    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

                       THE EMPLOYMENT NON-DISCRIMINATION
                            ACT OF 2007 (H.R. 2015)

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

                                    HEARING

                                   before the

                            SUBCOMMITTEE ON HEALTH,
                         EMPLOYMENT, LABOR AND PENSIONS

                                  COMMITTEE ON
                              EDUCATION AND LABOR

                         U.S. House of Representatives

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

               HEARING HELD IN WASHINGTON, DC, SEPTEMBER 5, 2007

                                   __________

                               Serial No. 110-60

                                   __________

          Printed for the use of the Committee on Education and Labor

                           Available on the Internet:
          http://www.gpoaccess.gov/congress/house/education/index.html

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                        COMMITTEE ON EDUCATION AND LABOR

                      GEORGE MILLER, California, Chairman

    Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon,
        Chairman                             California,
    Donald M. Payne, New Jersey            Ranking Minority Member
    Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
    Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
    Lynn C. Woolsey, California          Michael N. Castle, Delaware
    Ruben Hinojosa, Texas                Mark E. Souder, Indiana
    Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
    John F. Tierney, Massachusetts       Judy Biggert, Illinois
    Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
    David Wu, Oregon                     Ric Keller, Florida
    Rush D. Holt, New Jersey             Joe Wilson, South Carolina
    Susan A. Davis, California           John Kline, Minnesota
    Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
    Raul M. Grijalva, Arizona            Kenny Marchant, Texas
    Timothy H. Bishop, New York          Tom Price, Georgia
    Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
    John P. Sarbanes, Maryland           Charles W. Boustany, Jr.,
    Joe Sestak, Pennsylvania                 Louisiana
    David Loebsack, Iowa                 Virginia Foxx, North Carolina
    Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New
    Jason Altmire, Pennsylvania              York
    John A. Yarmuth, Kentucky            Rob Bishop, Utah
    Phil Hare, Illinois                  David Davis, Tennessee
    Yvette D. Clarke, New York           Timothy Walberg, Michigan
    Joe Courtney, Connecticut            Dean Heller, Nevada
    Carol Shea-Porter, New Hampshire

                         Mark Zuckerman, Staff Director
                       Vic Klatt, Minority Staff Director

             SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                    ROBERT E. ANDREWS, New Jersey, Chairman

    George Miller, California            John Kline, Minnesota,
    Dale E. Kildee, Michigan               Ranking Minority Member
    Carolyn McCarthy, New York           Howard P. ``Buck'' McKeon,
    John F. Tierney, Massachusetts           California
    David Wu, Oregon                     Kenny Marchant, Texas
    Rush D. Holt, New Jersey             Charles W. Boustany, Jr.,
    Linda T. Sanchez, California             Louisiana
    Joe Sestak, Pennsylvania             David Davis, Tennessee
    David Loebsack, Iowa                 Peter Hoekstra, Michigan
    Phil Hare, Illinois                  Cathy McMorris Rodgers, Washington
    Yvette D. Clarke, New York           Tom Price, Georgia
    Joe Courtney, Connecticut            Virginia Foxx, North Carolina
                                         Timothy Walberg, Michigan

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on September 5, 2007................................     1

    Statement of Members:
        Andrews, Hon. Robert E., Chairman, Subcommittee on Health,
          Employment, Labor and Pensions.............................     1
            Prepared statement of....................................     3
            Letter from Congressman Frank pertaining to ERISA........    58
            Letter from the Business Coalition for Workplace Fairness    70
            Letter from the International Brotherhood of Police
              Officers, Local 364, dated September 1, 2007...........    73
        Kline, Hon. John, Senior Republican Member, Subcommittee on
          Health, Employment, Labor and Pensions.....................     4
            Prepared statement of....................................     5
            Letter from the General Conference of Seventh Day
              Adventists, the Union of Orthodox Jewish Congregations,
              and the U.S. Conference of Catholic Bishops............    56
            Additional submissions for the record....................    73
        Sanchez, Hon. Linda T., a Representative in Congress from the
          State of California, prepared statement of.................     6

    Statement of Witnesses:
        Badgett, M.V. Lee, associate professor of economics,
          University of Massachusetts................................    38
            Prepared statement of....................................    40
        Baker, Kelly, vice president, diversity, General Mills, Inc..    30
            Prepared statement of....................................    32
        Baldwin, Hon. Tammy, a Representative in Congress from the
          State of Wisconsin.........................................     7
            Prepared statement of....................................     9
        Carney, Michael P., officer, Springfield, Massachusetts
          Police Department..........................................    21
            Prepared statement of....................................    22
        Cleaver, Hon. Emanuel, a Representative in Congress from the
          State of Missouri..........................................    15
            Prepared statement of....................................    17
        Fahleson, Mark A., Rembolt Ludtke, LLP; adjunct professor of
          employment law, the University of Nebraska College of Law..    42
            Prepared statement of....................................    44
        Frank, Hon. Barney, a Representative in Congress from the
          State of Massachusetts.....................................    10
            Newspaper article from the Boston Globe, September 5,
              2007, ``Gay Officer to Speak Out for Job Rights Bill''.    14
        Kramer, Nancy, founder and chief executive officer, Resource
          Interactive................................................    25
            Prepared statement of....................................    26
        Lorber, Lawrence Z., partner, Proskauer Rose, LLP............    34
            Prepared statement of....................................    35
        Norton, Helen, associate professor, University of Colorado
          School of Law..............................................    47
            Prepared statement of....................................    49
        Waits, Brooke................................................    28
            Prepared statement of....................................    29

           THE EMPLOYMENT NON-DISCRIMINATION ACT OF 2007 (H.R. 2015)

                                  ----------

                          Wednesday, September 5, 2007

                         U.S. House of Representatives

             Subcommittee on Health, Employment, Labor and Pensions

                        Committee on Education and Labor

                                 Washington, DC

                                  ----------

        The subcommittee met, pursuant to call, at 10:33 a.m., in
    Room 2175, Rayburn House Office Building, Hon. Robert Andrews
    [chairman of the subcommittee] presiding.
        Present: Representatives Andrews, Kildee, McCarthy,
    Tierney, Wu, Holt, Sanchez, Loebsack, Hare, Clarke, Courtney,
    Kline, Davis of Tennessee, Price, and Walberg.
        Also present: Representative Neal.
        Staff present: Aaron Albright, Press Secretary; Tylease
    Alli, Hearing Clerk; Jody Calemine, Labor Policy Deputy
    Director; Michael Gaffin, Staff Assistant, Labor; Jeffrey
    Hancuff, Staff Assistant, Labor; Brian Kennedy, General
    Counsel; Thomas Kiley, Communications Director; Megan O'Reilly,
    Labor Policy Advisor; Michele Varnhagen, Labor Policy Director;
    Robert Borden, Minority General Counsel; Cameron Coursen,
    Minority Assistant Communications Director; Ed Gilroy, Minority
    Director of Workforce Policy; Rob Gregg, Minority Legislative
    Assistant; Victor Klatt, Minority Staff Director; Molly
    McLaughlin Salmi, Minority Deputy Director of Workforce Policy;
    Ken Serafin, Minority Professional Staff Member; and Loren
    Sweatt, Minority Professional Staff Member.
        Chairman Andrews [presiding]. Good morning. The
    subcommittee will come to order. I would ask everyone to please
    take their seats.
        Good morning. This morning we would like to welcome our
    witnesses, especially our colleagues that either are with us or
    will be with us shortly. And we would like to thank the members
    of the public who are present. I notice the presence of our
    friend and colleague from Massachusetts, Mr. Neal, who has an
    outstanding constituent who is going to testify on the second
    panel, as I understand it.
        It is a part of our law--and, I think, more importantly, a
    part of our national principles--if a person goes to apply for
    a job as a bank teller or a computer programmer or a bus
    driver, the employer can't say, ``You can't have this job
    because you are a Catholic.'' Or ``I won't hire you because you
    are Italian.'' Or ``We only hire men for this job, not men and
    women.''
        Why should it be any different if the person applying for
    that job is a person who has faced discrimination based on
    gender identity or a person who has faced discrimination based
    upon sexual orientation? Why should it be any different? That
    is really the purpose of this hearing this morning.
        I think the answer is resounding; it should be no different
    at all. Whether you are Italian or Catholic or female or gay or
    lesbian has nothing to do with how well you will do the job.
    And whether you get the job and whether you are promoted and
    how you do in the job should depend upon your qualifications
    and your performance and your work ethic, none of those other
    extraneous, irrelevant factors.
        Now, the sad reality is that if you live in 31 states with
    respect to sexual orientation discrimination, and 39 states
    with respect to gender identity discrimination, the law doesn't
    protect you. If you apply for that bank teller job and you are
    gay or lesbian, in 31 states the employer can say, ``I am
    sorry, but we don't hire gay people--gay men or lesbian women--
    to be bank tellers or computer programmers or bus drivers.''
    And it is legal.
        I think it shouldn't be. And that is why I am one of the
    cosponsors of the bill that is before us today that our
    colleagues are going to speak about.
        Now, we will hear arguments, I think, to the following
    effect: We will hear arguments that no one is in favor of
    discrimination. And in my heart I think that is true of my
    colleagues--almost all my colleagues on both sides of the
    aisle. I think this is an institution where people do not want
    to practice or live discrimination.
        But, you know, the test is not our intentions, it is our
    results. And, again, we have to start from the reality that in
    31 states, for people faced with sexual orientation
    discrimination, there is no legal protection. In 39 states, for
    people faced with gender identity discrimination, there is no
    legal protection.
        Significant numbers of people report having experienced
    prejudice in the process of seeking a job or going after a
    promotion. The studies are compelling in this regard.
        And I think what is most important is the question of what
    this says about our country; not what it says about the
    employer who is denying someone a job because of their sexual
    orientation or other irrelevant characteristic. Or not even
    what it does to the person who feels the pain of that
    discrimination, terrible as that is.
        What does it say about our country that we are a place that
    knows that this discrimination is going on but chooses to look
    the other way? It is not flattering. It is not what we want
    said about our country.
        Now, beyond the obvious moral issue--the dehumanizing
    effect of treating someone as a category rather than as a
    person, of saying to that person who wants to be a bank teller
    or bus driver or computer programmer that what matters is not
    how smart you are or how well you do this job, but whom you
    love and how you organize your family--beyond the dehumanizing
    effect of that, there is another strong argument for the
    adoption of this bill. And it is the fact that in the global
    economic competition, this country cannot afford to leave any
    of its talented people out of the process of working.
        In a country that is in an increasingly acute global
    competition in virtually every industry, virtually every field,
    how can we afford to say that some of our best and brightest
    and most productive and industrious people will be left out
    because of whom they love and because of how they choose to
    organize their families?
        I think this bill is a moral imperative, but I think it is
    more than just a moral imperative. I think it is an economic
    necessity.
        I think a country like ours that is in this increasingly
    acute global competition cannot afford to shut the door on
    anybody who is ready and willing and talented and able to
    contribute to an enterprise or an institution or a profession
    or a business or to this country's economy. That is what I
    believe this is about.
        So we want to see the day come when you hand in your job
    application for a bank teller or a computer programmer or a bus
    driver, and the question is, ``How well can you drive the bus?
    How much do you know about the software you are going to
    program?'' Not, ``Who are you in terms of your personal and
    private life?''
        There was a vigorous debate in this country just over 40
    years ago about whether employers should be able to say to
    someone, ``We won't hire you because you are Catholic.'' ``We
    won't hire you because you are Italian.'' ``We won't hire you
    because you are female.'' And that debate ended, and a strong
    law was enacted in the middle of the 1960s.
        It is time that that law expanded its reach to other people
    whose characteristics have equally little to do with their
    ability to drive a bus or program a computer or work in a bank.
    It is time that that law reached out and humanized and included
    all people who are willing and able to work. And that is what
    this morning's hearing is about.
        I am going to proceed now to ask my friend, the ranking
    member of the subcommittee, Mr. Kline, from Minnesota, for his
    statement.
        We will then invite the first of our colleagues, Ms.
    Baldwin, to testify. I know she is going to be joined by two of
    our other colleagues, and we will proceed.
        Mr. Kline, welcome back from your well-deserved break.

    Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on
                     Health, Employment, Labor and Pensions

        Good morning and welcome to the Health, Employment, Labor and
    Pensions Subcommittee hearing on H.R. 1015, the Employment Non-
    Discrimination Act.
        Today marks a historic moment in the committee's history. Despite
    being the primary committee of jurisdiction, this is the first time our
    committee has considered this important piece of legislation that would
    extend federal employment discrimination protections to workers based
    on sexual orientation and gender identity, in addition to protection
    that already exists for race, gender religion, national origin, age and
    disability.
        The legislation we will consider today, also known as ENDA, is a
    bill about fairness and access to equal opportunity for employment to
    gays, lesbians, bisexual, transgender and heterosexuals. ENDA would
    prohibit an employer from discriminating against an employee based on
    their sexual orientation or gender identity. Although the bill provides
    basic protections for everyone, it focuses on protecting gays,
    lesbians, bisexuals and transgender people from employment
    discrimination.
        Today, we will hear firsthand from individuals who have experienced
    employment discrimination based on their sexual orientation. We will
    also hear from an academic researcher who has conducted an extensive
    analysis of several surveys about employment sexual orientation
    discrimination.
        The problem of discrimination based on sexual orientation is real
    and it is our goal today to examine a solution.
        I would like to take this opportunity to thank the sponsors of ENDA
    for testifying before us today. Congressman Barney Frank and
    Congresswoman Tammy Baldwin have vigorously worked to bring this
    legislation before us today and I admire them for their courage and
    steadfast determination.
        The late Coretta Scott King said, ``Americans who believe in
    freedom, tolerance and human rights have a responsibility to oppose
    bigotry and prejudice based on sexual orientation.'' We intend to carry
    out that vision today.
        I would like to thank all the witnesses for their testimony today
    and look forward to hearing from them. Thank you.
                                     ______

        Mr. Kline. Thank you, Mr. Chairman. Good to see you, as
    well.
        Good morning, all. I would like to start by thanking our
    witnesses. We have two great panels. And I certainly want to
    thank our colleagues, some of whom are here and some of whom
    will be joining us shortly.
        You know, this is a legislative hearing. And I am delighted
    that we are having one. Too many times in the past several
    months I have felt we have not had enough hearings, and
    hearings that haven't been focused on specific legislation. So
    I am glad that we are having this.
        A hearing such as this is a tool that allows us to give a
    really thorough, thoughtful consideration to proposals that
    will impact the American people. These hearings allow us to
    understand a bill's intent. But, as the chairman said, it is
    not enough to understand the intent. We need to explore
    potential consequences, both intended and unintended, that may
    result if such a law is enacted.
        The legislation we are here to consider, the Employment
    Non-Discrimination Act of 2007, has, as its core, a principle
    to which I believe we are all--or almost all--committed: That
    no employee should be subject to discrimination. So the intent,
    I think, is not the issue here. We really need to explore the
    consequences, intended and unintended.
        More specifically, this bill aims to prohibit organizations
    from discriminating in their employment practices against
    individuals on the basis of their sexual orientation or gender
    identity. The bill before us today is broader in its scope than
    versions of the legislation introduced in previous Congresses,
    a fact that makes today's hearing all the more important.
        As with any new federal mandate, I believe we must begin
    consideration of this legislation by determining whether it is
    necessary. Is there evidence that this type of discrimination
    is occurring? Are current laws and employer policies
    insufficient to protect the rights of employees?
        We must then ask what the practical impact of the
    legislation would be.
        Would it have the intended effect of preventing
    discrimination? Would it create unnecessary burdens on
    employers and employees, or open the door to frivolous
    litigation? Would it interfere with an employee's right to
    privacy? Is it consistent with other state and federal
    antidiscrimination laws, or would it establish a new framework
    that could be confusing or contradictory?
        These are questions that must be answered before
    legislation is enacted.
        Numerous laws have already been enacted at the state and
    federal level to prevent discriminatory employment practices.
    It is my view that the role of this subcommittee, followed by
    the full Education and Labor Committee and the Congress, is to
    build upon those laws, where needed. It is also our role to
    determine when new laws are not needed and to avoid legislating
    for its own sake.
        I appreciate the opportunity to consider these questions as
    we take a closer look at this act.
        Today's hearing is an important first step. And I look
    forward to the testimony that will be offered by our witnesses
    on both panels. I am pleased that we will hear multiple
    perspectives on this important topic, and that among them will
    be a discussion of the real-world impact that such a mandate
    will have on an organization's employment practices and
    prerogatives.
        The legislation, as currently drafted, raises a number of
    concerns. And I am pleased that several of them will be
    addressed today.
        For example, I understand that previous versions of this
    bill included a blanket exemption for religious organizations,
    but the bill before us includes much more narrowly-crafted
    exemptions.
        The bill also includes a new protected class for actual or
    perceived gender identity, yet it provides a definition that is
    vague and could result in significant uncertainty.
        The requirements for shower and dressing facilities, for
    example, could prove problematic as well, raising potential
    privacy concerns for employees, as well as other challenges.
        I would also like to address the inclusion of an exemption
    from ERISA preemption in the bill before us. It is my
    understanding that Representative Frank, who will be joining us
    shortly to sponsor the legislation, has made it clear that his
    intent is to remove this provision when the bill is considered.
    And I certainly hope that is the case. I appreciate Mr. Frank's
    recognition of the unprecedented policy shift that exempting
    state and local rules from preemption under ERISA would entail.
        I look forward to a continued dialogue with Chairman
    Andrews and Mr. Frank on how best to achieve our shared goal of
    ensuring that employees are not subject to discrimination. At
    the same time, I hope we will give due consideration to the
    laws currently on the books to protect the rights of employees
    and ensure that a well-intentioned effort does not result in
    harmful, unintended consequences.
        With that, Mr. Chairman, I yield back the balance of my
    time.

       Prepared Statement of Hon. John Kline, Senior Republican Member,
            Subcommittee on Health, Employment, Labor, and Pensions

        Good morning. I'd like to begin by thanking the witnesses for being
    here and expressing my appreciation to Chairman Andrews for convening
    this hearing. A legislative hearing is an important tool that allows us
    to give thorough, thoughtful consideration to proposals that would
    impact the American people. These hearings allow us to understand a
    bill's intent, and explore potential consequences, both intended and
    unintended, that may result if such a law was enacted.
        The legislation we are here to consider, the Employment Non-
    Discrimination Act of 2007, has at its core a principle to which I
    believe we are all committed: that no employee should be subject to
    discrimination.
        More specifically, the bill aims to prohibit organizations from
    discriminating in their employment practices against individuals on the
    basis of their sexual orientation or gender identity. The bill before
    us today is broader in its scope than versions of the legislation
    introduced in previous Congresses, a fact that makes today's hearing
    all the more important.
        As with any new federal mandate, I believe we must begin
    consideration of this legislation by determining whether it is
    necessary. Is there evidence that this type of discrimination is
    occurring? Are current laws and employer policies insufficient to
    protect the rights of employees?
        We must then ask what the practical impact of the legislation would
    be. Would it have the intended effect of preventing discrimination?
    Would it create unnecessary burdens on employers and employees or open
    the door to frivolous litigation? Would it interfere with employees'
    right to privacy? Is it consistent with other state and federal anti-
    discrimination laws, or would it establish a new framework that could
    be confusing or contradictory? These are questions that must be
    answered before legislation is enacted.
        Numerous laws have already been enacted at the state and federal
    level to prevent discriminatory employment practices. It is my view
    that the role of this subcommittee, followed by the full Education and
    Labor Committee and the Congress, is to build upon those laws where
    needed. It is also our role to determine when new laws are not needed,
    and to avoid legislating for its own sake. I appreciate the opportunity
    to consider these questions as we take a closer look at the Employment
    Non-Discrimination Act of 2007.
        Today's hearing is an important first step, and I look forward to
    the testimony that will be offered by our witnesses. I am pleased that
    we will hear multiple perspectives on this important topic, and that
    among them will be a discussion of the ``real world'' impact that such
    a mandate will have on organizations' employment practices and
    prerogatives.
        The legislation as currently drafted raises a number of concerns,
    and I am pleased that several of them will be addressed today. For
    example, I understand that previous versions of this bill included a
    blanket exemption for religious organizations, but the bill before us
    includes much more narrowly crafted exemptions. The bill also includes
    a new protected class for actual or perceived ``gender identity,'' yet
    it provides a definition that is vague and could result in significant
    uncertainty. The requirements for shower and dressing facilities could
    prove problematic as well, raising potential privacy concerns for
    employees as well as other challenges.
        I'd also like to address the inclusion of an exemption from ERISA
    preemption in the bill before us. It is my understanding that
    Representative Frank, the sponsor of the legislation, has made clear
    his intent that this provision be removed if and when the bill may be
    considered. I certainly hope that is the case, and I appreciate Mr.
    Frank's recognition of the unprecedented policy shift that exempting
    state and local rules from preemption under ERISA would entail.
        I look forward to a continued dialogue with Chairman Andrews and
    Mr. Frank on how best to achieve our shared goal of ensuring that
    employees are not subject to discrimination.
        At the same time, I hope we will give due consideration to the laws
    currently on the books to protect the rights of employees, and ensure
    that a well-intentioned effort does not result in harmful unintended
    consequences.
        With that, I yield back the balance of my time.
                                     ______

        Chairman Andrews. Thank you.
        By unanimous consent, the opening statements of all other
    members of the committee will be inserted into the record,
    without objection.

       Prepared Statement of Hon. Linda T. Sanchez, a Representative in
                     Congress From the State of California

        Thank you, Chairman Andrews. As an original co-sponsor and strong
    supporter of the Employment Non-Discrimination Act, I appreciate your
    work to put together this hearing so that we can learn more, and the
    American people can learn more, about the employment discrimination
    that takes place here in America--legally--every day. More importantly,
    this hearing gives us an opportunity to do something about it.
        Ending employment discrimination against gay, lesbian, bisexual,
    and transgender people by enacting ENDA is such a common sense
    solution, and consistent with the American principles of freedom,
    justice, and equality that it's amazing to me that in 2007, we still
    haven't passed this bill.
        ENDA is the most important civil rights bill that we will have the
    opportunity to pass during the current Congressional cycle.
        Americans believe that if you work hard and do your job, you should
    be rewarded. And, Americans believe that this basic principle should
    apply across the board.
        Poll after poll reveals that an overwhelming majority of Americans
    agree someone shouldn't lose a job or be denied a promotion simply for
    being gay or lesbian.
        Americans also believe that it is already illegal to do so.
    Unfortunately, in many states, it isn't. That's why today's hearing is
    so important.
        Passing ENDA is consistent with the other work we are doing in this
    Committee, and throughout the House, to protect America's workers. We
    have acted to increase the minimum wage, to make college more
    affordable, and to strengthen Title VII so that companies cannot hide
    gender discrimination behind secretive wage policies.
        We have acted to ensure that employers provide mental health care
    as part of their health benefits and to promote wage parity between men
    and women. Now, we are acting to protect gay, lesbian, bisexual, and
    transgender workers from on-the-job discrimination. It's been a long
    time coming.
        It is NOT OK to deny someone a job, a raise, or a promotion because
    of his or her real or perceived sexual orientation or gender identity.
    And now is the time for Congress to say so. After more than thirty
    years of struggle, we have a chance to give this important issue the
    attention it deserves.
        The American people are counting on us to make the law consistent
    with our values. I am proud that, as a member of this Committee, I can
    help make that happen.
        Again, thank you Mr. Chairman.
                                     ______

        Chairman Andrews. I am pleased to welcome three of our
    colleagues to come testify about this bill this morning.
        Tammy Baldwin represents the 2nd Congressional District of
    Wisconsin. She has quickly developed a reputation as a member
    who is accessible to people of all different ideologies and all
    different points of view. She is respected throughout the
    House.
        She served as an attorney before she came to the Congress,
    represented clients who have dealt with many of the situations
    that are the subject of this bill.
        She has excelled in work ranging from agriculture to energy
    issues. And we are very, very pleased that she serves also, I
    believe, on the Energy and Commerce Committee. Is that correct?
    A committee almost as important as this one. [Laughter.]
        Tell Mr. Dingell that we said that.
        And we are very pleased that you are with us this morning,
    and we recognize Representative Baldwin.

     STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS
                      FROM THE STATE OF WISCONSIN

        Ms. Baldwin. Thank you, Chairman Andrews and Ranking Member
    Kline and members of the committee, for the opportunity to
    testify today. I am here, clearly, as a strong supporter of
    H.R. 2015, the Employment Non-Discrimination Act of 2007.
        As my colleagues know, more than 40 years ago, we enacted
    the Civil Rights Act of 1964 that banned employment
    discrimination in certain circumstances. We did so based on a
    clear record demonstrating that some employers were judging
    employees by factors wholly unrelated to their work
    performance, their skills and their abilities. We found, as a
    nation, that when employer judgments were based upon race,
    color, sex or national origin, these discriminatory decisions
    should be unlawful.
        Today, we can point to a clear record demonstrating further
    employment discrimination based on sexual orientation and
    gender identity. And I think it is high time that we, as a
    nation, declare this sort of discrimination unlawful, as well.
        Twenty-five years ago my own state of Wisconsin was the
    first state in the nation to add sexual orientation to its
    antidiscrimination statutes. At that time--and we are talking
    about 1982--only 41 municipalities in this country and 8
    counties offered limited protections against discrimination
    based on sexual orientation.
        Wisconsin's efforts to pass the nation's first sexual
    orientation antidiscrimination statute were supported by a
    broad, bipartisan coalition, including members of the clergy,
    religious denominations, medical and professional groups. The
    measure was signed into law by a Republican governor, Lee
    Sherman Dreyfus. And he signed the bill based on his belief
    that the success of municipal ordinances providing similar
    protections spoke for the need for a statewide prohibition.
        Now, prior to my election to the Wisconsin state
    legislature back in 1992, I practiced law at a small, general
    practice law firm in Madison. And, on occasion, I represented
    clients in employment discrimination cases. Through this work,
    I was able to see firsthand the importance of Wisconsin's
    landmark antidiscrimination statute, and the positive effect
    that it had on our state.
        I represented a number of clients who were fired from their
    jobs because of their sexual orientation. And Wisconsin's
    statute was vital in affording them the employment protection
    that I think all Americans deserve.
        I was struck during my time as a practicing attorney by the
    depth of the emotional and financial devastation and
    consequences of employment discrimination.
        My clients were frequently fearful and ashamed. They were
    talented and hard workers. And they had had their livelihood
    taken away for reasons wholly unrelated to their talents, their
    drive, they loyalty, their commitment and their skills. But the
    fact that Wisconsin had a law that said that this type of
    discrimination was wrong gave them hope and helped them find
    the courage they needed to publicly confront the injustice that
    they had experienced.
        Since Wisconsin passed its statute 25 years ago, 18
    additional states and the District of Columbia have passed
    similar protective measures. And we have a chance to now set a
    higher standard for our nation by passing 2015.
        As my colleagues know, the Employment Non-Discrimination
    Act, or ENDA, will provide basic protections against workplace
    discrimination on the basis of sexual orientation and gender
    identity. ENDA does not create special rights. It simply
    affords to all Americans basic employment protection from
    discrimination based on irrational prejudice.
        I would like to take a moment to focus on the protections
    in ENDA that prohibit workplace discrimination on the basis of
    gender identity, because I have found that there is a great
    deal of question and confusion about this term.
        Gender identity is a person's internal sense of his or her
    gender. In the vast majority of our population, an individual's
    gender identity and his or her birth sex match. But for a small
    minority of people, gender identity and birth sex conflict.
        Because an individual was born one sex and presents to the
    world as another, or in a way other than people think is
    consistent with how a man or a woman should present themselves,
    he or she can face many forms of discrimination, from physical
    violence to employment discrimination.
        ENDA contains language that makes it clear that an employer
    may establish and enforce reasonable and otherwise lawful dress
    and grooming standards for employees. But it also provides
    assurances that aspects of a person's gender identity and
    gender expression cannot be the basis for workplace
    discrimination. ENDA ensures that an employer cannot fire an
    employee solely because she is a woman with a masculine walk or
    a man with an effeminate voice.
        In conclusion, I want to underscore that the purpose of
    ENDA is to ensure that hardworking Americans cannot be denied
    job opportunities, fired or otherwise discriminated against
    just because of their sexual orientation or gender identity.
    There is nothing more American than ensuring that people should
    have equal job opportunities.
        And I want to thank Congressman Frank for his leadership on
    the issue, also acknowledging Congresswoman Pryce and
    Congressman Shays for their commitment on this issue.
        And, again, I sincerely appreciate the opportunity to
    testify before you on this important matter today. Thank you.
        [The statement of Ms. Baldwin follows:]

    Prepared Statement of Hon. Tammy Baldwin, a Representative in Congress
                          From the State of Wisconsin

        Thank you Chairman Andrews, Ranking Member Kline and members of the
    Committee for allowing me the opportunity to testify today.
        I am a strong supporter of H.R. 2015, the Employment Non-
    Discrimination Act of 2007.
        As my colleagues know, more than 40 years ago, we enacted the Civil
    Rights Act of 1964 that banned employment discrimination in certain
    circumstances. We did so based on a clear record demonstrating that
    some employers were judging employees by factors wholly unrelated to
    their work performance, skills and abilities.
        We found--as a nation--that when employer judgments were based upon
    race, color, religion, sex, or national origin, these discriminatory
    decisions should be unlawful.
        Today, we can point to a clear record demonstrating further
    employment discrimination based upon sexual orientation and gender
    identity, and it is high time that we as a nation declare this sort of
    discrimination unlawful, as well.
        Twenty-five years ago, my own state of Wisconsin was the first in
    the nation to add sexual orientation to its anti-discrimination
    statutes. At the time, and this was in 1982, only 41 municipalities and
    8 counties in the entire United States offered limited protections
    against discrimination based on sexual orientation.
        Wisconsin's efforts to pass the nation's first sexual orientation
    anti-discrimination statue were supported by a broad, bipartisan
    coalition, including members of the clergy, various religious
    denominations, medical, and professional groups. The measure was signed
    into law by a Republican Governor, who based his decision to support
    the measure on the success of municipal ordinances providing similar
    protections.
        Prior to my election to the Wisconsin Assembly in 1992, I practiced
    law at a small general practice law firm. On occasion, I represented
    clients in employment discrimination cases. Through this work, I was
    able to see first-hand the importance of Wisconsin's sexual orientation
    anti-discrimination statute and the positive effect it had on our
    state. I represented a number of clients who were fired because of
    their sexual orientation and Wisconsin's sexual orientation anti-
    discrimination statute was vital in affording them the employment
    protection that all Americans deserve.
        Since Wisconsin passed its statute in 1982, nineteen additional
    states and the District of Columbia have passed similar protective
    measures. And we now have a chance to set a higher standard for our
    nation by passing H.R. 2015.
        As my colleagues know, the Employment Nondiscrimination Act, or
    ENDA, will provide basic protections against workplace discrimination
    on the basis of sexual orientation or gender identity. ENDA does not
    create ``special rights.'' It simply affords to all Americans basic
    employment protection from discrimination based on irrational
    prejudice.
        I'd like to take one moment to focus on the protections in ENDA
    that prohibit workplace discrimination on the basis of gender identity,
    because I've found that there is a great deal of confusion about this
    term.
        Gender identity is a person's internal sense of his or her gender.
    In the vast majority of the population, an individual's gender identity
    and his or her birth sex ``match.'' But for a small minority of people,
    gender identity and anatomical sex conflict. Because an individual was
    born one sex and presents themselves to the world as another--or in a
    way that other people may think is inconsistent with how a man or a
    woman should present themselves--he or she can face many forms of
    discrimination.
        ENDA contains language that makes it clear than an employer may
    establish and enforce reasonable and otherwise lawful dress and
    grooming standards for employees. But it also provides assurances that
    aspects of a person's gender identity and gender expression cannot be
    the basis for workplace discrimination. ENDA ensures that an employer
    cannot fire an employee solely because she is a woman with a
    ``masculine'' walk or a man with an ``effeminate'' voice.
        In conclusion, I want to underscore that the purpose of ENDA is to
    ensure that hard-working Americans cannot be denied job opportunities,
    fired or otherwise be discriminated against just because of their
    sexual orientation or gender identity. There is nothing more American
    than ensuring that people should have equal job opportunities.
        I want to thank Congressman Frank for his leadership on this issue.
    I also want to thank Congresswoman Pryce and Congressman Shays for
    their commitment to this issue.
        Once again, I sincerely appreciate the opportunity to testify today
    and look forward to the discussion.
        Thank you.
                                     ______

        Chairman Andrews. Tammy, we thank you very much.
        There are certain members that, when they rise to take the
    floor of the House, command the attention of just about
    everyone in the House.
        I am reminded of my predecessor as chairman of this
    subcommittee, Sam Johnson from Texas, for example. Whenever
    there is a military issue, a foreign policy issue, Sam, given
    his incredible heroism for this country as a POW, when he gets
    up, people listen to what he has to say. And Barney Frank is a
    very similar kind of member.
        Whether he is talking about banking issues, housing,
    foreign policy, civil rights, Barney is one of those members
    that, when he rises to the floor to speak, people who agree
    with him and people who disagree with him, stop and listen to
    what he has to say.
        He is chairman of the Financial Services Committee,
    wrestling with some very difficult economic issues as we speak.
        He has made a life and a career out of advocating for civil
    rights for all people. He is the lead sponsor of the bill in
    front of us. And it is our honor to welcome him to the
    committee this morning.
        Welcome, Barney.

     STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS
                    FROM THE STATE OF MASSACHUSETTS

        Mr. Frank. Thank you, Mr. Chairman. I am very appreciative
    of what you say.
        And it is true. As members know, we are subject to
    conflicting demands.
        I just left the hearing of the Financial Services Committee
    on the issues in the financial market, which I am chairing, so
    I am very torn today. And I got up this morning, I didn't want
    to sort of play favorites in my responsibilities. So that is
    why I appear before you today in a pinstripe suit and a
    lavender tie. I figured that would be kind of a sartorial
    compromise that could reach everything. [Laughter.]
        I am very pleased that the subcommittee is taking this up.
    And I am pleased you heard from my colleague, Ms. Baldwin, who
    has been a pioneer in helping this country deal with questions
    of sexual orientation.
        The bill before us is a very straightforward one. But I do
    want to begin with one acknowledgment, and that is: I requested
    Police Officer Michael Carney, who is seated in the front row,
    to testify. And there are people who say, ``Well, what do you
    need this law for? What good will it do?'' I asked him to
    testify because he is an example of what the law can do.
        He was a police officer, as he will tell you. He left the
    force because of personal problems that grew out of his being a
    closeted gay man, a subject on which I am far more of an
    authority than I wish I was.
        And he and several others who had left the force applied a
    few years later for readmission. They were all admitted except
    Mr. Carney--because he had come to terms with being gay, had
    cleaned up the behavioral issues that had accompanied that--and
    he was denied readmission when everybody else was allowed.
        And because Massachusetts had passed a law signed and
    administered under a Republican governor--started first by
    Michael Dukakis but signed by Governor Weld--that law was used
    and he was reinstated. And he has since then been an
    extraordinarily able member of the police department. And you
    will note that he is here with the full support of his union
    and others.
        But one thing I want to mention particularly.
        There is an article in today's Boston Globe, which I will
    submit for the record. Springfield Police Commissioner Edward
    Flynn said ``The department supports Carney. This is an
    important social issue and it is important that a credible
    police officer come out and speak about it.''
        What is relevant is that Mr. Flynn is now the police
    commissioner in Springfield but, as my colleague Mr. Tierney
    knows, prior to that, he was the secretary of public safety for
    the Commonwealth of Massachusetts, appointed by Governor Mitt
    Romney.
        Now, I do not mean to infer that because Governor Mitt
    Romney appointed this man, Presidential Candidate Mitt Romney
    would want to be associated with that. But it is relevant, it
    seems to me, that the appointee as secretary of public safety
    of Governor Mitt Romney is one of the men who endorses and
    enabled Officer Carney to be here.
        The principle of the bill is very simple. In America, if
    you apply for a job and are working on that job, you should be
    judged by your job performance only. That is it.
        Now, frankly, one of the difficulties we have encountered
    when we have pushed for laws like this is people say, ``Well,
    what are you really up to,'' because that must already be the
    law.
        Frankly, a large number of Americans not conversant with
    these issues instinctively say, ``Well, that must already be
    the law. How can you fire someone just because she is a
    lesbian? I mean, she is a good cook at Cracker Barrel''--which
    is one of the cases we had--``and she never caused any trouble.
    And you fired her because she is a lesbian. That must not be
    fair.''
        But as members know, fair isn't necessarily illegal or
    legal, and it is not now. It is perfectly legal in most of the
    states of this country to fire someone, or otherwise
    discriminate against that individual in employment, because of
    his or her sexual orientation wholly outside of any job-related
    issues.
        Now, I say that because nothing in here gives you any
    permission to misbehave on the job, to do anything on the job
    that violates any of the rules. It explicitly says no
    affirmative action.
        I believe in affirmative action in the race area. But I
    think that the cases of race discrimination and sexual
    orientation discrimination differ in many ways. And this
    explicitly disavows any affirmative action.
        It says you do not have the disparate impact for members
    who are--and I noticed one of the witnesses said, ``Well, you
    don't do that well enough.'' Fine, fix it up more.
        Because this is not an effort to have affirmative action--
    by the way, you couldn't do affirmative action because we still
    respect people's right of privacy. And it would be impossible
    because the only way you could do a disparate impact would be
    to compel everybody to tell his or her sexual orientation,
    which we certainly don't want to have happen.
        So you couldn't even begin to make a disparate impact case
    unless you got the sexual orientation of everybody at the
    workplace. And I hope nobody wants to see that. So it
    explicitly disavows affirmative action.
        It also tries to respect the autonomy of religious
    organizations. Again, I noticed some of the religious
    organizations say it doesn't do well enough. Fine, let us work
    together to do it better. The principle that we should not
    impinge on them is there.
        What that leaves us with is you don't fire someone, you
    don't refuse to hire someone, because he or she is gay or
    lesbian.
        And people have said, ``Well, what about my right to my
    opinion?'' People have their rights to their opinions. People
    have a right to be racist. People have a right to dislike
    certain religions.
        What you don't have a right to do, I believe, in our
    system, is in your economic interactions with people be
    prejudiced against them on that.
        In your personal life, who you associate with, who comes to
    dinner at your house, all of those are left untouched by this
    bill. It is narrowly on employment.
        And then we have the issue that my colleague so ably
    discussed of the transgender. And I understand that this is a
    new issue for people.
        There are people who are born with the physical
    characteristics of one sex who strongly identify with the
    other. Some of them have a physical change. Some of them don't.
        Let me make a plea to all of my colleagues. These are
    people--think what it must be like to be born with that set of
    feelings. Think what it must be like, think what stress, what
    agony you go through to defy society's conventions to the
    extent where you make that kind of a statement. This is
    something people are driven to do.
        Is there any reason why any of us should make those lives
    of those people more difficult than they already are?
    Obviously, these are people who are coping. And things are
    getting better. Things are better.
        When I was younger, a lot of things were difficult that are
    less difficult today. But what we say here is, ``If someone has
    these feelings, if someone is born with one set of
    characteristics, strongly identifies the other way, should you
    fire them? You deny them a promotion? You say no matter how
    good your job is that makes me uneasy, so out you go?''
        Now, we say in here you can make rules that those people
    have to abide by, that they have to dress in a gender-
    consistent way. We say in there, yes. There is an issue--we
    shouldn't have to talk about it, but we do--what happens when
    they are all in the shower together? You know, you can
    segregate bathrooms. A shower is a little difficult. This says,
    ``No. People don't have the right to go into open places where
    people are unclothed in a way that is going to embarrass
    people.''
        Now, we talk about an accommodation. Again, people have
    said, ``Well, you didn't do that well enough.''
        There is room for some fine-tuning there, but on the
    fundamental principle--you know, particularly for those people
    who are themselves made the most uneasy by the transgender
    issue--and, I must say, having worked with a lot of transgender
    people, I would tell my friends, you get over it pretty quick,
    because what you find out is you are dealing with human beings
    like all the rest of us, normal human beings who have the same
    emotions and needs and strengths and weaknesses of all of us.
        But for those who are not yet at the point of comfort with
    them, do we really feel driven to make lives harder for these
    people who already have, through no--and, by the way, you know,
    I just want to deal with this choice issue.
        No one, I believe, in the history of the world has said,
    ``You know what? Life is too easy. I think, although I was born
    a woman, I am going to act like a man. I think that would be a
    real lark. I think I will just go through life that way and
    invite physical abuse and invite all kinds of ridicule.'' So
    that is all we are saying.
        And let me say here, a final appeal. If there is any
    institution that ought to understand this, it is here.
        Let me tell you what I know. This institution--we, as
    members, are very well served by a large number of gay and
    lesbian employees. And many of my colleagues on the Republican
    side know that and have, to their credit, employed them.
        And I might say--you know, I wouldn't have said this a
    couple of years ago, but after the recent incident, it is now
    public.
        For years, the clerk of this House was a gay man, a
    Republican named Jeff Trandahl whose orientation became public
    because he behaved in a very honorable and admired way on the
    issue of our former colleague, Mr. Foley. And the Ethics
    Committee saluted Mr. Trandahl.
        You know, Jeff Trandahl is an example. And I know Jeff
    well, and he is a friend whom I respect and admire. And look at
    the role he played.
        How much easier it would have been, maybe some troubles
    could have been avoided, if there were legal protections that
    he and others would have had so they would not be subject to
    prejudice.
        I will acknowledge, yes, as Mike Carney's example will
    show, as my own example will show, people say, ``Well, you
    know, some of these gay people are misbehaving.''
        Yes. Living a life that you are trying to hide from others
    is not a prescription for model behavior. And you do dumb
    things in the closet sometimes. It is not an excuse. It is your
    fault when you do them.
        But it is in society's interest to diminish that pressure.
    And you can do that today.
        Thank you.
        [Newspaper article submitted by Mr. Frank follows:]

                   [From the Boston Globe, September 5, 2007]

                  Gay Officer to Speak Out for Job Rights Bill

                    U.S. Measure Would Forbid Discrimination

                          By Maria Cramer, Globe Staff

        Springfield Patrolman Michael Carney decided to hide his
    homosexuality immediately after he graduated from the police academy.
        At a graduation party, he saw a fellow officer come out of the
    men's room with a bloody nose. A police supervisor had beaten him up
    when he learned the officer had brought a male friend to the party,
    Carney recalled.
        For years, Carney never spoke about his attraction to men. To
    deflect suspicion, he would make homophobic remarks in front of fellow
    officers.
        But today, 25 years after he became a police officer, he will speak
    in the most public way about his sexual identity. He will ask Congress
    to pass the Employment Non-Discrimination Act, a bill US Representative
    Barney Frank, a Democrat, introduced in April that would make it
    illegal to fire gays and lesbians because of their sexual orientation.
        ``My objective is to support those who are closeted as well as
    out,'' said Carney, who will testify in full uniform. ``I feel when I
    speak I speak for those who can't speak for themselves.''
        Springfield Police Commissioner Edward Flynn said the department
    supports Carney.
        ``This is an important social issue and it's important that a
    credible police officer come out and speak about it,'' he said.
        Carney, 47, will testify before the Education and Labor Committee
    about the bill, which also would make it illegal to refuse to hire
    someone based on their sexual orientation. Some critics of the bill
    have expressed reservations that it does not clearly state the extent
    to which religious organizations are exempt.
        Frank said he asked Carney to speak because he is a beneficiary of
    Massachusetts' antidiscrimination law--the state is one of 17 that
    prohibits discrimination against gays and lesbians--and because as a
    law enforcement figure, Carney helps fight the stereotype of gay men as
    weak or effeminate.
        ``He's a thoughtful, articulate guy, and he's very honest about his
    story,'' Frank said.
        Carney said he knew he was gay when he was about 12. The son of
    Irish-Catholic immigrants, he was afraid to tell his family.
        As a young man, he dated men on the sly. He was more afraid that
    his fellow officers would find out he was gay than he was of the
    dangers he faced on duty.
        ``Who's going to find out?'' he said. ``That became the focus of my
    career.''
        The pressure to stay quiet overwhelmed him. Carney began to drink
    heavily, and in 1989, he was so depressed, he resigned from the Police
    Department. He sought counseling to help him face his sexual
    orientation and deal with his alcoholism. He said he never drank again.
        Carney told his parents, and in 1991, he helped found Gay Officers
    Action League of New England, a support group for gay law enforcement
    officers. In 1992, he tried to get his job back, and during his
    interview, he acknowledged he was gay. He was denied reinstatement and
    filed a complaint with the Massachusetts Commission Against
    Discrimination. In 1994, the agency ruled that there was probable cause
    the department had discriminated.
        Carney returned to the Police Department that year. Since then, he
    has joined the department's uniform division, patrolling the city on
    foot and on bicycle. Two years ago, he helped solve the murder of a man
    who was killed because he was gay. Veteran officers with gay children
    have approached him for advice. Others on the 450-member force have
    talked to him about their sexuality.
        Still, Carney said, the fear of coming out to fellow officers
    remains pervasive. ``Sadly enough today, I am the only one that is
    publicly out,'' he said.
                                     ______

        Chairman Andrews. Chairman, thank you very, very much for
    what I think was very moving testimony.
        Representative Emanuel Cleaver is a person who is, frankly,
    a joy to encounter around the halls of this institution.
        There are some people who read their religious scripture.
    There are others who live it.
        And Representative Cleaver is someone who, in any small
    interaction--2 o'clock in the morning during late votes--if you
    encounter him, there is a warmth. There is a glow. I think
    there is a godliness about the way he conducts himself, which
    makes him an asset to this institution, not simply as a
    lawmaker, but as a human being.
        And, Representative, we are glad to welcome you here with
    us this morning.

    STATEMENT OF HON. EMANUEL CLEAVER, A REPRESENTATIVE IN CONGRESS
                       FROM THE STATE OF MISSOURI

        Mr. Cleaver. Thank you, Mr. Chairman. I apologize. I have
    been in a little struggle for the last week.
        I would like to thank you and Ranking Member Kline for
    holding this hearing. And I think this hearing is extremely
    important because this may be the first of many discussions in
    the 110th Congress on the status or perceived status of an
    individual's sexual orientation and their right to employment.
        And I look forward to both bodies and both parties in
    Congress working together to help strengthen and expand the
    Civil Rights Act of 1964 so that our nation can further empower
    and engage the patchwork of all Americans in every community
    toward achieving full participation in every sphere of life in
    our nation.
        Simply put, Mr. Chairman, we are talking about jobs and an
    individual's right to work. The measure we are examining here
    today, H.R. 2015, the Employment Non-Discrimination Act of
    2007, known as ENDA, will strengthen the legal right for all
    individuals and allow them to be assessed on their ability to
    do a job because of their skill set and not a set of
    prejudices.
        Most of the arguments against this measure, as I have
    listened to religious radio, which my wife thinks that it is an
    act of self-torture, but nonetheless, I do listen almost on a
    daily basis, and I hear the arguments against this measure. And
    they usually take the form of some kind of an attack on family
    values. And that somehow protecting those who are, or are
    perceived to be, gay, lesbian, bisexual, transgender from equal
    legal consideration for employment is an affront to family and,
    somehow, specifically their family.
        In all the discussions I have heard on this subject, no one
    has yet explained how keeping someone from gaining equal
    consideration based on their individual skill set to obtain
    lawful employment pleases God. How can an American who claims
    to embrace God and uses that theology to then discriminate
    against another individual.
        Before I was elected to Congress, I very happily, and I
    might add, considered my only full-time job, even when I served
    as mayor of Kansas City, to being the pastor of the St. James
    United Methodist Church. And against all odds and against the
    Wesleyan tradition, I have held this appointment for 30 years.
    The average tenure of a Methodist pastor in our country is 3
    years.
        However, I have two full-time jobs. I still remain the
    unpaid senior pastor of St. James, while I serve as the
    representative from Missouri's 5th Congressional District.
        The role as pastor will never leave me, and I will never
    leave it. I am compelled to go home each weekend. And I
    generally preach and teach and visit hospitals. And I counsel
    all people who come to me.
        And I have never been able to get over the fact that, when
    a parishioner comes to me and expresses discrimination he or
    she has felt based on their sexual orientation, how I could
    then say, in the name of God, ``I am sorry. I cannot be
    supportive.'' I have theological difficulty in doing that.
        And I say here, now, with absolute conviction and
    confidence, that an individual's sexual orientation has
    nothing, absolutely no connection with my God's interpretation
    of my need to minister to them.
        Three of the greatest sins, I believe, are indifference to,
    neglect of, and disrespect for God's other sheep. Now, I will
    not delve too deeply into the political or ecclesiastical
    details of my position on those questions. Suffice it to say,
    none of the world's major religions--and certainly, not the
    three monotheistic religions--believe that God endorses
    discrimination based on sexual orientation.
        Now, opponents of this legislation--at least the ones on
    radio--argue that homosexuality and transgender identity are
    unnatural, immoral, or that someone else's sexual orientation
    offends their religious senses.
        Let there be no doubt. I am certainly pro-marriage. As an
    ordained United Methodist pastor, I have performed more than
    400 heterosexual weddings. And I have been happily and
    fortunately married to the same woman for three decades, even
    the same woman who thinks that I am mentally ill for listening
    to the radio programs that condemn me. [Laughter.]
        Nonetheless, those opposing the legislation, I believe,
    have their issues confused. We are not discussing whether a
    state should recognize an individual's right to marry. That
    was, is and shall, hopefully, always be left to the wisdom of
    state legislatures around the country. Although it is much too
    often discussed in Congress, marriage is not a federal issue.
        Today we are trying to further extend the rights of
    individuals who have been marginalized and discriminated
    against and denied legal federal protection for an equal
    playing field in their own country.
        Mr. Chairman, members of the committee, I have watched,
    over my lifetime, a person who has almost the same name as me--
    his name is Gary Emanuel Cleaver, my first cousin--I have seen
    him with a college education move from job to job to job. Once
    he was discovered, or once people believed him, to be
    homosexual, all of a sudden the pressures became too difficult
    for him to stay in that job.
        I never thought it was right, when I didn't see Gary being
    mistreated, but when I watched someone with my same DNA, with a
    very healthy IQ, and with a very, very good work ethic have
    difficulty staying on a job, I became more and more committed
    to this cause.
        Before I was mayor, I was the national vice president of
    the Southern Christian Leadership Conference. It is the
    organization founded by Martin Luther King, Jr., and four other
    mentors of mine: Joe Lowery, Fred Shuttlesworth, C. K. Steele
    and Ralph David Abernathy. We realized--or they did, I was much
    younger and just following behind these giants--that the
    federal government was our friend. In fact, absent the actions
    of the federal government, I am not sure what would be
    happening in our country today.
        The federal government took the lead in providing us with
    civil rights and with equal rights. And, therefore, I was very
    pleased on July 26, 1990, when President George H. W. Bush
    signed one of the most groundbreaking civil rights laws in our
    nation's history: the Americans with Disabilities Act. No law
    since the Civil Rights Act of 1964 has been as sweeping and as
    all-encompassing as the bill signed by former president Bush.
        And I think today of the words of Dr. Martin Luther King,
    Jr., because they still ring true. And he said, ``I refuse to
    accept the idea that the is-ness of man's present nature makes
    him morally incapable of reaching up for the ought-ness that
    forever confronts him.''
        This legislation ought to be approved. No matter where we
    are, we need to reach for the ought-ness.
        In conclusion, let me just say, Mr. Chairman, I believe
    that all Americans deserve the right of equal protection under
    the law. Now is the time to guarantee all Americans the God-
    given right to be. Thank you.
        [The statement of Mr. Cleaver follows:]

        Prepared Statement of Hon. Emanuel Cleaver, a Representative in
                      Congress From the State of Missouri

        Mr. Chairman, I would like to thank you and Ranking Member Kline
    for holding this hearing and examining, what I hope to be the first of
    many discussions in the 110th Congress, on the status or perceived
    status of an individual's sexual orientation and their right to
    employment. I look forward to both bodies and both parties in Congress
    working together to help strengthen and expand the Civil Rights Act of
    1964, so that our nation can further empower and engage the patchwork
    of all Americans in every community towards achieving full
    participation in every sphere of life in our nation.
        Simply put, Mr. Chairman, we are talking about jobs and an
    individual's right to work. The measure we are examining here today,
    H.R. 2015, the Employment Non-Discrimination Act of 2007, known as
    ENDA, would strengthen the legal right for all individuals and allow
    them to be assessed on their ability to do a job because of their skill
    set and not based on who an individual's personal life-style choice.
    Most of the arguments against this measure have taken the form of
    ``family values,'' and that some how protecting those who are or are
    perceived to be gay, lesbian, bisexual, transgender from equal legal
    consideration for employment is an affront to family--and somehow,
    specifically their family. In all the discussions I have heard on this
    subject, no one has yet explained how keeping someone from gaining
    equal consideration based on their individual skill set to obtain
    lawful employment pleases God. How can an American's choice to live
    with the person they choose become an affront to someone they have
    never met and will never know?
        Before I was elected to Congress, I, very happily I might add,
    considered my only full-time job to be that of Senior Pastor of St.
    James United Methodist Church in Kansas City Missouri. Against all odds
    and Wesleyan Tradition, I have held this appointment for 30 years.
    However, now I have two full time jobs. I still remain Senior Pastor at
    St. James while I serve as the Representative of Missouri's Fifth
    Congressional District. The role as pastor will never leave me, and I
    will never leave it. I am compelled to go home and preach every Sunday.
    I will pastor and counsel all people until I return to my maker. And I
    say here now, with absolute conviction and confidence, that an
    individual's sexual orientation has nothing, absolutely no connection
    with my God's issued mandate to minister to their needs, including
    their right to barrier-free access to employment. Three of the greatest
    sins, I believe, are indifference to, neglect of, and disrespect for
    God's other sheep.
        Opponents of this legislation argue that homosexuality and
    transgender identity are ``unnatural,'' ``immoral,'' or that someone
    else's sexual orientation offends my religious senses. Let there be no
    doubt. I am certainly pro-marriage. As an ordained member of the
    clergy, I have performed more than 400 hundred weddings and I have been
    happily and fortunately married to the same lovely woman for three
    decades. However, to this I say, those opposing the legislation have
    their issue confused. We are not discussing whether a state should
    recognize an individual's right to marry. That was, is, and shall,
    hopefully, always fall to the wisdom of the state legislatures around
    the country. Although it is much to often discussed in Congress,
    marriage is not a federal issue. Today we are trying to further extend
    the rights of individuals who have been marginalized and discriminated
    against and denied legal federal protection for an equal playing field
    when they seek employment.
        Further, the opponents of ENDA are concerned about creating a
    protected class that promotes homosexuality and thus negatively
    impacting the institution of marriage and family values. They cite the
    profusion of local laws on the subject, and suggest that country-wide
    protection is unnecessary. Again, I ask how protecting an individual's
    right to pursue a job on an equal playing field with equal
    consideration is promoting homosexuality and hurting the values within
    their family? Moreover, I say to these naysayers the current draft of
    this legislation goes beyond every previous incarnation of the
    legislation to protect small businesses and religious-based
    organizations and institutions that may preach against and hold tenants
    opposing same sex orientation. There are protections within the
    measure, so as to exempt these groups who have centralized these values
    of marginalization and separation.
        On July 2, 1964, the Civil Rights Act of 1964 was signed in to law.
    It was landmark legislation in the United States that outlawed
    segregation in the American schools and public places. Originally
    conceived to legally help African Americans, the bill was amended prior
    to passage to protect women. Once it was implemented, its effects were
    far reaching and had tremendous long-term impacts on the whole country.
    It prohibited discrimination in public facilities, in government, and
    in employment, invalidating the ``Jim Crow'' laws in the South. It
    became illegal to compel segregation of the races in schools, housing,
    or hiring. Powers given to enforce the law were initially weak, but
    were supplemented in later years.
        On July 26, 1990, President George H.W. Bush signed one of the most
    groundbreaking civil rights laws in our nation's history--the Americans
    with Disabilities Act (ADA). No law since the Civil Rights Act of 1964
    has been as sweeping and all encompassing as the ADA addressing
    employment, businesses, public accommodations, and telecommunications.
    As far reaching and effective as the ADA is, now is the time for
    Congress to continue what we started a decade ago. Today, the words of
    Rev. Martin Luther King, Jr. still ring true, ``I refuse to accept the
    idea that the 'isness' of man's present nature makes him morally
    incapable of reaching up for the 'oughtness' that forever confronts
    him.'' This legislation ought to be approved. Because of things that
    have happened to me and others who look like me, I have come to see
    that it is a first class mistake treat anyone as a second class
    citizen.
        Now is the time for us to go further, so that all individuals will
    be able to work, promoting their own self-sufficiency and independent
    living. Now is the time for millions of Americans who are gay,
    lesbians, bisexuals, or transgenders to receive equal protection under
    the law. Now is the time for a guarantee to all Americans the God given
    right to be. I know that everyone's participation is key. The same is
    true for enacting ENDA.
        Although I was not a Member of Congress when the ADA was written
    and made its precarious way through Congress, I am keenly familiar with
    expanding individual's civil rights and the suffering of all people
    when constrained, confined, and cut off. The premise of civil rights is
    simple: that all men, women, and children are created equal. We include
    rather than exclude. We engage rather than withdraw. We become one
    rather than segregate. I was an active member of the Civil Rights
    movement, and feel blessed to be a participant in this civil rights
    movement. I am proud to cosponsor this legislation and I am proud to be
    speaking in support of it today.
        Each year millions of Americans travel to Washington to talk to
    their elected officials, so that their voices can be heard by those who
    shape policy. Thank God they do come because they can effect change.
    The majority of Americans cannot make the trip to our nation's capital
    and are constrained by location and circumstances. As Members of
    Congress, we must reach out to our constituents through traditional and
    new technologies such as the Internet. I invite every Member of the
    House and Senate to engage our constituents and disabilities groups in
    our districts to participate in this vital discussion. Our nation is at
    the threshold of a vital second step, and as policy makers, this
    hearing is a chance to directly listen to the people affected by these
    issues, and to contribute to the national dialogue on the issues that
    affect their everyday lives, so that we can expand the rights and
    liberties of all Americans for full and equal employment.
        Thank you Mr. Chairman and the Committee for the opportunity to
    join and address you today.
                                     ______

        Chairman Andrews. We thank you, our friend and colleague,
    Mr. Cleaver, for your very powerful and eloquent statement.
        Each member has the prerogative of asking questions to the
    witnesses on this panel. It has generally been our practice,
    when we have lay witnesses, as it were, to try to move on to
    the second panel. So I would first ask my friends on the
    minority side, are there any questioners who would like to ask
    questions of this panel before we move on?
        Okay.
        And my friends on the majority side, do we have anybody
    that wants to ask questions of this panel?
        Well, let me express my appreciation to our colleagues for
    their indulgence this morning. We are very pleased you were
    here. Thank you.
        I would ask if the witnesses for the second panel would
    proceed to the witness table, and we will proceed in short
    order with their testimony.
        It is my understanding there is unanimous consent that
    Officer Carney can be introduced by his congressman,
    Congressman Neal, without objection.
        So what I am going to do is introduce the other witnesses.
    And then, Rich, I will turn to you to introduce Officer Carney
    last, if we would.
        Helen Norton is an associate professor at the University of
    Colorado School of Law. Previously, Ms. Norton served as a
    political appointee in the Civil Rights Division of the White
    House from 1998 until January of 2001, first as counsel to the
    assistant attorney general for civil rights, and then later as
    a deputy assistant attorney general for civil rights, where her
    duties included supervision of the employment litigation
    section.
        Welcome, Professor Norton, we are happy to have you with
    us.
        Mark Fahleson is an attorney with the law firm of Rembolt
    Ludtke, LLP in Lincoln, Nebraska. He earned his J.D. from the
    University of Nebraska at Lincoln. He is currently an adjunct
    professor of employment law at the University of Nebraska
    College of Law.
        Mark, glad to have you with us this morning.
        Lee Badgett is an associate professor of economics at the
    University of Massachusetts at Amherst. She is the research
    director of the Institute for Gay and Lesbian Strategic
    Studies. Professor Badgett received her B.A. in economics from
    the University of Chicago and a Ph.D. in economics from the
    University of California at Berkeley.
        Professor Badgett, we are very happy you are with us this
    morning.
        Lawrence Z. Lorber is a partner in the Washington, DC,
    office of Proskauer Rose, LLP, a fine firm. Mr. Lorber was
    formerly the deputy assistant secretary of labor and director
    of the Office of Federal Contract Compliance Programs during
    the Ford administration. Mr. Lorber received his undergraduate
    degree from Brooklyn College and his J.D. from the University
    of Maryland Law School.
        Welcome, Mr. Lorber. We are glad you are with us.
        Kelly Baker is presently the vice president of corporate
    diversity for General Mills in Minneapolis, Minnesota. Ms.
    Baker has a B.A. in Business Administration from Howard
    University and an MBA from an institution that lost to
    Appalachian State on Saturday, the University of Michigan.
    [Laughter.]
        Broderick will not like that. [Laughter.]
        That is for all my Buckeyes out there. I got to try to win
    some help in Ohio.
        Brooke Waits is from Dallas, Texas. She was previously an
    employee for Cellular Sales of Texas, and she is going to share
    her experience with us this morning.
        Nancy Kramer is the founder and CEO of Resource
    Interactive, a marketing service company in Columbus, Ohio,
    home of the Buckeyes. Her business has been recognized by
    Business Week, Working Women, Inc., and Interactive Week and,
    in the past year, has been acknowledged by the Ohio Chamber of
    Commerce as the best place to work in Ohio. Congratulations.
        And, Rich Neal, welcome to the committee. I understand you
    have a very special constituent that you are going to
    introduce.
        And, frankly, once that introduction is done, Officer
    Carney, if you would like to proceed with your testimony.
        Let me just say one thing. You will notice the battery of
    lights in front of you. The yellow light indicates that you
    have 1 minute of your 5 left. The red light means we would like
    you to wrap up and conclude.
        Your written statements have been included, without
    objection, in the record of the hearing. So we would ask you to
    summarize your written statements so we can get on to questions
    from the panel.
        And as soon as our friend, Rich Neal, is done with an
    introduction of Officer Carney, we will proceed.
        Rich, welcome.
        Mr. Neal. Thank you very much, Mr. Chairman, and to members
    of the subcommittee.
        Let me begin by thanking you, Mr. Chairman, for embracing
    that notion of moving swiftly to the second panel. [Laughter.]
        After 19 years here, I am indeed grateful for that position
    you have taken.
        Mr. Chairman, it is a pleasure for me today to not only
    introduce a constituent, Michael Carney, but also to certainly
    embrace the Employment Non-Discrimination Act.
        I have known Mike Carney's parents for many, many years.
    And, indeed, they have been unyielding in their support for me
    over those years.
        His sister worked for me when I was mayor of the city of
    Springfield. And his brother-in-law, to this day, remains one
    of my closest advisors. The Carneys are a first-class family.
        And for the 30 years that I have known Officer Carney, I
    knew him simply as a guy who had the same aspirations in our
    neighborhood as many do who embrace being police, fire,
    teachers, telephone company employees, gas company employees. I
    have known him just as a regular neighborhood guy, always
    pleasant when I saw him, kind, and always very, very decent.
    And I am happy that he is here today to offer his own testimony
    before your subcommittee.
        Mike Carney has a very compelling story to tell. I took the
    time to read that testimony that he is about to offer, last
    evening. And it is very important testimony because it reflects
    the transition that many neighborhoods across America find
    themselves in.
        Like most of us in this Congress, peer review is very
    important. We all know who the good members of Congress are,
    just as teachers know who the good teachers are, good
    firefighters know who the good firefighters are, and yes, good
    patrolmen and women know who the good patrolmen and women are.
    That peer review still in our lives counts for something. And
    if you were talking to the men and women of the Springfield
    Police Department, they would confirm my assessment that Mike
    Carney is a good police officer.
        He currently does outreach within the Springfield Police
    Department. He has been great for me to work with over many
    years. He is a gentleman. He is a very decent public servant.
    And I am glad that I had the opportunity today to introduce him
    to all of you.
        Thank you, Mr. Chairman.
        Chairman Andrews. Thank you very much, Rich.
        And, Officer Carney, if you would take your place at the
    table, we would proceed with your testimony. And we welcome
    each of the witnesses.

                      STATEMENT OF MICHAEL CARNEY

        Mr. Carney. Thank you.
        Good morning. And thank you, Congressman Neal and
    Congressman Frank and Chairman Andrews. I am honored and
    privileged to be here this morning.
        The bill you are debating, which is so important to the gay
    and lesbian, bisexual and transgender community, is even more
    important to America.
        As a first-generation Irish-American, I grew up hearing
    stories that when the Irish looked for jobs in the United
    States, they found signs that said, ``Irish not need apply.'' I
    was also told that those days were behind us, that I could be
    anything that I wanted to be in America.
        I found out the hard way that that is not true. Today,
    there remains an invisible and just insidious obstacle to
    employment that cuts across all racial and ethnic lines in
    America.
        I realized soon after graduating the police academy,
    because I was gay, my safety as a police officer and my future
    as a public servant was seriously jeopardized.
        After a classmate and his work partner were gunned down and
    murdered on the streets of Springfield, it forever changed the
    way that I viewed my job as a gay cop. Every time my partner
    and I rolled into a domestic or a gun call, all I would think
    of was who would notify my life partner. Would he first learn
    of my shooting on the 11 o'clock news? How would he be treated
    by my colleagues at my funeral?
        I am a good cop, but I have lost 2\1/2\ years of employment
    fighting to get that job back, because I am gay. And I never
    would have been able to do that had I not lived in
    Massachusetts or in one of the handful of other states that
    protect gay employees from discrimination. In fact, if I were a
    federal employee living in Massachusetts, I would not be
    covered at all.
        Discrimination impacts the lives of everyone. It not only
    deprives people of jobs and safe working conditions, it also
    robs our most vulnerable citizens of the vital services that
    they would have received from talented and dedicated gay
    workers.
        Throughout America, men and women from all backgrounds
    benefit from the talents and the dedication of gay employees.
    Many of these employees work without protection because they
    live in states that have no such guarantees. The Employment
    Non-Discrimination Act would guarantee that America's gay,
    lesbian, bisexual and transgender workforce would never again
    fear that they might not be hired or be able to keep their jobs
    solely because of their sexual orientation or their gender
    identity.
        I am proud to be Irish-American. I am proud to be gay. And
    I am proud to be a cop in Springfield, Massachusetts.
        I want to thank the panel for allowing me to testify today.
    And, please, put an end to this kind of employment
    discrimination that I have had to endure.
        Thank you.
        [The statement of Mr. Carney follows:]

         Prepared Statement of Officer Michael P. Carney, Springfield,
                        Massachusetts Police Department

        Thank you for the opportunity to tell you why the bill you are
    debating--which is so important to the Gay, Lesbian, Bisexual and
    Transgender community--is even more important to America.
        As a first generation Irish-American, I grew up hearing stories
    from my Mom and Dad that when the Irish looked for work in the United
    States, they found signs that said, ``Irish not need apply.''
        I was also told that those days were behind us. That I could be
    anything I wanted to be in America.
        Well, as luck would have it, I always wanted to be a police
    officer. You'd think that of all the things an Irish-American boy
    wanted to be, becoming a cop would be a slam-dunk.
        But there was an invisible, but just as insidious obstacle that I
    confronted--one that cuts across all racial and ethnic lines in
    America.
        I was gay.
        And there was nothing I could do about it. I didn't choose to be
    gay. I just was.
        It doesn't affect job performance, but it continues to affect the
    employability of millions of people in America.
        Here's how it affected me:
        On April 9, 1979 I joined the Springfield Police Department as a
    Police Cadet. It enabled me to work in every facet of policing while I
    obtained my college degree.
        In September of 1982, after I graduated from the police academy, I
    was appointed as a police officer. I felt I had no choice but to keep
    my personal life a secret from my co-workers and supervisors. Not being
    able to share my personal life with those I spent so much time with was
    extremely painful.
        Can you imagine going to work every day and avoiding any
    conversations about with whom you had a date * * * or a great weekend *
    * * or an argument--basically not sharing any part of your personal
    life for fear of reprisal or being ostracized.
        I did this in a career that prides itself on integrity, honesty and
    professionalism--and where a bond with one's colleagues and partner is
    critical in dangerous and potentially deadly situations.
        At my police graduation, a colleague's sexual orientation was the
    topic of conversation because he brought a man to our graduation party.
    Although he told everyone he was just a friend, by the end of the
    evening the police officer was assaulted by a police supervisor.
        That evening, I got an early lesson on how police officers like me
    are punished on the job, so I did everything in my power to be ``one of
    the boys'' and hide.
        A few years later, another classmate and his work partner were
    gunned down--murdered on the street. It forever changed the way I
    viewed the job as a gay cop.
        Every time my partner and I rolled into a domestic or a gun call,
    all I could think of was who would notify my life partner? Would he
    first learn of my shooting on the 11 o'clock news? How would he be
    treated by my colleagues at my funeral?
        The more I thought of these things, the more isolated and insecure
    I felt; the more singled-out and second-class I realized I truly was.
        I was beginning to feel like my grandfather's generation must have
    felt--that I wasn't good enough, that I was a second-class citizen.
        And then the irony hit me: wasn't it my job to ensure the rights of
    all citizens? Wasn't I sworn to uphold the constitution of the United
    States--a document anchored in the fundamental principle that all men
    are created equal, that they are endowed, by their Creator, with
    certain inalienable rights; that among these are life, liberty, and the
    pursuit of happiness?
        Every day, I felt the disconnect, the irony. The pain was deep. I
    felt ashamed. I kept thinking, what would happen if they found out?
    What would they do?
        In 1989, after years of pain and self-abuse from drinking I hit
    bottom. I could not face my peers. I felt like I didn't fit in. I was
    humiliated. I was afraid. I resigned as a police officer.
        Three months later, it turned out to be the turning point of my
    life. I got professional help. I've been sober ever since.
        A close friend of mine told me, ``the truth will set you free.'' A
    year later, I was on the road to a new life as a sober gay man. For the
    first time in my life I was honest with my family and friends and lived
    openly as the person God created.
        In 1991 I helped co-found the Gay Officers Action League of New
    England, a support group for gay law enforcement officers.
        Our organization struck a responsive chord with the law enforcement
    community. Not only did I meet hundreds like me, our organization began
    getting requests from police chiefs around the country asking for
    training and practical advice.
        I found the support that I needed, and in 1992 I decided to return
    to the job I loved. I received news that the police department was
    taking back officers for reinstatement, so along with four colleagues,
    I applied.
        I was granted an interview, and this time I decided to be honest
    with them and tell them who I really was. I came out in that interview.
    Three days after my interview, I was notified that I was denied
    reinstatement.
        I was dumbfounded. I could not believe this was happening. I
    retained an attorney and he spoke with city officials. He told me to
    reapply. I did and a week later I received a letter stating that I was
    denied again. My four colleagues were all reinstated.
        I felt like I was kicked in the gut. But this time, I was also
    furious. I asked my lawyer to file a complaint with the Massachusetts
    Commission Against Discrimination for employment discrimination based
    on my sexual orientation.
        My lawyer talked me out of it. He said, ``your friends and family
    members know about you, but if you file this complaint, it will be a
    public document and everyone will know.''
        He then talked to the Mayor. The Mayor agreed that I should be
    granted another interview and called the chairman of the Police
    Commission. He complied. During the interview, the Police Chief told
    the Police Commission that I did a ``commendable job as a police
    officer.'' The Sheriff of Hampden County also spoke on my behalf.
        I felt uplifted and finally believed I would get my job back.
        Three days later, I received a letter from the Police Commission. I
    opened it nervously. I could not believe what I read. I was denied
    again. I immediately went to the Massachusetts Commission Against
    Discrimination and filed the first case of sexual orientation
    discrimination against a law enforcement agency in Massachusetts.
        A few days later it hit the media. I was out publicly. The Police
    Commission later defended its position, claiming that ``other
    candidates were more enthusiastic and more forthright.''
        The Massachusetts Commission Against Discrimination's investigation
    took two and half years of my life--two and half years that I could not
    be a police officer.
        I felt so humiliated, so lost. I wondered if I did the right thing.
        In 1994, citing the police commission's rationale for my rejection
    ``as pretext,'' the Massachusetts Commission Against Discrimination
    ruled probable cause that discrimination did in fact occur.
        On September 22, 1994, the City settled my case and at a press
    conference held by the Massachusetts Commission Against Discrimination.
    My parents, who were 73 years of age at that time, stood by my side as
    the settlement announcement was made. I will never forget how proud
    they were of me and how grateful I was that they understood why I put
    myself and them and my City through all of this.
        I just wanted to be a cop. I've always wanted to be a cop.
        I returned to work, and since then I have worked as a police
    academy instructor, a detective in the youth assessment center, a
    detective in the narcotics division, as an aide to the Chief of Police
    and, most proudly, I am now assigned to the uniform division.
        I've been recognized for saving a man who jumped from a bridge into
    the Connecticut River in a suicide attempt. I've received letters of
    recognition for a youth mentorship program that I co-founded, as well
    as a letter of commendation from the Police Commission for outstanding
    police work in capturing a bank robber. In 1997, I was a guest at the
    White House Conference on Hate Crimes. I served from 1996 to 2002 on
    the Governor's Hate Crimes Task Force under three governors in
    Massachusetts.
        I have been honored and blessed to serve my department and the
    citizens of my community.
        I'm a good cop. But I had to fight to get my job because I'm gay.
    And I never would have even been able to do THAT--had I not lived in
    Massachusetts or in one of the handful of other states that protect gay
    people from discrimination.
        In fact, if I were a federal employee living in Massachusetts I
    would not be protected at all.
        Had I not been successful in fighting the bias that tried to
    prevent me from working, all the good that I have done for some of the
    most vulnerable people in my community would never have happened.
        Discrimination impacts the lives of everyone. It not only deprives
    people of livelihoods and safe working conditions, it also robs the
    public of vital services they would have otherwise received from
    talented and dedicated workers.
        Throughout America, men and women of all backgrounds benefit from
    the talent and dedication of gay employees. Many of these employees
    work without protection because they live in states that have no such
    guarantees.
        The Employment Non-Discrimination Act would guarantee that
    America's Gay, Lesbian, Bisexual and Transgender workforce would never
    again fear that they might not be hired or might not be able to keep
    their jobs solely because of their sexual orientation or gender
    identity.
        I'm proud to be Irish. I'm proud to be gay. I'm proud to be a cop
    in Springfield, Massachusetts. And I'm grateful for the opportunity to
    tell you my story.
        Please put an end to the kind of employment discrimination that I
    have had to endure.
                                     ______

        Chairman Andrews. Thank you, Officer Carney, for your
    testimony and for your service to the community. It is very
    much appreciated.
        Mr. Carney. Thank you.
        Chairman Andrews. Ms. Kramer, welcome to the committee.

         STATEMENT OF NANCY KRAMER, FOUNDER AND CEO, RESOURCE
                              INTERACTIVE

        Ms. Kramer. Thank you. Thank you, Chairman Andrews and the
    members of the subcommittee. I am very happy to be here to
    present my point of view about a topic for which I am very
    passionate.
        As a business owner and entrepreneur, I am here to talk
    about the importance of creating this workplace that we are
    talking about that welcomes people from all walks of life.
        Discrimination against gay, lesbian, bisexual and
    transgender workers deprives American business of too many
    talented and hard working people, quite frankly. In my 26 years
    running a business, I have learned that an inclusive workplace
    which judges people on their merits, not on unrelated matters
    like sexual orientation or gender identity, is the key to
    success in a competitive, ever-changing marketplace.
        When I started Resource Interactive as a traditional
    marketing services company with two partners in 1981, the
    working world was very different. The Internet, the basis for
    our entire business today, wasn't even conceived.
        We were lucky to start with an innovative and progressive
    client, Apple Computer. And that set the tone for our culture
    from day one.
        But I, as a woman, experienced discrimination in the
    business world. When I bought out my partners in 1984, I
    couldn't even get a basic line of credit for the business
    without my then-husband co-signing on the loan. In fact, over
    the years as a woman in business, I have been second-guessed,
    underestimated, and even propositioned more often than I care
    to remember. I understand what it means to be discriminated
    against in the workplace.
        Looking back, it is hard to believe that my gender
    potentially stood in the way of my success as a business
    person. It is equally baffling to me today that members of the
    GLBT community see their desire to simply do a job, and do it
    well, thwarted by being who they are.
        As the world changes, business leaders know they must also
    change to remain competitive. My company has embraced new
    technologies and become a leading digitally-focused marketing
    firm, growing from just three people in 1981 to over 200
    associates today.
        Along the way, we have acquired some great clients,
    including Hewlett-Packard, Procter & Gamble, Best Buy, and
    L.L.Bean. Like us, these corporations recognize the key to
    success is to create an environment that recruits, retains and
    rewards talented associates, regardless of characteristics
    unrelated to their job performance. This simple premise has led
    nearly 90 percent of Fortune 500 companies to adopt
    nondiscrimination policies that include sexual orientation,
    with a quarter of them including provisions for gender
    identity.
        I have had the great fortune to lead a small business to
    success and to be recognized for those efforts.
        I was honored to have recently been appointed by Governor
    Ted Strickland as chairperson of the Governor's Workforce
    Policy Advisory Board for the state of Ohio.
        My business, Resource Interactive, has received numerous
    national recognition for its innovative workplace environment
    from sources as varied as Business Week, Working Woman, Inc.
    magazine, and Interactive Week. And, as Chairman Andrews was
    saying, we were recently honored by the Ohio Chamber of
    Commerce as best place to work in the state of Ohio.
        Over the years, I have learned that living a secret life is
    not good for anyone. In fact, it is highly destructive,
    especially in the workplace. I am extremely proud of the fact
    our company's culture encourages people to be the same person
    on the outside that they are on the inside and to not live in
    secret.
        Preparing for today, I was reflecting on some of our past
    and present Resource associates. There are at least a half a
    dozen examples of folks who entered our business projecting the
    acceptable sexual orientation, but eventually realized being
    who they are was not only accepted at Resource, but embraced.
        As a CEO, as a public board director, and as an
    entrepreneur, I know you need every talented person you can
    hire. Passing the Employment Non-Discrimination Act will not
    create a burden on business, large or small. Instead, it will
    ensure that the hard working GLBT Americans can earn a living,
    provide for their families, and contribute to the innovation
    and creativity that makes American business great. And it is
    simply smart business.
        Two of my daughters are here with me here today. I am
    grateful that, because laws have changed, they won't have to
    face the same discrimination I faced 26 years ago today.
        I have always taught them that every person has value and
    should be judged on his or her merit. I brought them to
    Washington with me today in hopes that they might witness this
    first step toward eliminating workplace discrimination for all
    those Americans in the GLBT community.
        Thank you for your time. And I strongly encourage passage
    of this important legislation.
        [The statement of Ms. Kramer follows:]

        Prepared Statement of Nancy Kramer, Founder and Chief Executive
                         Officer, Resource Interactive

        Thank you to Chairman Andrews and the members of the subcommittee
    for inviting me to present my point of view about a topic for which I
    am very passionate. As a business owner and entrepreneur, I am here to
    talk about the importance of creating a workplace that welcomes the
    best and the brightest, from all walks of life. Discrimination against
    gay, lesbian, bisexual and transgender workers deprives American
    business of too many talented and hardworking people. In my twenty-six
    years running a business, I have learned that an inclusive workplace,
    which judges people on their merits, not on unrelated matters like
    sexual orientation or gender identity, is the key to success in a
    competitive, ever-changing marketplace.
        When I started Resource Interactive as a traditional marketing
    services company with two partners in 1981, the working world was very
    different. The Internet, the basis for our entire business today,
    wasn't even conceived. We were lucky to start with an innovative and
    progressive client--Apple Computer--that set the tone for our culture
    from day one. But I, as a woman, experienced discrimination in the
    business world. When I bought out my partners in 1984, I couldn't even
    get a basic line of credit for the business without my then husband as
    a co-signer. In fact, over the years, as a woman in business, I've been
    second-guessed, underestimated, and even propositioned more often than
    I care to remember. I understand what it means to be discriminated
    against in the workplace.
        Looking back, it is hard to believe that my gender potentially
    stood in the way of my success as a businessperson. It is equally
    baffling that, today, members of the GLBT community see their desire
    simply to do a job, and do it well, thwarted by being who they are.
        As the world changes, business leaders know that they must also
    change to remain competitive. My company has embraced new technologies
    and become a leading digitally-focused marketing firm, growing from
    just the three of us in 1981 to over 200 employees today. Along the way
    we have acquired great clients like Hewlett-Packard, Procter & Gamble,
    Best Buy and L.L. Bean. Like us, these corporations recognize that the
    key to success is to create an environment that recruits, retains and
    rewards talented associates regardless of characteristics unrelated to
    job performance. This simple premise has led nearly 90% of Fortune 500
    companies to adopt nondiscrimination policies that include sexual
    orientation, with a quarter of them also including gender identity.
        I have had the great fortune to lead a small business to success,
    and to be recognized for those efforts. I was honored to have recently
    been appointed by Governor Ted Strickland as Chairman of the Governor's
    Workforce Policy Advisory Board for the State of Ohio.
        My business, Resource Interactive, has received national
    recognition for its innovative workplace environment from sources as
    varied as Business Week, Working Woman, Inc. magazine and Interactive
    Week; and just this past year, was recognized by the Ohio Chamber of
    Commerce as Best Place to Work in the State of Ohio.
        Over the years, I have learned that living a secret life is not
    good for anyone; in fact it's highly destructive--especially in the
    workplace. I am extremely proud of the fact that our company's culture
    encourages people to be the same person on the outside that they are on
    the inside, not live in secret. Preparing for today, I was reflecting
    on some of our past and present Resource associates. There are at least
    a half dozen examples of folks who entered our business projecting the
    'acceptable' sexual orientation, but eventually realized being who they
    really are was not only accepted at Resource, but embraced.
        As a CEO, public board director, and entrepreneur, I know you need
    every talented person you can hire. Passing the Employment Non-
    Discrimination Act will not create a burden on businesses, large or
    small. Instead, it will ensure that hardworking GLBT Americans can earn
    a living, provide for their families, and contribute to the innovation
    and creativity that makes American business great. And, it's simply
    smart business.
        Two of my daughters are here with me today. I am grateful that,
    because laws have changed, they won't have to face the same
    discrimination I faced 26 years ago. I have always taught them that
    every person has value and should be judged on his or her merit. I
    brought them to Washington with me today in hopes they might witness
    the first step toward eliminating workplace discrimination for all
    those Americans in the GLBT community. I thank you for your time and I
    strongly encourage you to pass this extremely important legislation.
                                     ______

        Chairman Andrews. Ms. Kramer, thank you. At the risk of
    destroying your credibility as a mom of teenage girls, could we
    ask you to name your daughters and have them stand so they can
    be introduced?
        Ms. Kramer. Yes. My daughter, Marika Kramer Verog, is a
    junior in high school. And my daughter, Anna Kramer Verog, is a
    freshman in high school.
        Chairman Andrews. Welcome. And if they need a note from the
    committee to excuse them from Social Studies, we--Mr. Kline----
        [Laughter.]
        Ms. Kramer. The school was quite excited about this
    opportunity.
        Chairman Andrews. Okay.
        Ms. Kramer. So, thank you.
        Chairman Andrews. Thank you. And welcome, young ladies, to
    the committee, as well.
        Brooke Waits has come a long way to tell the story she is
    going to tell today. She is typical of a lot of women in this
    country who have--and men--who have had to deal with the pain
    of discrimination and risen above it to be strong. We are very
    fortunate she is with us today.
        Ms. Waits, welcome.

                        STATEMENT OF BROOK WAITS

        Ms. Waits. Thank you.
        I want to begin today by thanking you, Chairman Andrews,
    for the opportunity to come and testify about my personal
    experience with the kind of discrimination that shockingly
    still affects people across the country.
        Like so many other gay, lesbian, bisexual and transgender
    victims of workplace discrimination, I didn't lose my job
    because I was lazy, incompetent, or unprofessional. Quite the
    contrary. I worked hard and did my job very well.
        However, that was all discarded when my boss discovered
    that I am a lesbian. In a single afternoon, I went from being a
    highly-praised employee to out of a job. The experience has
    been very, very difficult for me, as it has altered not only
    how I feel about the world, but also how I feel in the world.
        Work was more than work to me. It was part of what I know
    about myself, how I feel about myself. I never went to work
    simply to get through another day. I went to work to be a rock
    star. How I feel today is vastly different.
        Up until a month ago, I had not been employed full-time
    since the summer of 2006. For a few hours a week, I did some
    bookkeeping and taxes for my father's small business. Working
    part-time and earning less than half the money I had still felt
    better than an atmosphere of contempt.
        Cellular Sales of Texas hired me in March of 2006 for the
    position of inventory control manager. I was responsible for
    all the stores throughout Texas and Oklahoma. My job was a
    position of trust: keeping track of valuable and frequently-
    stolen electronics. I was excited to take on a position of such
    importance and responsibility.
        I spent hours, even before the work day started,
    implementing a control system to help the store manage its
    inventory. I was frequently praised by my supervisor for
    dedication and quickly received praise for my job performance.
        But there was a negative side to my workplace, the side
    that kept me, an otherwise open lesbian, from being honest
    about myself with my coworkers. It wasn't long before I began
    to hear male coworkers making jokes and other derogatory
    comments about gay, lesbian and bisexual, transgender people. A
    fellow female employee told me that my walk was not too
    feminine.
        I did not want to create any problem in this new job. In
    conversation, I tried to stay engaged, while carefully avoiding
    all pronouns, in particular, ``she.'' I spoke very generally,
    never using my girlfriend's name. Instead, I used things like
    my better half.
        But that was not enough to keep my sexual orientation from
    costing me my job. Ironically, my cell phone proved to be the
    problem. Like many people, I had a photo of me and my
    girlfriend sharing a midnight kiss at a New Year's Eve party
    saved as my cell phone screen saver.
        One day, in May 2006, my manager came into the back office
    to ask me a question. I was across the room sending a fax, but
    my manager stopped at my desk, noticing my cell phone sitting
    on it. Out of what I can only imagine was innocent curiosity,
    she opened my phone and exclaimed, ``Oh, my.''
        I turned and looked at her. She didn't even make eye
    contact before snapping her phone and rushing back into her
    office. She avoided me for the rest of the day, and I overheard
    her telling a coworker that she knew there was something off
    about me.
        I dreaded coming to work the next day and, to my dismay, my
    manager was already there 3 hours earlier than she usually
    arrived. As I passed her office door, she called me in, stood
    up, and without the slightest hesitation, told me that she was
    going to have to let me go. When I asked why, she told me that
    they needed someone more dependable in the position.
        I was shocked. I had arrived at work an hour early for
    weeks, not only implementing a brand new inventory system, but
    programming it and drafting instructions on how to use the
    software.
        When I defended myself, she simply repeated, ``I am sorry.
    We just need to let you go.''
        I realize a law still won't change the way some people like
    my employer feel about other people and certain issues.
    However, there is a sense of security knowing that the other
    hardworking Americans like me are protected under a law from
    situations like this from happening again.
        I do not believe that anyone should be exposed to a
    workplace where they have to worry about being who they are
    costing them their livelihood. Congress has the power to help
    stop the devastating effects of discrimination against gay,
    lesbian, bisexual and transgender people. Please pass the
    Employment Non-Discrimination Act.
        [The statement of Ms. Waits follows:]

                       Prepared Statement of Brooke Waits

        I want to begin by thanking Chairman Andrews and the members of
    subcommittee for giving me the opportunity to testify today about my
    personal experience with a kind of discrimination that, shockingly,
    still affects people across the country. Like so many other gay,
    lesbian, bisexual and transgender victims of workplace discrimination,
    I didn't lose my job because I was lazy, incompetent or unprofessional.
    Quite the contrary--I worked hard and did my job well.
        However, that was all discarded when my boss discovered that I am a
    lesbian. In a single afternoon, I went from being a highly praised
    employee to out of a job. The experience has been very difficult for
    me, as it has altered not only how I feel about the world but also, how
    I feel in the world. Work was more than work to me; it was a part of
    what I know about myself and how I feel about myself. I never went to
    work simply to get through another day; I went to work to be a rock
    star.
        How I feel today is vastly different. Up until a month ago, I had
    not been employed full-time since the summer of 2006. For a few hours a
    week I did the bookkeeping and taxes for my father's small business.
    Working part-time and earning less than half the money I had still felt
    better than an atmosphere of contempt
        Cellular Sales of Texas hired me in March of 2006 for the position
    of inventory control manager. I was responsible for all stores
    throughout Texas and Oklahoma. My job was a position of trust--keeping
    track of valuable, and frequently stolen, electronics. I was excited to
    take on a position of such importance and responsibility. I spent
    hours, even before the workday started, implementing a control system
    to help the store manage its inventory. I was frequently praised by my
    supervisor for my dedication, and quickly received a raise for my job
    performance.
        But there was a negative side to my workplace, a side that kept me,
    an otherwise open lesbian, from being honest about myself with my co-
    workers. It wasn't long before I began to hear male coworkers making
    jokes and other derogatory comments about gay, lesbian, bisexual and
    transgender people. A fellow female employee told me my walk was ``not
    too feminine''. I did not want to create problems in a new job, so, in
    conversation, I tried to stay engaged while carefully avoiding all
    pronouns, in particular, ``she.'' I spoke very generally, never using
    my girlfriend's name. Instead I said things like, ``my better half.''
        But that was not enough to keep my sexual orientation from costing
    me my job. Ironically, my own cell phone proved to be the problem. Like
    many people, I had a photo of me and my girlfriend--sharing a midnight
    kiss at a New Year's Eve party--saved as my cell phone screensaver. One
    day in May 2006, my manager came into the back office to ask me a
    question. I was across the room sending a fax, but my manager stopped
    by my desk, noticing my cell phone sitting on it. Out of what I can
    only imagine was innocent curiosity, she opened my phone and then
    exclaimed ``Oh my!'' I turned and looked at her. She didn't even make
    eye contact before snapping my phone shut, tossing it back on my desk
    and rushing back to her office. She avoided me for the rest of the day,
    but I overheard her tell a coworker that she ``knew there was something
    off'' about me.
        I dreaded coming to work the next day and, to my dismay, my manager
    was already there, three hours earlier than she usually arrived. As I
    passed her office door, she called me in, stood up and, without the
    slightest hesitation, told me that ``she was going to have to let me
    go.'' When I asked why, she told me that they needed someone more
    ``dependable'' in the position. I was shocked--I had arrived at work an
    hour early every day for weeks, not only implementing a brand new
    inventory system, but programming it and drafting instructions on how
    to use the software. When I defended myself, she simply repeated, ``I'm
    sorry, we just need to let you go.''
        I realize a law still won't change the way some people, like my
    former employer, feel about other people or certain issues. However,
    there is a sense of security, knowing that other hardworking Americans
    like me are protected under law from situations like this happening
    again. I do not believe that anyone should be exposed to a workplace
    where they have to worry that simply and honestly being who they are
    could cost them their livelihood. Congress has the power to help stop
    the devastating effects of discrimination against gay, lesbian,
    bisexual and transgender people. Please, pass the Employment Non-
    Discrimination Act.
                                     ______

        Chairman Andrews. Ms. Waits, thank you very, very much for
    something I know that was difficult to do, but so very
    necessary for us to hear. And you did a great job, and we are
    so fortunate you are here today. Thank you.
        Ms. Waits. Thank you.
        Chairman Andrews. Ms. Baker, welcome to the committee. We
    are happy to have you.

    STATEMENT OF KELLY BAKER, VICE PRESIDENT OF DIVERSITY, GENERAL
                              MILLS, INC.

        Ms. Baker. Thank you.
        Thank you, Chairman Andrews, and greetings to Ranking
    Member Kline from our mutual home state of Minnesota. And thank
    you to all of the distinguished members of the subcommittee for
    the opportunity to speak about the Employment Non-
    Discrimination Act of 2007.
        My name is Kelly Baker. I am the vice president of
    diversity at General Mills. We make Cheerios, Green Giant
    vegetables, Progresso soups, Pillsbury baked goods, and Yoplait
    yogurt, just to name a few of our household brands.
        We have over 28,000 employees. About 18,000 of those
    employees work in the United States. And we have sales of about
    $13.4 billion.
        We market our products to everyone. Today, 98 percent of
    U.S. households have a General Mills product within their
    kitchen. So it just makes good business sense for us to value
    all of our consumers, and we do.
        It also makes good business sense for us to create a work
    environment where every employee is respected, valued,
    challenged, and rewarded for their contributions and their
    performance each and every day.
        A diversity of opinions is vital for an innovative company
    like ours that creates hundreds of new products every year. A
    culture of respect and inclusiveness is also important to
    retaining top talent and recruiting new stars. The bottom line
    is that a respected employee is a productive employee.
        Our work environment was built on the foundation of our
    equal employment opportunity policy, which prohibits the
    discrimination of anyone based on age, race, color, religion,
    sex, national origin, marital status, disability, citizenship,
    military service, sexual orientation and gender identity, and
    any other characteristic that is protected by law. Sexual
    orientation has been part of our policy since the early 1990s.
    And we added gender identity to our policy in 2004.
        We know our policy and, more importantly, our company
    culture exemplifies the spirit of the Employment Non-
    Discrimination Act. In fact, 94 percent of our employees say
    that General Mills provides a working environment that is
    accepting of differences in backgrounds and lifestyles.
        As proud as I am of that statistic, I am even more proud
    when I walk around our campus and look at the varied pictures
    of families and the various compositions of families on all of
    our employees' desks.
        Our culture of inclusion has been regularly recognized by
    external groups. Just last week, for example, LATINA Style
    Magazine named us once again as one of the top 50 companies for
    Latinas in America.
        We have also achieved 100 percent on the Human Rights
    Campaign Corporate Equality Index. And we are very proud of
    that. It recognizes our policies and practices that support our
    GLBT employees.
        We have also been honored by other organizations from
    Working Mother to Business Ethics to Fortune magazine. We are
    very proud of that.
        In addition to promoting diversity because of its benefits
    to our business, we also support this legislation because we
    believe it is the fundamental right of all American citizens to
    be treated fairly, with respect and dignity in their workplace,
    regardless of their sexual orientation or gender identity.
        Our support mirrors the state in which we are
    headquartered, Minnesota. We believe federal protection of our
    citizens will be a symbolic and effective means to deliver
    civil rights to everyone.
        We know that providing an environment where people of
    different backgrounds and lifestyles can grow and thrive is
    essential to our long-term success. In our business, innovation
    is key. People with diverse experiences and backgrounds bring
    different and uniquely valuable perspectives and solutions.
    This diversity drives innovation. That is why we support any
    practice or policy that encourages bringing more diversity to
    the table.
        Internally, we have done several things to encourage
    diversity, including the creation of several employee networks
    that we visibly and financially and through our senior
    leadership support. These affinity groups include our Black
    Champions Network, our Hispanic Network, our American Indian
    Council, our South Asian Employee Network, our Asian American
    Employee Network, our Women's Leadership Group, and Betty's
    Family, which is our GLBT network.
        Betty's Family is named after one of our key icons, Betty
    Crocker. The mission of this network is to create a safe, open
    and productive environment for General Mills GLBT employees.
    One of our most senior executives helped co-found this network
    and has commented frequently on the powerful impact this
    network has on our ability to attract and retain top talent
    across the company.
        We know that these networks, in addition to our other
    policies and practices, are a tangible demonstration of our
    commitment to attracting, developing and advancing every unique
    employee at our company.
        We know that establishing a culture of respect is just a
    baseline for our employment standards. Beyond that, we strive
    to be an employer of choice, a place where we demonstrate a
    support for the personal needs of our employees, allowing them
    to be fully committed to work. And in 1999, we did introduce
    domestic partner benefits.
        In closing, please let me reiterate why General Mills
    believes this legislation is good for business and good for
    America. It will help businesses attract and retain top talent.
    It will help provide a safe, comfortable and productive work
    environment free from any form of discrimination. And it will
    help create a culture that fosters creativity and innovation
    that is vital to the success of all businesses.
        Thank you so much for the opportunity to speak today.
        [The statement of Ms. Baker follows:]

     Prepared Statement of Kelly Baker, Vice President, Diversity, General
                                  Mills, Inc.

        Thank you Chairman Andrews and Ranking Member Kline for the
    opportunity to speak today in support of the Employment Non-
    Discrimination Act of 2007 (H.R. 2015). And thank you distinguished
    members of the Subcommittee on Health, Employment, Labor and Pensions.
    My name is Kelly Baker and I am vice president of Diversity at General
    Mills. We make Cheerios, Green Giant vegetables, Progresso soups,
    Pillsbury baked goods and Yoplait yogurt, to name a few of our
    household brands. We have 28,500 employees--about 18,000 work in the
    United States--with annual sales of $13.4 billion.
        We market our products to everyone. Today, 98 percent of all U.S.
    households have at least one General Mills product in their kitchen. So
    it just makes good business sense to value all of our customers, which
    we do. But it also makes good business sense to create a work
    environment where every employee is respected, valued, challenged and
    rewarded for their individual contribution and performance. Because
    when you do this, good things happen.
        A diversity of opinions is vital for an innovative company like
    ours that creates hundreds of new products each year. A culture of
    respect and inclusiveness is also important for retaining top talent
    and recruiting new stars. The bottom line is that respected employees
    are productive employees. Our work environment was built on the
    foundation of our Equal Employment Opportunity policy, which prohibits
    discrimination based on age, race, color, religion, sex, national
    origin, marital status, disability, citizenship, sexual orientation,
    gender identity, military service, or other characteristic protected by
    law. Sexual orientation has been a part of our policy since the early
    1990s and we added gender identity in 2004.
        We know our policy and, more importantly, our company culture
    exemplifies the spirit of the proposed Employment Non-Discrimination
    Act (ENDA). In fact, 94 percent of our employees say General Mills
    provides a working environment accepting of differences in background
    and lifestyle. As proud as I am of that statistic, I'm even prouder
    when I see this diversity prominently represented by all kinds of
    family pictures proudly displayed in peoples' offices at General Mills.
        Our culture of inclusion has been regularly recognized by a variety
    of external groups. Just last week, for example, Latina Style magazine
    once again named General Mills as one of the top 50 companies in
    America for Latinas. We also achieved a 100 percent score on the Human
    Rights Campaign's Corporate Equality Index, which recognizes the
    policies and practices we have that are supportive of our GLBT
    employees. We have also been honored as one of the:
         100 Best Companies to Work For, Fortune 2006, 2005, 2004
         100 Best Corporate citizens, Business Ethics magazine,
    2006, 2005, 2004, 2003
         100 Best Companies for Working Mothers, Working Mother
    magazine, 11 straight years
         Top 50 Companies for Diversity, DiversityInc, 2007, 2005,
    2004
        DiversityInc said that for the fourth year in a row, its Top 50
    companies--expressed as a stock index--beat the S&P 500, Dow Jones
    Industrial Average and the Nasdaq on a 10-, five- and one-year basis.
    That performance underscores the link between good diversity
    management, excellent corporate governance and return on equity for
    shareholders.
        In addition to promoting diversity because of its benefits to our
    business, we support the ENDA legislation because we believe it is a
    fundamental right of all American citizens to be treated fairly, with
    respect and dignity in the workplace, regardless of their sexual
    orientation or gender identity. Our support mirrors the state in which
    we are headquartered, Minnesota, which is one of 20 states to adopt
    legislation preventing discrimination on the basis of sexual
    orientation and gender identity. We believe federal protection of our
    citizens will be a symbolic and effective means to deliver civil rights
    to all.
        We know that providing an environment where people of different
    backgrounds and lifestyles can grow and thrive is essential to our
    long-term success. In our business, innovation is the key to survival.
    People with diverse experiences and backgrounds bring different and
    uniquely valuable perspectives and solutions. This diversity drives
    innovation. That's why we support any practice or public policy that
    encourages bringing diversity to the table.
        Internally, we've done several things to encourage diversity. In
    the mid-1990s, we created our GLBT network, Betty's Family, named after
    one of our key icons--Betty Crocker. This network's mission is to
    create a safe, open and productive environment for General Mills' GLBT
    employees. One of our most senior executives helped found this network
    and has commented frequently on the powerful impact it has had on our
    ability to recruit and retain top talent. We know this network, in
    addition to our six other affinity groups, is a tangible demonstration
    of our commitment to attracting, developing and advancing every unique
    employee.
        One of our newer employees, a marketing manager recruited from
    Northwestern's Kellogg School of Management's MBA program, said one of
    the reasons she chose to join General Mills, among many opportunities,
    was because of our dedicated GLBT network. She told me that any company
    can claim to have a GLBT network on their corporate Web site. But after
    talking with one of our employees who described how active our network
    is, she made her decision to join General Mills.
        We also understand that establishing a culture of respect is a
    baseline for our employment standards. Beyond that, we strive to be an
    employer of choice--a place where we demonstrate support for the
    personal needs of our employees to allow them to be fully committed to
    their work. In 1999, we introduced Domestic Partner benefits, another
    demonstration that we are committed to providing equality to our GLBT
    employees in all of our employment benefits.
        In closing, let me just reiterate why General Mills believes this
    legislation is good for business and good for America. It will:
         Help businesses attract and retain top talent.
         Help provide a safe, comfortable and productive work
    environment, free from any form of discrimination.
         Help create a culture that fosters creativity and
    innovation that is vital to the success of all businesses.
        Thank you for the opportunity to speak to you today. I would be
    happy to take any questions.
                                     ______

        Chairman Andrews. Ms. Baker, thank you very, very much for
    your very thorough testimony.
        Mr. Lorber, we are fortunate you are bringing your wealth
    of experience to the committee this morning. Thank you and
    welcome.

       STATEMENT OF LAWRENCE LORBER, PARTNER, PROSKAUER ROSE, LLP

        Mr. Lorber. Thank you, Chairman Andrews, Ranking Member
    Kline. I appreciate the opportunity to testify before you.
        As Mr. Kline stated in his opening comments, words have
    meaning. And what I would like to do in this legislative
    hearing is to comment on the proposed language in H.R. 2015 and
    suggest that there may be some issues which this committee
    might want to consider as it considers this legislation.
        While I do bring experience here as an employment law
    practitioner, I am not testifying today on behalf of my law
    firm, clients or other affiliations.
        Let me begin by going through some of the sections of the
    act and highlight issues which I think may be subject to some
    consideration as you consider this bill.
        Sections 4(a)(1) and (2) are the nondiscrimination
    provisions of ENDA. They do incorporate within it the concept
    of gender identity, first introduced in this version of ENDA,
    which appears in Section 3(a)(6), which gives a definition of
    gender identity. However, this is a definition, frankly,
    without much meaning and without reference to a characteristic
    or status which is normally the basis upon which employment
    discrimination laws are passed.
        Employers have to know what they are dealing with in order
    to comply with the law. And to put a burden on an employer to
    deal with somebody's innate personal consideration of their
    gender identity, without any reference to any specific action
    or status, places that employer in an extraordinarily difficult
    position.
        To the extent to which gender identity talks about sexual
    mannerisms, I would simply point out to the committee that in
    1989 the Supreme Court, in the Price Waterhouse v. Hopkins
    decision, held, in part--and really the key to its decision--
    that sexual stereotyping manifested by assumptions as to proper
    behaviors would form a basis for a Title VII violation.
        This has been the law since 1989. The Congress in 1991 in
    the Civil Rights Act, in fact, put that provision into Title
    VII.
        So now we have not a conflict, but we have a protection
    already. And to read gender identity now you have to read it to
    mean something else. And that something else is simply unclear.
        Let me address Section 4(g), which is the disparate impact
    section.
        Congressman Frank said that this bill does not require
    affirmative action. And I think it is appropriate, as the
    congressman noted, why it should not. However, 4(g), which is
    clear and unambiguous on its face, seems to be excepted
    specifically by Section 8(a)(5), which creates an exception for
    the condition of marriage or marriageability.
        Quite candidly, it is absolutely unclear what Section
    8(a)(5) means and how it can be applied in the context of this
    act. If, in fact, it is meant to prevent a consideration of a
    condition as a pretext for discrimination, a disparate
    treatment issue, then there is no need to except it from the
    prohibition against disparate impact under Section 4(g).
        So, too, Section 8(a)(1) can be construed as incorporating
    concepts of disparate impact in the treatment of employer rules
    and policies. While the legislation allows employers to
    establish their rules and policies, it does have a provision
    that none of those rules should circumvent the purposes of the
    act. If, for example, the committee might wish to add the word
    ``intentionally'' before ``circumvent the purposes of the
    act,'' I think it would be clear as to what this provision
    means and make it clear that the 4(g) prohibition on disparate
    impact would not apply.
        Let me briefly talk about Section 8(a)(3), which is the
    provision requiring adequate shower or dressing facilities.
        Again, it is unclear whether or not this would require
    employers to establish either additional facilities or to
    triage the use of facilities, particularly when you are talking
    about gender identity, which, as I noted, is not a status or a
    characteristic. Therefore, it is unclear to an employer what it
    must do. And it is absolutely unclear how this provision would
    apply.
        Let me move to Section 8(b).
        This is a section which states that nothing in this act
    shall require an employer to provide benefits on the basis of
    marriage. Nevertheless, Section 8(b), in the second clause of
    Section 8(b), I think represents an absolutely dramatic change
    in our understanding and the 33-year history of employment law,
    particularly ERISA preemption.
        There is no basis to this. I think this is not the purpose
    to talk about ERISA preemption. Quite frankly, that would take
    a hearing which might last days to examine.
        But, nevertheless, it seems to me that including this
    provision in this act, in this legislation, which will have the
    effect of eroding ERISA preemption, at least for the narrow
    purposes of ENDA, makes absolutely no sense.
        In conclusion, I do believe that the issues I have raised
    are appropriate for this committee as it works its way through
    this legislation.
        I would note that my own experience in dealing with
    employers is that the concern is to attract and retain the most
    competent, efficient and productive employees, without regard
    to personal characteristics and which do not have anything to
    do with the person's sexual orientation. It is hoped that this
    committee will focus on this and work constructively with
    employer and interest groups to craft a statute consistent with
    sound employment policy and sound public policy.
        Thank you very much.
        [The statement of Mr. Lorber follows:]

     Prepared Statement of Lawrence Z. Lorber, Partner, Proskauer Rose, LLP

        Chairman Andrews, Ranking Member Kline, members of the Committee, I
    am pleased to be invited to testify before you today on H.R. 2015, the
    Employment Non-Discrimination Act of 2007, ``ENDA''.
        My own background may be relevant to my comments on this
    legislation. I have been a labor law practitioner for 35 years starting
    in the Solicitor's Office at the Department of Labor. I am a labor and
    employment partner in the Washington DC office of Proskauer Rose, LLP.
    In 1975 I was appointed by Secretary of Labor John Dunlop as a Deputy
    Assistant Secretary of Labor and Director of the Office of Federal
    Contract Compliance Programs, OFCCP, which enforces the various non-
    discrimination and affirmative action laws applicable to government
    contractors. In that capacity, the first regulations enforcing section
    503 of the Rehabilitation Act were issued as well as the first
    comprehensive review of the E.O. 11246 regulations was undertaken. In
    private practice, I have represented and counseled employers on various
    issues relating to equal employment matters. In 1989 I was asked to
    represent various employer groups with respect to the consideration and
    ultimate passage of the Americans with Disabilities Act, and in 1991 I
    was counsel to the Business Roundtable during the consideration of the
    Civil Rights Act of 1991. In 1995 I was honored to be appointed as a
    Member of the first Board of Directors of the Office of Compliance,
    which enforces the Congressional Accountability Act, applying 11
    employment and labor laws to the Congress. I have been management co-
    chair of the federal legislation committee of the Labor Section of the
    ABA and am chair of the EEO subcommittee of the US Chamber of Commerce.
    Over the years I have been asked to testify on various employment
    issues being considered by the Congress.
    The Employment Non-Discrimination Act of 2007
        My purpose here today is not to recommend whether this Committee or
    the Congress should ultimately decide to pass this legislation but
    rather to offer comments on the latest version, and highlight issues
    which may warrant the attention of this Committee as it examines the
    legislation. While I do bring extensive experience as an employment law
    practitioner, I am not testifying today on behalf of my law firm,
    clients or other affiliations.
        The 2007 version of ENDA represents a continuation of the
    examination of the issues involving the consideration of sexual
    orientation under our federal employment laws and potential legislative
    responses. However, as I will highlight, the 2007 version does contain
    several significant changes from prior versions which should be closely
    examined as they represent potentially far reaching changes in accepted
    employment law and may well have significant impact upon employers and
    employees. As a preliminary matter, it should be noted that without
    categorizing one or another of the laws as necessary or superfluous,
    there are probably more and different employment laws impacting upon
    the workplace, including federal, state and local than apply in other
    regulated areas. Some cover the same areas but have different
    administrative or enforcement procedures. Others include overlapping
    federal, state and local requirements but differ in scope, procedure or
    administration. And still others overlap within the same jurisdiction,
    so that one federal law implicates another. And it should be noted that
    the greatest single area of growth in federal civil litigation involves
    employment and labor law. Therefore the Congress should be cautious in
    adding to this growing and complex list of laws, and thereby the
    potential for increased litigation. And while section 15 of ENDA
    provides that nothing in this legislation, or law if it becomes enacted
    will invalidate or limit the rights under any other federal, State or
    local law, in fact there are some examples in the 2007 version of ENDA
    in which the plain meaning of the draft language will serve to
    circumvent or change other laws. Thus may I suggest that the Committee
    carefully weigh the impact of ENDA and its requirements on how the
    regulated community must adopt to its proscriptions and how the
    protected community will understand their rights.
    Section 4(a)(1)(2)
        The analysis of ENDA should begin with Section 4 (a)(1) and (2),
    the core description of unlawful employment practices. There is a major
    new issue raised in this section which the Committee may wish to focus
    on. For the first time, a new protected category, Gender Identity, has
    been introduced into the legislation. The term is defined in section 3
    (a) (6) as ``the gender related identity, appearance, or mannerisms or
    other gender-related characteristics of an individual, without regard
    to the individual's designated sex at birth.'' While gender identity
    may be viewed as a manifestation of an individual's sexual orientation
    as defined in section 3 (a)(9), gender-identity, as defined in the bill
    does not seem to relate to any discernable innate characteristic or
    sexual orientation. Rather, as used in section 4 (a) it appears to
    relate to actions or representations of an individual perhaps related
    to sexual orientation or perhaps not. Thus, it stands as an independent
    protected classification not grounded in any discernable characteristic
    or status which is the basis for all of the non-discrimination
    legislation. I would suggest that the Committee examine in more detail
    how an employer might deal with this issue and insure that it does not
    violate the law. While, for example, section 8 (a)(4) permits employers
    to establish neutral reasonable dress or grooming standards, might not
    the requirement to accommodate an individual's gender identity, which
    may or may not have relationship to the individual's sexual orientation
    or gender transition, undermine the protection of section 8 (a)(4)? It
    is unclear why this new protected classification was added to ENDA when
    the protection for sexual orientation would seem to encompass
    activities and mannerisms related to orientation. And further, existing
    Title VII case law and statute would seem to adequately deal with the
    issue raised by the addition of gender identity into the proposed
    legislation. In Price Waterhouse v Hopkins, 490 US 228 (1989), the
    Supreme Court held in part that improper sexual stereotyping manifested
    by assumptions as to ``proper behaviors'' based upon sex could well
    form the basis for a Title VII action. The Hopkins decision was further
    clarified in Section 107 of the 1991 Civil Rights Act, see 42 USC
    Sec. 2000e-2(m) which codified the plurality holding in Hopkins
    regarding mixed motive cases.
    Section 4(e)
        I would note as well that section 4 (e) of the legislation which
    prohibits association discrimination also includes gender identity.
    Section 4 (e) is modeled after the ADA,42 USC sect 12112 (b)(4) and is
    understandable when applied to defined characteristics. It is less than
    clear, however, when applied to non- inherent characteristics which may
    be self-perceived by the individual but not apparent to the employer.
    This will seem to create the potential for difficult enforcement and
    even more potentially difficult litigation since the underlying issue
    may be ephemeral or not readily apparent to the employer. Again,
    understanding the law makes compliance with the law an acceptable
    undertaking.
    Section 4(g), Section 8 (a)(5)), Section 8(a)(1)
        Section 4 (g) appropriately provides that only disparate treatment
    and not disparate impact claims may be brought under this Act. I would
    suggest that direct reference be made to section 42 USC Sec. 2000e-2(k)
    which is the first statutory definition of disparate impact so that the
    concept of disparate impact is clearly understood.
        However, I must note that while section 4 (g) seems clear and
    unambiguous, it is excepted by section 8 (a)(5), which seems to
    prohibit any employer action based upon the legal status of marriage
    and is expressly distinguished from section 4 (g). It is not clear at
    all what is meant by this section, particularly as section 8 (b) states
    that notwithstanding section 8 (a)(5), employee benefits conditioned on
    marriage are not affected by this Act. If this section is meant to
    clarify the concept of pretext under traditional disparate treatment
    analysis, then certainly there is no basis to exempt it from the
    prohibition against considering disparate impact claims under this
    statute. However, if section 8(a)(5) calls for some form of disparate
    impact analysis, then I think it is both inappropriate in the context
    of the legislation as drafted and subject to a great deal of confusion.
    I am not aware of any employer which requires employees to be married,
    nor would I believe such a requirement would stand analysis under
    existing employment law. So too section 8(a)(1) could be construed as
    incorporating concepts of disparate impact in its treatment of employer
    rules and policies. In particular, the Committee might wish to add the
    word ``intentionally'' before ``circumvent the purposes of this Act''
    to insure that this language is not used to attack neutral policies
    which may be perceived to violate the Act, which would directly import
    disparate impact into the Act.
    Section 5
        Section 5 prohibits retaliation against an individual who opposes
    any practice made unlawful by this Act, or who makes a charge or
    testifies pursuant to this Act. Prohibition against retaliation is well
    understood in the broad context of employment law and appropriate to be
    included in ENDA. However, since the concept of retaliation is well
    understood in employment law, the Committee might want to insure that
    the definition in section 5 is compatible with existing law rather than
    establish different concepts or use language not grounded in
    established precedent.
    Section 6
        Section 6 of ENDA deals with the application of the proposed
    statute to Religious Organizations. While I understand that this issue
    will be specifically addressed in this hearing, I do believe it
    important to note that religious organizations or religious affiliated
    organizations are employers and there seems to be a degree of
    uncertainty as to the precise meaning of section 6 particularly as it
    differs in structure from the analogous provision in Title VII.
    Therefore, it would seem appropriate for the Committee to undertake a
    careful examination of the exemption to assure that it is appropriately
    drafted to achieve its intended purpose.
    Section 8(a)(3)
        Section 8(a)(3) requires an employer to provide adequate shower or
    dressing facilities to employees undergoing transgender transition. The
    committee should address whether this section creates the requirement
    for the provision of additional facilities or the requirement that use
    of certain facilities be timed to insure employee comfort for all
    employees. In addition, section 8(a)(3) as drafted requires that
    facilities not only accommodate employees who have undergone or are
    undergoing gender transition, but to accommodate the employees self-
    perceived gender identity. This would seem to present an extremely
    difficult standard for employers to meet and in fact would seem to
    require an employee to register his or her gender identity with the
    employer at the time of employment which seems to be highly intrusive
    to both employer and employee.
    Section 8(a)(4)
        Section 8(a)(4) provides that an employer may apply reasonable
    dress code and grooming requirements. However, now that the concept of
    gender identity as a protected classification has been added to the
    bill, there are now certain issues which must be addressed. It is
    simply unclear how a reasonable dress code can coexist with the added,
    indefinite classification of self-perceived gender identity. This
    exception seems to negate any meaning for the rule. This differs from
    the consideration for employees who have undergone or are undergoing
    gender transition. Again, the practical implications of this provision
    should be carefully examined.
    Section 8(b)
        Section 8 (b) of the 2007 version of ENDA contains a significant
    change from prior versions of ENDA and which creates a substantial
    issue. Section 8(b) specifically permits a State or a subdivision of a
    State to pass a law or establish a requirement impacting an employee
    benefit notwithstanding any other law. Simply put, this section will
    overturn, in the circumstances of this Act only, the long standing
    concept of ERISA preemption. Without getting into the nuances and
    particulars, ERISA preemption has received solid Supreme Court approval
    , see e.g. Shaw v Delta Airlines, 463 US 85 (1983) and has been
    universally deemed to be the bedrock of national benefits policy. It
    would therefore seem to be highly questionable to cavalierly overturn
    that 33 year old concept in the context of this Act and for an
    undefined reason. This section should be carefully reviewed as it
    appears to directly contradict ERISA, undermine established precedent
    and, I believe, would engender significant opposition to the
    legislation..
    Conclusion
        I believe that the issues I have raised are appropriate as this
    Committee works its way through this legislation. I would note that my
    own experience in dealing with employers is that the concern is to
    attract and retain the most competent, efficient and productive
    employees without regard to personal characteristics and which do not
    have anything to do with a person's sexual orientation It is hoped that
    the Committee will focus on this and work constructively with employer
    and interest groups to craft a statute consistent with sound employment
    policy and sound public policy.
        Thank you.
                                     ______

        Chairman Andrews. Mr. Lorber, thank you for your very
    thoughtful testimony. It gives the committee a lot of good
    issues to consider. Thank you very, very much.
        Professor Badgett, welcome to the committee.

         STATEMENT OF M.V. LEE BADGETT, ASSOCIATE PROFESSOR OF
    ECONOMICS, UNIVERSITY OF MASSACHUSETTS; RESEARCH DIRECTOR, THE
            INSTITUTE FOR GAY AND LESBIAN STRATEGIC STUDIES

        Ms. Badgett. Thank you.
        Good morning, Chairman Andrews and members of the
    committee.
        Today, I want to make three main points to document the
    need for the Employment Non-Discrimination Act.
        My first point is that decades of social science research
    have uncovered evidence of discrimination in employment against
    lesbian and gay, bisexual and transgender Americans--whom I
    will call, if you will, LGBT Americans, for short--in
    workplaces across the country.
        Two recent national surveys give the clearest overall
    picture of discrimination. In 2000, a Kaiser Family Foundation
    survey found that 18 percent of LGBT people living in urban
    areas reported experiences of employment discrimination. In a
    2005 survey, 16 percent of lesbians and gay men and 5 percent
    of bisexual people reported employment discrimination.
        There were also many, many local community surveys of
    nonrandom samples of LGBT people that also find evidence of
    unequal treatment in the workplace.
        Similar national studies have not been done on gender
    identity discrimination, unfortunately. However, 11 recent
    local surveys of transgender people have found that at least 20
    percent, and as many as 57 percent, report having experienced
    some form of employment discrimination.
        From another angle, in the states that already outlaw
    sexual orientation discrimination, we have seen that LGBT
    people are as likely to file discrimination complaints as are
    people in other groups that are currently protected under
    federal law.
        My colleague, William Rubenstein, has shown that the annual
    rate of sexual orientation complaints was 3 per 10,000 LGBT
    people, on average, in these states. And I will point out that
    figure is quite similar to the number of sex discrimination
    complaints per woman, which is about 9 per 10,000 women, and
    race-related complaints per person of color, which is about 8
    per 10,000 people.
        A third way to identify the extent of discrimination is to
    create experiments to see if LGBT people and heterosexual job
    applicants are treated equally. All three such experiments in
    the U.S. have found evidence of unequal treatment of gay
    applicants in a variety of job situations.
        Another way to measure discrimination is to compare the
    earnings of people who have different personal characteristics,
    like sexual orientation, but have the same productive
    characteristics to see if employers are paying people in those
    two groups equally.
        Twelve studies conducted in the U.S. over the last decade
    show a significant pay gap for gay men. Gay and bisexual men
    earn from 10 percent to 32 percent less than similarly
    qualified heterosexual men. Now, economists and sociologists
    would interpret that wage gap as evidence of discrimination by
    employers.
        Those studies also lead to my second main point, which is
    that sexual orientation discrimination results in economic harm
    to LGBT people, reducing their earnings by thousands of
    dollars. We have no similar studies related to gender identity,
    but the surveys I mentioned earlier do show that transgender
    people report very low incomes, often below the poverty line.
        Although discrimination hurts, the good news is that
    nondiscrimination laws appear to help. Two very recent and, as
    yet, unpublished studies by my UCLA colleagues, find that
    state-level nondiscrimination laws reduce the wage gap for gay
    men.
        My third and final point is that America's businesses are
    also likely hurt by the direct and indirect effects of
    discrimination in the workplace.
        Economists and employers have long argued that businesses
    will be most successful when they recruit, hire and retain
    employees on the basis of ability, not personal characteristics
    like sexual orientation or gender identity that have no impact
    on an employee's job performance. You have heard several direct
    testimonies to that effect.
        Employers would also gain from having LGBT workers who no
    longer need to conceal their sexual orientation or gender
    identity out of fear of discrimination. Employers have a stake
    in these individual decisions because research suggests that
    greater openness improves LGBT workers' well being and their
    job performance.
        Perhaps the best evidence that nondiscrimination policies
    are good for business comes from the fact that many companies
    have voluntarily added sexual orientation and gender identity
    to their nondiscrimination policies. 88 percent of the Fortune
    500 policies include sexual orientation and a quarter have
    added gender identity.
        Despite that progress, however, only 17 percent of American
    workers are employed by companies with those policies, and only
    29 percent of Americans live in states that prohibit both
    sexual orientation and gender identity discrimination, leaving
    a big hole in the legal protection for millions of other
    workers.
        To sum up decades of research document discrimination based
    on sexual orientation and gender identity, our country's
    employers would be better off with an LGBT workforce that no
    longer fears discrimination. Passing the Employment Non-
    Discrimination Act would serve to benefit both employees and
    employers.
        Thank you.
        [The statement of Ms. Badgett follows:]

        Prepared Statement of M.V. Lee Badgett, Associate Professor of
                     Economics, University of Massachusetts

        Good morning, Chairman Andrews and members of the committee. I am
    an economist and the research director of the Williams Institute on
    Sexual Orientation Law and Public Policy at UCLA, and I also direct the
    Center for Public Policy and Administration at the University of
    Massachusetts Amherst. I have studied employment discrimination based
    on sexual orientation, race, and gender for more than fifteen years and
    have published two books and numerous studies on this topic.
        Today I am here to speak to you about HR 2015, the Employment Non-
    Discrimination Act of 2007. As you know, this bill would outlaw
    discrimination in hiring and other employment decisions based on sexual
    orientation and gender identity. I want to make three main points to
    document the need for this legislation.
        First, decades of social science research have demonstrated that
    employment discrimination against lesbian, gay, bisexual, and
    transgender (LGBT) Americans occurs in workplaces across the country.
    This evidence comes from many different methods of studying
    discrimination, including self-reported experiences on surveys,
    official complaints of discrimination in states that already ban it,
    experiments to measure the treatment of LGBT job applicants, and
    comparisons of wages earned by LGBT people and heterosexual people.
    Together these sources provide ample evidence that employment
    discrimination based on sexual orientation and gender identity is a
    serious problem in the United States.
        Many academic researchers and community groups have surveyed
    lesbian, gay, bisexual, and transgender individuals. I have reviewed
    more than 35 such studies that have been conducted over the last two
    decades. Each survey documents numerous experiences of being fired,
    being denied a job, or some other form of unequal treatment in the
    workforce that stemmed from these individuals' sexual orientation or
    gender identity.
        Two fairly recent national surveys of random samples of the LGB
    population give the clearest overall picture of sexual orientation-
    related discrimination. In 2000, a survey by the Kaiser Family
    Foundation found that 18% of LGB people living in urban areas reported
    employment discrimination. Heterosexuals surveyed in a companion study
    agree that LGB people are vulnerable: more than three-quarters of
    heterosexuals surveyed by the Kaiser Family Foundation believed that
    LGB people commonly experience employment discrimination. More
    recently, a 2005 survey by Dr. Gregory Herek found that 16% of lesbians
    and gay men and 5% of bisexual people reported having experienced
    employment discrimination. A quarter of LGB people disagreed with a
    statement asserting that most employers in their areas would hire
    openly LGB people if they are qualified for the job. Numerous local
    community surveys of nonrandom samples of LGBT people find that sexual
    orientation discrimination is also commonly reported in those areas.
        Similar national studies have not been conducted related to
    discrimination based on gender identity, unfortunately. However, eleven
    recent local surveys of transgender people have found that at least 20%
    and as many as 57% report having experienced some form of employment
    discrimination.
        A different source of data supports the finding that discrimination
    based on sexual orientation is common, and perhaps as common as other
    kinds of discrimination. The GAO has collected the numbers of sexual
    orientation discrimination complaints in states that outlaw such
    treatment. The GAO reported that the number of complaints is relatively
    small compared with the overall level of complaints filed at state
    agencies. However, my colleague William Rubenstein has shown that in
    the 1990's the annual rate of complaints was 3 per 10,000 LGB people on
    average in these states (assuming that LGB people are 5% of the U.S.
    population). That figure is quite similar to the number of sex
    discrimination complaints per woman (nine per 10,000 women) and race-
    related complaints per person of color (8 per 10,000). In other words,
    LGB people are about as likely to file discrimination complaints as are
    people in groups that are currently protected against discrimination
    under federal law.
        Another method of identifying the extent of discrimination is to
    create experiments in which some people are coded as LGB on a resume
    when they apply for a real or hypothetical job, and their experience is
    compared with that of an otherwise identical heterosexual applicant.
    Three such studies in the United States found evidence of unequal
    treatment of gay applicants in a variety of job situations.
        An additional way that economists and sociologists look for
    evidence of discrimination is to compare the earnings of people who
    have different personal characteristics, such as sexual orientation,
    but the same productive characteristics. If there is a wage difference
    after controlling for all of the factors that we reasonably expect to
    influence wages, such as education and experience, then most of us
    would conclude that discrimination is likely the reason for the wage
    gap for the disadvantaged group.
        We now have more than a decade of research and twelve studies that
    compare earnings by sexual orientation in the United States. All twelve
    studies show a significant pay gap for gay men when compared to
    heterosexual men who have the same productive characteristics.
    Depending on the study, gay and bisexual men earn from 10% to 32% less
    than similarly qualified heterosexual men. Lesbians generally earn the
    same as or more than heterosexual women, but lesbians earn less than
    either heterosexual or gay men.
        The studies showing wage gaps also lead to my second main point:
    sexual orientation discrimination results in economic harm to LGB
    people, reducing their earnings by thousands of dollars. We have no
    similar studies related to gender identity, but the studies I mentioned
    earlier show that transgender people report very low incomes, often
    below the poverty line.
        Discrimination hurts, but nondiscrimination laws appear to help.
    Two very recent and as-yet unpublished studies by my UCLA colleagues
    find that state-level nondiscrimination laws reduce this wage gap for
    gay men and lesbians when compared with heterosexual men. These studies
    drew on data from the 2000 Census and found that gay men and lesbians
    earned 2-4% higher wages when they lived in states with sexual
    orientation nondiscrimination laws.
        My third and final point is that America's businesses are also
    likely hurt by the direct and indirect effects of discrimination in the
    workplace. Economists and businesses have long argued that businesses
    will be most successful when they recruit, hire, and retain employees
    on the basis of talent, not personal characteristics that have no
    impact on an employee's ability to perform a job well.
        Beyond that most basic reason to forbid discrimination, the
    evidence suggests that employers would also gain in other ways if ENDA
    were passed. Numerous studies from various academic disciplines suggest
    that LGBT workers will be healthier and more productive workers if they
    have legal protection from discrimination.
        The key link here is between discrimination and disclosure of one's
    sexual orientation or gender identity. Many studies have demonstrated
    that discrimination keeps LGBT workers from revealing their sexual
    orientation in the workplace. Although having experienced
    discrimination directly is a powerful reason for some to ``stay in the
    closet,'' many studies show that LGBT people who fear discrimination
    are also less likely to reveal their sexual orientation to co-workers
    and supervisors.
        Employers have a stake in these individual decisions, since
    disclosure has potentially positive benefits to LGBT workers' well-
    being and job performance. Studies find that people who have come out
    report lower levels of anxiety, less conflict between work and personal
    life, greater job satisfaction, more sharing of employers' goals,
    higher levels of satisfaction with their co-workers, more self-esteem,
    and better physical health.
        On the flipside, when fear of discrimination causes LGBT employees
    to conceal their sexual orientation or gender identity, employers
    experience negative costs along with LGBT people themselves. The time
    as well as social and psychological energy that is required to maintain
    a hidden identity would, from an employer's perspective, be better used
    on the job.
        As in the case of wage gaps, nondiscrimination policies can improve
    the workplace climate and influence choices about disclosure and
    concealment. Several studies have found higher levels of disclosure in
    workplaces when employers have their own non-discrimination policies
    that include sexual orientation. And one study found that LGBT people
    who live in places covered by a nondiscrimination law had higher levels
    of disclosure than those in unprotected locations.
        Perhaps the best evidence that nondiscrimination policies are good
    for business comes from the fact that many companies have voluntarily
    adopted such a policy. The most recent tally shows that 88% of the
    Fortune 500 companies have added sexual orientation to their
    nondiscrimination policies, and 25% have added gender identity. Despite
    that progress, only 17% of American workers are employed by companies
    with those policies, leaving a big hole in the legal protections
    provided for millions of other workers.
        To sum up, decades of research show that discrimination based on
    sexual orientation and gender identity exists in our nation's
    workplaces. This discrimination hurts LGBT people in their paychecks
    and in their health and workplace experiences. Our nation's employers
    would be better off with an LGBT workforce that no longer fears
    discrimination. Passing the Employment Non-Discrimination Act would
    serve to benefit both employees and employers.
                                     ______

        Chairman Andrews. Professor, thank you very much for giving
    us that context for the consideration of our deliberations
    here.
        Mr. Fahleson? Professor Fahleson, welcome to the committee.
    We look forward to your testimony.

       STATEMENT OF MARK FAHLESON, REMBOLT LUDTKE, LLP; ADJUNCT
    PROFESSOR OF EMPLOYMENT LAW, THE UNIVERSITY OF NEBRASKA COLLEGE
                                 OF LAW

        Mr. Fahleson. Not professor.
        Mr. Chairman, Ranking Member Kline, members of the
    committee, again, my name is Mark Fahleson. I am an employment
    law practitioner from America's heartland in Lincoln, Nebraska.
    And I am here today as an employment law practitioner, someone
    whose clients are primarily small-and medium-sized businesses.
        In addition, my practice includes representing a number of
    religious institutions and faith-based organizations. We
    currently provide legal services to a number of religious
    colleges and universities, high schools, elementary schools, as
    well as faith-based employers.
        Like Mr. Lorber, I do not appear on behalf of my law firm,
    any particular client or organization, but rather testify as an
    employment law practitioner who spends the bulk of his day on
    the telephone, answering emails and questions from clients as
    they try to navigate the myriad employment laws with which
    employers must deal with on the local, state and federal level.
        Unfortunately, in its current form, H.R. 2015 would add yet
    another layer of confusion for these employers, especially
    religious and faith-based organizations.
        I generally concur with the analysis of Mr. Lorber, both in
    his written testimony, as well as that here today.
    Consequently, my remarks this morning will focus on Section 6,
    which is the so-called religious exemption.
        As the ranking member noted in his opening comments,
    predecessor legislation to H.R. 2015 contained a blanket
    exemption for religious organizations.
        For example, H.R. 3285 introduced in the 108th Congress by
    Mr. Frank and Mr. Shays expressly provided that the legislation
    shall not apply to a religious organization, which the
    legislation broadly defined to include religious corporations,
    associations, societies, schools, colleges, universities and
    educational institutions.
        Again, while H.R. 2015 has a section entitled ``Exemption
    for Religious Organizations,'' it is really no meaningful
    exemption at all. Essentially, Section 6 contains two very
    narrow avenues under which a religious organization or a faith-
    based organization or individuals employed by such may not be
    covered.
        First is what I will call the religious enterprise
    exemption. And that provision, which is 6(a), states that the
    act shall not apply to the employment practices of a religious
    corporation, association, educational institution, or society
    which has as its primary purpose religious ritual or worship or
    the teaching or spreading of religious doctrine or belief.
        The second exemption is in Section 6(b), which I will call
    the limited individual exemption, which applies to a narrow
    subset of individuals who are employed by employers who are not
    already exempt under the limited religious enterprise exemption
    in 6(a). That exemption states that the act shall not apply
    with respect to the employment of individuals whose primary
    duties consist of teaching or spreading of religious doctrine
    or belief, religious governance, supervision of a religious
    order, supervision of persons teaching or spreading religious
    doctrine or belief, or supervision or participating in
    religious ritual or worship.
        This individual exemption appears to codify a judicially-
    created exception called--and, unfortunately misnamed--the
    ministerial exception.
        The proposed limited religious enterprise and individual
    exemptions raise a number of issues that would be of tremendous
    concern to the religious and faith-based employers that I
    represent. I have set forth a number of real-life hypotheticals
    in my written testimony. Let me highlight a couple of those
    here this morning.
        First, is a Catholic high school that markets itself as a
    college-preparatory learning institution deemed under this
    legislation to have as its primary purpose religious ritual or
    worship or the teaching or spreading of religious doctrine or
    belief and is, therefore, exempt under the enterprise
    exemption? If the answer is no, then would the limited
    individual exemption apply to the volleyball coach at that same
    Catholic high school who, in addition to coaching and mentoring
    student athletes, also leads the team Bible study?
        Would a Lutheran university with undergraduate and graduate
    degree programs ranging from art to chemistry to business to
    theology fall under the limited religious enterprise exemption?
    And if the answer is no, would the individual exemption apply
    to, for example, the Lutheran university provost, whose duties
    include administration of the academic, as well as ministry,
    programs?
        As these hypotheticals point out, the exemptions are far
    too narrow to adequately cover these religious institutions.
    Moreover, the focus on the terms of primary purpose or primary
    duties are vague and highly fact specific, making it extremely
    difficult to advise religious and faith-based clients as to
    their duties and obligations.
        In addition, the proposed primary purpose and primary
    duties test raise significant constitutional issues that must
    be addressed. The question for this subcommittee and committee
    is whether government should play a role in the selection of
    religious organization employees and whether this anticipated
    entangling of government into religious affairs is
    constitutionally permissible.
        Obviously, the blanket exemption for religious
    organizations found in prior versions is preferred.
        With that, I will conclude my testimony.
        [The statement of Mr. Fahleson follows:]

     Prepared Statement of Mark A. Fahleson, Rembolt Ludtke, LLP; Adjunct
     Professor of Employment Law, the University of Nebraska College of Law

        Mr. Chairman and members of the Committee, I want to thank you for
    this opportunity to share my views with respect to H.R. 2015--The
    Employment Non-Discrimination Act of 2007, or ``ENDA''--as it is
    currently drafted.
        First, a little background about myself and why I am here. I
    practice employment and labor law in Lincoln, Nebraska, and have served
    as an adjunct professor teaching employment law at the University of
    Nebraska College of Law. Most of my clients are small to medium-sized
    employers. We also represent several religious-affiliated
    organizations, including religious colleges and universities, high
    schools and elementary schools, as well as faith-based employers. Today
    I do not appear on behalf of any particular client or organization but,
    rather, to testify as an employment law practitioner who spends the
    bulk of his day answering questions from clients about how to navigate
    the myriad employment laws and regulations that employers must deal
    with on a daily basis. Unfortunately, in its current form H.R. 2015
    would add yet another layer of confusion for these employers,
    especially religious and faith-based organizations.
    Is a Federal Remedy Necessary?
        At the outset, I believe it is appropriate to ask the question: is
    a broad, new federal remedy for sexual orientation and gender identity
    employment discrimination such as that embodied in H.R. 2015 necessary
    at this time? As the Committee is aware, a significant number of
    employers have voluntarily adopted policies barring discrimination on
    the basis of sexual orientation and transgender status. In addition,
    several states and municipalities have enacted local regulatory schemes
    addressing sexual orientation and/or transgender discrimination in the
    workplace. For the last 32 years legislation has been introduced in
    Congress seeking to prohibit sexual orientation discrimination in
    employment. Meanwhile, it appears that the free market and local
    regulators are already addressing the issues raised by this
    legislation.
    Purported Exemption for Religious Organizations and Certain Employees
            Unnecessarily Narrow
        Predecessor legislation to H.R. 2015 provided blanket exemptions
    for religious organizations. For example, H.R. 3285 introduced in the
    108th Congress by Messrs. Shays and Frank expressly provided that the
    legislation ``shall not apply to a religious organization,'' which was
    broadly defined to include religious corporations, associations,
    societies, schools, colleges, universities and educational
    institutions. Although H.R. 2015 contains a section entitled
    ``Exemption for Religious Organizations,'' in reality it contains no
    meaningful exemption at all.
        Section 6 contains two exceptionally narrow avenues under which a
    religious or faith-based organization or individuals employed by such
    an organization may not be covered.
        First, Section 6(a) contains what I will call the limited Religious
    Enterprise Exemption. This provision states that the ``Act shall not
    apply to any of the employment practices of a religious corporation,
    association, educational institution, or society which has as its
    primary purpose religious ritual or worship or the teaching or
    spreading of religious doctrine or belief.''
        Second, Section 6(b) contains what I will call the limited
    Individual Exemption, which applies to a narrow subset of individuals
    who are employed by employers not wholly exempt under the limited
    Religious Enterprise Exemption. The limited Individual Exemption
    provides that the ``Act shall not apply with respect to the employment
    of individuals whose primary duties consist of teaching or spreading
    religious doctrine or belief, religious governance, supervision of a
    religious order, supervision of persons teaching or spreading religious
    doctrine or belief, or supervision or participating in religious ritual
    or worship.'' This appears to be an attempt to partially codify what is
    (inaccurately) called the ``ministerial exception.'' Rayburn v.
    Seventh-Day Adventists, 772 F.3d 1164, 1169 (4th Cir. 1985).
        It is important to note that the limited Religious Enterprise
    Exemption is far narrower than the religious exemption currently found
    in Title VII with respect to claims of religious discrimination:

    ------------------------------------------------------------------------
                 Title VII                            H.R. 2015
    ------------------------------------------------------------------------
     This subchapter shall not apply to  This Act shall not apply to any of
       * * * a religious corporation,     the employment practices of a
          association, educational        religious corporation,
        institution, or society with      association, educational
        respect to the employment of      institution, or society which has
        individuals of a particular       its primary purpose religious
     religion to perform work connected   ritual or worship or the teaching
        with the carrying on by such      or spreading of religious doctrine
         corporation, association,        or belief.
    educational institution, or society  Section 6(a) (emphasis added).
            of its activities.''
          42. U.S.C. Sec. 2000e-1.
    ------------------------------------------------------------------------

        The proposed limited Religious Enterprise and Individual Exemptions
    raise a number of issues that would be of tremendous concern to
    religious and faith-based employers such as those I represent. Consider
    the following real life hypotheticals:
         Is a Catholic high school that markets itself as a
    ``college preparatory learning institution'' deemed to have as ``its
    primary purpose religious ritual or worship or the teaching or
    spreading of religious doctrine or belief'' and therefore exempt under
    the limited Religious Enterprise Exemption?
         If the answer is ``no,'' then would the limited Individual
    Exemption apply to the volleyball coach at that same Catholic high
    school who, in addition to coaching and mentoring student-athletes,
    also leads the team Bible study?
         Would a Lutheran university, with undergraduate and
    graduate degree programs ranging from art to chemistry to business to
    theology, fall under the limited Religious Enterprise Exemption?
         If the answer is ``no,'' then would the limited Individual
    Exemption apply to the Lutheran university provost position, whose
    essential duties include the administration of university's academic as
    well as ministry programs?
         Would a Jewish child care, affiliated with and housed
    adjacent to a Jewish synagogue, have as ``its primary purpose religious
    ritual or worship or the teaching or spreading of religious doctrine or
    belief'' and therefore be exempt under the limited Religious Enterprise
    Exemption?
         If the answer is ``no,'' then would the limited Individual
    Exemption apply to the child care teacher assigned to the three-year
    olds?
         Does the limited Religious Enterprise Exemption cover a
    social services organization affiliated with the Southern Baptist
    Church whose mission statement is ``to bring compassion and justice to
    the world's poorest people''?
         How would caregiving employees for the Red Crescent
    Society, a Muslim-affiliated charitable organization, be treated under
    the Act?
         Would a charitable foundation affiliated with a Christian
    congregation have as ``its primary purpose religious ritual or worship
    or the teaching or spreading of religious doctrine or belief'' and
    therefore be exempt under the limited Religious Enterprise Exemption?
         If the answer is ``no,'' then would the limited Individual
    Exemption apply to the development director employed by that same
    charitable foundation if her primary duties are to advise potential
    donors on estate planning issues and raise funds for the foundation,
    which benefits the Christian congregation?
        These scenarios all seek to highlight some of the problems with the
    two limited exemptions as currently drafted. The most important flaw
    that needs to be addressed is each exemption's reliance on a ``primary
    purpose'' or ``primary duties'' test. Both of these tests are vague and
    highly fact-specific, thereby making it extremely difficult to advise
    religious and faith-based clients as to their duties and obligations. A
    similar ``primary duty'' standard has been used for purposes of the
    Part 541 overtime exemptions for the Fair Labor Standards Act, see 29
    C.F.R. Sec. 541.700 (2006), and has been the source of significant
    uncertainty, high noncompliance rates and endless litigation. Use of
    the same or similar standard for purposes of the religious exemptions
    in H.R. 2015 will likely have the same costly result.
        In addition, the proposed ``primary purpose'' and ``primary
    duties'' tests raise significant constitutional issues that must be
    considered. Courts generally recognize that government probing or
    examination of the affairs of religious organizations is to be avoided.
    Scharon v. St. Luke's Episcopal Presbyterian Hosps., 929 F.3d 360 (8th
    Cir. 1991). Given the vague and fact-specific nature of these two
    tests, it is inevitable that courts will be called upon to delve into
    church or religious matters to determine the ``primary purpose'' of a
    religious organization or the ``primary duties'' of a particular
    employee of a faith-based organization. Whether this anticipated
    entangling of government in religious affairs is constitutionally
    permissible must be addressed.
        Finally, it is curious why the limited Religious Enterprise
    Exemption, unlike the Title VII religious exemption, exempts the
    ``employment practices'' of the religious organizations rather than the
    religious organizations themselves. The intent of this distinction
    requires exploration.
        Obviously, the blanket exemption for religious organizations found
    in prior versions of ENDA provides greater certainty and is less
    problematic for religious and faith-based employers, as well as the
    judiciary.
        While the main focus of my testimony is the problems I have
    identified with the purported religious exemptions, I do wish to
    comment on a few other issues with respect to the proposed legislation.
    Definition of ``Gender Identity'' is Vague and Overly Broad
        Unlike prior versions of this legislation, H.R. 2015 seeks to add a
    new protected class for actual or perceived ``gender identity.'' The
    term ``gender identity'' is defined by the legislation as ``the gender-
    related identity, appearance, or mannerisms or other gender-related
    characteristics of an individual, with or without regard to the
    individual's designated sex at birth.'' This definition is
    exceptionally vague and problematic.
        For example, based upon the proposed definition, it appears that an
    employee can self-identify what their gender is, and that this
    subjective declaration can change an unlimited number of times without
    notice to the employer. Moreover, the expansiveness of this new
    protected class is demonstrated by protection of individuals because of
    a ``perceived'' gender identity.
        The amorphous nature of the definition of ``gender identity'' is
    further compounded by the legislation's prohibition on ``association''
    discrimination. Section 4(e) of H.R. 2015 prohibits adverse employment
    actions being taken against ``an individual based on the actual or
    perceived sexual orientation or gender identity of a person with whom
    the individual associates or has associated.'' Thus, in addition to
    protecting individuals based on their actual or perceived gender
    identity, the legislation protects individuals who presently associate
    or at some point in time associated with that individual.
    Shared Shower or Dressing Facilities Requirement Problematic
        Section 8(a)(3) of H.R. 2015 establishes requirements for covered
    employers with respect to access to certain shower or dressing
    facilities based on an individual's actual or perceived gender
    identity. Specifically, this section provides that it is not ``an
    unlawful employment practice based on actual or perceived gender
    identity due to the denial of access to shared shower or dressing
    facilities in which being fully clothed is unavoidable, provided that
    the employer provides reasonable access to adequate facilities that are
    not inconsistent with the employee's gender identity as established
    with the employer at the time of employment or upon notification to the
    employer that the employee has undergone or is undergoing gender
    transition, whichever is later.'' This provision is problematic in at
    least two respects.
        First, this provision requires an employer to accommodate an
    employee undergoing or having undergone gender transition. However,
    there is no requirement for the employee to provide advance notice to
    the employer of the gender transition so that adequate time exists for
    the employer to provide the required ``reasonable access to adequate
    facilities * * * `` Moreover, the Committee should give consideration
    to adopting an ``undue hardship'' exception patterned after that found
    in the Americans with Disabilities Act under which such reasonable
    access could be denied where it would pose an ``undue hardship'' for
    the employer.
        Second, at a minimum the phrase ``in which being seen fully
    unclothed is unavoidable'' should be deleted. Certainly there are
    shared shower or dressing facilities where being seen ``fully
    unclothed'' is not unavoidable, but where the presence of an employee
    undergoing gender transition may prove problematic for an employer.
    Significant Regulatory Cost for Employers
        If adopted in its current form, H.R. 2015 represents a significant
    new regulatory burden and cost for covered employers. In far too many
    instances the legislation adopts subjective or fact-specific standards
    that are subject to multiple interpretations. For example, as
    previously discussed, what is a particular organization's ``primary
    purpose'' for purposes of the limited Religious Enterprise Exemption.
    What is a particular employee's ``primary duties'' for purposes of the
    limited Individual Exemption? What exactly qualifies as association
    discrimination based upon the gender identity of someone the individual
    previously associated with? Under Section 8(a)(4), what is a
    ``reasonable dress or grooming standard'' that an employer may
    permissibly adopt? Why does Section 5 expand traditional retaliation
    protections to protect employees who oppose any practice the individual
    ``reasonably believed'' was unlawful under H.R. 2015, even though it
    perhaps was not? Because of this uncertainty and subjectivity,
    employers will be forced spend scarce resources seeking legal guidance
    on employment actions. Furthermore, given the fact-specific and
    subjective standards, it would be more difficult for employers to have
    meritless litigation under the Act dismissed prior to incurring the
    cost of a full-blown trial. While the cost is not insurmountable for
    large companies--many of which have voluntarily adopted protections
    based on sexual orientation--it could prove to be for employers of 20,
    50 or even 100 employees, and especially those religious and faith-
    based organizations that have been swept within the Act's coverage.
    Conclusion
        I would like to thank the Committee for the opportunity to present
    my views on H.R. 2015 as currently drafted.
        I strongly urge the Committee to give due consideration to
    returning to the broad blanket exemption for all religious
    organizations that was used in prior versions of this legislation. In
    addition, I urge the Committee to eliminate, where possible, the vague,
    fact-specific and subjective standards found throughout the bill.
        Thank you.
                                     ______

        Chairman Andrews. Mr. Fahleson, thanks very much. And
    thanks for including those provocative examples in your
    testimony. I am sure it will give the committee and the panel a
    lot to talk about. Thank you.
        Professor Norton, welcome to the committee.

     STATEMENT OF HELEN NORTON, ASSOCIATE PROFESSOR, UNIVERSITY OF
                         COLORADO SCHOOL OF LAW

        Ms. Norton. Good morning.
        Thank you, Mr. Chairman, members of the committee. And
    thank you for the opportunity to testify today.
        My name is Helen Norton, and I am an associate professor at
    the University of Colorado School of Law. My testimony here
    draws not only from my work teaching and writing about
    employment discrimination as a law professor, but also from my
    experience as a deputy assistant attorney general in the
    Department of Justice, where my duties included supervising the
    Civil Rights Division's enforcement of Title VII.
        Current federal law prohibits job discrimination on the
    basis of race, color, sex, religion, national origin, age and
    disability. These statutes provide many valuable safeguards for
    American workers.
        But federal law currently fails to protect gay, lesbian,
    bisexual, or transgender workers from discrimination on the
    basis of sexual orientation or gender identity. In fact, the
    case law is replete with decisions where federal judges have
    characterized egregious acts of discrimination targeted at gay,
    lesbian, or transgender workers as morally reprehensible yet
    utterly beyond the law's reach.
        You have heard some powerful examples already today. In the
    interest of time, I will focus on just one for now, but I refer
    you to my written testimony for further examples.
        Michael Vickers, a private police officer employed by a
    Kentucky medical center, alleged that his coworkers subjected
    him to harassment on a daily basis for nearly a year after they
    learned that he had befriended a gay colleague.
        According to Mr. Vickers, his coworkers repeatedly directed
    sexual slurs and other derogatory remarks at him. They placed
    irritants and other chemicals in his food and in his personal
    property. And they engaged in physical misconduct that included
    a coworker who handcuffed Mr. Vickers and then simulated sex
    with him. All because of Mr. Vickers' perceived sexual
    orientation.
        Just last year, the Sixth Circuit's Court of Appeals
    dismissed his claim, concluding. ``While the harassment alleged
    by Vickers reflects conduct that is socially unacceptable and
    repugnant to workplace standards of proper treatment and
    civility, Vickers' claim does not fit within the prohibitions
    of the law.''
        To be sure, some states have tried to fill these
    significant gaps in federal law by enacting important
    antidiscrimination protections. Eleven states and the District
    of Columbia currently prohibit job discrimination on the basis
    of sexual orientation, as well as gender identity. And I note
    that the definition of gender identity in H.R. 2015 tracks the
    definition that a number of these state laws use and have
    enforced for a number of years.
        Another eight states bar job discrimination on the basis of
    sexual orientation.
        But employers in the majority of states remain legally free
    to fire, refuse to hire, harass, or otherwise discriminate
    against individuals because of their sexual orientation or
    their gender identity. As a result, current law, both federal
    and state, leaves unremedied a wide range of injuries and
    injustices.
        H.R. 2015 would fill these gaps by clearly articulating for
    the first time a national commitment to equal employment
    opportunity regardless of sexual orientation or gender
    identity. H.R. 2015 does this while accommodating concerns that
    it would interfere with a religious institution's ability to
    make employment decisions consistent with their religious
    beliefs. In fact, H.R. 2015 not only incorporates Title VII's
    existing approach to issues involving religious institutions,
    it goes considerably further in accommodating such concerns.
        First, the bill completely exempts from its reach those
    religious institutions primarily engaged in worship or the
    spreading of belief. This includes churches, mosques,
    synagogues, and other houses of worship, as well as parochial
    schools and religious missions.
        Second, the bill further exempts an entire class of
    positions at other religious institutions: those jobs involving
    spiritual teaching or ministerial governance, such as chaplains
    or teachers of canon law at religious institutions that are not
    primarily engaged in worship or the spreading of belief, and
    these might include religiously-affiliated hospitals, social
    service organizations, and religious universities.
        Third, and finally, the bill makes clear that those
    religious institutions that are not primarily engaged in
    worship or the spreading of belief may still require that
    employees, even in nonministerial positions, conform to the
    institution's significant religious tenets, including tenets
    prohibiting same sex sexual activity. For example, if a
    religiously-affiliated hospital chooses to require that its
    doctors and nurses conform to its declared religious tenet
    against same sex sexual conduct, H.R. 2015 does not bar that
    hospital from firing or refusing to hire doctors or nurses who
    engage in such relationships.
        H.R. 2015 accommodates other concerns, as well. And in the
    interest of time, I will reserve my discussion of them for any
    questions that you might have.
        And thank you, again, for the chance to join you today.
        [The statement of Ms. Norton follows:]

    Prepared Statement of Helen Norton, Associate Professor, University of
                             Colorado School of Law

        Thank you for the opportunity to testify today. My name is Helen
    Norton, and I am an Associate Professor at the University of Colorado
    School of Law. My testimony here draws from my work as a law professor
    teaching and writing about employment discrimination issues, as well as
    my experience as a Deputy Assistant Attorney General for Civil Rights
    in the Department of Justice during the Clinton Administration, where
    my duties included supervising the Civil Rights Division's Title VII
    enforcement efforts.
        Current federal law prohibits job discrimination on the basis of
    race, color, sex, national origin, religion, age, and disability.\1\
    While these statutes provide many valuable safeguards for American
    workers, federal law currently fails to protect gay, lesbian, bisexual,
    and transgender (``GLBT'') employees from discrimination on the basis
    of sexual orientation and gender identity. Indeed, the case law is
    replete with decisions where federal judges have characterized
    egregious acts of discrimination targeted at GLBT workers as morally
    reprehensible yet utterly beyond the law's reach. Consider just a few
    examples:
        Michael Vickers, a private police officer employed by a Kentucky
    medical center, alleged that his co-workers subjected him to harassment
    on a daily basis for nearly a year after learning that he had
    befriended a gay colleague.\2\ According to Mr. Vickers, they
    repeatedly directed sexual slurs and other derogatory remarks at him,
    placed irritants and chemicals in his food and personal property, and
    engaged in physical misconduct that included a co-worker who handcuffed
    Mr. Vickers and then simulated sex with him--all because of Mr.
    Vickers' perceived sexual orientation.\3\ In dismissing his claim just
    last year, the Sixth Circuit Court of Appeals concluded: ``While the
    harassment alleged by Vickers reflects conduct that is socially
    unacceptable and repugnant to workplace standards of proper treatment
    and civility, Vickers' claim does not fit within the prohibitions of
    the law.'' \4\
        Postal worker Dwayne Simonton, a gay male, reported that co-workers
    targeted him for ongoing abuse because of his sexual orientation by
    directing obscene and derogatory sexual slurs at him and by placing
    pornographic and other sexually explicit materials in his worksite.\5\
    The alleged harassment was so severe that Mr. Simonton ultimately
    suffered a heart attack.\6\ The Second Circuit Court of Appeals stated:
    ``There can be no doubt that the conduct allegedly engaged in by
    Simonton's co-workers is morally reprehensible whenever and in whatever
    context it occurs, particularly in the modern workplace.'' \7\ The
    court went on, however, to reject his claim, concluding that ``[t]he
    law is well-settled in this circuit and in all others to have reached
    the question that Simonton has no cause of action under Title VII
    because Title VII does not prohibit harassment or discrimination
    because of sexual orientation.'' \8\
        Robert Higgins, a gay male, brought a Title VII challenge to a
    workplace environment that the First Circuit Court of Appeals
    characterized as ``wretchedly hostile.'' \9\ Mr. Higgins alleged that
    his co-workers targeted him for both verbal and physical harassment
    because of his sexual orientation: he reported not only that they
    directed threats, sexual epithets, and other obscene remarks at him,
    but also that they poured hot cement on him and assaulted him by
    grabbing him from behind and shaking him violently.\10\ The court
    nonetheless affirmed summary judgment against Mr. Higgins: ``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.'' \11\
        To be sure, a few courts have broadly interpreted Title VII's
    prohibitions on sex discrimination to bar certain misconduct targeted
    at GLBT workers, such as sexual assault and other unwelcome physical
    conduct of an explicitly sexual nature by opposite-sex or same-sex co-
    workers, as well as employment decisions that punish workers who are
    perceived as failing to conform to certain gender stereotypes.\12\ But
    even those federal courts that have acknowledged the availability of
    these theories have noted Title VII's substantial limits in addressing
    discrimination experienced by GLBT Americans in the workforce.\13\
        To fill these significant gaps in federal law, some states have
    enacted important antidiscrimination protections for GLBT workers:
    indeed, eleven states and the District of Columbia have enacted
    statutes that currently prohibit job discrimination on the basis of
    sexual orientation as well as gender identity,\14\ while another eight
    states bar job discrimination on the basis of sexual orientation
    alone.\15\ But employers in the majority of states remain free to fire,
    refuse to hire, or otherwise discriminate against individuals because
    of their sexual orientation and/or gender identity.
        As a result, current law--both federal and state--leaves unremedied
    a wide range of injuries and injustices suffered by GLBT workers. H.R.
    2015 would fill these gaps by clearly articulating, for the first time,
    a national commitment to equal employment opportunity regardless of
    sexual orientation and gender identity.\16\ More specifically, it
    forbids such discrimination in decisions about hiring, firing,
    compensation, and other terms and conditions of employment.\17\ H.R.
    2015 also incorporates the remedies and enforcement mechanisms
    available under Title VII.\18\
        H.R. 2015 accomplishes antidiscrimination law's twin purposes of
    compensating victims of discrimination for their injuries and deterring
    future acts of bias while accommodating concerns that ENDA would
    interfere with religious institutions' ability to make employment
    decisions consistent with their religious beliefs. Indeed, H.R. 2015
    not only incorporates Title VII's existing approach to issues involving
    religious institutions, but goes considerably further in accommodating
    such concerns.
        First, section 6(a) of H.R. 2015 entirely excludes from the
    legislation's reach any employment action by ``a religious corporation,
    association, educational institution, or society which has as its
    primary purpose religious ritual or worship or the teaching or
    spreading of religious doctrine or belief.'' \19\ In other words, an
    entire class of religious employers--including houses of worship,
    parochial schools, and religious missions--is completely exempt from
    this bill.\20\
        Second, section 6(b) further excludes from the bill's coverage an
    entire class of positions at other religious institutions: those
    positions ``whose primary duties consist of teaching or spreading
    religious doctrine or belief, religious governance, supervision of a
    religious order, supervision of persons teaching or spreading religious
    doctrine or belief, or supervision or participation in religious ritual
    or worship'' at religious corporations, associations, educational
    institutions, or societies that are not already completely exempt under
    section 6(a). In other words, H.R. 2015 also completely exempts from
    ENDA scrutiny those jobs involving spiritual teaching or ministerial
    governance--such as chaplains and teachers of canon law--at religious
    institutions that are not primarily engaged in worship or the spreading
    of belief--such as religiously-affiliated hospitals, social service
    agencies, and religious universities.\21\
        Third and finally, section 6(c) makes clear that those religious
    institutions that are not primarily engaged in worship or the spreading
    of belief may still require that employees in non-ministerial positions
    conform to the institution's significant religious tenets--including
    such tenets regarding same-sex sexual activity.\22\ For example, if a
    religiously-affiliated hospital chooses to require that its doctors and
    nurses conform to its declared religious tenet against same-sex sexual
    conduct, H.R. 2015 does not bar it from firing or refusing to hire
    doctors or nurses who engage in such relationships.
        H.R. 2015 accommodates other concerns as well. For example, section
    8(a)(4) makes clear that employers remain free, during work hours, to
    require ``reasonable dress or grooming standards not prohibited by
    other provisions of Federal, State, or local law.'' In other words,
    employers remain free to establish and enforce otherwise lawful
    personal appearance standards in the workplace.\23\ The section further
    makes clear that an employee who notifies the employer that the
    employee has undergone or is undergoing gender transition must be held
    to otherwise lawful dress or grooming standards for the gender to which
    the employee has transitioned or is transitioning. For example, a
    transgender person designated female at birth must comply with the
    employer's otherwise lawful workplace grooming standards for men once
    he notifies his employer that he is transitioning. But while this
    section allows transgender employees to follow the standards
    established for the gender with which they identify, it does not
    protect employees who refuse to conform to those standards or who
    change their gender presentation from day to day.
        H.R. 2015 similarly permits employers to respond to the privacy
    concerns of transgender employees and their co-workers by addressing
    access to sex-segregated facilities--like locker rooms and shower
    facilities--where being seen unclothed is unavoidable. Section 8(a)(3)
    permits employers to deny or limit access to such facilities ``based on
    actual or perceived gender identity'' so long as the employer
    ``provides reasonable access to adequate facilities that are not
    inconsistent with the employee's gender identity. * * *'' Examples
    include installing privacy screens or curtains in existing facilities
    or setting aside a time to provide a transgender employee sole access
    to an existing facility.
        In sum, H.R. 2015 proposes to fill significant gaps in existing
    federal and state antidiscrimination law by clearly articulating, for
    the first time, a national commitment to equal employment opportunity
    regardless of sexual orientation and gender identity while
    accommodating concerns raised by religious institutions and other
    employers. Again, thank you for the opportunity to testify here today.
    I look forward to your questions.
                                    endnotes
        \1\ 42 U.S.C. Sec. Sec.  2000e-2000e-17 (Title VII of the Civil
    Rights Act of 1964); 29 U.S.C. Sec. Sec.  621-634 (Age Discrimination
    in Employment Act); 42 U.S.C. Sec. Sec.  12101-12102, 12111-12117,
    12201-12213 (Americans with Disabilities Act).
        \2\ Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th
    Cir. 2006), cert. denied, 127 S.Ct. 2910 (2007).
        \3\ Id. at 759-60.
        \4\ Id. at 764-65.
        \5\ Simonton v. Runyon, 232 F.3d 33, 34-35 (2nd Cir. 2000).
        \6\ Id. at 34.
        \7\ Id. at 35.
        \8\ Id.
        \9\ Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258
    (1st Cir. 1999).
        \10\ Id. at 257.
        \11\ Id. at 259. For just a sampling of additional cases in this
    vein, see Medina v. Income Support Div., New Mexico, 413 F.3d 1131,
    1135 (10th Cir. 2005) (rejecting heterosexual woman's Title VII claim
    challenging her lesbian supervisor's sexually explicit remarks and e-
    mail: ``We construe Ms. Medina's argument as alleging that she was
    discriminated against because she is a heterosexual. Title VII's
    protections, however, do not extend to harassment due to a person's
    sexuality.''); Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d
    257, 265 (3rd Cir. 2001) (``Harassment on the basis of sexual
    orientation has no place in our society. Congress has not yet seen fit,
    however, to provide protection against such harassment.'') (citations
    omitted); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th
    Cir. 1984); cert. denied, 471 U.S. 1017 (1985) (rejecting transgender
    employee's Title VII claim: ``While we do not condone discrimination in
    any form, we are constrained to hold that Title VII does not protect
    transsexuals.'').
        \12\ E.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th
    Cir. 2004) (holding that transgender employee sufficiently alleged
    Title VII cause of action for sex discrimination with his claim that he
    suffered adverse employment actions based on ``his failure to conform
    to sex stereotypes concerning how a man should look and behave''); Rene
    v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064-66, 1068 (9th Cir. 2002)
    (en banc), cert. denied, 538 U.S. 922 (2003) (holding that gay male
    plaintiff had stated a claim for Title VII sex discrimination based on
    his allegations that co-workers had physically and sexually assaulted
    him and had singled him out for harassment because he failed to conform
    to gender stereotypes of how men should behave).
        \13\ See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2nd
    Cir. 2005) (rejecting lesbian plaintiff's claim of Title VII
    discrimination: ``Like other courts, we have therefore recognized that
    a gender stereotyping claim should not be used to `bootstrap protection
    for sexual orientation into Title VII.' '') (citation omitted); Hamm v.
    Weyauwega Milk Products, Inc., 332 F.3d 1058, 1063 (7th Cir. 2003)
    (rejecting plaintiff's Title VII claim by concluding that co-workers'
    alleged harassment of him was based on his perceived sexual orientation
    rather than on sex-based stereotypes).
        \14\ Along with the District of Columbia, those states are:
    California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New
    Mexico, Rhode Island, Vermont, and Washington. Oregon's legislation
    banning job discrimination on the basis of sexual orientation and
    gender identity will become effective in January 2008.
        \15\ Those states are Connecticut, Hawaii, Maryland, Massachusetts,
    Nevada, New Hampshire, New York, and Wisconsin.
        \16\ See H.R. 2015, Sec.  2.
        \17\ See id. at Sec.  4.
        \18\ See id. at Sec.  10.
        \19\ Id. at Sec.  6(a).
        \20\ Note that, at the time of its debate, Title VII faced similar
    objections from those who feared that its ban on religious
    discrimination would intrude upon religious institutions' ability to
    hire members of their own faith. Title VII similarly accommodated this
    issue by protecting the ability of ``a religious corporation,
    association, educational institution, or society'' to make employment
    decisions on the basis of religion. 42 U.S.C. Sec. 2000e-1(a). Such
    religious institutions are not, however, generally exempt from Title
    VII's prohibitions on discrimination on the basis of race, color, sex,
    or national origin. See id.
        \21\ This section codifies for ENDA purposes the ``ministerial
    exception'' adopted by most courts when considering Title VII's
    application to religious institutions' decisions about their spiritual
    leaders. Recognizing the significant constitutional and other interests
    involved, these courts have interpreted Title VII to exclude religious
    institutions' employment decisions involving ``ministerial'' positions.
    See, e.g., McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert.
    denied, 409 U.S. 896 (1972) (rejecting plaintiff minister's claim of
    sex discrimination by holding that Title VII does not apply to
    religious institutions' employment decisions regarding ministers and
    similar spiritual leaders); EEOC v. Catholic University of America, 83
    F.3d 455 (D.C. Cir. 1996) (rejecting plaintiff's claim of sex
    discrimination by holding that the ministerial exception exempts tenure
    decisions involving teachers of religious canon law from Title VII).
        \22\ H.R. 2015, Sec.  6(c).
        \23\ Note that Sec.  8(a)(4) insulates only personal appearance
    standards that apply ``during the employee's hours at work.'' H.R.
    2015's general prohibition of job discrimination based on gender
    identity prohibits employers from discriminating against individuals
    based on their off-the-job expression of gender identity.
                                     ______

        Chairman Andrews. Professor Norton, thank you for bringing
    your experience to bear on this discussion.
        Let me thank each of the witnesses for very edifying
    testimony, also very succinct, because now that gives us a
    chance to interact with each other and ask questions.
        So start the clock, Carlos, I am on the clock here.
        Ms. Waits, thanks again for what had to be a very difficult
    personal experience, which you handled just so courageously.
        Do you know what would have happened to you if you had been
    fired from your job because of your religion? Do you know what
    legal rights you would have?
        Ms. Waits. What would have happened to me----
        Chairman Andrews. Had you been fired because of your
    religion.
        Ms. Waits. I could have sued, I guess.
        Chairman Andrews. You could have sued because there is a
    federal law that protects you that prohibits what happened to
    you because you were Baptist or Catholic or whatever.
        In Texas, which is where you live, where this happened,
    your state does not have a law which prohibits a person from
    being dismissed because of their sexual orientation.
        Mr. Fahleson, in your testimony, one of the issues you
    raise is whether a federal remedy is necessary. But, you know,
    there are 31 states where what happened to Ms. Waits could
    happen to a person because there is no federal protection.
    Don't you think that a federal remedy is necessary because of
    that significant vacuum that exists?
        Mr. Fahleson. Certainly that is a policy decision for the
    subcommittee, committee and Congress to make.
        I will tell you, however, in advising employers, they are
    already burdened with the significant number of local, state
    and federal laws with which they must deal. And, again, Fortune
    500 companies, they have HR departments, legal departments, who
    can handle those things.
        Chairman Andrews. Yes.
        Mr. Fahleson. But the bulk of my practice, again, is that
    employer of 20, 50, or 100 employees. And it is very difficult
    for them to have yet another regulatory burden heaped upon
    them.
        Chairman Andrews. I say this with respect. We don't really
    view it as a burden to look at a qualified person and say, ``We
    don't care what your sexual orientation is, we are going to
    hire you because you are qualified.'' We don't really think
    that that is a burden. And I think the employer witnesses would
    echo that.
        Let me ask you a question about the religious exemption.
    And I want to go to your example about the volleyball coach at
    the religious high school.
        Now, putting aside for a moment whether the school would be
    exempt under subsection 6(a), which I frankly think it would,
    but putting that aside for a minute and putting aside whether
    the volleyball coach would be excluded under Section 6(b),
    which I think there is a strong argument that he or she would
    be included, let me ask you to analyze this fact pattern under
    Section 6(c), which I note you do not mention in your
    testimony.
        If the high school in its job wanted ad said that anyone
    applying for a coaching position or anyone that interacts with
    the students must be a heterosexual because it is part of the
    religious tenets of the school that heterosexuality is the
    right way to live, would the school be justified in refusing to
    hire a gay person?
        Mr. Fahleson. The discussion that we are having here today
    is the problem that I have identified in my testimony.
        You know, my job on a day-to-day basis is to advise that
    school who happens to call me and says, ``Okay. Is this
    particular coach covered by this exemption?''
        Chairman Andrews. Right.
        Mr. Fahleson. And I respectfully disagree with you that it
    is as clear as to whether that individual falls under (a) or
    (b).
        Chairman Andrews. No, I--but what is the answer under
    Section 6(c)?
        Mr. Fahleson. Okay.
        Chairman Andrews. If the school did that, what would you
    advise your client? What----
        Mr. Fahleson. Again, I don't fully understand 6(c)----
        Chairman Andrews. Okay.
        Mr. Fahleson [continuing]. And its terms. And, also, I find
    it incongruous in its current form that it clearly states that
    the declaration by the religious corporation essentially shall
    not be subject to judicial or administrative review, whereas
    subsections (a) and (b) clearly invite judicial or
    administrative review when it comes to what is a primary
    purpose or primary duties. And so----
        Chairman Andrews. No----
        Mr. Fahleson [continuing]. My point is----
        Chairman Andrews. Primary purpose and primary duties are
    not in Section 6(c). What it says is if the religious
    organization says that in similar positions people have to
    conform to religious tenets they announce. And they say one of
    our tenets is that we think that homosexuality is wrong. And so
    we don't want anybody who is a homosexual coaching one of our
    teams. And they put it in the want ad. Isn't it very clear
    under Section 6(c) they have the right to do that?
        Mr. Fahleson. If that is your reading of it. Again, I find
    it rather confusing.
        Chairman Andrews. What is yours?
        Mr. Fahleson. My reading----
        Chairman Andrews. Why would yours disagree with that?
        Mr. Fahleson. Okay, a couple points.
        One, it is unclear that--it says, under this act a
    religious corporation--so I assume we have now already excluded
    what is already exempt under (a), and it talks about applicants
    for similar positions--I am not sure what is meant by similar
    positions--conform--is this requiring an inquiry by the school
    to then actually evaluate what this individual is engaged in--
    --
        Chairman Andrews. Well, I don't think so because under the
    facts that I gave you, first of all, it is an educational
    institution. That covers the school. The similar position is
    coaching. They say anybody who is a coach that interacts with
    the students has to be a heterosexual. And they declare that as
    one of the tenets of their religion. Don't they have the right
    to do that under Section 6(c)?
        Mr. Fahleson. Again, if that--I think that that is a
    reasonable reading, as you have indicated. However, again, my
    concern is that religious institution is going to have to hire
    a lawyer, have someone interpret, when, in fact, a very broad
    prohibition which apparently was acceptable to the sponsor in
    prior versions of this legislation would be much more clear.
        Chairman Andrews. Well, with all due respect, I think that
    if--and I see my time is up--but if the prior language you make
    reference to were there, they would probably have to hire a
    lawyer for that, as well. I mean, statutes are never case
    specific looking into the future. Thank goodness people have to
    hire lawyers. It is good for both you and me, Mr. Fahleson.
    [Laughter.]
        I turn to my friend, the ranking member.
        Mr. Kline. Thank you, Mr. Chairman.
        We are so often in this subcommittee in a discussion about
    lawyers and what is good for them. And apparently most
    legislation that comes from here is good for lawyers.
        And I always make the point with some pride that I am not a
    lawyer, but nevertheless, we are in the business of making law
    here that affects the American people--employees and
    employers--and we want to make sure that we make good law.
        Let me just thank all the witnesses.
        I won't have a chance to ask all of you questions, but
    certainly, Ms. Baker, it is very nice to have someone from
    Minnesota here and representing such a great Minnesota company.
        And I just make the comment that you have put in place--
    General Mills has put in place--policies which seem to be
    working very well for the company without the mandate of
    federal law. You have done that on your own.
        And one of the things we want to explore is when we make
    federal law, will you be able--and other companies--be able to
    implement policies in the way you would like to that would
    further your human resources capability, or does it, in fact,
    get perhaps too complicated?
        In a previous panel, our colleague and good friend, Emanuel
    Cleaver, talked about theological difficulties with perhaps not
    supporting this legislation.
        I just make a note that I know that there are many people
    who have some theological difficulties with the legislation as
    it is, and we won't have an opportunity to explore that today.
    But he did bring it up, and I think we ought to make note of
    that as we go forward. I am sure there will be some discussion
    of that.
        Speaking of theologies and religious institutions, I am
    going to go back to Mr. Fahleson for some more study of the
    sections, including 6(c).
        But before I do that, Mr. Chairman, I would like to ask
    unanimous consent to be included in the record this letter to
    you and me and the other members of the committee from the
    General Conference of Seventh Day Adventists, the Union of
    Orthodox Jewish Congregations, and the U.S. Conference of
    Catholic Bishops.
        Chairman Andrews. Without objection.
        [The letter follows:]

        Mr. Kline. Thank you.
        Now, Mr. Fahleson, going back, what is always concerning to
    me in this discussion with lawyers and about lawyers, and you
    are sitting in battery there--a whole bunch of you. You have
    different interpretations of what this language is today.
        And I think that part of our job is to make public policy
    that is understandable by all of those who have the job of
    implementing it and enforcing it. And so we want to make it as
    clear as possible.
        Going back to Section 6(c) that the chairman was talking
    about, part of the language in 6(c), it says: This would allow
    a religious employer to require that applicants for employment
    conform to those religious tenets that the religious employer
    ``declares significant.'' And I think it is the ``declares
    significant'' that is part of the issue here. And I want to ask
    you what you think that means and how this differs from other
    law, other policy.
        Mr. Fahleson. Right.
        Mr. Kline. Would you expand on that because we got kind of
    cut off there when----
        Mr. Fahleson. Sure.
        Mr. Kline [continuing]. The chairman correctly limited
    himself to 5 minutes.
        Mr. Fahleson. Again, it is my preference as an employment
    law practitioner in advising religious institutions and faith-
    based organizations for the blanket prohibition. For me, as an
    attorney, it is much easier for me to understand and to
    communicate that to my clients.
        The three subsections set forth therein--we have heard
    several times during this hearing that words have meaning--all
    of the words in those exemptions have meanings. Again, the more
    words, the more potential interpretations by lawyers, both on
    the committee, as well as here on the panel.
        With respect to the reference to ``declares significant,''
    I have a concern. I do not profess to be a constitutional
    lawyer. But I have concerns as to whether Congress can mandate
    that a religious institution declare certain things to be
    significant or not.
        Again, at what point does that institution have to declare
    that significant--and, again, I have concerns about why the
    religious organization should have to go to this length in
    essence to say, ``Here are the 10 things that we believe in,''
    and ``Oh, by the way, it must be set forth in writing herein.''
        Moreover, as I stated in my prior discussion, there is an
    incongruity in how the statute or the exemption is currently
    drafted in that it says under subsection (c) that that will not
    be subject to judicial review or administrative review, yet the
    other two exemptions clearly invite such review by the use of
    the terms ``primary purpose'' or ``primary duties.''
        So I believe the entire exemption--a, b and c--is vague, is
    concerning, and I believe--again, I would encourage the
    committee to accept Congressman Frank's invitation to work with
    those who represent religious organizations to try and clarify
    some of these issues.
        Chairman Andrews. Are you finished, Mr. Kline?
        Mr. Kline. Yes, and I yield back.
        Chairman Andrews. Thank you.
        Mr. Kline. Thank you very much.
        Chairman Andrews. I would ask unanimous consent--one of the
    issues Mr. Lorber had raised, which is about the preemption
    issue, ERISA preemption--unanimous consent that a letter dated
    August 7 from Congressman Frank to the committee be entered
    into the record.
        The Congressman frankly agrees with your assessment, Mr.
    Lorber, at least agrees with your identification of the
    problem. And it is something we are going to work on trying to
    fix.
        [The letter follows:]

                                 U.S. House of Representatives,
                                        Washington, DC, August 7, 2007.
        Dear Cosponsor: On rereading the Employment Nondiscrimination Act
    that you have cosponsored, I realized that we had included a provision
    that, while I support it as a matter of public policy, is not properly
    part of this bill in terms of the arguments we have made for it. I am
    referring specifically to section 8, subsection 5(b), which would in
    effect amend ERISA. As you know I am myself a supporter of full
    partnership rights for people of the same sex, including marriage. But
    we have always been clear to differentiate that issue, including
    domestic partnerships, from the basic principle of opposing
    discrimination. While nothing in the language as drafted would have
    compelled the recognition of domestic partnerships, it would in effect
    amend a provision of ERISA that now governs what states can do in
    compelling the recognition of domestic partnerships by companies within
    their boundaries. This should not have been included and I write to
    notify you of my intention to request that the Education and Labor
    Committee strike this provision from the bill when it is considered.
        Thus, if you are asked about this provision between now and the
    time of the committee markup, I hope you will feel free to note that it
    will not be part of the final bill, and that no one should decide to be
    against the basic nondiscrimination bill because of its inclusion. I
    and others will be pursuing the right of people of the same sex to have
    their relationships fully recognized, but in other contexts, and not
    here where it would not be legislatively appropriate nor helpful to
    getting the bill passed.

                                                  Barney Frank.
                                     ______

        Chairman Andrews. The chair recognizes the gentleman from
    Michigan, Mr. Kildee, for 5 minutes.
        Mr. Kildee. Thank you, Mr. Chairman.
        Officer Carney, I share the same Irish heritage that you
    share. My grandmother was born in Cork and my grandfather in
    Donegal. And my son used to live near Boston, up there near
    you.
        I have served in Congress, Officer Carney, for 31 years.
    And I have, at various times, had homosexuals on my staff.
        I hired some aware of that fact. Some I became aware after
    they were hired. And some I became aware after they had left my
    staff to go on to better jobs. And some I am sure I never have
    learned of their orientation because it was not significant to
    me.
        They were very good staff members whether they were
    heterosexual or homosexual. My staff has always served me well.
        And I think those of us in Congress--I am cosponsor of this
    bill. I think it is long overdue. I have been cosponsor for too
    many years. I think it is time to move this bill this year.
        But, you know, we deal with about 660,000 people we
    represent. We are kind of a small business in the sense of our
    size of our offices. I have about 16 people working for me.
        And I have never considered sexual orientation one of the
    criteria by which I judge whether the person is a good employee
    or not. The time that they arrive in my office, generally on
    time, do their work, that is the main consideration I have in
    serving the 660,000 people that I work for myself.
        And it has always baffled me why people get so concerned
    about what people do outside the office and what they do in
    their bed--when they are in their bedroom or with whom they do
    it. It just baffles me. And it is an injustice.
        And we are told that we are to be seekers after justice.
    One of the great things of John XXIII, he said: If you are to
    be a seeker after justice, you have to pursue your own justice.
    And I think that we certainly have a moral and legal obligation
    to remedy these injustices.
        Just a question to you, Officer Carney. How does the Gay
    Officers Action League of New England help build a more just
    society? And does it play any role in making the public aware
    that a police department should better reflect the full
    society?
        Mr. Carney. Over the years, the last 16 years, the Gay
    Officers Action League has prided itself on professionalism and
    outreach to other law enforcement agencies throughout New
    England, in fact, throughout the country.
        We have been invited guests to speak to the International
    Chiefs of Police. We have held conferences so other law
    enforcement agencies will know how to interact with the gay and
    lesbian community, in fact, how to act and work with your gay
    and lesbian, bisexual and transgender employees. And we have
    been called upon by literally chiefs across America.
        I personally, acting as vice president, cofounder,
    president of the organization, I have been contacted by many
    chiefs throughout the United States who have issues where they
    don't have knowledge. They never had an issue with a gay
    employee before. They may have never met, that they are aware
    of, a gay employee before. So we have acted in that capacity.
        We have trained many law enforcement officers. Proudly
    enough, we train many recruits. We train recruits in police
    academies, as well as state police academies.
        And we try to work with the law enforcement community to
    know how to better serve our community and how our community
    can better interact with the police department.
        If anybody knows anything about the gay and lesbian civil
    rights era, it started back in the late 1960s, and it started
    in New York City. And it started over the way that the NYPD
    interacted with the gay community. And, in fact, it wasn't a
    pleasant interaction.
        Sadly enough, the gay bars were raided. People were outed
    on TV and through the newspaper when they were arrested for
    whatever they were arrested for, when they got in the bars.
        And the community fought back. That started the civil
    rights era which is now known as the month of pride, June 27th,
    and why we celebrate. Often people want to know why we
    celebrate, you know, who we are.
        We have been through a lot. We have been treated
    differently.
        And interesting enough, now we are law enforcement
    officers. We are out of the closets. Some are still hidden.
    Often I feel like I speak for them because they are not here to
    speak for themselves.
        So when I am here today as a voice for myself or the Gay
    Officers Action League, I represent, I feel, hundreds and
    thousands of employees who work for law enforcement agencies,
    who are firefighters, who work for federal agencies, who can't
    come here and can't sit here and tell their personal story like
    I can.
        I am blessed that I have a law in the Commonwealth of
    Massachusetts that protects me. But, as I indicated earlier, if
    I was a federal employee, if I was an FBI agent or a CIA agent,
    I would not be covered.
        Mr. Kildee. Thank you very much for what you are doing.
    Thank you very much.
        Chairman Andrews. The gentleman's time is expired.
        The chair is pleased to recognize the gentleman from
    Georgia, Dr. Price?
        Dr. Price. Thank you, Mr. Chairman. I want to thank you and
    Ranking Member Kline for holding this hearing.
        I want to thank each of the witnesses for coming and for
    your testimony, oftentimes heartfelt and many personal stories.
    And I for one appreciate that.
        Mr. Chairman, you have mentioned a couple times that we
    appreciate the comments that were made by the panel because we
    were going to deliberate and it would give us much to talk
    about. That would be a welcome addition to this committee, that
    is, to have the majority side and minority side deliberating
    and having much to talk about and having input into the
    process. And so I look forward to that, and I will hold you to
    that, I hope, as we move forward with this issue.
        I want to thank Mr. Fahleson for your hypotheticals because
    I think they are very instructive. And I think the chairman
    mentioned that, as well.
        I would note, Professor Norton, that one of the examples
    that you gave about tainted food and handcuffing of an
    individual, I am not an attorney, don't know the case. But it
    strikes me that that kind of affront to an individual in the
    workplace would fall under other law, as well: assault or
    kidnapping, or I don't know what it would be. But it seems to
    me that it would fall under somewhere else. And if that
    individual, in fact, didn't bring those kinds of charges, then
    it may be that the attorney needs to be talked with, which
    brings me to attorneys.
        The chairman made the comment that, ``Thank goodness they
    have to hire a lawyer,'' when it comes to this proposal. I
    would suggest that that may be the title of this hearing: Thank
    goodness they have to hire a lawyer.
        But I think what we are here to do is to determine whether
    or not some type of federal action is needed. And if federal
    action is taken, what would the potential unintended
    consequences be of that federal action?
        I would like to address the ERISA provision, the Section
    8(b) provision. And I presume that the attorneys on the panel
    agree that that section that was identified by Chairman Frank,
    8(b), ought to be stricken from the bill.
        Is that accurate, Professor Norton? Do you agree with that?
        Ms. Norton. Do I agree that that provision should be
    stricken from the bill?
        Dr. Price. Yes.
        Ms. Norton. I agree that ERISA preemption is a large and
    complicated problem that probably deserves a comprehensive
    solution. I agree with that statement. And whether or not it is
    addressed in this bill or some other context, I agree that it
    was a preemption that should be looked at more broadly.
        Dr. Price. So you don't necessarily agree that it ought to
    be stricken.
        Mr. Fahleson, do you agree?
        Mr. Fahleson. I concur wholeheartedly.
        Dr. Price. Professor Badgett, I presume you agree?
        Ms. Badgett. I am not an attorney. I am going to defer to
    my lawyer colleagues on that.
        Dr. Price. There we go.
        Mr. Lorber, I suspect you agree?
        Mr. Lorber. Yes, yes, I do.
        Dr. Price. Any other attorneys down here?
        Ms. Baker, I just want to commiserate with you about
    Saturday's game. It was an awful, awful occurrence.
        I think the chairman mentioned that he would respect--
    actually, entered Mr. Frank's letter into the record. And in
    that letter, Mr. Frank says that, ``This should not have been
    included.'' He also says, ``It will not be part of the final
    bill,'' which strikes me as interesting, as well, about the
    conversation about deliberation and having input. But I hope
    that it won't be part of the final bill.
        Let me switch, if I may, for a moment to the religious
    exemption, which I think is problematic.
        I would agree about the definition. I think the definitions
    are a challenge.
        The language about ``declares significant'' that it puts
    the onus upon the institution to declare what is significant in
    their belief system. I would suggest it puts the federal
    government in a position that then requires them to determine
    what each religious entity declares significant, which I would
    suggest is an unintended consequence that I am not sure we want
    to head toward.
        I would ask anybody to comment, though, if we believe that
    church-related organizations, religious organizations, ought to
    be able to have this exemption, I guess that is the question.
        Professor Norton, do you believe that religious entities
    ought to be able to have this exemption?
        Ms. Norton. I believe that there should be a combination of
    religious institutions' interest in being able to make
    employment decisions consistent with their religious beliefs.
    Yes.
        Dr. Price. And so if we are going to allow religious
    institutions to respond to their moral principles, does it
    follow that we ought to allow nonreligious employers to adhere
    to their moral principles?
        Ms. Norton. Well, Congressman Price, I would remind you
    that the same sets of objections were raised to Title VII back
    in 1964, that employers argued that having to associate with
    African Americans or folks of other religions--private
    employers, folks that were not members of religious
    institutions, argued that having to associate with these folks
    would violate their religious or moral precepts. And Congress
    made the determination that the national interest in equal
    opportunity outweighed those concerns about association.
        And as Congressman Frank pointed out, there is an important
    distinction between economic relationships, jobs, the income
    that jobs bring, and intimate, personal, private associations,
    who you spend time with away from work. And I think Title VII
    struck the correct balance there. And I think H.R. 2015 strikes
    the correct balance, as well, by requiring private employers
    who are not religious institutions to adhere to
    nondiscrimination principles.
        Dr. Price. I appreciate that.
        My time is--I do have some other questions, and I hope that
    we will be able to submit them for the record.
        Chairman Andrews. Of course, without objection.
        I would want the record to reflect that my comments that I
    am glad people are hiring lawyers are just the nature of my
    sunny disposition and good humor. It is not a literal position
    that I am taking. [Laughter.]
        You notice I left that ambiguous, though.
        The chair is pleased to recognize the gentleman from
    Illinois, Mr. Hare, for 5 minutes.
        Mr. Hare. Thank you, Mr. Chairman. And thank you very much
    for having the hearing.
        And let me just say from the very beginning here, I am
    honored to be a cosponsor of this piece of legislation.
        Just, in this country, it is still amazing to me that we
    have to have hearings and have laws to treat people as equals.
    I sometimes just shake my head on this.
        I just want to say, Mr. Fahleson, to you, I was a little
    troubled when you said about the extra--your comment about the
    extra burden that it would place on some people. I think, if
    you take a look at the testimony of Ms. Waits and Officer
    Carney, I think a lot of undue burden was put on those two
    people and thousands of other people, too.
        So, with all due respect, I would just say that, when this
    bill passes and is signed into law, and I believe that it will
    be, I think what we ought to do is be very mindful of the fact
    that there are people who are wonderful people and should never
    be judged. And if it is a burden on the business community to
    treat people as equals, then I would submit that irregardless
    of who they are, what they are, I would submit to you that
    perhaps that burden, you know, may have to be borne.
        But this is the United States of America. And we shouldn't
    be tolerating what happened to two of our witnesses today ever.
        So I also just want to say to both of you who lost your
    jobs, I find it amazing that we have people--employers in this
    country--that are so narrow minded and so afraid--and my
    friend, Mr. Kildee, and I think share the same thing--I for the
    life of me don't get what everybody is so nervous about and
    worried about and scared about. I shake my head in disbelief.
        So I just want to say to you particularly, Ms. Waits, I am
    sorry this happened to you. I wish there was a way you could
    sue this employer because if anybody deserved to get sued, and
    I am not an attorney either, I would like to take this one up
    for you because I cannot believe--how many years did you work
    for that company?
        Ms. Waits. It was less than a year. It was just a couple
    months.
        Mr. Hare. But everything was going good before this
    happened, right?
        Ms. Waits. Yes. It was great. I got a raise within the
    first 2 weeks I was there. And, yes, I got a lot of praise.
        I was setting up their system for them. Their company had
    never even seen their inventory system before because nobody
    had ever done it until I started, so.
        Mr. Hare. And, Officer Carney, I am assuming, you know,
    before you said it was 2\1/2\ years you had to fight to get
    your job back?
        Mr. Carney. Correct.
        Mr. Hare. And during that period of time, I mean, you had
    to feel, besides anger, I am just kind of interested in how you
    felt about how this ever happened and what you went through,
    just emotionally and mentally.
        Mr. Carney. The pain was very deep. I felt ashamed. I often
    was humiliated.
        For me, it allowed me to hit a bottom that--to seek some
    help. To find out who I really am, and, more importantly, it is
    okay who I am. And it is okay to be a gay American. And now, it
    is okay, with laws in place in the Commonwealth of
    Massachusetts, to work for my agency and very proudly to do so.
        As you know, I am here today in full uniform. My police
    commissioner is well aware that I am here testifying.
        And in the article that Congressman Frank spoke about
    today, spoke about my work ethic. And I am honored to serve my
    department and the gay and lesbian community, bisexual and
    transgender to be here to testify.
        Mr. Hare. Well, I just want to let you know I appreciate
    everything you and your fellow officers do. And, you know, I
    don't know where this nation would be without our first
    responders. And to have to fight to get your job back for 2\1/
    2\ years, for that, to me, I think is just appalling.
        I just want to ask maybe one question, if I could, of you,
    Ms. Baker.
        Again, I appreciate the testimony you gave today, and I
    really commend General Mills for doing what they have done. And
    it appears that General Mills was way ahead of the curve when
    it comes to adopting policies.
        I am wondering if you could explain how these policies, you
    know, came about. And is there more that you might be able to
    say to the business community about why these policies are good
    for not only General Mills, but for the employees?
        Ms. Baker. Sure. We included sexual orientation in our
    equal employment opportunity policy in the early 1990s and then
    adopted gender identity in 2004.
        I can talk very specifically to the gender identity
    addition. And that came, one, from just our recognition
    throughout the United States that this was an issue. But it
    also came from very active and very vocal members of our Betty
    Family, the employee network that I referred to earlier, which
    is the employee network for our GLBT employees, that felt very
    comfortable approaching management and approaching our company
    about this very important issue to that community. So we
    partnered with the community and learned more and decided to
    adopt that policy.
        Mr. Hare. Thank you very much.
        I yield back.
        Chairman Andrews. The gentleman's time has expired.
        The chair recognizes Mr. Walberg for 5 minutes. Welcome.
        Mr. Walberg. Thank you, Mr. Chairman.
        And I apologize for being late, so I have not had the
    pleasure of hearing all the testimony from the individuals who
    took their time to be here today. I did come in on the final
    testimony.
        And, Professor Norton, I thank you for your testimony. It
    suggests, though, that Section 6 seems to be very clear that
    the concerns of religious organizations are met. I think there
    has been, from what I have heard, extensive disagreement on
    that on this committee, as well as in the panel, as well as the
    clear directives of a number of religious organizations who
    have concerns with this bill.
        As I read it myself, I see that, while it may give
    opportunity for a very clearly defined church or religious
    organization that has a very unique purpose of directly
    displaying their beliefs and spreading the gospel, so to speak,
    of their particular tradition, yet I think there are still
    questions and concerns.
        For instance--and I guess I would ask you to respond to
    this--if there were a science teacher at a religious school--
    again, a science teacher responsible for teaching science--
    would they be protected under this act?
        Ms. Norton. Just so I am clear, Congressman. The question
    is would H.R. 2015 scrutinize this religious school's decision
    about who to hire as a science teacher. Is that----
        Mr. Walberg. Scrutinize the decisions of hiring, but also
    the teacher themselves in working with other employees in the
    school in their personal-held beliefs that would run amok of
    this act if it were implemented.
        Ms. Norton. First, if the high school is a religious school
    that is primarily engaged in spreading belief, and if this
    school is dedicated to spreading religious doctrine and belief,
    in other words, students are required to attend worship
    services and the curriculum has a religious tenor, this school
    is completely exempt under 6(a) as a religious educational
    institution primarily engaged in worship or the spreading of
    belief.
        If it is not--say it is a religiously-affiliated
    educational institution, like Georgetown University, it
    certainly has a close religious affiliation, but it is not
    primarily engaged in the spreading of belief, the curriculum--
    --
        Mr. Walberg. Well, I would contend to you that the majority
    of Christian schools, religious schools, parochial schools
    aren't primarily engaged in spreading a belief, but rather,
    educating with a set of principles that underlie the approach
    that they take.
        Ms. Norton. Yes.
        Mr. Walberg. And as I understand that, those schools would
    certainly not be protected or be very unclear that they would
    be protected under this piece of legislation. In fact, I don't
    know of any school in my district that is a parochial,
    Christian, religious school that its primary purpose is to
    propagate their belief system, but rather, within their belief
    system, to do a good educational process.
        Ms. Norton. I don't know if I agree with that
    characterization of many religious schools. But even if I am
    wrong, if it is a religious school that does not characterize
    its primary purpose as spreading of belief, if it chose to
    require that its science teachers or any other teachers or any
    other employees must conform to their church's teaching on same
    sex sexual behavior, they could require conformance to that
    teaching as a condition of employment.
        Mr. Walberg. What about a religious publisher?
        Ms. Norton. Again, the first question----
        Mr. Walberg. Again, they are publishing documents, books,
    materials. They are not necessarily in the purpose as a
    religious organization teaching or propagating their faith, but
    they are a publisher.
        Ms. Norton. Right.
        Mr. Walberg. What about their hiring practices?
        Ms. Norton. They, too, would, under 6(c), could require
    that particular employees or all employees conform to their
    religion's teachings, including their religion's teaching on
    same sex sexual behavior.
        Mr. Walberg. Thank you.
        Mr. Fahleson, would you agree with that?
        Mr. Fahleson. I do not.
        One point I want to highlight that I forgot to mention
    earlier.
        Under this 6(c), which, again, I fail to fully comprehend,
    it states that this declaration of what is significant is not
    subject to review.
        So the school that you mentioned may declare it requires
    employees to sign something that a faithful adherence to the
    Bible is, you know, something they want them to adhere to. But
    whether that individual conforms to that can be subject to
    judicial review. That is not exempt.
        And so, therefore, a very strict reading of 6(c) would
    indicate that courts are now going to determine whether that
    employee has strictly adhered to the Bible for this particular
    position.
        Again, this is a very--with no disrespect to those who
    worked on the section--the section is a mess from a legislative
    standpoint. And I would strongly encourage the committee to
    look at going to the language that was in previous versions,
    which is the very broad blanket exemption.
        Mr. Walberg. Okay. Thank you.
        Thank you, Mr. Chairman.
        Chairman Andrews. The gentleman's time has expired.
        It is my sad duty, at this point, to interrupt the hearing
    briefly to announce some really terrible news which just came
    to us.
        We are told that our friend and colleague, Congressman Paul
    Gillmor of Ohio, has just passed away of a heart attack;
    someone who was well known to many members of this committee as
    a very jovial, collegial person.
        So I would ask if we could just observe a moment of silence
    to, each of us in our own way, contemplate his passing.
        (MOMENT OF SILENCE)
        Chairman Andrews. The committee will resume, and,
    obviously, our heartfelt condolences to our friend's family and
    staff and constituents on this very, very considerable loss.
        The chair recognizes the gentleman from Iowa, Mr. Loebsack,
    for 5 minutes.
        Mr. Loebsack. Thank you, Mr. Chair.
        I, too, want to apologize to all of you for not having been
    here during your testimony. And I don't have any questions at
    this point.
        I just want to--and I was at an Armed Services Committee
    hearing, where we are listening to the comptroller general,
    David Walker. As a new member, I quickly became all too aware
    of sort of the complicated nature of this job, and hearings
    being scheduled against one another. But I was over there.
        But I just want to state very briefly.
        First of all, Ms. Baker, I am happy that there is a General
    Mills plant in Cedar Rapids, in my district. And I really
    appreciate all that General Mills is doing on this particular
    issue.
        And I am very happy and proud to cosponsor this
    legislation. I am doing what I can with Congresswoman Baldwin
    to try to gain some more support for this measure here in
    Congress. I just think it is an absolutely critical thing.
        I don't believe that we should, in fact, ever discriminate
    on the basis of race or gender or religion or sexual
    orientation or gender identity.
        I am happy to be a representative of a state, Iowa, which
    is one of the few that does, in fact, now have a law that
    protects folks on the basis of gender identity, as well as
    sexual orientation.
        So I don't want to take up a lot of time. I just want to
    thank those on the previous panel who spoke in favor of this
    piece of legislation and those who spoke in favor of it, as
    well, here.
        And I will yield back the balance of my time. Thank you,
    Mr. Chair.
        Chairman Andrews. The gentleman's time has expired. Thank
    you.
        The chair recognizes the gentlelady from California, Ms.
    Sanchez, for 5 minutes.
        Ms. Sanchez. Thank you, Mr. Chairman.
        I just sort of want to start out by dispelling a myth that
    has sort of cropped up here this morning.
        Contrary to popular belief, we don't write legislation to
    create job opportunities for attorneys. And I say that because
    I don't want us to lose sight of the forest for the trees.
        We write legislation to try to address problems and to try
    to find solutions for those problems. And sometimes, yes, there
    is a little complexity that comes into the legislation that we
    write. And if a little complexity is the price that we have to
    pay for trying to make sure that this country creates equality
    and equal opportunity for everybody, then it is a price that I
    think is well paid.
        If, you know, if we just gave up on writing legislation
    every time it seemed hard or every time it seemed that it might
    be a little more complex, you know, we would have given up on
    great things like the Civil Rights Act, and other pieces of
    legislation, that really say a lot about the country that we
    are and the kind of people that we are and the beliefs and the
    values that we hold dear.
        So, yes, we do try to craft legislation in a way that is
    very thoughtful and that avoids needless complexity. But, you
    know, discrimination is a pretty complex issue. And so, you
    know, sometimes the answers have to be a little bit complex.
        And now I am going to step off my soapbox. And I am going
    to ask some questions of the panelists.
        My first question is for Professor Norton.
        I believe that there are some in the Congress and, in fact,
    maybe even, in fact, on this committee who would like to
    broaden the religious exemption in ENDA to allow employers to
    discriminate against employees if they have ``religious
    objections'' to hiring LGBT persons.
        Does Title VII have a religious exemption? And do you
    believe that adding such an exemption to ENDA would swallow the
    rules?
        Ms. Norton. First, Congresswoman, let me make sure I
    understand. Some folks are proposing that there be an exemption
    for private employers who have religious----
        Ms. Sanchez. Correct. Religious----
        Ms. Norton [continuing]. Religious objections.
        Ms. Sanchez [continuing]. Objections to hiring.
        Ms. Norton. Title VII exempts religious corporations,
    associations, societies, and educational institutions from the
    prohibition on religion discrimination. In other words,
    religious institutions can prefer members of their own religion
    under Title VII. However, Title VII requires those employers,
    those religious institutions, to comply with the remainder of
    Title VII, meaning its prohibitions on race discrimination, sex
    discrimination, and national origin discrimination.
        Those institutions, including churches, cannot discriminate
    on the basis of race, sex, et cetera, with the exception of
    certain ministerial employees. Courts have recognized that
    churches, mosques, synagogues, and other houses of worship
    should have the freedom to choose their spiritual leaders free
    from Title VII scrutiny.
        But with respect to all other hires by those religious
    employers, janitors, accountants, et cetera, et cetera, Title
    VII requires that they comply with the prohibition on race
    discrimination, sex discrimination, and national origin
    discrimination.
        H.R. 2015 tracks the exemption for religious institutions
    in Title VII and significantly expands it.
        Houses of worship and other religious institutions
    dedicated to the spreading of belief are exempted entirely.
    Other religious institutions, like religiously-affiliated
    hospitals, social service agencies that are not primarily
    dedicated to the spread of belief, their decisions about
    ministerial employees, spiritual leaders, are exempted
    entirely. And their decisions about all other employees are
    exempted so long as that employer requires conformance with
    their religious tenets, including a religious tenet prohibiting
    same sex conduct as a condition of employment.
        That is significant expansion on the prohibitions available
    under Title VII. But neither Title VII nor this bill would
    exempt private employers, employers that are not religious
    corporations, associations, societies of educational
    institutions from the antidiscrimination principles.
        Ms. Sanchez. So do you believe that H.R. 2015 accommodates,
    where necessary, religious institutions, et cetera, in their
    hiring practices in a way that is a workable solution?
        Ms. Norton. I do.
        Ms. Sanchez. Okay. And it is your opinion, I take it--and I
    think you may have mentioned this in your testimony--that
    private employers who conduct business for profit should not be
    exempted from the requirements of 2015.
        Ms. Norton. They are not exempted under Title VII, and they
    should not be exempted from this bill.
        Ms. Sanchez. Thank you.
        One of your fellow panelists this morning mentioned the
    potential mountain of litigation that ENDA might cause, with
    respect to enforcing the protections on gender identity. Do you
    agree with that analysis? Do you think that the provisions on
    gender identity are too vague, or do you think that they are
    sufficiently stated in the legislation?
        Ms. Norton. The definition of gender identity that appears
    in this bill is drawn from the definition that appears in state
    legislation that has been on the books and enforced for a
    number of years.
        The General Accounting Office has engaged in a study of
    state laws prohibiting sexual orientation and gender identity
    and have found them to be quite workable. In fact, that the
    levels of litigation and complaints are comparatively low. So
    there seems to be no reason to fear that there would be a
    problem when that definition is used in this bill.
        And, again, as Congressman Frank and Congresswoman Baldwin
    pointed out, the point of the gender identity protections is to
    protect the very real employment concerns faced by transgender
    employees who do face very real and often very egregious
    discrimination.
        Ms. Sanchez. Thank you.
        I see that my time has expired. I just want to thank all of
    the witnesses for their testimony today.
        Chairman Andrews. Thank you. The gentlelady's time has
    expired.
        The chair is pleased to recognize the gentlelady from New
    York, Ms. Clarke, for 5 minutes.
        Ms. Clarke. Thank you. Thank you very much, Mr. Chairman.
        And I want to thank all of the folks who have come to
    testify before us today.
        I, too, am a proud cosponsor of this legislation.
        And in 1995, there was a very distinguished New Yorker, a
    Congresswoman named Bella Abzug, who first introduced
    legislation to address sexual orientation discrimination in
    America.
        This legislation is modeled after the succession of civil
    rights bills previously passed that prohibited employment
    discrimination based on race and sex. The Employment
    Discrimination Act of 2007, also known as ENDA, is the
    culmination of the work of Bella Abzug and many other like-
    minded crusaders for social justice and equity champions.
        As we are all aware, the Employment Non-Discrimination Act
    of 2007 prohibits employment discrimination on the basis of
    sexual orientation and, for the first time, includes a
    prohibition against employment discrimination on the basis of
    gender identity and sexual orientation. The act also prohibits
    preferential treatment and retaliation. And finally, the act
    provides broad exemptions for the armed forces and religious
    organizations, such as churches, whose purpose is purely
    religious.
        I am proud to carry the torch first lit in 1975 by Bella
    Abzug in support of civil rights. And I wholeheartedly support
    the Employment Non-Discrimination Act of 2007, a bill that is
    long overdue.
        And I just wanted to add that, you know, this legislation,
    I believe, is very sensitive, and I would call it a real 21st
    century piece of legislation. It is closing the gap in favor of
    the expansion and inclusion of everyone in our human family.
        I, too, am not a lawyer like many of my colleagues here.
    But I have full faith in the attorney world that they will
    refine Section 6(c) so that those those who have had the
    concern of interpretation will use their best instinct,
    intuition and intellect to work this out. Otherwise, I know
    that perhaps this is something that our Supreme Court will
    bring to closure and make sure that our human family is indeed
    embraced and addressed in the way that it should in the 21st
    century.
        Let me ask the panel.
        Congress has historically given employment protection to
    the victims of discrimination in employment. The protections
    have been hailed as advancements in civil rights. They have
    also led to diversity in the workplace, which most agree has
    broad benefit.
        I am making the positive assumption that everyone on the
    panel supports employment protections for victims of
    discrimination, such as members of racial minorities, religious
    minorities, and women.
        Here is my question: Why should individuals discriminated
    against based on sexual orientation and gender identity not
    receive the same protections as others under civil rights
    protections?
        Is there a reason why they should not?
        Am I getting unanimous consent here?
        Mr. Carney. If I may. I just find it twisted and ironic
    that I go to work every day to uphold the law and the civil
    rights of many others. Some of those civil rights I don't have
    as a gay American.
        Ms. Clarke. I appreciate your response, Officer Carney. Let
    me just ask a follow-up question.
        ENDA has the support of the labor community, as well as
    many of the large businesses, such as Levi Strauss and, as we
    see, General Mills. This is one of the few areas where these
    two communities find common ground. In fact, 90 percent of
    Fortune 500 companies have adopted antidiscriminatory policies
    based on sexual orientation and approximately one-third have
    adopted antidiscrimination policies based on gender identity.
        If these types of employment discrimination policies would
    have the negative consequences, such as significant increases
    in regulatory costs, that some have suggested, why do you think
    these companies have chosen to adopt these policies?
        I want to present that to the lawyers because they seem to
    be concerned about that.
        Mr. Fahleson?
        Mr. Fahleson. Can you summarize your question?
        Ms. Clarke. Sure.
        If the major corporations, so many of them that are
    multinational in nature, have no problem in implementing this
    policy and have not seen a significant decrease in their bottom
    line, it has not adversely impacted their growth and
    development, why do you think that these companies have chosen
    to adopt these policies? Why was it a business decision to do
    so?
        Mr. Fahleson. Right. And those are voluntary decisions.
        Obviously, the resources that a Fortune 500 company, such
    as General Mills, has differs greatly from that of an employer
    of say 20 employees, who doesn't have an HR department, can't
    afford to hire a lawyer. And so, it is simply a difference of
    resources.
        That is the reason why many of our federal, state and local
    employment laws have different thresholds as to which is
    applicable. That is why the Family Medical Leave Act kicks in
    at 50 employees for private sector employers. And so, I think
    there is a difference between large and small.
        Ms. Clarke. Yes. But you know what? All larger companies
    start small. And part of how they become successful is
    embracing the growth and development of our society. So perhaps
    they need to look at some of the models that these
    multinationals have started if they plan to stay in business in
    the United States.
        Thank you very much, Mr. Chairman.
        Chairman Andrews. Thank you.
        I would ask unanimous consent that the record reflect a
    list of the Business Coalition for Workplace Fairness, a list
    of many firms that support this legislation, without objection.
        [The information follows:]

        Chairman Andrews. I would turn to my friend and ranking
    member, Mr. Kline, for any concluding remarks he would choose
    to make.
        Mr. Kline. Thank you, Mr. Chairman. These will be
    concluding and brief.
        Let me say, just because I can't pass it up, that I do not
    share Ms. Clarke's faith in attorney world. [Laughter.]
        But it is an interesting concept.
        And just a comment, if I could.
        First of all, let me say thank you to all of the panelists.
    It has really been an excellent panel with a great deal of
    expertise and a great deal of passion that we have heard. And
    so I want to thank you all for that.
        Just a comment about the complexity and burdens issue, and
    it relates to the Fortune 500 and the big companies like
    General Mills.
        General Mills has implemented a very successful policy. And
    they have done it without federal regulation.
        And so they are not complying with federal law. They don't
    have any of those issues of whether or not they are complying.
    They are simply putting forward policy which they believe is
    good policy and is working for them. When you add federal
    regulation, that complexity and burden can become a factor, and
    particularly for small businesses.
        So I think it is incumbent upon this subcommittee and this
    committee and this Congress to do everything we can to make
    sure that the legislation is as clear and uncomplex and doesn't
    impose undue burdens as we go forward.
        So, with that parting comment, Mr. Chairman, just let me
    again thank the witnesses and thank you for holding this
    hearing.
        I yield back.
        Chairman Andrews. Well, I want to thank my friend for his
    comments.
        And just to reflect my own views on that. The bill in front
    of us does not apply to employers with fewer than 15 employees,
    a very small employer.
        And second, my own view is this. That if someone comes to
    work for you and they want to, as I say, they want to be a bank
    teller or bus driver or computer programmer, I think you are
    already asking them, ``How good are you at that job? What
    experience do you have?'' And that is all you have to do. It
    just says that if they are the right person for the job, you
    hire them, without having to worry about or asking about how
    they conduct their personal lives.
        So I think this doesn't create a burden. I think it lifts a
    burden on people who have been unfairly burdened under the law.
        I also want to add my appreciation to each of the witnesses
    here today. You have given us an excellent mix of the
    theoretical and legal issues raised by this bill and then the
    very real-life implications of the problem this bill is trying
    to resolve and some of the solutions.
        I would particularly like to thank the employer business
    witnesses for discussing the real-life impact in their very
    successful enterprises, one very large, one rather small, of a
    policy of inclusion, of letting all talents be included in the
    conduct of the enterprise.
        So, again, you have done us a great service here on the
    committee and in the Congress, and we thank you for the
    inconvenience and time you have had to give us today.
        As previously ordered, members will have 14 days to submit
    additional materials for the hearing record. Any member who
    wishes to submit follow-up questions in writing to the
    witnesses should coordinate with the majority staff within 14
    days.
        Without objection, the hearing is adjourned.
        [Additional submission by Mr. Andrews follows:]
    International Brotherhood of Police Officers, Local
                                                   364,
                            Springfield, MA, Police Department,
                                                     September 1, 2007.
    Re: Written Testimony in Support of H.R. 2015--Employment
        Nondiscrimination Act

        I write in support of H.R. 2015 because it fulfills our Union's
    fundamental position that employment decisions such as hiring, firing,
    promotion and compensation should never be based on our member's sexual
    orientation or gender identity.
        H.R. 2015 strengthens our Union's ability to collectively bargain
    for the welfare of all of our members which is critical to labor's
    commitment to our membership. And it strengthens our ability to
    negotiate labor issues when equal treatment is threatened by
    discrimination based on sexual orientation or gender identity.
        Our union urges the Committee to report out H.R. 2015 with a
    favorable vote. It is time to prohibit discrimination based on sexual
    orientation and gender identity and to provide basic protection to
    ensure fairness in the workplace for Americans who are currently denied
    equal protection under the law.
                Respectfully Submitted,
               The members of the Executive Board of Local 364,
                                  Thomas M. Scanlon, President,
                                 Local 364/IBPO, Springfield MA Police.
                                     ______

        [Additional submissions by Mr. Kline follow:]
                                                    September 14, 2007.
    Hon. John Kline, Ranking Minority Member,
    Subcommittee on Health, Employment, Labor, and Pensions, Education and
            Labor Committee, U.S. House of Representatives, Longworth House
            Office Building, Washington, DC.
    Re: H.R. 2015, Employment Non-Discrimination Act of 2007

        Dear Congressman Kline and Subcommittee Members: The American
    Association of Christian Schools writes to oppose the Employment Non-
    Discrimination Act of 2007 (ENDA). This legislation would have a
    deleterious effect on the ability of religious Americans to follow the
    dictates of their respective faiths while still in accordance with the
    law.
        The issue of homosexuality is a contentious one in American
    society. The Bible, the Torah, and the Qu'ran all explicitly condemn
    homosexual behavior, and millions of Americans recognize these
    religious texts as the foundation for their beliefs regarding human
    conduct.
        However, the AACS opposition to ENDA does not find its basis
    primarily in the moral questionability of the bill. Rather AACS objects
    to the bill on the grounds that it undermines the very foundation of
    our free society: religious liberty. The last four decades have seen a
    concerted effort to marginalize religion in the public sphere. This is
    unfortunate--both for the religious and non-religious who benefit
    equally from the contributions of people motivated by their faith to
    meet the needs of their neighbors and communities. Discrimination is an
    important issue in modern American society and with good reason. But
    any actual or perceived discrimination against certain communities is
    not wisely dealt with by restricting the freedoms of others and
    jeopardizing the religious freedom of an entire country.
        In 1620, three ships left England for a new world. The non-
    separatists on board the Mayflower assuredly thought that the Pilgrims
    were strange, but the success of the journey to forming their new
    society was inextricably tied to the notion of religious freedom.
    Compulsion is not a hallmark of the American experience. Sadly, we have
    arrived at the point in American society where tolerance, rather than
    freedom, has become the highest value of our land. Proponents of this
    bill seem to be saying that religion is a fine thing as long as there
    is no clash with popular culture.
        ENDA contains an exemption clause, Section 6, designed to offer a
    semblance of tolerance to religious organizations, but the exemption is
    flawed and presents no meaningful protection for religious
    organizations.
        AACS has over 1100 schools in 46 states. Although it is the goal of
    our school teachers to conduct all education through the prism of a
    Biblical worldview, the main purpose of our schools is education rather
    than strictly religious propagation. Consequently, our schools would
    not qualify as ``wholly'' exempt entities. Only our school principals,
    administrators, and religious instructors would qualify.
        This partial exemption would infringe on the ability of our schools
    to maintain their distinctive religious character. Schools would not
    have the freedom to follow the principles of their faith when hiring
    teachers for science, history, math, English, or other subjects that
    are not specifically religious in nature. If Christian schools cannot
    require their faculty and staff to follow the tenets of their faith,
    then they have lost the very reason for their existence.
        Proponents of H.R. 2015 point to Section 6(c) as the escape clause
    because it states that religious organizations would still be allowed
    to require employees to ``conform'' to ``significant'' tenets of the
    organization/school's religious faith. However, nowhere in the document
    does it address what constitutes ``conformity'' or ``significance''
    according to the schools' policies.
        Section 6 (c) states that ``Under this Act, such a declaration by a
    religious corporation, association, educational institution or society
    stating which of its religious tenets are significant shall not be
    subject to judicial or administrative review.'' This last clause
    appears confusing and disingenuous. By the very nature of the narrow
    exemption, religious schools and organizations would be forced to
    undergo both administrative and judicial review of their beliefs and
    policies to determine whether current and potential employees are
    covered by the exemption.
        If the Non-Employment Discrimination Act of 2007 (H.R. 2015) is
    passed by Congress and signed into law, religious organizations and
    religious people would be compelled to act in conflict with their
    deeply-held religious beliefs. It is no exaggeration to say that ENDA
    is a direct repudiation of the Free Exercise Clause of the First
    Amendment to the U.S. Constitution.
                Sincerely,
                                    Dr. Keith Wiebe, President,
                             American Association of Christian Schools.
                                     ______

        Prepared Statement of Diane Gramley, President, American Family
                          Association of Pennsylvania

        Mr. Chairman and Members of the Subcommittee: Americans expect to
    feel safe within their work places. The passage of the Employment Non-
    Discrimination Act could present certain safety issues and employee
    relations problems to small and large businesses alike:
         When in our nation's history has the government forced
    employers to permit men to use the women's restroom or vice versa? As a
    woman, I would not want to enter a restroom and encounter a man using
    the facilities.
         H.R. 2015 would only prohibit transsexuals from using
    showers and dressing rooms `where being seen fully unclothed is
    unavoidable'; thus, forcing employers to expend money to provide
    accommodations to such individuals. [Referenced in the proposed bill,
    ``* * * provided that the employer provides reasonable access to
    adequate facilities that are not inconsistent with the employee's
    gender identity.'']
         This will place a serious financial strain on small
    businesses which, according to the Small Business Association website,
    represent 99.9 percent of the 26.8 million businesses in the United
    States.
        Previously, Representative Barney Frank opposed the inclusion of
    'gender identity' in such employment non-discrimination laws because he
    knew that radical transgender activists would demand to use shower
    facilities in the workplace. To date, there has yet to be sufficient
    evidence that this issue has been addressed. If this bill passes,
    radical transgender activists will still cry 'discrimination' and
    demand full 'inclusion' in all shower facilities, etc. Passage of H.R.
    2015 would be a ``foot in the door'' to requiring businesses to allow
    transgender individuals full access to showers and dressing rooms where
    ``being fully unclothed is unavoidable.''
        There also exists major safety issues--not to mention financial
    burdens--involved with the passage of ENDA:
         In Allentown, PA (Lehigh County) revised their human
    relations ordinance by adding 'sexual orientation and gender identity'
    in 2002. The following year, a podiatrist brought suit against St.
    Luke's Hospital saying he had been discriminated against because he had
    announced he was transitioning to a female. The podiatrist continued on
    with the hospital, but says his contract as program director was
    terminated. Apparently, the hospital was concerned how their patients
    would take the news that Dr. Gary Greenberg was going to become Dr.
    Gwen Greenberg. The settlement forced the hospital to expend money to
    offer education to hospital staff on gender identity and sexual
    orientation issues.
         In 2003, in neighboring Carbon County, a prison guard
    announced he was transitioning into a woman and expected to be
    accommodated. Security concerns prompted the prison to relieve the
    guard of duty. Because his union is headquartered in Allentown, he sued
    the prison and as a result was reinstated. Carbon County Prison now has
    a man dressed as a woman for a corrections officer. The obvious
    questions posed here are strip searches, restroom and locker room
    situations. How should the prison handle these daily situations?
        Yes, Americans are fair-minded, but Americans demand common sense.
        When the average American citizen is presented with ALL the facts
    about this bill and its subsequent ramifications--and not the facade
    now being offered by its supporters--they will undoubtedly oppose its
    passage.
                                     ______

                                                    September 14, 2007.
    Hon. John Kline, Ranking Minority Member,
    Subcommittee on Health, Employment, Labor, and Pensions, Education and
            Labor Committee, U.S. House of Representatives, Longworth House
            Office Building, Washington, DC.
    Re: H.R. 2015, Employment Non-Discrimination Act of 2007

        Dear Representative Kline and Subcommittee Members: On behalf of
    Concerned Women for America, I would like to request your assistance to
    ensure that the attached letter is included in the printed hearing
    record for the hearing held on Wednesday, September 5, 2007, by the
    Health, Employment, Labor and Pensions Subcommittee on H.R. 2015, the
    Employment Non-Discrimination Act of 2007.
                Sincerely,
                                       Wendy Wright, President,
                                           Concerned Women for America.
                                     ______

                                                    September 14, 2007.
    Hon. John Kline, Ranking Minority Member,
    Subcommittee on Health, Employment, Labor, and Pensions, Education and
            Labor Committee, U.S. House of Representatives, Longworth House
            Office Building, Washington, DC.
    Re: H.R. 2015, Employment Non-Discrimination Act of 2007

        Dear Representative Kline and Subcommittee Members: On behalf of
    Concerned Women for America (CWA) and our over 500,000 members
    nationwide, I am writing to oppose H.R. 2015, the Employment Non-
    Discrimination Act (ENDA).
        ENDA will force employers and employees with moral or religious
    beliefs regarding homosexuality or bisexuality to disavow these
    convictions, a violation of the right to conscience. Such efforts are a
    misguided infringement upon our constitutional rights to religious
    freedom. This legislation will be used as a tool to punish businesses
    that have moral standards.
        It will also overturn the historical basis of protected class
    status by adding ``sexual orientation'' and ``gender identity'' to
    civil rights law. Unlike the currently protected classes of race, age
    and gender in employment, ``sexual orientation'' is behavioral. ENDA
    affords special protection to a group that is not disadvantaged.
    Homosexuals as a group have higher income, education and wield
    considerable political influence.
        Marriage as an institution will be undermined if ENDA is enacted by
    pronouncing traditional sexual morality a form of discrimination in
    America. This legislation may inevitably lead to employers being
    required to offer marriage-like benefits to homosexual employees.
        Proponents of ENDA falsely claim that the bill contains a religious
    exemption. But this exemption is entirely illusory. At best, churches,
    and essentially pastors, could be exempt from the provisions of ENDA,
    but that's not guaranteed. All other faith-based organizations, even
    those which are tax exempt, would be discriminated against under this
    bill. Groups such as Christian schools, Christian camps, faith-based
    soup kitchens and Bible book stores would be forced to adopt a view of
    human sexuality which directly conflicts with fundamental tenets of
    their faith.
        If H.R. 2015 is passed by Congress and signed into law, the U.S.
    government will, in effect, become an adversary to moral sexuality and
    religious conviction. Please do not punish Americans who believe that
    it is important to apply their moral convictions in the workplace.
                Sincerely,
                                       Wendy Wright, President,
                                           Concerned Women for America.
                                     ______

                              The Traditional Values Coalition,
                                    Washington, DC, September 14, 2007.
    Hon. Robert E. Andrews, Chairman,
    Hon. John Kline, Ranking Member,
    Subcommittee on Health, Employment Labor and Pensions, Committee on
            Education and Labor, Ford House Office Building, Washington,
            DC.
        Dear Representatives Andrews & Kline: Traditional Values Coalition
    requests that this letter and the attached documents: (1) The TVC
    Special Report on H.R. 2015, the Employment Non-Discrimination Act
    (ENDA) and (2) 30 Sexual Orientations be placed into the record for the
    hearing held on Wednesday, September 5, 2007, by the Health,
    Employment, Labor and Pensions Subcommittee on H.R. 2015, the
    Employment Non-Discrimination Act of 2007.
        Traditional Values Coalition opposes passage of any version of
    ENDA.
        We have many problems with the bill. We are outlining two of them
    here. One of our major concerns involves the vague term called ``gender
    identity.'' Our other concerns are outlined in greater detail in the
    attached report.
        Congress is attempting to pass a law to protect ``gender identity''
    but the proponents of the legislation are doing their best to keep
    members of this soon-to-be protected federal minority out of sight.
    Why?
        During the hearing on ENDA every pro-ENDA panelist carefully
    avoided mentioning the fact that protecting ``gender identity'' in the
    law will force businesses and non-profits to cater to the whims of
    cross-dressers, transsexuals, drag queens, and she-males.
        Chief sponsor of ENDA, homosexual activist legislator Barney Frank
    (D-MA), for example, referred to emotionally troubled individuals with
    a different gender identity than their birth sex as ``these people,''
    and pleaded for federally-protected status for them. Yet, ``these
    people'' were never permitted to sit on the panel nor to discuss why
    they think businesses should bow to their wishes on restroom and shower
    policies.
        Apparently, Rep. Frank believes that ``these people'' should remain
    invisible until ENDA is passed. His attitude towards these troubled
    individuals was demeaning and shocking to us.
        ENDA will provide federally-protected status for ``sexual
    orientation,'' which is defined in the bill as heterosexuality,
    bisexuality and homosexuality; and ``gender identity,'' which is the
    sense of how a person ``feels'' about his or her birth sex. Individuals
    with a Gender Identity Disorder (GID) think they're really the opposite
    sex. GID is still considered by the American Psychiatric Association to
    be a treatable mental condition. Transgender activists, however, claim
    that having a different gender identity than their birth sex is
    perfectly normal and deserves federal protection.
        The bill limits ``sexual orientation'' to heterosexuality,
    bisexuality, and homosexuality, while the American Psychiatric
    Association's Diagnostic and Statistical Manual of Mental Disorders
    (DSM) lists 30 bizarre sexual orientations, including pedophilia and
    bestiality. These are sexual attractions or orientations toward
    children and animals.
        And, on the issue of ``gender identity,'' one doesn't have to be a
    psychiatrist or psychologist to clearly understand that if a person
    rejects his birth sex, he is experiencing disordered thinking. Members
    of Congress should understand this. Disordered thinking is treatable.
    It should not be granted minority status under federal law.
        Dr. Paul McHugh, for example, became the psychiatrist-in-chief at
    Johns Hopkins University in 1975 and put an end to the practice of
    providing sex-change operations for patients. Writing in his essay,
    Surgical Sex for First Things in 2004, McHugh observed: ``We have
    wasted scientific and technical resources and damaged our professional
    credibility by collaborating with madness rather than trying to study,
    cure, and ultimately prevent it [GID].''
        Dr. McHugh believes that psychiatrists are collaborating with a
    mental illness by performing sex change operations on individuals. The
    problem is one of the mind, not the body. A person who has a gender
    identity disorder needs therapy--not surgery.
        Rep. Barney Frank and other proponents of ENDA should be open and
    honest with the American people about exactly who and what ENDA will
    ``protect'' in federal law.
        In future discussions about ENDA, Rep. Frank should invite several
    male-to-female, female-to-male or she-males to testify as to how this
    legislation will benefit them.
        If Americans see what these poor gender confused individuals look
    like--and what impact they will have on business practices, they'd be
    outraged. Imagine being forced to hire or retain a person who goes
    through half of a so-called sex change operation? Should a business
    really have to deal with she-male demands? Or, to hire or retain a
    person who just ``thinks'' he's the opposite sex, but doesn't
    ``transition'' into another sex. The legal problems for employers will
    be insurmountable.
        Another major concern is over the phony religious exemption in the
    legislation.
        ENDA ostensibly provides a ``religious exemption'' for
    denominations or organizations operated by denominations--but not other
    non-profit Christian or other religious organizations. The bill says in
    Section 6, ``Exemption for Religious Organizations'' that a ``religious
    corporation, association, educational institution, or society which has
    as its primary purpose religious ritual or worship or the teaching or
    spreading of religious doctrine or belief'' is exempt from ENDA.
        This is a phony religious exemption. A Christian school, for
    example, would probably not be exempt under ENDA because its primary
    purpose is education, not the teaching or spreading of religious
    doctrine. A Christian day care center would not be exempt from ENDA;
    nor any Christian-owned for-profit business such as a Bible or book
    publisher.
        TVC calls upon Congress to reject any version of ENDA legislation
    offered that will make ``sexual orientation'' or ``gender identity''
    into federally-protected minorities. The phony religious exemption is
    only designed to silence people of faith. We can see through this ruse.
    Our opposition to ENDA--in any form--is absolute.
                Sincerely,
                               Rev. Louis P. Sheldon, Chairman,
                           Andrea Lafferty, Executive Director,
                                          Traditional Values Coalition.
                                     ______

                                    ------

        [Whereupon, at 12:58 p.m., the subcommittee was adjourned.]