percent have spouses who are covered by a 401(k) plan, 
a defined benefit plan, or both.
    Data from a recent survey by EBRI \3\ suggest that 401(k) plans are 
more likely to include company stock as an option if the company also 
offers a defined benefit plan. In the survey, 60 percent of all 401(k) 
plans in which there is also a defined benefit plan offer employer 
stock as a 401(k) option, while only 35 percent of plans without a 
defined benefit plan do so.
---------------------------------------------------------------------------
    \3\ Vanderhi, Jack L., EBRI Special Report, Company Stock in 401(k) 
Plans: Results of a Survey of ISCEBS Members, January 31, 2002, 
Employee Benefit Research Institute. This was a survey of members of 
the International Society of Certified Employee Benefit Specialists. 
Since the sample is not representative of all 401(k) plans, the results 
should be interpreted as suggestive of, rather than representative of, 
the wider population of 401(k) plans.
---------------------------------------------------------------------------
Arbitrary caps will be difficult to administer
    Unlike the 10 percent cap on employer securities held in defined 
benefit plans, caps in defined contribution plans must be enforced on a 
participant-by-participant basis. In a large plan, this would 
necessitate tens of thousands of individual computations annually (or 
even more frequently). It would also require divestment of employer 
stock on a participant-by-participant basis, with each participant then 
needing to give the plan administrator instructions on how to reinvest 
those proceeds. Efforts to minimize that complexity by using a plan-
wide arbitrary cap do hot recognize that individuals may have 
allocations far below the cap. Changes in the value of employer stock 
and the value of all other assets in the plan further complicate these 
calculations and complicate the asset allocation decisions each 
participant must make.

Arbitrary caps will require a large number of 401(k) participants to 
        sell employer stock that they currently own
    We estimate that one out of every five 401(k) participants may have 
to sell employer stock if caps were imposed. \4\ The proposed caps 
would require divestiture at a specified point in time after it has 
been determined that the cap has been exceeded. Forcing sales of all 
stock above the cap at a point in time could disrupt the market for 
those stocks where the amount that must be sold is sufficiently large 
to affect the stock price. At one major company, for example, 
enforcement of a 20 percent limit on employer stock holding would 
precipitate the sale of hundreds of millions of shares, an amount equal 
to almost 16 times the daily trading volume. At another company, it 
would be 37 times daily trading volume.
---------------------------------------------------------------------------
    \4\ This calculation is based on a BLS estimate of the fraction of 
participants with the option of investing in employer stock and an 
EBRI/ICI estimate of the fraction of participants with the option of 
investing in employer stock who report holding assets above the 
proposed cap.
---------------------------------------------------------------------------
    Increases in the market value of company stock could trigger the 
caps, forcing employees to sell the stock during periods in which it is 
outperforming other 401(k) assets. This dynamic could particularly 
disadvantage lower income workers who cannot afford to save outside the 
401(k) plans. Higher paid workers would, of course, have the option of 
using assets outside the plan to purchase the stock once the caps were 
triggered.
    Arbitrary caps may discourage company matches.
    If most employees hold company stock that is already near the cap, 
the company will not be able to provide generous matches for new 
contributions in company stock without exceeding the cap. As a result, 
rather than making a matching contribution in cash, some companies may 
choose to reduce or eliminate the employer match. Clearly, workers are 
better off receiving employer stock as matching contributions to their 
own 401(k) contributions than receiving no matching contribution at 
all. Reductions in company matches would likely lead to reductions in 
the amount of employee savings. Studies show that the amount of a 
company's match is a key determinant of employee contribution rates.

401(k) accounts represent a form of compensation and property that 
        belong to the employees
    Arbitrary caps on employees 401(k) investment choices challenge 
fundamental notions of private property rights. 401(k) participant 
contributions and matching contributions are a form of employee 
compensation, and government should not restrict or limit employees 
ability to invest their assets as they see fit. Rather, government 
policies should promote the ability of employees to make informed, 
educated decisions about how they wish to allocate their assets. This 
is why the President's retirement security proposals include a renewed 
call for incentives for employers to provide employees with free, 
professional investment advice. It is also why the President is calling 
for quarterly statements of 401(k) plan performance to empower 
employees to track and manage their 401(k) assets in a manner best 
suited to their own individual retirement needs.

Workers and firms using other tax-preferred vehicles may easily 
        circumvent arbitrary caps
    Imposing an arbitrary cap on employer stock provides an incentive 
for companies to use ESOPs instead of company matching with employer 
stock in a 401(k) plan. Also, with an arbitrary cap on employer stock 
in 401(k) plans, workers would still be able to invest retirement 
savings in employer stock through IRA accounts.
                                ADDENDUM

                     EBRI SURVEY RESULT SUMMARY \5\

---------------------------------------------------------------------------
    \5\ Vanderhi, Jack L., EBRI Special Report, Company Stock in 401(k) 
Plans: Results of a Survey of ISCEBS Members, January 31, 2002, 
Employee Benefit Research Institute.
---------------------------------------------------------------------------
    (Survey Sample Drawn from 3,300 Members of the International 
Society of Certified Employee Benefit Specialists. Number of 
respondents: 375.) \6\
---------------------------------------------------------------------------
    \6\ Note since this data was gathered from a sample survey it is 
subject to sampling error.
---------------------------------------------------------------------------
                     RESPONSES TO FACTUAL QUESTIONS

    48 percent of all firms represented in the survey offer company 
stock as an investment option.
    Restrictions on sale of employee stock.
    13 percent of firms that provide employer stock as a matching 
contribution do not restrict the sale of employer stock. 27 percent 
restrict sales as long as an employee is a participant in the plan; 60 
percent lift restrictions after age or service requirements have been 
met.
    Average percent of company stock in employees' 401(k) accounts in 
those plans in which company stock is an investment option:
    In 39 percent of the companies surveyed, employees hold an average 
of less than 10 percent of their 401(k) assets in the form of company 
stock.
    In 42 percent of the companies surveyed, employees hold an average 
of between 10 and 5 0 percent of their 401(k) assets in the form of 
company stock.
    In 18 percent of the companies surveyed, employees hold an average 
of more than 50 percent of their 401(k) assets in the form of company 
stock.
    Only 14 percent of firms represented in the survey restrict the 
amount or percentage of employer stock that employees can hold in their 
401(k) accounts.
    Blackouts
    74 percent of respondents reported that their plans have undergone 
a blackout.
    30 percent of the respondents whose plans have undergone a blackout 
reported that the blackout period lasted two weeks or less, 39 percent 
reported that the period lasted between two weeks and one month, 31 
percent reported that the period lasted more than one month.

                     RESPONSES TO OPINION QUESTIONS

    63 percent of respondents think that the government should limit a 
plan sponsor's ability to require that matching contributions be 
invested in company stock.
    32 percent of respondents think that the government should limit an 
employee's ability to invest in company stock.
    93 percent of respondents think that plan sponsors should advise 
their employees to diversify if company stock is offered as an 
investment option.
    61 percent of respondents think that problems resulting from 
employees investing their own contributions in company stock would be 
mitigated if employers could provide independent investment advice.
    The respondents are sympathetic with the concept of blackouts. 79 
percent think blackouts are fair to employees if they are required for 
a plan conversion and there is no company stock in the plan. If company 
stock is part of the plan that percentage falls to 72 percent.
    43 percent of respondents think there would be a decrease in 
matching contributions if matching contributions could consist of no 
more than 50 percent employer stock.

Response to Questions of Senator Enzi From the Occupational Safety and 
                         Health Administration
    Question 1. Allegations have been made that OSHA is ignoring the 
deaths of immigrant workers and failing to investigate these deaths in 
a wholesale manner. Do you believe that is true?
    Answer 1. No, I don't believe this is true. As I said in my 
testimony, the Secretary and I have established a priority for strong, 
effective and fair enforcement. Except for reports of imminent danger, 
fatality investigations are the Agency's highest priority. OSHA's 
practice is to investigate all fatalities except those not clearly 
covered by the OSH Act, such as fatalities involving self-employed 
individuals or those resulting from work conditions regulated by 
another Federal agency, such as FAA.
    It would be very difficult for OSHA to discriminate on a wholesale 
basis against immigrant workers when the Agency does not know whether 
or not an injured worker is an immigrant. As I have said in my 
testimony, OSHA does not at this time, and has not in the past, 
collected data on either the ethnicity or the citizenship status of the 
employer or the employee. Compliance officers do not ask for the 
ethnicity of a fatally injured employee before going to an 
investigation. In fact, neither BLS nor OSHA collects data on immigrant 
workers.
    Question 2. Are you confident that OSHA investigates all work-
related deaths, at least in conjunction with local law enforcement 
authorities?
    Answer 2. Yes. I am confident that we investigate virtually all 
workplace deaths that we are informed of and that are within our 
jurisdiction. We do not investigate homicides, suicides, motor vehicle 
accidents or fatalities of self-employed individuals.
    However, we do receive referrals from local fire, police 
departments or other federal and state agencies that may be 
investigating the workplace pursuant to other statutes. In the past, 
OSHA regional and field offices have entered into agreements with local 
law enforcement authorities and emergency response services for 
referral of any workplace injuries or fatalities to OSHA. As I 
mentioned in my testimony, I have directed the field offices to renew 
these agreements with the respective local organizations to enhance 
OSHAs receipt of information about these fatalities.
    OSHA recognizes that a few employers who hire undocumented workers 
may be afraid to report workplace deaths due to possible legal 
repercussions from their hiring practices. Therefore we use other 
sources to attempt to identify all workplace fatalities including those 
that employers fail to report. For example, our area offices use local 
radio, TV and newspaper media reports of workplace accidents to learn 
of fatalities.
    Mr. Maier claims that from 1994 to 2000 OSHA did not investigate 
800 immigrant worker deaths. OSHA is unable to verify his findings, 
because we do not have ethnicity or citizenship status in our 
inspections database. Without this information it is impossible to 
determine which of the fatalities involved immigrant workers and which 
did not.
    BLS data from 1994 to 2000 shows 173 foreign-born workplace deaths 
from suicides (self-inflicted wounds); 1,486 from homicides; and 683 
from highway accidents. This totals 2,342 foreign-born fatalities that, 
as stated above, OSHA would not routinely investigate. Perhaps Mr. 
Maier's 800 immigrant worker fatalities are in these categories.
    Question 3. Why does OSHA allow local law enforcement authorities 
to take precedence in certain situations like homicides or automobile 
accidents, even if they are occupationally related?
    Answer 3. Law enforcement authorities generally have the expertise 
for investigating homicides, suicides and automobile accidents that 
most C6HA compliance officers do not have. If the subject of the 
investigation is within the jurisdiction of local law enforcement, OSHA 
gives priority to them to avoid interfering with a criminal or civil 
investigation and to preserve evidence.
    Even so, OSHA cooperates with state and local law enforcement 
agencies in criminal and civil prosecutions to the fullest extent 
appropriate under the law. Both the Agency and the Department of Labor 
believe sharing information is mutually beneficial in these cases.
    Question 4. The starting point for addressing concerns about 
immigrant worker safety is complete and reliable data. I have often 
been frustrated in the past by the inability to get reliable and 
complete data on occupational safety and health. Do you and your agency 
now have good data to allow you to identify immigrant workers who have 
language or cultural barriers that might create special problems for 
their safety and health at work? OSHA collects a significant amount of 
information during an inspection. For example our compliance officers 
collect and record on the Accident Investigation Summary Form (OSHA 
170) information about where and when the accident occurred, 
demographics about the establishment, information about how the 
accident happened, what the employee was doing, etc. In the past, we 
have not, as you know, collected information on ethnicity or 
citizenship status.
    Answer 4. However, we are now in the process of changing the 
Accident Investigation Summary Form to include several questions about 
ethnicity and language capabilities, including country of origin, and 
whether or not language barriers caused or contributed to the accident. 
The new form is due to be finished very soon.
    Question 5. I understand you intend to change the way your 
compliance officers collect information when they undertake inspections 
to attempt to identify situations where language or cultural issues may 
have played a part in an injury. Can you gather such data, formally or 
informally, for all situations where OSHA personnel have contact with 
workers and employers? Including compliance assistance activities?
    Answer 5. Yes. The agency is seeking ways to gather information on 
the impact language and cultural barriers have on occupational safety 
and health, and how these issues play a part in occupational injuries 
and illnesses. Currently, during the course of a fatality or 
catastrophe investigation OSHA compliance officers try to determine the 
cause of the incident in order to prevent its reoccurrence and 
determine if any OSHA standards were violated during the event. OSHA's 
directive on Fatality Investigation Procedures (CPL 2.113) requires 
compliance officers to document their findings. We intend to expand 
this guidance to ensure that the compliance officers consider whether 
language and cultural barriers contributed to the accident.
    In addition, both OSHA and NIOSH are committed to looking at ways 
to prevent language and cultural barriers from contributing to 
workplace accidents. When the proposed changes to the OSHA Form 170 are 
implemented as described earlier, we can analyze the collected data to 
identify specific problems and trends associated with cultural and 
language barriers. This should tell us which industry sectors have the 
biggest problem. The data may be particularly useful in identifying 
which safety or health standard violations are most often due to 
miscommunication or other cultural barriers. This, along with what we 
continue to learn from NIOSH's Fatality Assessment and Control 
Evaluation (FACE) Program, will allow us to address workplace safety 
and health issues confronting immigrant workers.
    In addition to OSHA's current compliance assistance efforts, the 
Agency is building new alliances among established groups such as trade 
and professional associations, small businesses, labor groups, 
universities, mid-to-large employers, and other government agencies. 
The recently agreed upon alliance between the Hispanic Contractors of 
America (HCA) and OSHA is focused on two basic concepts: 1) identifying 
and .developing resources to promote safety and health awareness, and 
2) seeking opportunities for joint presentations at trade, community 
and faith based organization events. These activities will achieve 
OSHA's goal of decreasing immigrant worker injuries and fatalities.
    Question 6. I'm concerned about the relative balance in you 
agency's overall strategic planning between enforcement and compliance 
assistance. Frankly, I had hoped OSHA would plow more resources into 
compliance assistance than your Fiscal Year 2003 budget proposes. What 
are you planning to do to shift the agency's priorities and resources 
more quickly?
    Answer 6. In the Fiscal Year 2003 budget request, we are enhancing 
our focus on non-regulatory approaches. OSHA uses a variety of tools 
and approaches to provide compliance assistance to employers and 
employees. For example, small businesses often cannot afford private 
sector fee-for-service safety and health consultants, so the agency 
provides free, top quality consultative services to thousands of small 
business owners who request assistance. The FY 2003 budget request 
includes an additional $1,500,000 to increase the number of on-site 
consultation visits and services and assist small businesses in 
implementing safety and health management systems.
    In addition, the agency can reach a broader audience through the 
OSHA Website. The website offers a variety of compliance assistance 
materials to employers including electronic compliance tools (e-tools) 
which use text, illustrations and animations to instruct users about 
occupational hazards, standards and recommended practices. The budget 
request includes funding to expand e-tools for several new topics. 
Developing and maintaining these tools is a cost-effective way to help 
employers understand OSHA regulations and how they apply to particular 
worksites and working conditions.
    The FY 2003 request also provides funding to enable the agency to 
take advantage of the rapidly developing field of technology-enabled 
training to meet the training demands of OSHA and State compliance 
personnel, as well as State Consultants. In addition., the Agency will 
focus on training front-line staff in the core competencies for 
providing effective compliance assistance to employers. In sum, we are 
putting more emphasis than ever on prevention and compliance assistance 
to achieve our primary mission of protecting workers.
    Finally, the Agency is proposing a new training and education grant 
program that more effectively reaches workers and employers that are 
most in need of compliance assistance. The new grant program will fund 
the development and pilot testing of safety and health training 
materials to be made available on the Internet.
    Question 7. I am also concerned that OSHA's proposed Fiscal Year 
2003 budget reduces funds for training grants from $11 million to $4 
million. You've acknowledged the critical role that training plays in 
preventing workplace injuries and deaths. ? I would have expected the 
training grant budget to be increased, rather than reduced. How do you 
account for the dramatic decrease in funds for training grants?
    Answer 7. We are proposing a new training grant program that will 
allow us to better leverage available resources and focus more on the 
development of training materials, as opposed to the delivery of direct 
training. Ultimately, it is the employers' responsibility to train 
their employees in workplace safety and health issues. Our job and 
responsibility is to help them do it.
    Training grants are just one tool among many at our disposal for 
delivering compliance assistance, which has increased 73% since 1996. 
Onsite consultative services, compliance assistance specialists, e-
tools, and the voluntary protection program are some of the many forms 
of outreach and assistance that we offer to employers and their 
employees and are funding at higher levels in this budget.
    Question 8. The Susan Harwood Training Grant program has been 
popular in some quarters over the years and has provided safety 
training for many workers. Why change it now?
    Answer 8. The OSHA Training Program was designed in the late 1970s. 
The Agency believes it is time to reexamine the most effective way to 
address the training needs of a changing workforce and use new 
technologies available to deliver training.
    Question 9. Will OSHA's new training grant program, proposed in the 
agency's FY 2003 budget, provide more effective training for special 
worker populations, like immigrant workers?
    Answer 9. OSHA's new training grants program is open to all non-
profit organizations, including faith-based and community-based 
organizations. Faith-based and community-based organizations are 
specifically noted in the new program as possible untapped resources 
that have experience in reaching young, immigrant, and non-English 
speaking workers. Employers will be provided with the material they 
need to train their employees through a variety of media and 
technologies.
    The new grant program will not be solely developed for web-based 
learning. Some of the training materials will be developed in formats 
suitable for publication on the Web so that the material can be 
downloaded and used by anyone who is interested. Other materials would 
include: course materials, toolbox and brown bag lunch talks, fact 
sheets and handouts. The material also will be tailored to meet the 
needs of the training audience, such as materials developed for easy 
comprehension or in other languages. These products will be available 
at no charge for use by employers and others to conduct training 
programs.
    Question 10. What can OSHA do in the future to ensure that it can 
effectively communicate safety information with workers and employers 
with language and cultural barriers?
    Answer 10. To begin with, I have directed the Agency to revise its 
Spanish translation of the pamphlet, ``Employee Workplace Rights'' to 
include a reference that OSHA is not the Immigration and Naturalization 
Service (INS), or in any way affiliated with the INS. Dispelling the 
fear of deportation, or other retaliation, is important for reassuring 
workers who may be reluctant to come forward with a complaint or to 
cooperate with an OSHA inspector investing possible safety and health 
violations. We are continuing to translate other outreach materials 
into foreign languages, too.
    OSHA is developing several partnerships and alliances with various 
Hispanic, faith-based, and community-based organizations that can help 
us get safety and health and compliance information out to hard-to-
reach workers and their employers. This October we will be cosponsoring 
a Best Practices Summit at the National Safety Congress and 
participating with EPA, the National Safety Council, the Pan American 
Health Organization and the National Alliance for Hispanic Health in 
the Hispanic Forum. Participants will share methodologies and 
strategies on how to effectively communicate about occupational health 
and safety. By working with groups that have already earned the trust 
and respect of Hispanics, such as the Catholic Church, OSHA can more 
effectively disseminate workplace safety and health information.
    Another relatively easy way to ensure that OSHA can effectively 
communicate safety information with workers and employers is by 
actively hiring multilingual employees. Having bilingual staff with 
cultural knowledge of other countries is especially helpful in 
overcoming communication and cultural barriers.
                                                 February 27, 2002.
Hon. Edward Kennedy,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Senator Kennedy: I have been in contact with members of your 
staff and understand that you are holding a hearing on the Employment 
Non-Discrimination Act (ENDA) today. I want to thank you for holding 
this hearing and I wish I could attend, but unfortunately, I am still 
unable to talk publicly about the anti-gay harassment and abuse at New 
Balance Shoe. I hope that sharing my experience with you--even if only 
in writing--will be of some benefit.
    From June 1986 to January 1996, I worked for New Balance Athletic 
Shoe company, on the production line at the company's factory in 
Norridgewock, Maine. During my time at New Balance, I received several 
written performance evaluations. In all of my evaluations, I was rated 
as either ``meets standards'' or ``exceeds standards'' in all 
performance areas--as well as ``meets standards'' for my overall 
evaluation. During my time at New Balance, I also received awards for 
successfully completing work team training and team building training 
programs.
    Just three months prior to my termination, in fact, I received a 
written performance evaluation. This evaluation was prepared and signed 
by my supervisor, Ronn Plourde, and it was also signed by New Balance's 
Human Resources manager, Elizabeth Hook. Under the category listed as 
``Willingness and Ability to Work in a Team,'' my supervisor indicated 
that my performance was ``Very Good,'' which is defined as 
``consistently meets standards, above average performance.'' Under the 
category entitled ``Follows company policies and procedures and proper 
safety regulations,'' I also received an evaluation of ``Very Good.'' 
Under the category ``Ability to Accept Constructive Criticism and 
Response to Supervision,'' I was rated as ``Satisfactory,'' which is 
defined as ``generally meets standards, does what is expected.'' The 
section of the evaluation listing ``Strengths'' stated that I was 
``always willing to help where needed.'' My overall evaluation rating 
was ``Very Good.''
    This was only three months before I was fired with no notice. And 
one month before my termination,, in December 1995, I was complimented 
by Ms. Hook for being a ``highly skilled shoe-maker.''
    So why did I have trouble at New Balance? Because my co-workers 
thought I was gay.
    Throughout my employment with New Balance, I was subjected--
practically daily--to malicious and extreme harassment and abuse by 
several of my fellow team members as well as my supervisor. They would 
make obscene and insulting remarks to me, sometimes in the presence of 
Mr. Plourde. They would also make humiliating and degrading gestures to 
me, ridiculing me because they thought I was gay; which included making 
feminine. motions, and imitating a feminine voice and feminine 
language. They yelled obscenities at me to the point that I was in fear 
for my safety almost daily.
    Members of my work-team would constantly degrade and insult me. One 
co-worker would yell out loud so that everyone in the area could hear 
(including my supervisor) things such as, ``You eat sh*t out of men's a 
''holes!'', and ``you fag--you faggot!'' On one occasion this person 
put a sign on my desk stating, ``Blow Jobs. $.25.''
    Another co-worker would also loudly call me things like, ``you dumb 
f**k!,'' ``you stupid f**k!,'' and ``faggot!'' One day when I was 
standing at a urinal in the bathroom at New Balance, yet another co-
worker came up behind me, grabbed my shoulders and shook me so 
violently that I almost fell down. He said to me in a very hostile tone 
of voice, ``I'll kill you!"
    Co-workers would snap rubber bands on me, which at times caused 
welts. . Some threw hot cement on me. Several co-workers would put 
packets of mustard and ketchup on the floor and when I walked by they 
would stomp on the packets causing the ketchup and mustard to spray me. 
Several co-workers told me they did not want me to work with them or 
anywhere near them--and, on several occasions--co-workers would say, 
``he'll give us AIDS,'' referring to me.
    My supervisor, himself, made degrading and humiliating gestures 
toward me up until the day I was fired. Mr. Plourde would use his hands 
and body motion to indicate that I was gay--he would also imitate a 
feminine voice and language. Before Mr. Plourde became my supervisor, 
he would say things such as, ``you shouldn't get too close to me 
because of your kind.''
    I thought I was protected from this kind of harassment by my 
company's ``no harassment'' policy. New Balance's employee handbook 
specifically prohibits harassment based on sex and sexual orientation. 
The written policy defines forbidden harassment, in part, as follows:
    [U]nwelcome conduct, whether verbal, physical or visual, that is 
based upon a person's protected status, such as sex . . . [or] sexual 
orientation . . . Sexual harassment may include sexual propositions, 
sexual innuendo, suggestive comments, sexually oriented `kidding' or 
`teasing,' `practical jokes,' jokes about gender-specific traits, or 
obscene language or gestures, displays of foul or obscene printed or 
visual material, and physical contact, such as patting, pinching or 
brushing against another's body.
    The policy provides a grievance procedure as follows: ``If you feel 
that you have experienced or witnessed harassment, you are to notify 
immediately either your supervisor or the Human Resources Department . 
. . If an investigation confirms that harassment has occurred, New
    Balance will take corrective action, including such discipline up 
to and including immediate termination of employment, as is 
appropriate.''
    Even though I complained to Mr. Plourde and Ms. Hook about the 
harassment and abuse I suffered--and even though much of this 
harassment and abuse was observed directly by Mr. Plourde--neither one 
of them (nor anyone else) took any action to stop the harassment or 
abuse. None of my harassers were ever disciplined, and the harassment 
continued even after my complaints.
    I also have a hearing impairment that makes it difficult for me to 
hear and communicate, and requires that I wear a hearing aid. If I 
don't use my hearing aid, I can barely hear at all. Mr. Plourde, Ms. 
Hook, and other members of management were well aware of my hearing 
disability, and that I needed to use a hearing aid. I told Plourde, 
Hook and other members of management many times that, because of my 
hearing disability, I was not always able to hear the requests made by 
co-workers for certain shoe-work they wanted me to do, and, as a 
result, some of the team members would feel that I was not cooperative 
or that I did not wish to comply with their requests. I complained that 
many times my co-workers would call me ``stupid'' and ``retarded'' and 
use profanity simply because I could not hear very well.
    The steaming machines in my work area caused it to become very hot 
a lot of the time. This heat would, in turn, cause me to perspire, and 
the moisture from the perspiration would damage my hearing aid. I told 
Mr. Plourde that the heat from the steaming machines was causing damage 
to my hearing aid, and asked for an overhead fan to help with and 
control my perspiration. Mr. Plourde denied my request, despite the 
fact that other workers in the area on my work team had fans, and some 
workers even had industrial-sized fans. I also spoke to the Plant 
Manager, as well as to the head of personnel, about my request for a 
fan, but my request was denied.
    New Balance claims that I was terminated ``for continued poor job 
performance and insubordination''--specifically, for failure to 
``communicate with a fellow team member after being instructed to do so 
by management.'' In particular, New Balance claims that I was 
terminated because I refused to work with a single, pregnant woman--
even though this coworker, Melanie Vitalone, had her baby three months 
before I was terminated. At this same time--three months before I was 
terminated--I also received a glowing review from my supervisor and 
from New Balance's human resources representative, including a rating 
of ``Very Good'' for ``Willingness and Ability to Work in a Team.''
    A memorandum that was prepared by my supervisor, Mr. Plourde, at 
the time of my termination describes what happened that day as follows:
    [Melanie Vitalone] called me over to her work station around 10:00 
a.m. to tell me that Robert Higgins refuses to talk to her when she 
asks him a question concerning work.
    I went by Roberts [sic] work station and asked him about it. He 
said he wasn't going to talk to her, she swears at him. I said you guys 
have to start communicating, and this has got to stop.
    I brought [Melanie] down to my office and asked her if she swore at 
him. She said no. I also told her that this has got to stop. She said 
she's trying.
    I along with the Plant Manager and the H.R. Representative to 
discuss what had taken place [sic]. We reviewed Roberts record as he 
had received a warning in November and also in May for failing to work 
effectively as a team. He had been counseled numerously in the past, 
and today he refused to speak to her. Based on all of this information, 
the decision was made to terminate Robert immediately.
    The two warnings that Mr. Plourde is referring to--in May and 
November 1995 claimed that I was argumentative, disruptive and 
uncooperative. I refused to sign either warning because Mr. Plourde 
refused to acknowledge in writing that both of these incidents were 
prompted by the harassment and abuse piled on me by my co-workers--co-
workers who were not given written warnings.
    Just as I did not agree with Mr. Plourde's characterization of the 
facts of my conduct on May 10 or November 28, 1995, I offer my own--
first-person--account of what occurred on January 4, 1996 to be sure 
that all the facts are on the table. On the morning that I was 
terminated, Ms. Vitalone left her station to talk to her boyfriend. 
When she returned, there were boxes of shoes piled up at her station 
and the production on the line was disrupted and held up as a result. 
When Ms. Vitalone returned to her station and saw the mix-up or pile up 
at her station, she immediately ran up to me and started swearing at 
me, yelling at me and blaming me for the problem when it was Ms. 
Vitalone's own fault. She was calling me ``fag boy'' and ``you stupid 
f**k'' and was using other profane and obscene language. I asked her to 
stop swearing at me and try to listen, but she kept yelling and using 
vulgar and abusive language. She then turned abruptly and walked off.
    Prior to my termination, Ms. Vitolone would regularly swear at me, 
berate me, and yell at me. She would use vulgar, profane, and obscene 
language toward me, and she would wrongly blame me when things would go 
wrong. I complained many times to Mr. Plourde and Ms. Hook about Ms. 
Vitolone's conduct, but neither Plourde nor Hook did anything to 
correct the problem. Ms. Vitalone was never disciplined.
    Some people might want to know why I would stay in a job where I 
was subject to such harassment and abuse. There are two reasons.. 
First, I loved my job. I loved being a part of the creation of 
something useful from flat pieces of material. Second, and more 
importantly, I had to pay my way in this world. I had to pay my bills 
and my rent and I believed (and still believe), in my heart, that I had 
just as much right to work at New Balance as anyone else--including my 
coworkers who harassed and abused me--and was not about to let anyone 
force me out of my job.
    I was sure there had to be some federal law that prohibited the 
harassment and abuse I endured in the New Balance plant--so I filed 
suit against New Balance Shoe in federal district court in Maine. The 
district court, however, dismissed my claim because sexual orientation 
discrimination is not prohibited by federal law (or Maine state law). I 
appealed that decision to the First Circuit Court of Appeals... and 
lost again. I would like to quote for the record part of the First 
Circuit's decision:
    ``The record make manifest that the appellant [Robert Higgins] 
toiled in a wretchedly hostile environment . . . We hold no brief for 
harassment because of sexual orientation; it is a noxious practice, 
deserving of censure and opprobrium. But we are called upon here to 
construe a statute as glossed by the Supreme Court, not to make a moral 
judgment--and we regard it as settled law that, as drafted and 
authoritatively construed, Title VII does not proscribe harassment 
simply because of sexual orientation.''
    What happened to me could happen to any other gay or lesbian person 
in Maine--and it would be perfectly legal. There is no federal law or 
state law that prohibits this kind of harassment in the workplace. 
That's not right.
    Before I close I want to thank you and the members of this 
committee for holding today's hearing and for your commitment to move 
this important piece of legislation. While it won't help me personally, 
it will provide hope for many, many people and put employers on notice 
that anti-gay harassment and abuse does not belong in the workplace. I 
would like to close with a comment from the federal judge in my 
district court case:
    ``In determining along with numerous other jurisdictions that Title 
VII does not provide a remedy for discrimination based on sexual 
orientation, the Court does not in any way condone this serious and 
pervasive activity in the American workplace. The intolerable working 
conditions set forth in the cases denying relief under Title VII for 
rampant discrimination based on sexual orientation call for immediate 
remedial response by Congress.''
    Again, thank you for holding this important hearing and please let 
me know if I can be of further assistance.
            Sincerely,
                                         Robert E. Higgins,
                                                 Waterville, Maine.
                                 ______
                                 
                           National Safety Council,
                                            Washington, DC,
                                                    March 13, 2002.
Hon. Mike Enzi,
U.S. Senate,
Washington, DC 20510.

    Dear Senator Enzi: The National Safety Council was pleased to have 
had the opportunity to testify before the Subcommittee on Employment, 
Safety and Training on February 27, 2002. We appreciate your generous 
invitation and hope the testimony regarding immigrant workplace safety 
matters was useful and informative.
    As you requested, this letter is in response to your recent 
questions that you could not ask during the hearing.
    1. OSHA officials tell me they are concerned about their ability to 
reach employers with limited English proficiency as well as their 
employees. Can NSCs programs help OSHA address these issues with 
employers?
    Yes.
    One of the early lessons-learned in NSC's Hispanic outreach 
strategy was to focus the design and delivery of our services and 
products for Hispanic community-based organizations; these 
organizations have credibility and experience in addressing the needs 
and aspirations of hard-to-reach employers and immigrants to overcome 
the language and trust barriers. In the initial planning of our first 
Hispanic Forum on Safe and Healthy Environment in 2000, we established 
Hispanic community-based organizations as our target audience, and, 
then, recruited partners who could communicate and provide these 
organizations with scholarships and support to attend our event in 
Orlando, Florida.
    In planning for our Second Forum to be held in October 2002, we 
have been developing products and learning sessions, which build the 
capacity of community-based organizations to better address the safety 
and health needs of hard-to-reach employers and immigrants with limited 
English proficiency. After attending our sessions, these community-
based organizations will have a better understand of how to apply for 
financial assistance from Federal/State agencies and foundations, and 
will be better equipped to request technical support services and 
products from public and private sector organizations.
    One of our most recent lessons-learned is that the U.S.-Mexico 
Chamber of Commerce (USMCOC) will be a valuable partner in reaching 
small- and medium-sized Hispanic-owned businesses; many times these 
owners have limited English proficiency and often employ immigrants 
with equally limited English proficiency and/or low levels of literacy. 
By working hand-in-glove with the USMCOC, we are developing a strategy 
for converting useful NSC products and services into culturally 
appropriate language for use by employers and employees With limited 
proficiency in English, both in the U. S. and Mexico. As soon as we are 
successful in locating appropriate sources of financial assistance 
through our partnerships with the USMCOC and other national Hispanic 
leadership organizations (like the National Alliance for Hispanic 
Health), we will be able to establish the infrastructure to help these 
hard-to-reach employers.
    2. You state in your testimony that small and medium-sized 
employers often don't have the capacity to adequately assess immigrant 
workers' skills and experience levels. I am particularly concerned with 
ensuring that small businesses are included in the development and 
delivery of immigrant worker safety initiatives. Could you please 
comment on this and what suggestions you have for ensuring that this 
happens?
    Having worked extensively with the Hispanic community, the NSC has 
determined that the technical expertise needed to assess immigrant 
workers' skills and experiences is complex, especially when there are 
language and trust barriers. It is also administratively and 
technically challenging to design and deliver workplace training in 
identifying and protecting against risks and hazards, especially for 
workers with limited English proficiency. Small- and medium-sized 
employers are not likely to have the financial resources and technical 
know-how (systems, products, and expertise) needed to address this 
complex set of workplace challenges.
    NSC has long been a leader in occupational safety and health 
training that covers a variety of topics for all employer and employee 
levels. Training options include nationally recognized classroom 
programs, convenient packaged training, and, most recently, online 
programs. Safety and health training programs for business, industry 
and government assist employers and employees in conveying best 
practices for specific industries and job tasks and complying with OSHA 
and other regulations. Many of these training programs are delivered to 
small- and medium sized employers, employee groups and community based 
organizations through local NSC chapters. As NSC expands the 
availability of its products and services in Spanish and employ more 
native-language specialists in its state Chapters, we will be better 
able to help these hard-to-reach small and medium-sized employers and 
their employees.
    Although private and public sector organizations purchase NSC 
training programs, services and publications, the NSC is a not-for-
profit organization, which relies on financial assistance from Federal 
and state governments to fulfill its mission, particularly for the 
under-served employers and populations.
    3. Can you please comment on the importance of building coalitions 
between the public and private sector and community-based organizations 
in order to promote the safety and health of immigrant workers?
    Having worked extensively with the Hispanic community, (as 
explained above) the NSC believes that the technical issues and 
challenges are very complex, especially when there are language and 
trust barriers. Not 'only did we recognize the importance of 
developing, an extensive professional technical network with private 
and public sector groups, we also realized that We needed to establish 
trust and credibility within the community and those organization who 
deliver these products and services to immigrants and hard-to-reach 
employers.
    An excellent example of a highly successful public-private 
partnership was the Council's Hispanic Forum on a Safe and Healthy 
Environment, which is mentioned above. This event was held two years 
ago and was co-sponsored by the U.S. Environmental Protection Agency, 
the Pan American Health Organization, and the National Alliance for 
Hispanic Health. Scholarships were provided for members of Hispanic 
organizations to attend the Forum to learn about the problems facing 
Hispanic workers and their families. Attendees were able to form new 
partnerships and develop a model plan of action to address challenges. 
We will conduct a second Hispanic Forum this October, and expect even 
greater interest and participation.
    As another example, Mr. Al Zapanta, President and CEO of the U.S.-
Mexico Chamber of Commerce, servers as our partnership's advocate and 
spokesperson for the Hispanic Forum with the national Hispanic 
leadership. By keeping many of the leaders of the Hispanic community 
informed and involved in our activities, we make sure that our 
partnership establishes and maintains credibility and trust within the 
Hispanic community, employer community and employee groups.
    4. What can we at the subcommittee, in the Senate or the Congress, 
or the staff of OSHA do to help you make your efforts at NSC to promote 
the safety and health of immigrant workers more successful?
    The Congress, the Committee and OSHA can help us find ways to 
address this complex challenges by initiating a means to minimize 
overlap and duplication of effort among many involved Federal agencies 
and others. In addition, there is a need to encourage the establishment 
of coalitions and partnerships, involving government, non-govern 
mental, and private-sector organizations, in a coordinated approach. 
NSC believes that a reliance on public-private partnerships offers the 
best, if not only, hope of achieving the development of a meaningful 
national network of education and training programs, as well as 
materials and delivery methods for workplace safety and health. NSC's 
experience validates that public-private partnerships are proven to 
successfully promote safety and health in the workplace, thus 
contributing to the reduction in the number of lives and disabling 
injuries among workers.
    The NSC believes that the Congress can also help by recognizing 
that this is not only a U. S. challenge, but it is also a major 
Hemispheric concern. We need to address the significant problems 
associated with the health and safety of Hispanic immigrant workers in 
the U. S. as well as similar challenges throughout the Americas. 
Systems, processes, materials, tools, and training programs are needed 
to help employers throughout the Americas to assess the job skills of 
workers and educate workers, since these workers could be part of the 
pool of future U.S. immigrants.
    By making the safety and health needs of immigrants visible to the 
American public, the Committee is enhancing the credibility of our 
partnerships and demonstrating that this is a cemplex challenge that 
requires nation-wide (and hemisphere-wide) strategies. The technical 
and administrative challenges are extensive, and the resource needs are 
significant, especially for the hard-to-reach employers and their 
employees.
    I hope these answers appropriately respond to your questions and 
that they will provide you and the Committee with additional insights 
into immigrant workplace issues.
    Again, thank you for your generous invitation for the National 
Safety Council to participate in this hearing. We were pleased to do so 
and we look forward to assisting in any way possible in the future.
            Sincerely,
                                             Bobby Jackson,
                                 Vice President, National Programs.
                                 ______
                                 
                                 Coors Brewing Co.,
                               Golden, Colorado 80401-1295,
                                                 February 25, 2002.
Ms. Elizabeth Birch,
Executive Director,
Human Rights Campaign,
919 18th Street, NW,
Washington, DC 20006.

    Dear Ms. Birch: I am pleased to reaffirm Coors Brewing Company's 
longstanding commitment to our policy of non-discrimination in our 
workplace. As you may be aware, more than two decades ago Coors was 
among the first Fortune 500 companies to formally adopt an employment 
policy that prohibits discrimination based on sexual orientation. In 
addition, since 1995, we have also offered equal benefits to our 
employees' domestic partners. At Coors, respect for others is part of 
our core values and the cornerstone for building trusting relationships 
through honesty, openness and fairness. We see it as fundamental to the 
way we do business.
    It is our longstanding commitment to non-discrimination that allows 
Coors employees to thrive and encourages us all to work together for 
the success of the company. We recognize and respect the diversity in 
our workforce, and among our consumers, and strive for people in the 
entire Coors organization to be recognized and valued for their 
differences because diversity is the key to achieving and sustaining 
our company's vision.
    Coors supports the efforts by the Human Rights Campaign to ensure 
that all employees are afforded equal employment opportunity, 
regardless of sexual orientation. The Employment Non-Discrimination Act 
provides a vehicle for this goal to be achieved. We wish you continued 
success in reaching this goal.
            Sincerely,
                                         W. Leo Kiely, III,
                             President and Chief Executive Officer.
                                 ______
                                 
                                   Microsoft Corp.,
                                      Washington, DC 20036,
                                                 February 14, 2002.
Hon. Edward Kennedy,
U.S. Senate,
Washington, DC 20510

    Dear Senator Kennedy: Microsoft's vision is to empower people 
through great software--any time, any place and on any device. As the 
worldwide leader in software for personal and business computing, 
Microsoft strives to produce innovative products and services that meet 
our customers' evolving needs.
    In order to accomplish that goal we strive to create a workplace at 
Microsoft where everyone can develop a challenging career with 
opportunities for growth, competitive rewards and a balance between 
work and home life. In a fast-paced, competitive environment, this is a 
shared responsibility between Microsoft and its employees.
    In order to compete effectively, the company has adopted policies 
that it believes foster such an environment. Our employees know that 
they will be treated fairly, without being subject to prejudice or 
discrimination. An essential element of those policies includes the 
company's anti-discrimination policy that expressly states that it will 
not discriminate on the basis of sexual orientation.
    Unfortunately, not all Americans experience this basic protection 
in their employment. It remains legal in 38 states to fire someone 
because of their sexual orientation. This is not only bad for business, 
it is bad for America. The Employment Non-Discrimination Act would 
simply and fairly extend to all Americans the fundamental right to be 
judged on one's own merits. And it does so without any endue burden on 
corporate America.
    Microsoft strongly supports passage of the Employment Non-
Discrimination act. The principles it fosters are consistent with our 
corporate principles in treating all employees with fairness and 
respect. We encourage the Congress to move quickly to enact this 
important legislation.
            Sincerely,
                                            Jack Krumholtz,
 Director of Federal Government Affairs, Associate General Counsel.

Cc: Hon. Judd Gregg,
SR-393,
U.S. Senate,
Washington, DC 20510.
                                 ______
                                 
                 Prepared Statement of Steven L. Miller

    On behalf of 24,000 U.S. employees of Shell, I thank the committee 
for the opportunity to share our company's perspective on the issue of 
diversity and discrimination in the workplace and to voice our strong 
support for the Employment Non-Discrimination Act.
    Shell's commitment to diversity has been strong and very active. 
Shell's plan for how we will conduct our business is outlined in our 
Blueprint for Success which not only defines how we will deliver on our 
performance commitments, but also how we will ensure every employee can 
contribute to his or her full potential. Our goal is to become a model 
of diversity for corporate America--a lofty aspiration, but one that we 
take seriously and work every day to achieve.
    In order to reach that goal, Shell has adopted policies that it 
believes create an environment where all of our employees feel that 
they have a chance to exercise their creativity, knowledge and 
experience without fear of ostracism or reprisal. People spend a good 
portion of their lives in the workplace; why deprive them of achieving 
the satisfaction of being able to give of themselves in the fullest 
measure and our company of the benefit of their productivity?
    As an essential element of those policies, our non-discrimination 
policy expressly states that the company will not discriminate on the 
basis of sexual orientation. This has been the policy of Shell Oil Co. 
since April 1996. This policy is not only in place because it is the 
right thing to do. It is the right business decision as well.
    Our non-discrimination policy has worked well. In the years since 
we included sexual orientation, its implementation has been accepted 
broadly and we believe it has affected our bottom line for the better. 
Having this policy significantly improves employees' morale, loyalty 
and productivity. Simply put, our business would be greatly diminished 
if our gay and lesbian employees lived every day in fear of 
discrimination. The same is true for all businesses.
    Our gay and lesbian employees have worked closely with our 
leadership to help advance employee awareness and understanding of 
issues that are important to Shell and its employees. Most importantly, 
they have helped Shell model desired policies and practices to the 
external environment.
    Since its formation, our gay and lesbian employee network, called 
SEA Shell, participated in volunteer activities in the local community 
such as the AIDS walk, the Pride Parade and the Greater Houston Gay and 
Lesbian Chamber of Commerce's Empower events.
    All of these activities are driven by the realization that we must 
take action to effect change. Our way of life--our freedom, open-
mindedness, and understanding of what it means to be tolerant are being 
challenged like never before, especially in the aftermath of the events 
of September 11.
    Society today is demanding greater accountability from businesses, 
governments and individuals. Shell's commitment is to America--and to 
what it represents. And, the Employment Non-Discrimination Act goes to 
the core of what this nation is all about. Giving all our citizens the 
fundamental right to be judged on one's own merits.
    In fact, the fairness and simplicity of this bill is one of its 
most compelling features. Affirmative action is not mandated by this 
bill. It contains no reporting requirements. It does not compel 
employers to grant domestic partner benefits, although Shell has done 
so for many years. A federal law would create a level playing field for 
corporate America with the right policy against discrimination. 
Currently our business has to comply with 12 differing state laws 
against sexual orientation discrimination, while our employees in other 
states are afforded no legal protection under state law. One uniform 
federal policy would ease our administrative burden.
    This bill embodies the principle of non-discrimination that already 
enjoys the wide support of the American people. Nearly two-thirds of 
America's Fortune 500 companies already include sexual orientation in 
their non-discrimination policies. A recent poll found that more than 
80 percent of Americans believe that gays and lesbian should be given 
equal opportunity in the workplace.
    Unfortunately, in many places, just the opposite occurs. It remains 
legal in 38 states to fire an individual based solely on his or her 
real or perceived sexual orientation. And while many large employers 
have recognized the value of diversity others have not.
    It is Shell's belief that ENDA is good for American business, large 
and small. The principles it fosters are consistent with our corporate 
principles of treating all employees with fairness and respect. We 
encourage the Congress to move expeditiously to pass this common-sense 
legislation.

              Statement of New Balance Athletic Shoe, Inc.

                  EQUAL EMPLOYMENT OPPORTUNITY POLICY

    New Balance provides equal opportunities for all current and 
prospective associates and takes affirmative action to ensure that 
employment, training, compensation, transfer, promotion, and other 
terms, conditions and privileges of employment are provided without 
regard to race, color, religion, national origin, sex, sexual 
orientation, age, handicap and/or status as a disabled or Vietnam Era 
veteran. Associates and applicants are protected from coercion, 
intimidation, interference or discrimination for filing a complaint or 
assisting in an investigation regarding unlawful discrimination. Equal 
Employment Opportunity means that all personnel decisions are to be 
made in a nondiscriminatory manner. An Affirmative Action Program has 
been developed and implemented to assure that equal opportunity is a 
reality at New Balance. Affirmative Action is a results oriented 
program which seeks to ensure that each individual can participate 
equally in all employment opportunities at New Balance.

                         ANTI-HARASSMENT POLICY

    New Balance is committed to maintaining a working environment that 
is free from discriminatory harassment. The Company's commitment begins 
with the recognition and acknowledgment that such harassment is, of 
course unlawful. To reinforce this commitment, the Company has 
developed a policy against harassment and a reporting procedure for 
associates who have been subjected to or witnessed harassment. This 
policy applies to all work-related settings and activities, whether 
inside or outside the workplace, and includes business trips and 
business-related social events. Company property (e.g., telephones, 
copy machines, facsimile machines, computers, and computer applications 
such as e-mail and Internet access) may not be used to engage in 
conduct which violates this policy. The Company's policy against 
harassment covers associates and other individuals (e.g., directors, 
officers, contractors, vendors, customers, etc.) who have a 
relationship with the Company which enables the Company to exercise 
some control over the individual's conduct in places and activities 
that relate to the Company's work.

                    PROHIBITION OF SEXUAL HARASSMENT

    The Company's policy against sexual harassment prohibits sexual 
advances, requests for sexual favors, and other physical or verbal 
conduct of a sexual nature, when: (1) submission to such conduct is 
made as an express or implicit condition of employment; (2) submission 
to or rejection of such conduct is used as a basis for employment 
decisions affecting the individual who submits to or rejects such 
conduct; or (3) such conduct has the purpose or effect of unreasonably 
interfering with an associate's work performance or creating an 
intimidating, hostile, humiliating, or offensive working environment.
    While it is not possible to list all of the circumstances which 
would constitute sexual harassment, the following are some examples: 
(1) unwelcome sexual advances--whether they involve physical touch or 
not; (2) requests for sexual favors in exchange for actual or promised 
job benefits such as favorable reviews, salary increases, promotions, 
increased benefits, or continued employment; or (3) coerced sexual 
acts.
    Depending on the circumstances, the following conduct may also 
constitute sexual harassment: (1) use of sexual epithets, jokes, 
written or oral references to sexual conduct, gossip regarding one's 
sex life; (2) sexually oriented comment on an individual's body, 
comment about an individual's sexual activity, deficiencies, or 
prowess; (3) displaying sexually suggestive objects, pictures, 
cartoons; (4) unwelcome leering, whistling, deliberate brushing against 
the body in a suggestive manner, sexual gestures, suggestive or 
insulting comments; (5) inquiries into one's sexual experiences; or (6) 
discussion of one's sexual activities.
    It is also unlawful and expressly against Company policy to 
retaliate against an associate for filing a complaint of sexual 
harassment or for cooperating with an investigation of a complaint of 
sexual harassment.

        PROHIBITION OF OTHER TYPES OF DISCRIMINATORY HARASSMENT

    It is also against Company policy to engage in verbal or physical 
conduct that denigrates or shows hostility or aversion toward an 
individual because of his or her race, color, gender, religion, sexual 
orientation, age, national origin, disability, or other protected 
category (or that of the individual's relatives, friends, or 
associates) that: (1) has the purpose or effect of creating an 
intimidating, hostile, humiliating, or offensive working environment; 
(2) has the purpose or effect of unreasonably interfering with an 
individual's work performance; or (3) otherwise adversely affects an 
individual's employment opportunities.
    Depending on the circumstances, the following conduct may 
constitute discriminatory harassment; (1) epithets, slurs, negative 
stereotyping, jokes, or threatening, intimidating, or hostile acts that 
relate to race, color, gender, religion, sexual orientation, age, 
national origin, or disability; and (2) written or graphic material 
that denigrates or shows hostility toward an individual or group 
because of race, color, gender, religion, sexual orientation, age, 
national origin, or disability and that is circulated in the workplace, 
or placed anywhere in the Company's premises such as on an associate's 
desk or work space or on Company equipment or bulletin boards. Other 
conduct may also constitute discriminatory harassment if it falls 
within the definition of discriminatory harassment set forth above.
    It is also against Company policy to retaliate against an associate 
for filing a complaint of discriminatory harassment or for cooperating 
in an investigation of a complaint of discriminatory harassment.

                        REPORTING OF HARASSMENT

    If you believe that you have experienced or witnessed sexual 
harassment or other discriminatory harassment by any associate of the 
Company, you should report the incident immediately to your supervisor 
or to your facility Human Resources Manager. You may also contact Anne 
Davis, Vice President of Administration at (617) 746-2340. Possible 
harassment by others with whom the Company has a business relationship, 
including customers and vendors, should also be reported as soon as 
possible so appropriate action can be taken.
    The Company will promptly and thoroughly investigate all reports of 
harassment as discreetly and confidentially as practicable. The 
investigation would generally include a private interview with the 
person making a report of harassment. It would also generally be 
necessary to discuss allegations of harassment with the accused 
individual or with other associates. The Company's goal is to conduct a 
thorough investigation, to determine whether harassment occurred, and 
to determine what action to take against an offending individual. To 
the extent feasible, only individuals who the Company determines have a 
need to know will be informed of the allegations and they will be 
requested to treat the matter confidentially.
    If the Company determines that a violation of this policy has 
occurred, it will take appropriate disciplinary action against the 
offending party, which can include counseling, warnings, transfers, 
suspensions, and termination. Associates who report violations of this 
policy and associates who cooperate with investigations into alleged 
violations of this policy will not be subject to retaliation. Upon the 
completion of the investigation, the Company will inform the associate 
who made the complaint of the results of the investigation.

                           OTHER INFORMATION

    The Company strongly encourages associates to bring any concerns 
about possible sexual or other discriminatory harassment to the 
Company's attention. Associates may also direct inquiries or reports 
concerning discriminatory harassment to the agencies responsible for 
governmental enforcement of employment discrimination laws.
    Massachusetts associates may contact:


    Massachusetts Commission Against Discrimination
    One Ashburton Place
    Boston, MA 02108
    (617) 727-3990


    Maine associates may contact:


    Maine Human Rights Commission
    State House, Station 51
    Augusta, ME 04333
    (207) 624-6050


    Both Massachusetts and Maine associates may contact:


    Equal Employment Opportunity Commission
    One Congress Street
    Room 1001
    Boston, MA 02114
    (617) 565-3200
                           Walden Asset Management,
                                          Boston, MA 02108,
                                                 February 28, 2002.
Hon. Edward Kennedy,
U.S. Senate,
Washington, DC 20510.

    Dear Senator Kennedy: Walden Asset Management, a division of United 
States Trust Company of Boston, is a global investment manager with 
$1.2 billion in assets under management. Our clients believe that 
companies with a commitment to customers, employees, communities and 
the environment will prosper long-term. Among their top social 
objectives is the assurance that their companies are doing all that 
they can to provide equal employment opportunities to current and 
prospective employees. We write today in strong support of your efforts 
to pass the Employment Non-Discrimination Act. As you noted yesterday, 
the United States is long overdue in providing this basic protection to 
its workforce.
    For many years, Walden, on behalf of our clients, has worked with 
companies to encourage them to extend their leadership in corporate 
responsibility by amending their non-discrimination policies to 
explicitly include sexual orientation. We have been involved in 
sponsoring shareholder resolutions with a number of companies on this 
issue. In fact, Walden has been successful in its dialogue efforts this 
past year with Affiliated Computer Services, American International 
Group, and Teleflex. We also have a resolution pending before Alltel 
this year and a client has cofiled a similar resolution with 
ExxonMobil.
    Walden has also participated in company dialogues coordinated by 
the Equality Project, a coalition of institutional shareholders 
concerned about workplace equality. Allies and leaders within 
companies, at other social investment firms, in the labor movement, and 
in the not-for-profit sector have successfully encouraged more than 
1,500 U.S. companies, including more than half of Fortune 500 companies 
across all industries, to have non-discrimination policies that 
explicitly include sexual orientation. These data have been well 
documented by the Human Rights Campaign's WorkNet project.
    Unfortunately, there are too many companies that refuse to extend 
such protections to all employees. Walden and other members of the 
Equality Project have been stonewalled in our efforts to encourage 
ExxonMobil, Emerson Electric, Alltel, and other companies to adopt 
inclusive policies.
                                 ______
                                 
                   Prepared Statement of Kim Wisckol

    On behalf of Hewlett-Packard Company's (HP) 44,000 U.S. employees, 
I would like to thank the Committee for this opportunity to share our 
company's views on the Employment Non-Discrimination Act. In short, HP 
strongly believes that this legislation is good for American business, 
while addressing very harmful discrimination. We hope Congress will 
pass it soon.
    First, it's important to highlight what the Employment Non-
Discrimination Act does not do. It does not provide any special rights. 
It does not promote affirmative action. It does not require quotas or 
reporting procedures. It does not force employers to grant domestic 
partner benefits (although I would like to note that HP does provide 
these benefits).
    What the Employment Non-Discrimination Act does say is that 
employees cannot be fired or discriminated against because of their 
sexual orientation. That's it--plain and simple. The legislation 
provides the type of fairness that our country has been seeking since 
its inception--the type of fairness that says that in the workplace and 
in commerce, we should all be judged by our merits.
    Unfortunately, there are still 38 states in our nation where it is 
legal to fire someone because of their sexual orientation. For a 
company like HP, which has employees across the country, this means 
dealing with differing state laws, and operating in places where our 
employees are offered no legal protection under state statutes. The 
Employment Non-Discrimination Act would provide a standard for the 
nation--a standard simply stating that discrimination based on sexual 
orientation is not unacceptable in America.
    This is the right thing to do.
    At HP, we have also realized that a lack of the Employment Non-
Discrimination Act is bad for business. As you know, eighty-six percent 
of Fortune 50 companies include sexual orientation in their non-
discrimination policies. They do this for business reasons.
    We at HIP understand that attracting and retaining a talented and 
diverse workforce is critical to the success of our business. No 
competitive company that wants to succeed can afford to practice a 
policy of exclusion. As our Chairman and CEO, Carly Fiorina, has said: 
``Invention requires creativity; creativity requires true diversity. If 
we are to succeed, we must become a role model of inclusion.''
    Harmful discrimination in the workplace decreases productivity and 
morale. Having employees who are working in fear of persecution is not 
a smart way to run a company.
    As you may know, HP has a long-standing non-discrimination policy, 
which states that we do not discriminate against any employee or 
potential employee because of race, creed, color, religion, gender, 
national origin, sexual orientation, age, disability, or military 
veteran status. And we provide these protections in many places where 
state laws do not.
    Our country has a long history of fighting against discrimination 
in the workplace and elsewhere--whether the victims were women, the 
disabled, religious and ethnic minorities, and so forth. That 
discrimination was stopped because it was wrong. Today, people are 
being fired for no other reason than their sexual orientation. This too 
is wrong.
    Please join the vast majority of America's leading businesses in 
realizing that discrimination is not good for business or productivity. 
It's not good for America.
    On behalf of HP, I encourage you to move quickly to enact the 
Employment Non-Discrimination Act.

    [Whereupon, at 11:38 a.m., the committee adjourned.]

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