[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


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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.]

                                 
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