[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.
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\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.
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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:
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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.]