    [Senate Hearing 111-1134]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 111-1134

        EMPLOYMENT NON-DISCRIMINATION ACT: ENSURING OPPORTUNITY FOR ALL
                                   AMERICANS

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

                                    HEARING

                                     OF THE

                        COMMITTEE ON HEALTH, EDUCATION,
                              LABOR, AND PENSIONS

                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

     EXAMINING S. 1584, TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS
                    OF SEXUAL ORIENTATION OR GENDER IDENTITY

                                   __________

                                NOVEMBER 5, 2009

                                   __________

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

          Available via the World Wide Web: http://www.gpo.gov/fdsys/

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              COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                           TOM HARKIN, Iowa, Chairman

    CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming
    BARBARA A. MIKULSKI, Maryland        JUDD GREGG, New Hampshire
    JEFF BINGAMAN, New Mexico            LAMAR ALEXANDER, Tennessee
    PATTY MURRAY, Washington             RICHARD BURR, North Carolina
    JACK REED, Rhode Island              JOHNNY ISAKSON, Georgia
    BERNARD SANDERS (I), Vermont         JOHN McCAIN, Arizona
    SHERROD BROWN, Ohio                  ORRIN G. HATCH, Utah
    ROBERT P. CASEY, JR., Pennsylvania   LISA MURKOWSKI, Alaska
    KAY R. HAGAN, North Carolina         TOM COBURN, M.D., Oklahoma
    JEFF MERKLEY, Oregon                 PAT ROBERTS, Kansas
    AL FRANKEN, Minnesota
    MICHAEL F. BENNET, Colorado

              J. Michael Meyers, Staff Director and Chief Counsel

         Frank Macchiarola, Republican Staff Director and Chief Counsel

                                      (ii)

    ?

                                C O N T E N T S

                                   __________

                                   STATEMENTS

                           THURSDAY, NOVEMBER 5, 2009

                                                                       Page
    Harkin, Hon. Tom, Chairman, Committee on Health, Education,
      Labor, and Pensions, opening statement.........................     1
    Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon......     3
    Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....     4
    Perez, Thomas E., Assistant Attorney General, Civil Rights
      Division, U.S. Department of Justice, Washington, DC...........     5
        Prepared statement...........................................     8
    Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
      Pennsylvania...................................................    12
    Bennet, Hon. Michael F., a U.S. Senator from the State of
      Colorado.......................................................    16
        Prepared statement...........................................    18
    Norton, Helen, Associate Professor of Law, University of Colorado
      School of Law, Boulder, CO.....................................    19
        Prepared statement...........................................    21
    Madigan, Hon. Lisa, Attorney General, State of Illinois, Chicago,
      IL.............................................................    25
        Prepared statement...........................................    27
    Nguyen, Virginia, Diversity and Inclusion Team Member, Nike,
      Inc., Beaverton, OR............................................    33
        Prepared statement...........................................    34
    Carney, Michael P., Police Officer, City of Springfield Police
      Department, Springfield, MA....................................    36
        Prepared statement...........................................    38
    Parshall, Craig L., Senior Vice President and General Counsel,
      National Religious Broadcasters Association, Manassas, VA......    40
        Prepared statement...........................................    42
    Olson, Camille A., Partner, Seyfarth Shaw, LLP, Chicago, IL......    47
        Prepared statement...........................................    50

                              ADDITIONAL MATERIAL

    Statements, articles, publications, letters, etc.:
        Letter from the General Conference, Seventh Day Adventist
          Church.....................................................    64
        Senator Dodd.................................................    76
        Senator Brown................................................    76
        Senator Sanders..............................................    77
        Statements of Support........................................    78
        Letter from the U.S. Government Accountability Office (GAO)..   103
        Letters of Support...........................................   117
        Letter of Opposition.........................................   219
        Response to questions of Senator Enzi by:
            Thomas E. Perez..........................................   221
            Helen Norton.............................................   223

                                     (iii)

                       EMPLOYMENT NON-DISCRIMINATION ACT:
                            ENSURING OPPORTUNITY FOR
                                 ALL AMERICANS

                                  ----------

                           THURSDAY, NOVEMBER 5, 2009

                                           U.S. Senate,
           Committee on Health, Education, Labor, and Pensions,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:03 a.m., in
    Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
    chairman of the committee, presiding.
        Present: Senators Harkin, Casey, Merkley, Franken, and
    Bennet.

                      Opening Statement of Senator Harkin

        The Chairman. The Senate Committee on Health, Education,
    Labor, and Pensions will please come to order.
        I welcome everyone here today. Our committee will hear
    testimony on an important piece of civil rights legislation,
    the Employment Nondiscrimination Act, also known as ENDA, and
    this is the first hearing we've had on this since 2002.
        The issue here could not be more simple. We're talking
    about a fundamental American value: equal treatment for all, a
    principle that citizens who work hard and pay their taxes and
    contribute to their communities deserve fair treatment and
    should not be discriminated against.
        Over the last 45 years, we've seen great strides toward
    eliminating discrimination in the workplace. The Civil Rights
    Act of 1964 prohibited discrimination on the basis of race,
    sex, national origin, and religion. The Age Discrimination in
    Employment Act in 1967 prohibited discrimination on the basis
    of age. One that I'm even more familiar with, the Americans
    With Disabilities Act in 1990 prohibited discrimination on the
    basis of disability.
        So, it's time, I believe, at long last for us to prohibit
    discrimination on the basis of sexual orientation and gender
    identity, as well. Such discrimination is wrong and shouldn't
    be tolerated in our society.
        The former chair of this committee, Senator Kennedy, worked
    his entire career to ensure opportunity for all Americans. He
    first introduced this legislation in 1994. So, today, by taking
    up this important bill, we'll continue Senator Kennedy's work,
    and we continue the proud commitment of this committee to
    uphold fair treatment for working Americans.
        I'm proud that one of our newest members, Senator Merkley,
    led the effort in his own State of Oregon for full equality for
    all Americans, and has established himself as a champion on
    these issues already here in the Senate. I thank him for his
    leadership. I look forward to working with him closely as this
    important legislation moves through Congress.
        Full equality for lesbian, gay, bisexual, and transgender
    Americans is a vital issue, but it's by no means a new one. As
    we'll hear today, our States have already led the way toward
    ensuring full equality for our fellow Americans. Currently, the
    District of Columbia and 12 States--including Iowa, I am proud
    to say--have enacted statutes that prohibit discrimination on
    the basis of sexual orientation and gender identity. Another
    nine States bar job discrimination on the basis of sexual
    orientation alone. These States have found that full equality
    for all their citizens is not only the right thing to do, but
    it's beneficial to us all.
        Likewise, leading companies across the country have found
    that equality in the workplace is not only the right thing to
    do, but makes good business sense. Eighty-seven percent of
    Fortune 500 companies have sexual orientation nondiscrimination
    policies and 41 percent have gender identity nondiscrimination
    policies. So, I look forward to hearing from our witnesses
    today about the positive experiences that businesses have had.
        While these States and businesses provide important
    protections and should be commended, the harsh reality is that
    employers in most States in this country can still fire, refuse
    to hire, or otherwise discriminate against individuals because
    of their sexual orientation or gender identity; and,
    shockingly, they can do so within the law. As we'll hear today,
    too many hardworking Americans are being judged not by their
    talent and ability and qualifications, but by their sexual
    orientation or gender identity. Unfortunately, we can cite
    example after example of bigotry and blatant job
    discrimination.
        Moreover, it's not just private employers that have been
    guilty of discrimination; unfortunately, State governments have
    also engaged in a widespread pattern of unconstitutional
    employment discrimination against lesbian, gay, bisexual, and
    transgender employees. I particularly refer my colleagues to
    the voluminous study by the Charles R. Williams Institute at
    UCLA Law School, which documented discrimination on the basis
    of sexual orientation and gender identity in State employment.
        Equal opportunity is not just an abstract principle or a
    matter of statistics. Decent, hardworking Americans are being
    hurt by discrimination every day.
        We're here today because of people like Mike Carney, one of
    our witnesses, a decorated police officer who was discriminated
    against because of his sexual orientation.
        We're here because of people like Kimya Afi Ayodele, a
    social worker with more than two decades of experience. She
    suffered through a year of threatening messages, vandalism to
    her car, and slurs uttered in the workplace. Then in 2003, she
    was fired. Her supervisors told her, ``This would not be
    happening if you were not a lesbian.'' Kimya sought legal help,
    but quickly learned that nothing in her State's law protected
    her from being fired because of her sexual orientation.
        We're also here because of people like Diane Schroer, who
    is, I understand, here in the audience with us today. Diane is
    one of the many transgender Americans who we hope to protect
    through this bill. For 25 years, Diane served in the U.S. Army,
    rising through the ranks to become a Special Forces commander.
    After retiring from the military, she applied for a position as
    a terrorism specialist with the Congressional Research Service
    at the Library of Congress. So, it's not just States. After
    being offered the job, she explained to the Library that she
    was transitioning from living as David Schroer to living as
    Diane Schroer, consistent with her female gender identity.
    Although David had been the Library's top choice for the
    position, the Library notified her that Diane was, quote, ``not
    a good fit,'' and rescinded the job offer.
        Qualified workers should not be turned away or have to fear
    losing their livelihood for reasons that have nothing to do
    with their capabilities, skills, or performance. Such practices
    are un-American, and it's time for them to stop.
        This bill is simple. It makes clear that private
    businesses, public employers, and labor unions cannot make
    employment decisions--hiring, firing, promotion, or
    compensation--because of a person's actual or perceived sexual
    orientation or gender identity. It contains the same exemptions
    as we have in title VII for small businesses and religious
    organizations, and current rules applicable to the Armed Forces
    are not affected.
        As we will hear today, this legislation follows in the
    footsteps of our existing civil rights laws. Just as when we
    passed those earlier civil rights bills, we are hearing claims
    today that ENDA will lead to a flood of lawsuits or be an undue
    burden on religious organizations. These claims are just plain
    false.
        Indeed, we are pleased to have broad bipartisan support and
    the endorsement of civil rights organizations, countless
    businesses, and religious leaders. It's long past time to
    eliminate bigotry in the workplace and ensure equal opportunity
    for all Americans. It's time to make clear that lesbian, gay,
    bisexual, and transgender Americans are first-class citizens.
    They are full and welcome members of our American family, and
    they deserve the same civil rights protections as all other
    Americans.
        With that, I would be glad to recognize, again, one of our
    pre-eminent leaders in this whole field who led, as I said
    earlier, the effort in Oregon when he was in that State
    government, and now leading the effort here in the Federal
    Government.
        Senator Merkley.

                          Statement of Senator Merkley

        Senator Merkley. Thank you very much, Chairman. Thank you
    for convening this hearing, and thank you for your excellent
    remarks reviewing the challenges we face, the issues we face,
    and their importance.
        I particularly want to welcome Virginia Nguyen today, who
    will be one of our witnesses and who's traveled here from my
    home State of Oregon to represent Nike, which has been a real
    champion on nondiscrimination policies.
        Martin Luther King said that,

              ``Human progress is neither automatic nor inevitable.
            Every step toward the goal of justice requires
            sacrifice, suffering, and struggle, tireless exertions,
            and passionate concern of dedicated individuals.''

        Well, we are on the path to one of those struggles for
    human progress, for a struggle to have full equality under the
    law, full equal opportunity. There can never be equal
    opportunity if we do not have equal opportunity in employment.
    Discrimination is simply wrong. This bill takes us a major step
    towards equality in America, and I look forward to hearing from
    our witnesses and hearing the comments of our colleagues as we
    work together.
        I want to acknowledge, before our first panel, the debt we
    owe to Senator Kennedy. As the Chairman noted, he introduced
    the first ENDA more than 15 years ago. I know he would have
    liked to have been in this hearing room to continue to push and
    be a part of another victory in this battle for civil rights.
    But, it's certainly part of his legacy that we are here, and it
    will be a tremendous tribute to him when this bill is adopted
    and our Nation takes a great stride toward equality.
        I also want to thank my co-sponsor, Susan Collins, who has
    stepped forward to show bipartisan leadership, reflecting the
    values of Maine, her values, and the values of the United
    States of America. I'm delighted to have her join me in this
    journey.
        Thank you very much, Mr. Chair.
        The Chairman. Thank you, Senator Merkley.
        Senator Franken.

                          Statement of Senator Franken

        Senator Franken. Mr. Chairman, thank you for holding
    today's hearing on this vital topic. I want to thank all the
    witnesses who are here today, for sharing your expertise.
        In preparing for today's hearing, I reviewed all the
    witnesses' testimony and tried to familiarize myself with the
    ins and outs of the technical definitions and title VII, the
    exemptions and everything else. But, at some point, I paused to
    reflect that today, in 2009, in almost 30 States in this
    country, it's perfectly legal to fire somebody because they're
    gay or because they're suspected to be gay. You can be a hard
    worker, you can show up on time, get exemplary performance
    reviews, but if your boss discovers or suspects that you're gay
    or transgendered, they can fire you and there's nothing you can
    do about it.
        Growing up, my kids read in history books about a time in
    our country when it was perfectly legal to fire somebody or
    refuse to hire somebody because they were black or a woman. For
    them it was a concept that they couldn't understand. I hope
    that my future grandkids will only read about when it was legal
    to fire someone because they're gay or transgender. I don't
    want them to actually see it; I want them to ask me, ``What
    were people thinking?''
        Now, most Minnesotans attend religious services every week.
    Minnesota is home to 19 Fortune 500 companies. Minnesotans
    enjoy a relatively, to the rest of the country, high standard
    of living. So, it might surprise some of you that the Minnesota
    Human Rights Act was passed in 1993. This law protects workers
    from discrimination based on sexual orientation and gender
    identity, just like this bill does. This law has been
    protecting workers from discrimination for 15 years, and
    Minnesota's sky has not fallen.
        Minnesota's basically the same as it was before this law
    was passed, with only one small exception. About 20 or so
    people per year exercise their rights under the law after they
    are discriminated against based on their sexual orientation or
    gender identity. That's it. That's the difference.
        Today we have a chance to extend the same commonsense
    protections to every American and to every American worker by
    passing ENDA.
        So, thank you again, Mr. Chairman, for calling this crucial
    hearing.
        The Chairman. Thank you both. Thanks, Senator Franken,
    Senator Merkley, for being here.
        Thank you all. This is, as has been said, I think, one of
    the most important things we can be about today.
        Our first panel will be the Honorable Thomas Perez,
    Assistant Attorney General for the Civil Rights Division of the
    U.S. Department of Justice. During the first Bush and Clinton
    administrations, he was a Federal prosecutor at the Department
    of Justice, where he prosecuted and supervised some of the
    Department's high- profile civil rights cases. Later he served
    as deputy assistant attorney general for civil rights under
    Attorney General Reno and director of the Office for Civil
    Rights at the Department of Health and Human Services. In
    addition, Assistant Attorney General Perez served as special
    counsel to the former chairman of this committee, Senator
    Kennedy. Prior to his confirmation as Assistant Attorney
    General for the Civil Rights Division, he served as the
    secretary of Maryland's Department of Labor, Licensing, and
    Regulation.
        Assistant Attorney General Perez, thank you very much for
    being here. Thank you for your long history of support for
    civil rights. Your statement will be made a part of the record,
    and I invite you to please proceed as you so desire. But, if
    you could keep it to 5 or 7, 8 minutes, something like that,
    I'd appreciate that so we can engage in a conversation.

    STATEMENT OF THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, CIVIL
      RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

        Mr. Perez. Thank you so much, Mr. Chairman. It's an honor
    to be here and thank you for all of your kind words on behalf
    of Senator Kennedy.
        It's impossible to sit in this room without thinking of
    Senator Kennedy, and I had the privilege of working on this
    bill back in 1995--year 3 or so of the Marathon Relay--had the
    privilege of working on hate crimes. Lucky number 13; 13 years
    after its introduction, the bill was passed. The Civil Rights
    Act of 1964 was first introduced in 1948. So, civil rights, if
    nothing else, is about persistence. Your persistence and
    leadership on these areas, and Senator Merkley and Senator
    Franken, your leadership in this, has been remarkable. I
    appreciate your taking the baton and moving the ball forward.
    Thank you very much for all of your work.
        It really is a privilege to testify here today and to voice
    the Obama administration's strong support for fully inclusive
    legislation that prohibits discrimination on the basis of
    sexual orientation and gender identity.
        The Civil Rights Division serves as the conscience of the
    Federal Government. We seek to advance this Nation's long
    struggle to embrace the principle so eloquently captured by Dr.
    King, that persons should be judged by the content of their
    character and not on the race, color, sex, national origin,
    religion, or any other irrelevant factor.
        Just last month, Congress passed the first Federal law that
    provides civil rights protections to lesbian, gay, bisexual,
    and transgendered individuals. I was so proud to be at the
    signing ceremony last week, and I applaud all of you for your
    efforts in securing the passage of the Matthew Shepard and
    James Byrd, Jr., Hate Crimes Prevention Act.
        Today we are here because passage of ENDA would provide us
    with the tool we need to fill another hole in our authority. We
    have come too far in the struggle for equal justice under law
    to remain silent when our LGBT brothers and sisters are still
    being mistreated and ostracized for reasons that have
    absolutely nothing to do with their skills or ability, and
    everything to do with myths, stereotypes, and prejudice. For
    this reason, the passage of ENDA is a top legislative priority
    for the Obama administration.
        The Civil Rights Division regularly hears from individuals
    describing the same kind of hostility, bigotry, and hatred
    based on sexual orientation or gender identity that other
    groups faced for much of our history. There's nothing more
    frustrating for a law enforcement officer than to hear a
    horrific tale and to tell that person, ``You have been wronged,
    and there's nothing I can do for you.'' That is a horrible
    feeling, whether it's hate crimes or whether it is
    discrimination in the workplace. This bill is going to enable
    us to correct that.
        Throughout the decades that followed the passage of the
    Civil Rights Act of 1964, we as a nation have recognized a need
    to attend to the unfinished business in the fight for fair
    employment practices in the workplace, and that is what this
    bill is about: fair employment practices in the workplace.
        Accordingly, under your leadership, Mr. Chairman, and so
    many others, we've seen the passage of the ADEA, we've seen
    passage of the Pregnancy Discrimination Act, and, under your
    leadership--and I have a vivid memory of the 10-year
    anniversary in which you spoke so eloquently, all in sign, at
    the FDR Memorial, Mr. Chairman. I didn't understand sign, but I
    understood what you were saying, and it was so powerful. The
    Obama administration strongly believes that ENDA must be the
    next step in the unfinished business of America, which is civil
    rights, and that this act will be a worthy addition to its
    venerable predecessors.
        Underscoring the need for a Federal statute is the fact
    that 29 States, as you have correctly pointed out, still
    provide no protections for lesbian, gay, and bisexual and
    transgendered individuals in the workplace, and 38 States
    provide no protection for transgendered workers. LGBT employees
    in those States have no way to redress workplace
    discrimination.
        We see so many stories, as indicated in the Williams
    Institute Report. For instance, an openly lesbian probation
    officer in Carroll County, IN, was allegedly denied promotion
    to chief probation officer because of her sexual orientation.
    The judge who refused to promote her reportedly told her it was
    because she was a lesbian, and said she was embarrassing the
    court by dating a woman, and asked other court employees about
    her sexual orientation and personal life. A man with no prior
    probation experience got the job. That is not in the best
    interests of public safety, I would respectfully submit.
        An openly gay employee of the State-run Virginia Museum of
    Natural History was allegedly forced to resign shortly after
    receiving a positive evaluation that otherwise would have
    resulted in a raise. The executive director expressed concerns
    that the employee's sexual orientation would jeopardize
    donations to the museum. A Virginia appellate court dismissed
    his sexual orientation discrimination complaint, concluding
    that the Governor's executive order prohibiting such
    discrimination did not create a private right of action.
        Under ENDA, we would have the authority to investigate
    these two cases, because the Justice Department enforces ENDA
    against State and local governments. These examples are but a
    sampling of the disturbing number of workplace discrimination
    incidents against LGBT Americans in recent years.
        Prohibiting employment discrimination on the basis of
    sexual orientation and gender identity is not only about basic
    fairness, it is also about enlightened self-interest. It is not
    only a fair employment practice; I would respectfully submit,
    and our witness from Nike will affirm, that it is a sound
    business practice and critical to competing in the global
    economy.
        As we work to revitalize and strengthen our economy, we
    cannot afford to waste talent or allow workplace bias and
    hostility to impede productivity, especially when many
    businesses operate in multiple cities and States. There is no
    reason why, for example, LGBT employees working for a company
    in Wisconsin or Oregon or Minnesota, which have these
    protections, should have their right to a living jeopardized if
    they moved to Michigan or another State that did not have such
    protection.
        And finally, I'd like to dispel, Mr. Chairman--and you did
    so in your opening remarks, and others have done so, as well--
    some of the misconceptions about the scope and impact of the
    bill.
        First, ENDA covers only cases of intentional
    discrimination; it does not cover disparate impact cases.
        Second, it exempts businesses with fewer than 15 employees,
    tax-exempt private membership clubs, or religious
    organizations.
        Third, ENDA contains a religious exemption for religious
    organizations and will not infringe upon an individual's right
    to practice his or her faith or exercise first amendment rights
    of free speech on these or other issues.
        Finally, there is nothing to suggest that ENDA will burden
    employers, unleash a flood of complaints that would overwhelm
    the EEOC or the Department of Justice, or clog the Federal
    courts. Attorney General Madigan will talk about the experience
    of Illinois, which has not seen the floodgates that were
    predicted by some.
        The experience of State and local governments with similar
    statutes for decades demonstrates that complaints under these
    statutes make up a relatively small portion of total employment
    discrimination complaints.
        It really is an honor to be here today. Senator Kennedy
    said many times, and my friend and mentor Michael Myers heard
    it many more times than I have, that civil rights, indeed,
    remains the unfinished business of America. We finished some of
    the business a week ago, when the President signed the Hate
    Crimes bill, and I can think of no better tribute, again, to
    the late Senator than to pass this bill and send it to
    President Obama for his signature. Last week was lucky 13; 13
    years, Hate Crimes. Hopefully, this year will be lucky 15 and
    that will be the passage of ENDA.
        Thank you, Mr. Chairman, for your time, and I appreciate
    our courtesy.
        [The prepared statement of Mr. Perez follows:]

                     Prepared Statement of Thomas E. Perez

        Mr. Chairman, Ranking Member Enzi and members of the HELP
    Committee, thank you for the opportunity to appear before you today. It
    is a privilege to represent the Obama administration and the Department
    of Justice at this hearing to consider the Employment Non-
    Discrimination Act (ENDA), and to voice the Administration's strong
    support for fully inclusive legislation that prohibits discrimination
    on the basis of sexual orientation and gender identity.
        The Civil Rights Division, which I have the great honor to lead,
    serves as the conscience of the Federal Government. Our mission is
    clear: to uphold and protect the civil and constitutional rights of all
    Americans, particularly some of the most vulnerable among us. We seek
    to advance this Nation's long struggle to embrace the principle so
    eloquently captured by Dr. Martin Luther King, Jr., that persons should
    be judged based on ``content of their character,'' and not on their
    race, color, sex, national origin, religion or any other irrelevant
    factors. Our civil rights laws--laws enforced by the Civil Rights
    Division--reflect and uphold this noble principle.
        Just last month Congress passed and the President made history when
    he signed the first Federal law that provides civil rights protections
    to lesbian, gay, bisexual and transgender (LGBT) individuals. I applaud
    you for recognizing the critical need for the Matthew Shepard and James
    Byrd, Jr. Hate Crimes Prevention Act, and I assure you the Department
    of Justice is prepared to fulfill its new duties under that law. Its
    enactment filled a critical gap in our enforcement abilities. Today, I
    come before you because passage of ENDA would provide us with the tool
    we need to fill another hole in our enforcement authority.
        On an issue of basic equality and fundamental fairness for all
    Americans, we cannot in good conscience stand by and watch
    unjustifiable discrimination against lesbian, gay, bisexual and
    transgender individuals occur in the workplace without redress. We have
    come too far in our struggle for ``equal justice under the law'' to
    remain silent or stoic when our LGBT brothers and sisters are still
    being mistreated and ostracized for reasons that have absolutely
    nothing to do with their skills or abilities and everything to do with
    myths, stereotypes, fear of the unknown, and prejudice. No American
    should be denied a job or the opportunity to earn promotions, pay
    raises and other benefits of employment because of his or her sexual
    orientation or gender identity, which have no bearing on work
    performance. No one should be fired because he or she is gay, lesbian,
    bisexual or transgender. Period. ENDA would provide much-needed and
    long overdue Federal protections for LGBT individuals, who still face
    widespread discrimination in workplaces across the Nation. For this
    reason, the passage of ENDA is a top legislative priority for the Obama
    administration.
        Broadly stated, ENDA would prohibit intentional employment
    discrimination on the basis of actual or perceived sexual orientation
    or gender identity, by employers, employment agencies, and labor
    organizations. Its coverage of intentional discrimination parallels
    that available for individuals under title VII, and the principles that
    underlie this coverage have been well-established for decades. Under
    ENDA, we would share responsibility for its enforcement with the Equal
    Employment Opportunity Commission (EEOC). Our role would be to
    challenge prohibited discrimination by State and local government
    employers.
        The Civil Rights Division and other Federal civil rights agencies
    regularly receive letters and inquiries from individuals all over the
    country complaining of sexual orientation and gender identity
    discrimination in employment. This ongoing discrimination and abuse
    takes many forms, ranging from cruel instances of harassment and
    exclusion to explicit denials of employment or career-enhancing
    assignments because of the individual's sexual orientation or gender
    identity. It is painfully disappointing to have to tell these working
    men and women that, in the United States of America in 2009, they may
    well be without redress because our Federal employment anti-
    discrimination laws either exclude them or fail clearly to protect
    them.
        Many letters sadly describe the same kind of hostility, bigotry and
    even hatred that other groups faced for much of our history, and which
    Congress responded to by passing the landmark Civil Rights Act of 1964.
    That act prohibited employment discrimination on the basis of race,
    color, religion, sex, or national origin. At the time the bill was
    debated, many of the same arguments that we hear today about ENDA--that
    it would open the floodgates to litigation, it would overburden
    employers and afford special rights to certain groups--were
    vociferously offered by the bill's opponents. No one would seriously
    contend that the parade of horribles predicted at the time ever became
    reality, and the 1964 Act, which, like ENDA, was introduced over
    multiple Congresses before it finally passed, has become a rock-solid
    foundation for our laws ensuring equality of opportunity in the
    workplace.
        Throughout the decades that followed passage of the 1964 Act, we as
    a nation have recognized a need to attend to unfinished business in the
    fight for justice in the workplace. Accordingly, Congress has expanded
    the scope of employment protections on several occasions, passing the
    Age Discrimination in Employment Act of 1967, the Pregnancy
    Discrimination Act of 1978, and the Americans With Disabilities Act of
    1990. The Obama administration believes that ENDA must be the next
    step, and that this act will be a worthy addition to its venerable
    predecessors.
        It is estimated that there are more than 1 million LGBT individuals
    working in State and local governments and just under 7 million LGBT
    individuals employed in the private sector. A large body of evidence
    demonstrates that employment discrimination against LGBT individuals
    remains a significant problem. The Williams Institute, a national
    research center on sexual orientation and gender identity law and
    public policy at the UCLA School of Law, conducted a year-long study of
    employment discrimination against LGBT individuals. The study reviewed
    the numerous ways in which discrimination has been documented--in
    judicial opinions; in surveys of LGBT employees, State and local
    government officials; and in extensive evidence presented to Congress
    over the past 15 years during which ENDA has been considered. The study
    concluded that discrimination based on sexual orientation and gender
    identity is widespread and persistent in terms of quantity, geography
    and occupations. The study focused primarily on discrimination against
    LGBT employees of State and local governments, but also reviewed
    broader surveys that indicate that the problem is equally widespread in
    the private sector.
        To combat the widespread employment discrimination against LGBT
    individuals, some States have passed laws banning discrimination based
    on sexual orientation and gender identity. However, 29 States still
    provide no protections for lesbian, gay and bisexual individuals and 38
    States provide no protection for transgender workers. State laws
    therefore leave large numbers of LGBT individuals without recourse for
    workplace discrimination on the basis of the sexual orientation or
    gender identity.
        Title VII of the Civil Rights Act of 1964, the Americans with
    Disabilities Act and other bedrock civil rights laws recognize that
    protecting valued members of our workforce from discrimination should
    not be left to a patchwork of State and local laws that leaves large
    gaps in coverage. Discrimination in my home State of Maryland is just
    as wrong as discrimination in Montana. As with those laws, Federal
    legislation prohibiting discrimination based on sexual orientation and
    gender identity will help eradicate workplace discrimination that
    should be neither tolerated nor condoned.
        To underscore the need for a Federal statute, I would like to
    review the current scope of the law. 21 States--including Connecticut,
    Nevada, New Hampshire, and Maryland--prohibit employment discrimination
    based on sexual orientation. Another 12 States--including Iowa, New
    Mexico, Oregon, Colorado, Minnesota, Washington, Rhode Island, and
    Vermont--as well as the District of Columbia, prohibit discrimination
    based on sexual orientation and gender identity. A number of local
    jurisdictions contain similar protections in their local laws. For
    example, in my home State of Maryland, Baltimore City and Montgomery
    County have expanded the protections available under State law by
    banning employment discrimination against transgendered individuals.
        In States where no remedies exist, LGBT employees have no
    opportunity to combat egregious workplace discrimination and
    harassment. The recent report of the Williams Institute documents a
    distressing number of such allegations. For example:

         A police officer at the Pineville City Police Department
    in West Virginia reported regular harassment by his coworkers because
    of his sexual orientation, who deliberately sent him on calls without
    back-up. After learning of the officer's sexual orientation, one
    coworker allegedly hit him across the face with a night stick, breaking
    the officer's glasses and cutting his eye. The officer believes that
    his eventual discharge was based on his sexual orientation and not his
    job performance.
         An openly lesbian probation officer in Carroll County, IN,
    was allegedly denied promotion to chief probation officer because of
    her sexual orientation. A superior court judge allegedly told her that
    he would not promote her because she was a lesbian, that she was
    embarrassing the court by dating a woman, and that he had asked other
    court employees about her sexual orientation and personal life. A man
    with no prior probation experience was promoted to the position.
         An employee of the Virginia Museum of Natural History, a
    State agency, was allegedly forced to resign because of his sexual
    orientation shortly after receiving a positive evaluation that
    otherwise would have resulted in a raise. The Executive Director of the
    Museum reportedly expressed concerns that the employee's sexual
    orientation would jeopardize donations to the museum. A Virginia
    appellate court dismissed his sexual-orientation employment
    discrimination claim, holding that the governor's executive order
    prohibiting such discrimination did not create a private right of
    action.

        These examples--which would fall within the Civil Rights Division's
    enforcement authority under ENDA--are but a sampling of a disturbing
    number of reports of workplace discrimination against LGBT Americans in
    recent years. Unfortunately, the above LGBT employees have no
    opportunity to prove their claims, because they live in States that do
    not afford them redress.
        The Williams Institute estimates that there are more than 200,000
    LGBT employees in the Federal workforce, yet, as in the case of State
    and local governments, we also lack strong statutory protection from
    sexual orientation and gender identity discrimination in this arena.
    The Civil Service Reform Act, which prohibits discrimination on the
    basis of conduct not affecting job performance, has been interpreted by
    the Office of Personnel Management to prohibit discrimination on the
    basis of sexual orientation. In addition, Executive Order No. 13087
    prohibits employment discrimination on the basis of sexual orientation
    in much of the executive branch. But the administrative remedies
    available under both of these provisions are far more limited than
    those available to Federal employees who experience other forms of
    discrimination, such as race, sex, or disability discrimination.
        Moreover, although some courts have held that title VII's
    prohibition against sex discrimination can protect LGBT persons from
    certain types of discrimination under certain circumstances, the extent
    of such protection varies significantly from court to court. Enactment
    of legislation prohibiting discrimination against LGBT individuals in
    employment is needed to meaningfully and unambiguously prohibit
    employment discrimination on the basis of sexual orientation and gender
    identity and to give victims of such discrimination adequate remedies.
        Preventing employment discrimination on the basis of sexual
    orientation and gender identity and providing the victims of such
    discrimination with a means to protect their rights not only is a
    matter of basic fairness, it is also a matter of enlightened economic
    self-interest. As the global marketplace becomes increasingly
    competitive, and as we work to revitalize and strengthen our economy,
    America cannot afford to waste talent or allow workplace bias and
    hostility to impede productivity, especially when many businesses
    operate in multiple cities and States. There is no reason why, for
    example, LGBT employees working for a company in Wisconsin, which was
    the first State to prohibit discrimination against LGBT individuals,
    should have their right to earn a living jeopardized or taken away if
    they are transferred across the lake to Michigan, which has not yet
    passed such a law.
        Many of America's top businesses already recognize that
    discrimination of any kind, anywhere, is bad for business and costs
    money. Indeed, hundreds of companies now bar employment discrimination
    on the basis of sexual orientation and/or gender identity. According to
    the Human Rights Campaign's recently published Corporate Equality Index
    2010, as of September 2009, 434 (87 percent) of the Fortune 500
    companies had implemented non-discrimination policies that include
    sexual orientation, and 207 (41 percent) had policies that include
    gender identity. This, of course, is just the tip of the iceberg.
    Although most of the Nation's largest businesses have started
    addressing workplace fairness for LGBT employees, significant numbers
    of individuals still face discrimination on the basis of sexual
    orientation or gender identity and desperately need the nationwide
    protections and remedies that ENDA would provide.
        I have explained why legislation like ENDA is sorely needed in the
    private and public sectors and why it makes good business sense. We
    look forward to working with you on legislation as it advances in the
    Congress and are currently reviewing the proposed legislation. We may
    offer some technical comments on the bill. Now let me take a few
    moments to briefly dispel some misconceptions about the scope and
    impact of the legislation.
        As you know, ENDA covers cases of intentional discrimination and
    explicitly precludes disparate-impact claims, does not permit the use
    of quotas or other forms of preferential treatment. Moreover, ENDA does
    not apply to small businesses with fewer than 15 employees, tax-exempt
    private membership clubs, or religious organizations. Indeed, ENDA
    contains a broad exemption for religious organizations and states that
    it does not apply to any corporation, association, educational
    institution, or society that is exempt from the religious
    discrimination provisions of title VII. In addition, nothing in ENDA
    infringes on an individual's ability to practice his or her faith, to
    hold and adhere to religious beliefs, or to exercise first amendment
    rights of free speech on these or other issues. In addition, ENDA does
    not apply to the relationship between the Federal Government and
    members of the Armed Forces, and does not affect Federal, State, or
    local rules providing veterans' preferences in employment decisions.
        Last, there is nothing to suggest that ENDA will burden employers,
    unleash a flood of complaints that would threaten to overwhelm the EEOC
    or the Department of Justice, or clog the Federal courts. On the
    contrary, the experience of States and local governments with sexual
    orientation and gender identity discrimination statutes for decades
    demonstrates that complaints under these statutes make up a relatively
    small portion of total employment discrimination complaints. Moreover,
    the jurisdictions that prohibit discrimination on the basis of sexual
    orientation and gender identity have been able to implement and enforce
    these laws in an entirely workable manner. We fully expect that the
    same would hold true at the Federal level.
        I will conclude by noting what a great honor it is for me to
    testify about a legislative initiative of the late Senator Ted Kennedy,
    who championed ENDA for more than a decade and who constantly reminded
    us that civil rights are the great unfinished business of our Nation. I
    can think of no better way to honor his life and work than to pass ENDA
    and provide sorely needed protections from arbitrary and unjustified
    discrimination to LGBT individuals in the workplace throughout our
    Nation.
        Thank you once again for the opportunity to testify. I welcome your
    questions.

        The Chairman. Thank you, Assistant Attorney General Perez.
    Thank you very much for that statement, but also for your
    lifetime of involvement in, and promotion of, civil rights for
    all our people. You've just always been in the forefront of
    that battle, and I appreciate that.
        If you don't mind, I'd just say, at the outset, lucky 15,
    could you give me 16?
        [Laughter.]
        Mr. Perez. I think we can do that. That's a----
        The Chairman. Next year?
        Mr. Perez [continuing]. That's a friendly amendment.
        The Chairman. How about next year? OK.
        Mr. Perez. Yes, very well.
        The Chairman. All right. Because I just want everyone to
    know, it is my intention to move this legislation. Obviously,
    we've got healthcare, we've got a couple of other things we've
    got to do before the end of the year. But, I'd just say to you
    that we're going to move this bill next year. So, it will be
    16, OK?
        Mr. Perez. We will be here to provide whatever support and
    assistance we can.
        The Chairman. Thank you very much.
        Let me just ask a couple of questions. You know, we'll hear
    later about States and businesses that have taken the lead--and
    we've already talked about it here--in ensuring equality for
    lesbians, gays, bisexual, and transgender workers. Some argue,
    therefore, no Federal legislation is needed; States are taking
    care of it, and businesses are taking care of it. What's your
    response to that?
        Mr. Perez. Well, some States and some businesses are taking
    care of it, but it shouldn't be a function of where you live
    whether you have these rights. That is the challenge we have
    right now. As Senator Franken correctly pointed out, almost 30
    States provide no such protections. So, we strongly believe
    that we should have this Federal protection so that everyone in
    America can be judged by the content of their character in the
    workplace.
        The Chairman. Fortunately, there have been, recently,
    several successful suits under title VII. So, what do you say
    to those who say that title VII is enough to address the
    problem and that ENDA really isn't necessary.
        Mr. Perez. Well, there may be some circumstances in which
    discrimination can be covered under title VII, but the
    circumstances are quite limited, and the courts have reached
    different conclusions in that. That is why ENDA will eliminate
    that uncertainty and ensure that anybody who is discriminated
    on account of sexual orientation or gender identity will have
    those protections. It will eliminate that ambiguity and the
    really limited protection, at best, that title VII might
    potentially provide.
        The Chairman. Thank you very much, Attorney General Perez.
        And now I'll yield to Senator Casey.

                           Statement of Senator Casey

        Senator Casey. Mr. Chairman, thank you very much.
        I first want to say, at the outset--I apologize for being
    late--I want to thank you for having this hearing. It's so
    important that we have a hearing on this issue and on this
    bill. I've been proud to have been a co-sponsor in both the two
    Congresses I've been in--110th and 111th--and we're grateful to
    Chairman Harkin for convening this hearing.
        I don't have a lot of questions, but I do want to say, at
    the outset, that it's appropriate that we have a hearing about
    this, and we're at a point in our history where we're moving in
    the direction of--not there yet, but moving in the direction
    of, not just tolerance, which use to be an important word on so
    many of these issues that involve Americans who happen to be
    gay or lesbian, bisexual or transgender, but we're evolving
    further, beyond tolerance, into an area of acceptance. Passing
    this bill would be further evidence of that, that it's long
    overdue.
        I think the point that was made by a number of people about
    why this is good for business is also an important point to
    make here. We've seen that, I believe, in our history when
    we've passed civil rights legislation, even in the midst of
    tremendous opposition and conflict about it. We know what civil
    rights legislation has done to economically empower the South.
    Hard to imagine what the country would be like if we didn't
    pass that legislation. So, there's a strong economic argument.
        But, the fundamental argument is still, I believe, about
    justice, basic justice, as we've come to understand it, in
    America. So, I think it's long overdue that we pass legislation
    that fundamentally requires employers in the private sector to
    respect the rights and dignities of their employees, and to
    provide employees with remedies in Federal courts.
        I know that, in Pennsylvania, for example--a State that we
    often lead on things, and sometimes we fall behind--State law
    today, unfortunately, does not explicitly--in Pennsylvania--
    prohibit discrimination based upon sexual orientation or gender
    identity, although executive orders do protect State employees.
    So, what's good enough for a State employee--I used to be one
    of them--should be good enough for the rest of us.
        But, I do believe that we're at a point now where the
    American people understand how important this is to--in the
    sense of justice, but also in the sense of what's good for our
    economy.
        I just wanted to ask Mr. Perez, What do you think would
    be--in terms of an impediment to passage--what do you think our
    biggest challenge is and I'm not just talking about the nature
    of how things work in Washington--but what do you think is our
    biggest challenge to overcome, in terms of substance or message
    or how we convey the urgency of getting this passed?
        Mr. Perez. Senator, thank you for your question.
        I think the bill is going to pass, and I think it's going
    to become law next year. I think one of the challenges--and
    that's why this hearing is so important--is to educate people
    why this is not only a good civil rights law, but this is good
    for the Nation.
        This is good public safety law. If you look, for instance,
    at the District of Columbia Police Department, because they
    have inclusive hiring policies, they have actually been able to
    do a better job of policing. They have an award-winning Gay and
    Lesbian Liaison Unit that has, again, won a host of awards. One
    of the early years, before it was established, there were two
    hate crimes reported in the District of Columbia based on
    sexual orientation. Chronic underreporting because people were
    afraid to come to the police to report that. As a result of the
    creation of this unit, people felt more comfortable. People
    felt more comfortable reporting these crimes. This bill is
    about effective public safety.
        Similarly, the flip side is true. When you have
    discrimination in a workplace, in a law enforcement workplace,
    you undermine or jeopardize public safety. There was a case we
    had in West Virginia involving a gay officer, and they refused
    to send backup in--to assist him in responding to calls. That
    is an absolutely horrible law enforcement practice.
        So, it strikes me that part of the challenge that lies
    ahead is for us to educate the public that this is not simply
    the right thing to do, it is absolutely in the enlightened
    self-interests of large and small companies to attract the best
    and the brightest, and it's in the public safety interests of
    government to ensure that we have a workforce that can meet the
    demands of our entire community. That's the education challenge
    that lies ahead, and I think we can meet it.
        Senator Casey. Thank you.
        Senator Casey. We're proud to be a co-sponsor. Thank you
    very much.
        Mr. Perez. Thank you, Senator.
        The Chairman. Thanks, Senator Casey.
        Senator Merkley.
        Senator Merkley. Thank you very much, Mr. Chair.
        Thank you for your testimony, Mr. Perez. And
    congratulations on your nomination, confirmation.
        Mr. Perez. Thank you.
        Senator Merkley. I think your testimony here today shows
    how important it was to get you on the job.
        I want to note that, as you were sharing those stories, I
    was thinking of the stories of some individuals who shared
    their journey at a press conference earlier today. One of them,
    Mike Carney, is going to share his story in the next panel.
    But, I also wanted to thank Colonel Diane Schroer, a 25-year
    Special Forces veteran, for sharing her story this morning, and
    Erlene Budd, who has been a tremendous advocate for transgender
    rights, for sharing her story, as well.
        This got me thinking about some of the folks I know in
    Oregon, and their stories. One is Laura Calvo. Laura, a
    transgender person who hid her transgender identity in order to
    keep her job, served as a police officer for the Josephine
    County Sheriff 's Department for more than 16 years. She earned
    numerous commendations, including being deputy of the year in
    1994. But, when a burglary of her personal items led to the
    recognition of her transgender identity by her team, and her
    superiors, they fired her and broke a very successful career.
    And these stories go on and on.
        Some say that having equal opportunity constitutes special
    rights. Can you comment on that?
        Mr. Perez. I call it ``fair employment practices.'' This is
    not special rights, this is about a level playing field so that
    somebody has an opportunity to demonstrate that they are
    qualified to do the job. I would respectfully assert that
    Officer Carney is exceedingly qualified to do the job, and as
    he said in his written testimony, being gay does not affect job
    performance, and it shouldn't affect employability, plain and
    simple. This is about equal opportunity.
        Senator Merkley. Thank you.
        Then others say that pursuing this track might result in a
    quota system. Can you address that issue?
        Mr. Perez. The bill explicitly states that quotas are
    forbidden. That is a quintessential red herring. We hear that
    frequently in the context of these debates, and it's just dead
    wrong. We can look at the experience of the States, as well, in
    enforcing this. I, again, underscore the fact that this
    prohibits only intentional discrimination. It doesn't prohibit
    disparate impact.
        Senator Merkley. You mentioned the term ``disparate
    impact.'' Can you expand a little bit on that legal term? I
    think it will come up in our conversations ahead.
        Mr. Perez. Sure. There are two ways to establish
    discrimination. One way is to demonstrate that an individual or
    a company intentionally discriminated. The other is to
    demonstrate that they had a facially neutral policy or practice
    that had a disproportionate adverse impact on the basis of
    race, color, or some other protected category.
        In title VII cases that we bring, we have both theories at
    our disposal. In Fair Housing cases that we bring, we have both
    theories at our disposal. In voting cases that we bring, we
    have both theories in our disposal. But, in this particular
    case, we actually have one less theory at our disposal, because
    it is only getting at intentional discrimination. So, this bill
    is actually more limited than other civil rights laws that are
    on the books.
        Senator Merkley. And finally, 21 States have banned sexual
    identity discrimination in employment. Twelve States have fully
    inclusive nondiscrimination employment laws. In terms of how
    these acts have been implemented and what we've seen, have
    there been any, ``The sky is falling'' horror stories, as my
    colleague referred to?
        Mr. Perez. That hasn't been our experiences, and I look
    forward to hearing from Attorney General Madigan. I confess,
    Senator, when I was preparing for this, I was reading some of
    the record from the debate on the 1964 Civil Rights Act. One
    Senator noted that,

              ``This bill would discourage those who are
            considering starting a new business, frustrate the
            expansion of existing industry, and encourage many to
            give up their businesses entirely. If the Federal
            Government is to inject itself to this extent into the
            operations of the Nation's industry, it may well find
            itself in complete charge under a socialist State.''

        Another Senator noted,

              ``Who is to determine whether a Negro cook is hired
            instead of the white, or the white instead of the
            Negro. What becomes of business management during the
            incessant harassment of investigations, reports,
            hearings, lawsuits? These observations barely touch
            upon the practical problems of administration that will
            fly from this Pandora's Box.''

        Those are statements from U.S. Senators in the connection
    with the Civil Rights Act of 1964. Forty-five years later,
    Pandora's Box is in pretty good shape, and we haven't seen--the
    sky is blue in Minnesota, and the sky is blue in Iowa, and the
    sky is blue in Pennsylvania and Oregon. We hope to make the sky
    blue on all 50 States by having a level playing field for
    people in the workplace.
        Senator Merkley. Thank you.
        The Chairman. Senator Franken.
        Senator Franken. Thank you, Mr. Chairman.
        Mr. Perez, you just very eloquently put this in some
    historical context with the 1964 Civil Rights Act. I'm struck
    by the parallels of the civil rights movement of the 1960s and
    the debate taking place today.
        I remember, until 1967, it was illegal in a number of
    States in this country for interracial couples to get married.
    Now we have a President of the United States who is the product
    of an interracial marriage. There just seems to be sort of a
    inexorable movement in history toward civil rights.
        I've also seen a real change in attitudes about gay and
    LBGT people. I'd say my kids' generation--I have kids in their
    20s--thinks whether someone is gay or not is about as
    interesting as if they're left-handed. I think it's more
    interesting than being left-handed, but----
        [Laughter.]
        Mr. Perez. I'm ambidextrous.
        Senator Franken. Yes.
        [Laughter.]
        I'm not going to touch that.
        [Laughter.]
        But, I've seen a change in attitude--for example, in our
    military. I've done USO tours for years. I remember, in 1999,
    being in Kosovo and doing jokes about ``Don't ask, don't
    tell,'' and I sensed a little tension from some people. Then,
    in 2006, I was in Afghanistan and there was open acknowledgment
    that there are gay men and women serving there, at Camp
    Phoenix. They are very open about it. I remember the commander,
    when he gave me this beautiful flag that I have in my office,
    that's in a triangular frame built by Afghan craftsmen. He
    said, ``Keep telling those `Don't ask, don't tell' jokes.'' A
    group of lesbian soldiers who were sitting in one section said,
    ``Yeah, yeah.'' I know that these soldiers, who had been
    serving in Afghanistan for a year or so, or 15 months, or were
    on their third tour and had served in Iraq--at this time it was
    2006 and recruiting was hard, and they were recruiting people,
    giving them moral passes, like people who'd been arrested or
    people who didn't do as well on cognitive tests as before. I
    talked to the soldiers, and they would rather have that gay man
    or woman who's been on their right and their left for the last
    year than have someone who got a moral waiver.
        It's changed. People's attitudes change. So, I'm just
    trying to put this in an historical context. In 30 years, this
    isn't going to be an issue. People will look back and go, ``Why
    was this an issue?'' But, in the meantime, we've got 30 years.
    So, we've got 29 States in which you can be fired for, not just
    being gay or transgender, but for them suspecting that you are.
    And it's legal.
        Let's say you're in one State, you're in Minnesota, where,
    again, the sky hasn't fallen, and you have a job with a
    corporation, and they want to send you to Michigan--promote
    you, because you've been doing such an excellent job--and
    you're gay--and Michigan doesn't have this protection. Can you
    end up in Michigan and just get fired?
        Mr. Perez. Yes, sir.
        Senator Franken. Thank you.
        Thank you, Mr. Chairman.
        The Chairman. Interesting point on it. Thank you very much,
    Senator Franken.
        Senator Bennet.

                          Statement of Senator Bennet

        Senator Bennet. Thank you, Mr. Chairman. Thank you for
    holding this important hearing.
        I'd like to thank our Assistant Attorney General for being
    here today. And congratulations on your confirmation.
        Also, Mr. Chairman, I want to thank you for inviting
    Professor Helen Norton, from the Colorado School of Law, who's
    on the second panel and is an expert in civil rights and
    employment law, and we're very proud of her and proud that
    she's here.
        I think Senator Franken said it very well, that what this
    comes down to for me is that there is no member of this
    committee today, Mr. Chairman, who would take issue with our
    basic civil rights protections from racial, religious, or
    gender discrimination. I think one day in the near future, I
    believe the members of this committee and everybody that's here
    today will understand the case of the LGBT community in exactly
    the same way. This is a country that is built on fundamental
    fairness, and where discrimination is something that simply
    can't be tolerated.
        One of the important things about civil rights laws is that
    they're not just about punishing bad actors, they're about
    fostering a movement toward better, fairer workplaces in the
    long run. So, the question that I have comes around training of
    private employers--their management teams, employees--about the
    types of behavior that actually constitute discrimination. Not
    everything does. Laws that are not known, won't do any good.
    So, the question I have for you is just this, How can we get
    the word out to employees that ENDA affords them new workplace
    protection so people actually understand that the protections
    are there? Does the Civil Rights Division plan to ensure that
    employers and employees are aware of their rights and
    responsibilities?
        Mr. Perez. The short answer is ``absolutely,'' Senator. We
    have a very elaborate rollout plan already underway for the
    Hate Crimes bill that passed, a week ago. Literally, the day
    after passage--or, the day after--the day the President signed
    the bill, we sent a missive to all the U.S. attorneys offices
    from the attorney general. I have since followed up. We have an
    implementation team in place.
        Similarly, in ENDA, we would be working side by side with
    the EEOC, because the EEOC enforces ENDA, or would enforce ENDA
    as it relates to private employers. We would enforce ENDA at
    the Justice Department as it relates to State and local
    governments. We would--and are already. I met with the acting
    chair of the EEOC, literally 2 days ago, and we discussed this,
    among other issues, making sure we have that implementation
    team in place. Because we'd like to prevent problems from
    occurring. I'd love to be the Maytag repairman, waiting,
    sitting by the phone, waiting for it to ring, and having my
    feet up. Where, the other way, the phone rings off the hook,
    right now and we'd like to prevent that.
        Senator Bennet. Right. We should all be so lucky.
        I would just point out that there are a number of States,
    mine is one, where we've got similar legislation on the books
    already and there have been real efforts to make sure that
    people understand their rights. That these rights are
    communicated. I think there's an opportunity for you and for
    the Department to be able to learn from some of that acquired
    wisdom.
        Mr. Perez. Absolutely.
        Senator Bennet. That would probably be a good thing, as
    well.
        Mr. Perez. I couldn't agree more.
        Senator Bennet. Thank you for being here. Thanks for your
    leadership.
        Mr. Chairman, thank you very much.
        [The prepared statement of Senator Bennet follows:]

                      Prepared Statement of Senator Bennet

        I would like to thank Assistant Attorney General Perez for
    joining us this morning and congratulate him on his recent
    confirmation as head of the Civil Rights Division. It's clear
    to me that the Civil Rights Division could use some new
    leadership and new ideas. Our committee should seek to partner
    with the new Administration on civil rights issues such as the
    one we have before us today.
        I would particularly like to welcome Professor Helen Norton
    from the Colorado School of Law, who will be participating in
    the second panel this morning. Professor Norton is an expert in
    civil rights and employment law, who was twice awarded
    Excellence in Teaching Awards at the law school. Thank you
    Professor Norton for joining us this morning. To the rest of
    the panel, I look forward to your testimony as we work to
    address issues related to the Employment Non-Discrimination Act
    and hopefully move forward with the bill during this Congress.
        America is about being judged at work based on your merit.
    We have recognized in our Federal civil rights laws that
    discrimination and bias have no business creeping into the
    workplace. Employment decisions should be based on a person's
    qualifications and work ethic.
        No member of this committee today would take issue with our
    basic civil rights protections from racial, religious or gender
    discrimination. One day in the near future, I believe that the
    members of this committee will understand the plight of the
    LGBT community in the same way. It's time to close the wide
    civil rights loophole that excludes them. It is critical that
    we update our laws to ensure that gay, lesbian and
    transgendered persons are provided the same opportunity to work
    hard and get ahead without discrimination or bias.
        In Colorado, we are leading on ensuring equal rights in the
    workplace. Our State law and several of our city laws also
    protect against discrimination based on sexual orientation or
    transgen-
    dered status.
        It is not only in government where we are ensuring equal
    rights, but also in the private sector. Several companies that
    operate in the State have non-discrimination policies that are
    inclusive of gays and transgendered persons. These companies
    include Coors Brewing Co., which is headquartered in the State,
    as well as Agilent, Anheuser-Busch, Avaya, Costco, Hewlett
    Packard, Kaiser Permanente, Kodak, Lockheed, Progressive
    Insurance, Safeway, Target and Wells Fargo. Nationally, 87
    percent of Fortune 500 companies include sexual orientation in
    their equal employment policies and 41 percent also include
    gender identity.
        Thank you Chairman Harkin for holding this hearing. As the
    newest member of the committee and a cosponsor of ENDA, I see
    this legislation as a civil rights imperative and look forward
    to the testimony.

        The Chairman. Thank you.
        Well, General Perez, thank you very much, again, for all
    your great leadership on this, and thanks for being here today,
    and your testimony. Well, I hope to see you before that, but
    we'll see you at the signing, next year.
        Mr. Perez. Absolutely.
        [Laughter.]
        Thank you for your time.
        The Chairman. Thanks very much.
        Next, we'll call our next panel, and that'll be the
    Honorable Lisa Madigan, the attorney general of the State of
    Illinois. After working as a litigator, she served as a State
    senator, and then, in 2002, was elected as the attorney general
    and re-elected in 2006.
        Mike Carney. Mike Carney is currently serving as a
    detective in the Vice Control Unit for the Springfield, MA,
    police department, which oversees narcotics, prostitution,
    organized crime, and liquor license offenses. He's a founding
    member of the Gay Officer's Action League of New England, and
    has served as president of that group, and has served on the
    Governor's Task Force on Hate Crimes.
        We have Professor Helen Norton, an associate professor at
    the University of Colorado School of Law. Prior to that, she
    served as Deputy Assistant Attorney General for civil rights at
    the U.S. Department of Justice, where she managed the Civil
    Rights Division's Employment Litigation, Educational
    Opportunities, and Coordination and Review sections.
        Ms. Virginia Nguyen. Ms. Nguyen joined Nike in November
    2004 and is currently a member of Nike's Diversity and
    Inclusion Team.
        Craig Parshall. Mr. Parshall is senior vice president and
    general counsel of the National Religious Broadcasters
    Association. He has practiced first amendment law and
    employment law, representing clients in, among other courts,
    the U.S. Supreme Court.
        And Ms. Camille Olson. Ms. Olson is a partner at Seyfarth
    Shaw, LLP, and a member of its National Labor and Employment
    Law Steering Committee and the immediate past national
    chairperson of the Labor and Employment Practice Department.
        We thank you all for being here this morning. I read over
    all your testimonies last evening. They're excellent. They will
    be made a part of the record in their entirety.
        So, if I could ask people to just sort of--maybe 5 minutes,
    7 minutes, to sum it up so we, again, could have an interchange
    with all of you, I would appreciate that.
        I guess I'll just start from left to right. Professor
    Norton, I thank you very much for being here from Colorado, and
    please--again, 5, 7--I got--the clocks say 5 minutes. I don't
    get nervous at 5, I get nervous at 6 or 7.
        [Laughter.]
        The Chairman. Welcome. Please proceed.

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

        Ms. Norton. Good morning. Thank you. Thank you for the
    opportunity to join you today.
        My testimony here draws not only from my work as a law
    professor, teaching and writing in the areas of employment
    discrimination and constitutional law, but also my experience
    as a Deputy Assistant Attorney General for civil rights at the
    Department of Justice, where my duties included supervising the
    division's title VII enforcement efforts.
        Current Federal law prohibits job discrimination on the
    basis of race, sex, religion, color, national origin, age,
    disability, and, very shortly, genetic information. While these
    statutes provide many valuable safeguards for American workers,
    Federal law, however, currently fails to protect gay, lesbian,
    bisexual, and transgendered employees from discrimination on
    the basis of sexual orientation or gender identity. In fact,
    the case law is replete with cases in which Federal judges have
    characterized egregious acts of discrimination targeted at gay,
    lesbian, bisexual, and transgender workers as morally
    reprehensible, yet entirely beyond the law's reach.
        In the interest of time, I'll offer just a few examples,
    but I'll refer you to my written statement for more.
        Mr. Sydney Taylor alleged that his co-workers repeatedly
    subjected him to a wide range of abusive behaviors that
    included groping his genitals, simulating sexual acts,
    assaulting and otherwise touching him inappropriately. Another
    co-worker testified that Mr. Taylor was verbally harassed on a
    weekly basis and was subjected to a work environment that the
    co-worker characterized as ``abusive and intolerable.'' In
    fact, the employer's own internal investigation confirmed Mr.
    Taylor's reports.
        Although the Federal District Court found, ``The actions of
    Taylor's co-workers to be deplorable and unacceptable in
    today's workforce,'' it ruled against him last year, on the
    grounds that current Federal law does not prohibit harassment
    based on sexual orientation or perceived sexual orientation.
    ``Unfortunately, Congress has not yet seen fit to provide
    protection against such harassment.''
        Similarly, David Martin, a gay man employed by the New York
    State Department of Corrections, reported that co-workers
    subjected him for years to a constant stream of offensive and
    degrading sexual comments, lewd conduct, the posting of profane
    graffiti and pictures, and other forms of harassment. The
    Federal District Court dismissed his claims, because, ``The
    torment endured by Martin, as reprehensible as it is, relates
    to his sexual orientation,'' and is thus unremedied by Federal
    law.
        For decades, similarly, courts have dismissed the
    discrimination claims of transgender workers who were horribly
    harassed or denied jobs for which they were exceptionally well-
    qualified, simply because of myths, fears, and stereotypes
    about their transgender status. In the words of the Seventh
    Circuit, as just one example, ``While we do not condone
    discrimination in any form, we are constrained to hold that
    title VII does not protect transsexuals.''
        To be sure, some States have enacted important
    antidiscrimination protections, but employers in the majority
    of States remain free to fire, refuse to hire, harass, or
    otherwise discriminate on the basis of sexual orientation or
    gender identity. As a result, current law, both Federal and
    State, leaves unremedied a wide range of injuries and
    injustices. S. 1584, ENDA, would fill these gaps by clearly
    articulating for the first time the national commitment to
    equal employment opportunity regardless of sexual orientation
    and gender identity. It does so while accommodating concerns
    that it would interfere with religious institutions' ability to
    make employment decisions consistent with their religious
    beliefs by exempting from its coverage those religious
    institutions already exempt from title VII's prohibitions on
    discrimination based on religion.
        Indeed, at the time of its enactment in 1964, 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.
    Congress addressed that issue by protecting the ability of
    religious corporations, associations, educational institutions,
    and societies to make employment decisions on the basis of
    religion.
        Also exempt from title VII's prohibition on religious
    discrimination are educational institutions that are in whole
    or in substantial part owned, supported, controlled, or managed
    by a particular religion or religious institution or those
    whose curriculum is directed toward the propagation of a
    particular religion.
        S. 1584 tracks these 45-year-old title VII provisions that
    protect religious institutions' ability to make their own
    employment decisions on the basis of religion. S. 1584
    specifically provides that its prohibition on sexual
    orientation and gender identity discrimination does not apply
    to those religious institutions.
        S. 1584 addresses other concerns, as well, but in the
    interest of time, Mr. Chairmen, I'll reserve my discussion of
    them for questions that you or your colleagues may have.
        Again, I thank you for the opportunity to join you here
    today.
        [The prepared statement of Ms. Norton follows:]

                       Prepared Statement of Helen Norton

        Thank you for the opportunity to join you today. 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 cases in which Federal judges have characterized egregious
    acts of discrimination targeted at GLBT workers as morally
    reprehensible--yet entirely beyond the law's reach. Consider just a few
    examples:
    ---------------------------------------------------------------------------
        \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). The Genetic Information
    Nondiscrimination Act, which becomes effective on November 21, 2009,
    prohibits job discrimination on the basis of genetic information. Pub.
    L. No. 110-233, 122 Stat. 881.

         Sidney Taylor alleged that his co-workers repeatedly
    subjected him to a wide range of abusive behaviors that included
    groping his genitals, simulating sexual acts, assaulting him, and
    otherwise touching him inappropriately.\2\ Another co-worker further
    testified that Mr. Taylor was verbally harassed on a weekly basis and
    subjected to a work environment that was ``abusive'' and
    ``intolerable,'' \3\ and the employer's own internal investigations
    confirmed Mr. Taylor's reports.\4\ Although the Federal district court
    found ``the actions of Taylor's co-workers to be deplorable and
    unacceptable in today's workforce,'' it ruled against him last year on
    the grounds that current law does not prohibit harassment based on
    perceived homosexuality: ``Unfortunately, `Congress has not yet seen
    fit . . . to provide protection against such harassment.' ''.\5\
    ---------------------------------------------------------------------------
        \2\ Taylor v. H.B. Fuller Co., 2008 WL 4647690 *1-3 (S.D. Ohio
    2008). The many acts of abuse alleged by Mr. Taylor also included being
    ``shown inappropriate or pornographic images by his co-workers'' and
    witnessing co-workers ``repeatedly watching the male-on-male rape scene
    from Deliverance,'' being approached by a co-worker ``holding a diaper
    filled with what appeared to be blood [who] asked Taylor if it was his
    or it if belonged to `some chick,' '' and having a bloody tampon placed
    on his desk. Id. at 2.
        \3\ Id. at *2.
        \4\ Id. at *1-2.
        \5\ Id. at *6-7 (quoting Bibby v. Philadelphia Coca-Cola Bottling
    Co., 260 F.3d 257, 265 (3rd Cir. 2001)).
    ---------------------------------------------------------------------------
         David Martin, a gay male employed by the New York State
    Department of Corrections, reported that co-workers subjected him for
    years to a constant stream of offensive and degrading sexual comments,
    lewd conduct, the posting of profane graffiti and pictures, and other
    forms of harassment.\6\ The Federal district court dismissed his claims
    because ``the torment endured by Martin, as reprehensible as it is,
    relates to his sexual orientation'' and is thus unremedied by current
    law.\7\
    ---------------------------------------------------------------------------
        \6\ Martin v. N.Y. Dep't of Correctional Servs., 224 F. Supp. 2d
    434, 441 (N.D.N.Y. 2002).
        \7\ Id. at 447. For an extensive discussion of widespread,
    persistent, and irrational discrimination by State Government employers
    based on sexual orientation and gender identity, see The Williams
    Institute, Documenting Discrimination on the Basis of Sexual
    Orientation and Gender Identity in State Employment (2009).
    ---------------------------------------------------------------------------
         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.\8\ 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.\9\ The Sixth Circuit Court of
    Appeals dismissed his claim in 2006, concluding:
    ---------------------------------------------------------------------------
        \8\ Vickers v. Fairfield Medical Center, 4 53 F.3d 757, 759 (6th
    Cir. 2006), cert. denied, 127 S.Ct. 2910 (2007).
        \9\ Id. at 759-60.

              ``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.'' \10\
    ---------------------------------------------------------------------------
        \10\ Id. at 764-65.

         Postal worker Dwayne Simonton 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.\11\
    The alleged harassment was so severe that Mr. Simonton ultimately
    suffered a heart attack.\12\ The Second Circuit Court of Appeals
    stated:
    ---------------------------------------------------------------------------
        \11\ Simonton v. Runyon, 232 F.3d 33, 34-35 (2nd Cir. 2000).
        \12\ Id. at 34.

              ``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.'' \13\
    ---------------------------------------------------------------------------
        \13\ Id. at 35.

    ---------------------------------------------------------------------------
        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.''
            \14\
    ---------------------------------------------------------------------------
        \14\ Id.

         Robert Higgins brought a title VII challenge to a
    workplace environment that the First Circuit Court of Appeals
    characterized as ``wretchedly hostile.'' \15\ 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: \16\ The court
    nonetheless affirmed summary judgment against Mr. Higgins:
    ---------------------------------------------------------------------------
        \15\ Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258
    (1st Cir. 1999).
        \16\ Id. at 257.

              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.\17\
    ---------------------------------------------------------------------------
        \17\ Id. at 259. For a sampling of additional cases in this vein,
    see King v. Super Service, Inc., 68 Fed. Appx. 659, 664 (6th Cir. 2003)
    (observing that ``[t]he individuals who harassed King were cruel and
    vile, and their conduct would not be tolerated by any respectable
    employer,'' but concluding that the reported physical and verbal
    harassment was based on actual or perceived sexual orientation and thus
    not actionable under title VII); 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); Silva v. Sliffard, 215 F.3d 1312
    (1st Cir. 2000) (``Although we do not condone harassment on the basis
    of perceived sexual orientation, it is not, without more, actionable
    under title VII.''); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081,
    1084 (7th Cir. 1984); cert. denied, 471 U.S. 1017 (1985) (``While we do
    not condone discrimination in any form, we are constrained to hold that
    title VII does not protect transsexuals.''); see also Medina v. Income
    Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) (``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.'').

        To be sure, some courts have interpreted title VII's prohibitions
    on sex discrimination to bar certain misconduct targeted at GLBT
    workers, such as employment decisions that punish workers who are
    perceived as failing to conform to certain gender stereotypes.\18\ 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.\19\
    ---------------------------------------------------------------------------
        \18\ 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'');
    Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (concluding
    that Library of Congress's withdrawal of job offer to plaintiff once it
    learned of her transgender status constituted sex stereotyping and sex
    discrimination in violation of title VII).
        \19\ 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.'' ') (quoting Simonton v.
    Runyon, 232 F.3d 33, 38 (2nd Cir. 2000); Schroer v. Billington, 525 F.
    Supp. 2d 58, 63 (D.D.C. 2007) (stating that a title VII sex
    stereotyping claim ``could not be supported by facts showing that [an
    adverse employment action] resulted solely from [the plaintiff 's]
    disclosure of her gender dysphoria'').
    ---------------------------------------------------------------------------
        To fill these significant gaps, some States have enacted important
    antidiscrimination protections for GLBT workers: indeed, 12 States and
    the District of Columbia have enacted statutes that bar job
    discrimination on the basis of sexual orientation as well as gender
    identity,\20\ while another 9 States prohibit job discrimination on the
    basis of sexual orientation alone.\21\ But employers in the majority of
    States remain free to fire, refuse to hire, harass, or otherwise
    discriminate against individuals because of their sexual orientation
    and/or gender identity. (Moreover, even in the most egregious cases,
    State tort remedies such as assault and battery are of little, if any,
    practical value to victims: not only do courts generally decline to
    find employers vicariously liable for such torts as beyond the scope of
    employment, the individual assailants themselves are often judgment-
    proof. Indeed, none of the decisions discussed above included any
    disposition of a tort claim in the plaintiff 's favor.)
    ---------------------------------------------------------------------------
        \20\ Along with the District of Columbia, those States are:
    California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New
    Mexico, Oregon, Rhode Island, Vermont, and Washington.
        \21\ Those States are Connecticut, Delaware, Hawaii, Maryland,
    Massachusetts, Nevada, New Hampshire, New York, and Wisconsin.
    ---------------------------------------------------------------------------
        As a result, current law--both Federal and State--leaves unremedied
    a wide range of injuries and injustices suffered by GLBT workers. S.
    1584 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. More specifically, it forbids
    such discrimination in decisions about hiring, firing, compensation,
    and other terms and conditions of employment.\22\ S. 1584 also
    incorporates the remedies and enforcement mechanisms available under
    title VII.\23\
    ---------------------------------------------------------------------------
        \22\ S. 1584 at Sec. 4.
        \23\ Id. at Sec. 10.
    ---------------------------------------------------------------------------
        S. 1584 thus accomplishes antidiscrimination law's twin purposes of
    compensating victims of discrimination for their injuries and deterring
    future acts of bias. It does so while accommodating concerns that it
    would interfere with religious institutions' ability to make employment
    decisions consistent with their religious beliefs. More specifically,
    S. 1584 completely exempts from its coverage those religious
    institutions already exempt from title VII's prohibition on
    discrimination based on religion.\24\
    ---------------------------------------------------------------------------
        \24\ Id. at Sec. 6 (``This Act shall not apply to a corporation,
    association, educational institution or institution of learning, or
    society that is exempt from the religious discrimination provisions of
    title VII of the Civil Rights Act of 1964 pursuant to section 702(a) or
    703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e- 2(e)(2)).'').
    ---------------------------------------------------------------------------
        At the time of its debate in 1964, 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. Congress addressed this issue by
    protecting the ability of ``a religious corporation, association,
    educational institution, or society'' to make employment decisions on
    the basis of religion.\25\ Over the last 45 years, courts have
    interpreted this provision to exempt not only houses of worship,
    parochial schools, and religious missions, but also other organizations
    found to be primarily religious in purpose and character.\26\
    ---------------------------------------------------------------------------
        \25\ 42 U.S.C. Sec. 2000e-1(a).
        \26\ See, e.g., Corp. of the Presiding Bishop of the Church of
    Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987)
    (applying exemption to nonprofit gymnasium operated by the LDS Church);
    Leboon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 226
    (3rd Cir. 2007), cert. denied 128 S.Ct. 2053 (2008) (holding that a
    Jewish Community Center was exempt from title VII's religious
    discrimination provisions because its purpose and character were
    primarily religious); Hall v. Baptist Memorial Health Care Corp., 215
    F.3d 618 (6th Cir. 2000) (applying exemption to college of health
    sciences directly related to the Baptist church); Killinger v. Samford
    University, 113 F.3d 196 (11th Cir. 1997) (applying exemption to
    university because of its close relationship with the State Baptist
    Convention); Little v. Wuerl, 929 F.2d 944 (3rd Cir. 1991) (applying
    exemption to Catholic parish school); Spencer v. World Vision, Inc.,
    570 F. Supp. 2d 1279 (W.D. Wash. 2008) (holding a nonprofit Christian
    humanitarian aid organization to be an exempt religious institution);
    Saeemodarae v. Mercy Health Services, 456 F. Supp. 2d 1021 (N.D. Iowa
    2006) (applying exemption to hospital affiliated with Catholic church);
    Lown v. Salvation Army, 393 F. Supp. 2d 223 (S.D.N.Y. 2005) (applying
    exemption to Salvation Army); Wirth v. College of the Ozarks, 26 F.
    Supp. 2d 1185 (W.D. Mo. 1998) (applying exemption to college affiliated
    with Presbyterian church); Feldstein v. Christian Science Monitor, 555
    F. Supp. 974 (D. Mass. 1983) (applying exemption to Christian Science
    Monitor). On the other hand, courts have held that the exemption does
    not apply to organizations that are primarily secular in purpose and
    character. See, e.g., EEOC v. Townley Engineering & Mfg. Co., 859 F.2d
    610, 618 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989) (holding
    that a for-profit manufacturer of mining equipment owned by religious
    individuals who operated the company pursuant to their religious
    principles was not an exempt religious institution because its nature
    was primarily secular).
    ---------------------------------------------------------------------------
        As originally enacted in 1964, this provision exempted only
    employment decisions concerning jobs related to such organizations'
    ``religious'' activities.\27\ In 1972, however, Congress broadened the
    exemption to its current scope by exempting such organizations from
    title VII's ban on religious discrimination with respect to employment
    decisions about jobs related to any of their activities, non-religious
    as well as religious.\28\ Also exempt from title VII's prohibition on
    religious discrimination are schools, colleges, universities, or other
    educational institutions or institutions of learning that are ``in
    whole or in substantial part, owned, supported, controlled, or managed,
    by a particular religion or by a particular religious corporation,
    association, or society, or if the curriculum of such school, college,
    university, or other educational institution or institution of learning
    is directed toward the propagation of a particular religion.'' \29\
    ---------------------------------------------------------------------------
        \27\ Civil Rights Act of 1964, Pub. L. No. 88-352, title VII,
    Section 702, 78 Stat. 241, 255.
        \28\ Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,
    Section 702, 86 Stat. 103, 104 (now codified at 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. In recognition of the
    significant constitutional and other interests at stake, however,
    courts have long interpreted the first amendment to preclude the
    application of title VII and other employment laws to religious
    institutions' decisions about their spiritual leaders. See, e.g.,
    Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir.
    2003) (declining to consider plaintiff 's title VII race and national
    origin claims by holding that title VII does not apply to religious
    institutions' employment decisions about ministers and other 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 decisions involving
    teachers of religious canon law from title VII); Scharon v. St. Luke's
    Episcopal Presbyterian Hospital, 929 F.2d 360 (8th Cir. 1991)
    (precluding chaplain's discrimination claims under the ministerial
    exception); Rayburn v. General Conference of Seventh-Day Adventists,
    772 F.2d 1164 (4th Cir. 1985) (holding that ministerial exception
    exempts employment decisions about pastoral advisors from title VII
    scrutiny); McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert.
    denied, 409 U.S. 896 (1972) (rejecting 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).
        \29\ 42 U.S.C. Sec. 2000e-2(e)(2). This provision was added in 1964
    through an amendment offered by Representative Purcell, who expressed
    concern that some church-affiliated educational institutions would not
    be exempt under 42 U.S.C. Sec. 2000e-1(a): ``Almost without exception,
    the term `religious corporation' would not include church-affiliated
    schools unless this definition should receive the most liberal possible
    interpretation by the courts. Actually most church-related schools are
    chartered under the general corporation statutes as nonprofit
    institutions for the purpose of education.'' 110 Cong. Rec. 2585-2593
    (1964). Nevertheless, there remains a significant amount of overlap
    between these two exemptions. See, e.g., Hall v. Baptist Memorial
    Health Care Corp., 215 F.3d 618 (6th Cir. 2000) (concluding that
    college of health sciences was exempt from title VII's prohibition on
    religious discrimination under both 42 U.S.C. Sec. 2000e-1(a) and 42
    U.S.C. Sec. 2000e-2(e)(2) because of its direct relationship to the
    Baptist church); Killinger v. Samford University, 113 F.3d 196 (11th
    Cir. 1997) (concluding that Samford University satisfied both of title
    VII's religious exemptions because of its close relationship with the
    State Baptist Convention); Little v. Wuerl, 929 F.2d 944 (3rd Cir.
    1991) (concluding that Catholic parish school satisfied both
    exemptions).
    ---------------------------------------------------------------------------
        S. 1584 incorporates the longstanding statutory definitions of
    religious institutions exempt from title VII's ban on religious
    discrimination and specifically exempts those same institutions from
    its prohibition on sexual orientation and gender identity
    discrimination:

              ``This Act shall not apply to a corporation, association,
            educational institution or institution of learning, or society
            that is exempt from the religious discrimination provisions of
            title VII of the Civil Rights Act of 1964 pursuant to section
            702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-
            2(e)(2)).'' \30\
    ---------------------------------------------------------------------------
        \30\ S. 1584 at Sec. 6.

        S. 1584 addresses other concerns as well. For example, it provides
    no disparate impact cause of action,\31\ and it prohibits employers
    from granting preferential treatment to an individual because of the
    individual's actual or perceived sexual orientation or gender
    identity.\32\ It does not prohibit an employer from enforcing rules or
    policies that do not intentionally circumvent the act's purposes,\33\
    nor does it require the collection of statistics on actual or perceived
    sexual orientation or gender identity.\34\ S.1584 does not apply to the
    armed services.\35\ Finally, it does not require an employer to treat
    an unmarried couple in the same manner as a married couple for employee
    benefits purposes,\36\ with the definition of the term ``married''
    drawn from that in the Defense of Marriage Act.\37\
    ---------------------------------------------------------------------------
        \31\ S. 1584 at Sec. 4(g).
        \32\ Id. at Sec. 4(f)(1).
        \33\ Id. at Sec. 8(a)(1)
        \34\ Id. at Sec. 9.
        \35\ Id. at Sec. 7.
        \36\ Id. at Sec. 8(b)
        \37\ Id. at Sec. 8(c).
    ---------------------------------------------------------------------------
        In sum, S. 1584 proposes to fill significant gaps in existing law
    by clearly articulating, for the first time, a national commitment to
    equal employment opportunity regardless of sexual orientation and
    gender identity while addressing concerns raised by religious
    institutions and other employers. Again, thank you for the opportunity
    to testify here today, and I look forward to your questions.

        The Chairman. Again, we're honored by the presence of the
    attorney general of Illinois, Attorney General Madigan.

      STATEMENT OF HON. LISA MADIGAN, ATTORNEY GENERAL, STATE OF
                         ILLINOIS, CHICAGO, IL

        Ms. Madigan. Thank you, Mr. Chairman and members of the
    committee, for inviting me to testify today in support of this
    important Federal civil rights legislation to prohibit
    discrimination on the basis of sexual orientation and gender
    identity.
        As the chief legal officer for the State of Illinois, I am
    pleased to share Illinois' experience in expanding the
    protections of our Human Rights Act to cover members of the
    lesbian, gay, bisexual, and transgender community.
        Illinois is one of 21 States in the country with an
    antidiscrimination statute that includes sexual orientation as
    a protected class, and we are one of the 12 States that
    includes gender identity. Since the implementation of these
    protections in January 2006, we have seen a positive reaction
    in both the public and private sectors, with a move toward
    tolerance, acceptance, and inclusion of all individuals. At the
    same time, as I will testify, Illinois has not seen a flood of
    complaints. On the contrary, we have seen a reasonable number
    of charges being filed.
        The Illinois Human Rights Act originally passed in 1980. It
    protects individuals from discrimination not only in
    employment, but also in real estate transactions, access to
    financial credit, and access to public accommodations. The law
    protects individuals from discrimination on several bases,
    including age, disability, race, sex, and religion.
        In 2005, the Illinois legislature amended the Human Rights
    Act to include sexual orientation. Illinois' definition of
    sexual orientation includes both actual and perceived sexual
    orientation, as well as gender-related identity. These
    definitions are similar to the definitions under the proposed
    Employment Non-Discrimination Act.
        The amendments to our Human Rights Act have been in effect
    for 3\1/2\ years. Some had predicted that the addition of
    sexual orientation and gender identity to the Human Rights Act
    would lead to an avalanche of discrimination complaints and a
    significant increase in litigation. But, that has not been the
    experience in Illinois.
        The Illinois Department of Human Rights is our State
    administrative agency with the primary responsibility for
    investigating and initiating discrimination charges. Since the
    Human Rights Act was amended, only between 2.06 percent and
    3.79 percent of all charges filed annually with the Department
    have involved allegations of sexual orientation discrimination.
    Specifically, of the 13,723 employment discrimination charges
    filed since 2006, only 399, or 2.9 percent, were based on
    sexual orientation. As these numbers clearly demonstrate, we
    have not seen a flood of discrimination charges.
        Perhaps the reason for that is because the law was passed
    with considerable support from our business community. There
    were 115 major Illinois employers, as well as the Chicagoland
    Chamber of Commerce, that publicly supported these amendments.
    And in part, I presume that is--not only was it an enlightened
    business decision, but prior to the passage of our State law,
    there were already 16 different municipalities and local
    governments throughout Illinois that had enacted
    antidiscrimination ordinances that included sexual orientation.
    Prior to the passage of the State law, there was a patchwork of
    protections throughout the State, and with the changes to our
    Human Rights Act, we now have a statewide standard. Illinois
    employers now work under the same rules.
        Employers have also reacted positively to the new law, in
    that 208 of the employers that are headquartered in Illinois
    now have sexual orientation included in their internal
    nondiscrimination policies and programs; 67 of those, we are
    aware of, have also included gender identity. These policies
    lead to more productive, more inclusive, more tolerant, and
    more safe workplaces for all employees. Studies have shown--and
    I presume we will hear about Nike's experience--that employers
    that institute inclusive antidiscrimination policies and
    programs are less likely to experience discrimination lawsuits,
    and therefore, spend less money on legal fees.
        But, the most important impact of prohibiting
    discrimination against LGBT persons is the impact on individual
    lives. Statistics are helpful, but ultimately we must focus on
    the protections that we provide to real people. We obviously
    all know that discrimination on the basis of sexual orientation
    and gender identity occurs. We have already heard numerous
    stories this morning. I want to address one more thing.
        Lesbian, gay, bisexual, and transgender employees are not
    seeking special rights or privileges. Instead, they want to be
    able to come to work and to be judged on the quality of their
    work, not on who they are or on who they are perceived to be.
        Through the enactment of a statewide statute prohibiting
    discrimination based on sexual orientation and gender identity,
    Illinois has promoted tolerance, fundamental equality, and the
    common humanity of all individuals in our State. The benefits
    of such a message to the citizens of our State cannot be
    underestimated.
        I believe that the experience in Illinois speaks strongly
    in favor of Federal action to protect citizens across our
    country from unfair workplace discrimination based on sexual
    orientation and gender identity.
        Thank you for the opportunity to testify today. I'd be
    happy to answer the committee's questions.
        [The prepared statement of Ms. Madigan follows:]

                       Prepared Statement of Lisa Madigan

                                I. INTRODUCTION

        Senator Harkin and members of the committee, thank you for inviting
    me to testify at today's hearing on the proposed Employment Non-
    Discrimination Act. As the chief legal officer for a State that has
    been a leader in protecting the civil rights of all of its citizens, I
    am pleased to share Illinois' experience in expanding the protections
    of the Illinois Human Rights Act to cover sexual orientation and gender
    identity.
        Illinois is one of 21 States in the country with an anti-
    discrimination statute that includes sexual orientation as a protected
    class, and 1 of 13 States that includes gender identity. Since the
    implementation of these protections in January 2006, Illinois has seen
    a reasonable number of charges being filed, with a recent increase in
    the last year. At the same time, we have seen a positive reaction in
    the public and private sector with a move toward tolerance, acceptance
    and inclusion of all individuals.
        My testimony today is divided into two parts. First, I will review
    the Illinois Human Rights Act, with specific emphasis on the definition
    of sexual orientation and gender identity. In the second part, I will
    discuss Illinois' experience since the implementation of the amendments
    to the Human Rights Act in January 2006, including a discussion of the
    number and types of complaints filed regarding sexual orientation and
    gender identity.

                       II. THE ILLINOIS HUMAN RIGHTS ACT

        The Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. (``IHRA''),
    was originally passed and implemented in 1980. IHRA protects an
    individual from discrimination based upon race, color, citizenship
    status, national origin, ancestry, age, handicap, marital status,
    gender, religion, military service, or unfavorable military discharge
    status, as well as sexual harassment and retaliation, in connection
    with four areas: employment, real estate transactions, access to
    financial credit, and the availability of public accommodations. 775
    ILCS 5/1-102(A). In 2005, IHRA was amended to include sexual
    orientation as a protected class. 775 ILCS 5/1-102(A). These amendments
    became effective January 1, 2006 (``the 2006 Amendments'').
        IHRA defines ``sexual orientation'' as: actual or perceived
    heterosexuality, homosexuality, bisexuality, or gender-related
    identity, whether or not traditionally associated with the person's
    designated sex at birth. 775 ILCS 5/1-102(0-1).
        IHRA covers not only cases where a complainant is discriminated
    against because of his or her actual sexual orientation, but also those
    cases where a complainant is discriminated against because someone
    assumes his or her sexual orientation based upon the complainant's
    behavior, dress, or associations. The definitions of ``sexual
    orientation'' and ``gender identity'' in the proposed Employment Non-
    Discrimination Act are similar to the definitions under IHRA. See, S.
    1584, Section 3(a)(6, 9).
        IHRA applies to employers with 15 or more employees within
    Illinois. 775 ILCS 5/2-101(B)(1)(a). The State, as well as any
    political subdivision, municipal corporation or other governmental unit
    or agency, without regard to the number of employees, are also covered.
    775 ILCS 5/2-101(B)(1)(c).
        Relief available to a complainant under IHRA is similar to relief
    available under Title VII of the Federal Civil Rights Act of 1964:
    actual damages; back pay; front pay; lost benefits; emotional damages;
    injunctive relief including reinstatement; and attorneys' fees and
    costs. 775 ILCS 5/8A-104(A-J). However, unlike title VII, punitive
    damages are not available under IHRA.
        When a complainant believes he or she has been discriminated
    against because of his or her sexual orientation, the complainant may
    file charges with the Illinois Department of Human Rights (``IDHR'').
    775 ILCS 5/7A-102(A). IDHR forwards a copy of the charge to the
    respondent and the parties may enter into a voluntary mediation. 775
    ILCS 5/7A-102(B, B-1). If the mediation does not resolve the matter, or
    the parties choose not to mediate at that time, the respondent must
    answer the charges and IDHR begins an investigation. 775 ILCS 5/7A-
    102(C). Once IDHR completes the investigation, the Department issues an
    investigation report. 775 ILCS 5/7A-102(D). If after a review of the
    investigation report, the Director of IDHR determines that there is
    substantial evidence of discrimination, the complainant may request
    that IDHR file a complaint with the Illinois Human Rights Commission
    (``Commission'') on his or her behalf, or he or she may file a civil
    action in the State circuit court. 775 ILCS 5/7A-102(D)(4). If the
    Director determines that there is no substantial evidence of
    discrimination, the charges are dismissed and the complainant may
    appeal the finding by filing a Request for Review with the Commission,
    or filing an action in the State circuit court. 775 ILCS 5/7A-
    102(D)(3).

      III. ILLINOIS' EXPERIENCE UNDER THE 2006 AMENDMENTS TO THE ILLINOIS
                                HUMAN RIGHTS ACT

    A. Charges Filed With the Illinois Department of Human Rights
        Prior to the enactment of the 2006 Amendments to IHRA, which added
    sexual orientation and gender identity, IDHR anticipated that after the
    2006 Amendments went into effect, roughly 10 percent of all charges
    filed with the Department would involve sexual orientation
    discrimination. After 3\1/2\ years under the 2006 Amendments, the
    percentage of sexual orientation cases has been less than originally
    anticipated: since fiscal year 2006, between 2.06 and 3.79 percent of
    all charges filed with IDHR have alleged sexual orientation
    discrimination.\1\
    ---------------------------------------------------------------------------
        \1\ See Exhibit A, Analysis of Sexual Orientation (including Gender
    Identity) Charges filed with the Illinois Department of Human Rights,
    fiscal year 2006-10.
    ---------------------------------------------------------------------------
        With regard to employment discrimination charges, while charges
    based upon sexual orientation have increased over time, they still make
    up a relatively small percentage of the total charges. For example, in
    fiscal year 2006, only 34 employment discrimination charges based on
    sexual orientation were filed with IDHR, which was only 2 percent of
    all employment discrimination charges filed that fiscal year.\2\ In
    fiscal year 2009, 147 employment discrimination charges based on sexual
    orientation were filed with IDHR, totaling only 4 percent of all
    employment discrimination charges filed that fiscal year. IDHR
    attributes the increase in sexual orientation employment discrimination
    charges to the downturn in the economy, as well as to educational
    outreach by IDHR regarding the law to the lesbian and gay community,
    other agencies, and employers throughout the State.
    ---------------------------------------------------------------------------
        \2\ The data for fiscal year 2006 reflect only the last 6 months of
    the fiscal year, since the amendments to IHRA did not go into effect
    until January 1, 2006. The fiscal year in Illinois is July 1--June 30.
    ---------------------------------------------------------------------------
        Discrimination charges based on sexual orientation have a similar
    settlement rate as discrimination charges based on other protective
    classes. Approximately one-third of all discrimination charges based on
    sexual orientation filed with IDHR are settled, which is comparable to
    the settlement rate for other charges.
        Since 2006, there have been 140 charges filed against public
    entities based upon sexual orientation discrimination under IHRA. Those
    140 charges include not only employment discrimination claims, but
    claims based upon real estate transactions, access to financial credit,
    and the availability of public accommodations. During that same time
    period, 273 charges were filed against private entities, six charges
    were filed against unions, and 35 were filed against other entities.

    B. Results of the 2006 Amendments to the Illinois Human Rights Act
        While there has not been an overwhelming number of discrimination
    charges based upon sexual orientation filed since IHRA was amended in
    2006, that does not mean that the amendments were not necessary or that
    the law has not been effective. There have been several benefits to the
    citizens of Illinois because of this improvement to the law, while at
    the same time businesses have become more inclusive and the rights of
    religious institutions have been protected.

                 1. Effect Upon the Business Sector in Illinois

        The 2006 Amendments to IHRA created a statewide standard for
    employers and businesses throughout Illinois. Prior to the 2006
    Amendments, 16 different municipalities and local governments, ranging
    from large urban centers and suburban areas to down-state communities,
    had local ordinances that prohibited discrimination based upon sexual
    orientation.\3\ This created a patchwork of protections throughout the
    State, which led to inconsistent policies for employers who conducted
    business in multiple parts of the State. With a statewide act, all
    employers are now working under the same rules and standards.
    ---------------------------------------------------------------------------
        \3\ The Illinois municipalities with anti-discrimination ordinances
    that include sexual orientation as a protected class are Bloomington,
    Carbondale, Chicago, Champaign, Decatur, DeKalb, Evanston, LaGrange,
    Moline, Naperville, Normal, Oak Park, Peoria, Springfield and Urbana.
    The County of Cook, where Chicago is located, also as an anti-
    discrimination ordinance that includes sexual orientation as a
    protected class.
    ---------------------------------------------------------------------------
        Since the implementation of the 2006 Amendments, there has not been
    evidence of a backlash by employers. In fact, the business community
    showed significant support for the passage of the 2006 Amendments. Over
    115 major employers in Illinois publicly supported the 2006 amendments,
    and business associations, such as the Chicagoland Chamber of Commerce,
    supported the amendments, as well.
        The 2006 Amendments also have not led to frivolous lawsuits. Of the
    13,723 employment discrimination charges filed with IDHR since 2006,
    only 399, or 2.9 percent, were based upon sexual orientation. Studies
    have also shown that companies that have instituted inclusive anti-
    discrimination policies and programs are less likely to experience
    discrimination lawsuits and have spent less on legal fees since the
    implementation of those policies.\4\
    ---------------------------------------------------------------------------
        \4\ Wentlin, R.M., Palm-Rivas, N., ``Current status and future
    trends in diversity initiatives in the workplace: Diversity experts'
    perspective,'' Diversity in the Workplace Series, Report No. 2; MDS-
    1082, Berkeley: National Center for Research in Vocational Education,
    University of California (1997).
    ---------------------------------------------------------------------------
        Publicity on the 2006 Amendments has led employers and businesses
    to revise their non-discrimination policies as well as their internal
    trainings. This publicity has led to increased awareness as well as
    prevention. Since the implementation of the 2006 Amendments to IHRA,
    208 employers who are headquartered in Illinois have added sexual
    orientation to their internal anti-discrimination policies, and 67 of
    these companies have added gender identity to those internal policies,
    as well.\5\ These changes in policies reflect changes in employee
    attitudes toward lesbian and gay co-workers and colleagues. A national
    survey by Harris Interactive, Inc. in 2008 shows that 79 percent of
    heterosexual employees agree that how an employee does his or her job
    should be the standard for judging an employee, not his or her sexual
    orientation.\6\
    ---------------------------------------------------------------------------
        \5\ Human Rights Campaign Foundation, www.hrg.org/employersearch.
        \6\ ``Out & Equal Workplace Culture Report, Survey of Workplace
    Attitudes, 2002-2008,'' Harris Interactive, Inc. on behalf of Out &
    Equal Workplace Advocates (2008).
    ---------------------------------------------------------------------------
               2. Effect Upon Religious Institutions in Illinois

        The 2006 Amendments to IHRA do not supersede a religious
    institution's First Amendment right to hire and fire according to the
    tenets of its religion. Federal courts have held that religious
    institutions are exempt from all liability under title VII, regardless
    of the basis of the alleged discrimination, if the job position
    involved in the employment discrimination claim was a ministerial
    position. See, e.g., Alicea-Hernandez v. The Catholic Bishop of
    Chicago, 320 F.3d 698 (7t Cir. 2003) (Employee could not bring a claim
    of discrimination based on gender and national origin because her
    position of communications manager was ministerial in nature); and
    E.E.O.C. v. The Roman Catholic Diocese of Raleigh, NC, 213 F.3d 795
    (4th Cir. 2000) (Employee could not bring a claim of discrimination
    based on gender and retaliation because her position of music director
    was ministerial in nature). The Illinois Human Rights Commission has
    made similar holdings under IHRA. See, e.g., Hopkins and Urbana
    Assembly of God, 39 Ill.HRC Rep. 394 (March 30, 1988); McBride and
    Trinity Lutheran Church, Charge No. 1992SF0074 (1997 WL
    683117)(September 17, 1997). The 2006 Amendments to IHRA have not
    superseded this precedent.
        Charges filed with IDHR also show that religious institutions have
    not been impacted by the 2006 Amendments to IHRA. Since the effective
    date of the 2006 Amendments, only a handful of charges based on sexual
    orientation have been filed against religious institutions. In fiscal
    year 2009 and so far in fiscal year 2010, not a single charge based
    upon sexual orientation was filed against a religious institution.
        Most importantly, a significant number of religious institutions
    were in support of the 2006 Amendments to IHDA. At the time of the
    passage of the 2006 Amendments, approximately 87 religious
    institutions, organizations and leaders pledged their public support
    for the amendments.\7\
    ---------------------------------------------------------------------------
        \7\ See Exhibit B, Religious organizations, institutions and
    leaders who publicly supported the 2006 Amendments to IHRA.
    ---------------------------------------------------------------------------
      3. Success Stories Under the 2006 Amendments to the Illinois Human
                                   Rights Act

        While the Illinois experience has been that the number of charges
    of employment discrimination based upon sexual orientation has been
    relatively small, the 2006 Amendments to IHRA have had a positive
    effect on individual lives. The statistics are helpful, but it is the
    stories of real people who have been helped by the 2006 Amendments that
    demonstrate the importance of these protections.
        The first example I would like to share with you is the case of a
    woman I will call Ellen. Ellen is an African-American lesbian who was
    employed as a maintenance worker at a large retailer. One of Ellen's
    co-workers learned that Ellen was a lesbian and had a girlfriend. He
    began to call Ellen derogatory names on an almost daily basis,
    sometimes spitting the words in her face. Then the harassment began to
    spread. Managers and coworkers asked her graphic sexual questions and
    flashed at her pornographic pictures almost every other day on the job.
    On several occasions when Ellen was cleaning the men's restroom, male
    co-workers purposely entered the restroom, exposed their genitals to
    her, and made threatening sexual comments to her. When Ellen reported
    this harassment to her supervisor, management, and eventually the
    corporate office, it was ignored. Ellen filed charges against her
    employer through IDHR. Ellen's goal is to return to her job free of
    harassment and continue as a productive employee.
        The second example is the case of a woman I will call Sherry.
    Sherry was the Chief Naturalist of a suburban nature center in
    Illinois. Sherry worked for the nature center for over 16 years,
    creating programs for children and families, running volunteer
    programs, and she thoroughly loved her profession. Sherry had never had
    a negative job performance review. But then a co-worker saw Sherry at a
    restaurant where Sherry was attending a support group for transgendered
    individuals. When the new Executive Director of the nature center
    learned that Sherry was going to transition from a man to a woman, the
    Executive Director demoted Sherry, and eventually terminated her
    employment. Sherry filed a charge against the Executive Director and
    the nature center through IDHR. While Sherry did not gain her position
    back, the case was resolved and Sherry was able to continue with her
    life. Without the 2006 Amendments to IHRA, Sherry would have had no
    recourse at all.
        The real-life cases of Ellen and Sherry demonstrate why the
    inclusion of sexual orientation and gender identity in employment anti-
    discrimination laws is so important. Neither Ellen nor Sherry wants
    special rights or privileges. Instead, they want to be able to come to
    work, have the opportunity to work free of harassment, and be judged on
    the quality of their performance, not on their sexual orientation,
    gender identity or the perception of their sexual orientation or gender
    identity.

                                 IV. CONCLUSION

        Since the enactment of the 2006 Amendments to the Illinois Human
    Rights Act, which added sexual orientation, including gender identity,
    as a protected class, the State has provided individuals who face
    unfair workplace discrimination with a useful and necessary tool. The
    State has not been overwhelmed with the number of charges based upon
    sexual orientation filed with the Illinois Department of Human Rights.
    We have also not seen a backlash from the business community, nor harm
    to the religious institutions in the State. Instead, Illinois has seen
    an increase in the number of employers with inclusive anti-
    discrimination policies. But just as important, the existence of a
    statewide statute prohibiting discrimination based upon sexual
    orientation promotes tolerance, fundamental equality and common
    humanity of all individuals in our State. The benefits of such a
    message to the citizens of our State cannot be underestimated.
        I would like to recognize that here with me today is the Director
    of the Illinois Department of Human Rights, Rocco Claps. Mr. Claps and
    the Department were extremely helpful in providing the data cited in my
    testimony today.
        Thank you for the opportunity to testify before the committee
    today.
           Exhibit A.--State of Illinois, Department of Human Rights

                           Analysis of Sexual Orientation (Including Gender Identity) Charges
    ----------------------------------------------------------------------------------------------------------------
                                                                          2006*     2007     2008     2009    2010**
    ----------------------------------------------------------------------------------------------------------------
    Type of Sexual Orientation Discrimination:
      Employment.......................................................       34      103       81      147       34
      Housing..........................................................        2        5        5        5        2
      Public Accommodations............................................        6        2        4       18        6
      Financial Credit.................................................        0        0        0        0        0
      Sexual Harassment In Higher Education............................        0        0        0        0        0
                                                                        --------------------------------------------
        Total Sexual Orientation Charges...............................       42      110       90      170       42
    Total Charges Filed:
      Total Employment Charges Filed...................................    1,788    3,287    3,522    4,007    1,119
      Total Housing Charges Filed......................................      216      397      309      355      124
      Total Public Accommodations Charges Filed                               49       90      116      127       32
      Total Financial Credit Charges Filed                                     0        5        2        0        0
      Total Sexual Harassment in Higher Education                              2        3        0        2        4
                                                                        --------------------------------------------
        Total..........................................................    2,055    3,782    3,949    4,491    1,279
    Percent to Total Charges Filed by Type:
      Employment.......................................................       2%       3%       2%       4%       3%
      Housing..........................................................       1%       1%       2%       1%       2%
      Public Accommodations............................................      12%       2%       3%      14%      19%
      Financial Credit.................................................       0%       0%       0%       0%       0%
      Sexual Harassment in Higher Education............................       0%       0%       0%       0%       0%
                                                                        --------------------------------------------
        Percentage of Sexual Orientation Charges to Total..............    2.04%    2.91%    2.28%    3.79%    NA\3\
    Resolution of Sexual Orientation Charges:
      Settled..........................................................       10       38       34       34        2
      Withdrawal.......................................................        0       10        5       10        0
      Substantial Evidence.............................................       10       10       10        4        0
      Lack of Substantial Evidence.....................................       12       26       26        7        0
      Lack of Jurisdiction.............................................        1        1        3        2        0
      Failed to Participate............................................        2        8        8        6        0
      Other............................................................        7       17        4      107       40
    Charges Docketed by Sexual Orientation Category:
      Bisexual.........................................................        2        3        3        3        2
      Gender Identity..................................................        0        3        3       15        1
      Homosexual (Gay, Lesbian)........................................       27       58       48      132       29
      Heterosexual.....................................................        0       10       10        8        3
      Transgender......................................................        7       26       16        4        2
      Perceived Sexual Orientation.....................................        6       10       10        8        5
    Sexual Orientation Charges (Including Gender Identity) by Type of
    Respondent:
      Public Entity....................................................        8       22       80       20        6
      State Government.................................................        1        2        1        0        0
      Private Entity...................................................       31       77        5      132       28
      Unions...........................................................        0        1        4        1        0
      Other............................................................        2        8        0       17        8
    ----------------------------------------------------------------------------------------------------------------
    \1\ Public Act 93-1078 became effective 1/1/06.
    \2\ Charges docketed through 10/27/09.
    \3\ Comparison NA due to partial year statistics.

        Exhibit B.--Religious Organizations, Initiative and Leaders Who
    Publicly Supported the 2006 Amendments to the Illinois Human Rights Act
        Adorers of the Blood of Christ, Ruma, IL; Advocate Health Care;
    Alexian Brothers, Provincial Council, Elk Grove Village; American
    Jewish Congress; Congregational Church, United Church of Christ,
    Jacksonville, IL; Daughters of Charity, East Central Province;
    Daughters of Charity, Chicago; Divine Word Missionaries, Provincial
    Council, Techny, IL; Eighth Day Center for Justice; Epiphany United
    Church of Christ, Chicago; Franciscan Friars, Sacred Heart Province;
    Franciscan Sisters of Wheaton, Provincial Council; Good Shepherd
    Parish, Chicago; Little Company of Mary Sisters, Evergreen Park, IL;
    National Assembly of Religious Brothers; National Coalition of American
    Nuns; Pilgrim Congregational Church, Oak Park, IL; Presentation
    Sisters; Project IRENE; Protestants For the Common Good; Resurrection
    Metropolitan Community Church; School Sisters of Notre Dame; Sisters of
    Charity of the Blessed Virgin Mary, Great Lakes Region; Sisters of
    Christian Charity, Wilmette; Sisters of the Living Word, Living Word
    Center; Sisters of Loretto; Sisters of Mercy of the Americans, Chicago
    Region, Leadership Team; Sisters of Notre Dame de Namur; Sisters of
    Providence, Maternity BVM Convent; Sisters of St. Dominic of St.
    Catherine; Sisters of St. Francis of Assisi, Peace and Justice
    Committee; Sisters of St. Joseph of LaGrange, Peace & Justice
    Committee; University Church, Chicago.

        Bishop Sheldon Duecker, United Methodist Church; Reverend Dr. Jane
    Eisler Hoffman, Conference Minister, United Church of Christ,
    Westchester, IL; Bishop Sherman Hicks, Former Bishop, Metropolitan
    Synod, Evangelical Lutheran Church of American; Bishop Edward
    MacBurney, Retired Episcopal Bishop of Quincy; Bishop William D.
    Parsell, Episcopal Diocese of Chicago; Bishop Joseph Sprague, United
    Methodist Church; Bishop James Wilkowski, Evangelical Catholic Church.

        St. Katherine Bales, Dominican Sisters, Rantoul, IL; Fr. Robert
    Bossie, Sacred Heart Fathers, Chicago; Rev. Wayne T. Bradley, Pastor,
    Good Shepherd Parish MCC, Chicago; Rev. Cheryl Burke, Association
    Minister, Fox Valley Association, United Church of Christ, Elgin, IL;
    Rev. John D. Bultrick, Association Minister, Illinois Conference,
    United Church of Christ; Gary Cozette, Chicago Religious Leadership on
    Latin America; Marguerite Cleary, Barat College, Lake Forest; Fr. Ted
    Cirone, Claretian Missionaries; Rev. Ann Marie Coleman, Co-Senior
    Pastor, University Church; Rev. Donald Coleman, Co-Senior Pastor,
    University Church; Sr. Marion Dahlke, SSSF, Ministry Director, School
    Sisters of St. Francis; Sr. Kathleen Desautels, SP, Sisters of
    Providence, Justice Coordinator; Rev. Shane Desautels, Pastor,
    Resurrection MCC, Chicago; Sr. Karen Donahue, Justice Coordinator,
    Sisters of Mercy of the Americas, Aurora; Fr. Charles Faso, OFM,
    Franciscan Friars; Sr. Pat Francis, Dominican Sisters, Chicago; Rev.
    Edward E. Goode, Association Co-Minister, Chicago Metropolitan
    Association, Illinois Conference United Church of Christ; Br. Gerald
    Meeghan, SDB; Sr. Rebecca Ann Gemma, Dominican Sisters, Springfield;
    Rev. Edward E. Goode, Association Co-Minister, Chicago Metropolitan
    Association, Illinois Conference, United Church of Christ; Sr. Mary
    Ellen Green, OP, Prioress, Sinsinawa Dominican Sisters, Eastern
    Province; Rev. Carla Grosch, Seniors Minister, Pilgrim Congregational
    Church, United Church of Christ, Oak Park, IL; Fr. Kurt Hartrich,
    Franciscan Friaras, Sacred Heart Province; Sr. Therese Marie Havlik,
    Norridge, IL; Rev. Thomas Henry, Senior Pastor, St. Pauls Church,
    Chicago; Fr. John Huels, OSM, Prior Provincial Servite Friars; Rev.
    Jerry Wagenstedt, Senior Vice President, Advocate Health Care; Sr. Mary
    Lou Larkin, Sisters of Charity, BVM; Rev. Joseph Liang, United Church
    of Christ; Sr. Gervase, Lisner, School Sisters of St. Francis; Sr.
    Maureen McCormack, SL President, Sisters of Loretto; Sr. Barbara Maas,
    Sisters of the Living Word; Sr. Stephanie Mertens, ASC, Adorers of the
    Blood of Christ, Ruma, IL; Sr. Rose Mary Meyer, BVM, Director, Project
    IRENE; Rev. Calvin S. Morris, PH.D., Chicago; Rev. Rich Pleva, Prairie
    Association Minister, Illinois Conference; United Church of Christ,
    DeKalb, IL; Sr. Donna Quinn, OP, National Coalition of American Nuns,
    Evergreen Park, IL; Patricia Reiss, Barat College, Lake Forest, IL; Sr.
    Joellen Sbrissa, CSJ, Sisters of St. Joseph of LaGrange, Peace &
    Justice Committee, LaGrange, IL; Sr. Rose Miriam Schulte, OP, Dominican
    Sisters of Springfield; Rev. Betty Sue Sherrod, Pastor, Congregational
    Church, Jacksonville, IL; Rev. Lynne M. Simcox, Association Co-
    Minister, Chicago Metropolitan Association Illinois Conference of the
    United Church of Christ; Fr. Michael Joseph Stengel, Chicago, IL; Sr.
    Anita Swansen, OSM, Servants of Mary; Rev. Jerry Wagenknecht, Senior
    Vice President, Advocate Health Care; Sr. Elizabeth Wirth, Sisters of
    Charity, BVM; Sr. Marguerite Yezek, Sisters of Charity, BVM.

        The Chairman. Thank you very much, Attorney General
    Madigan. And, as I said, all your statements will be made a
    part of the record; but, also, the addendums that you had,
    which listed all of the religious organizations that supported
    this, is quite exhaustive--
        Ms. Madigan. Yes.
        The Chairman [continuing]. In terms of the number. Thank
    you very much for that.
        Now we turn to Virginia Nguyen with Nike. Again, we welcome
    you, and please proceed, Ms. Nguyen.

      STATEMENT OF VIRGINIA NGUYEN, DIVERSITY AND INCLUSION TEAM
                   MEMBER, NIKE, INC., BEAVERTON, OR

        Ms. Nguyen. Thank you, Chairman Harkin and honorable
    members of the committee. Again, my name is Virginia Nguyen and
    I am part of Nike, Inc.'s, Diversity and Inclusion Team based
    in Beaverton, OR, and it is truly an honor and pleasure to
    speak on Nike's behalf today. Thank you for this opportunity to
    address this important and vital hearing.
        Thank you, especially, Senator Merkley, for this invitation
    and for your continued commitment to workplace protections. It
    was a proud moment in Nike's home State of Oregon, when, in
    2007, Governor Ted Kulongoski signed into law the Oregon
    Equality Act, a bill strongly championed by you. This law
    prohibits discrimination based on sexual orientation in
    employment, housing, public accommodations, and other areas.
    The law passed with strong bipartisan support, and Nike led the
    effort to build support within the Oregon business community to
    pass the bill. Once again we are proud to testify our support
    behind the long overdue Employment Non-Discrimination Act, and
    we are very encouraged that, with your and the committee's
    leadership, we are moving a step closer toward passage of this
    essential piece of legislation.
        Diversity and inclusion at Nike is about respecting our
    differences, mining the skills and talent that exist,
    leveraging our strengths, and maximizing opportunity for all.
    These values are our competitive advantage and make Nike a
    better company, passionately supportive of our employees,
    respectful of our consumers, and more competitive in our
    industry. Our ability to continually innovate and positively
    influence as a global corporate citizen hinges on our ability
    to welcome diverse perspectives and ideas and to make an
    investment in all of our employees.
        Nike's support of this bill is a reflection of our own
    employment policies, practices, and training programs. These
    are designed to reinforce a culture of inclusion and respect,
    where each employee can reach their full potential, and this
    can only happen in an environment that is free from
    discrimination of all types.
        To that end, Nike's policy, which we call the Matter of
    Respect Policy, prohibits discrimination and harassment and
    provides employees with an effective complaint process. This
    policy applies to all of Nike's employees worldwide, which
    total over 30,000 in over 160 countries, and is consistently
    enforced.
        From our perspective, ENDA is good for business, for our
    employees, and for our community, and here's why:
        Nike firmly believes that diversity drives innovation,
    which is the cornerstone of our business. We understand that
    high-performing teams grow and thrive in an open and welcoming
    work environment, where individuals are bringing their full
    selves to work. An inclusive work environment and community
    enables us to attract and retain the best and the brightest
    people around the world.
        We support the active involvement of our Nike teammates in
    a variety of employee networks, including the Lesbian, Gay,
    Bisexual, Transgender Employee and Friends Network. Employee
    networks influence Nike on a variety of issues impacting the
    lives of our employees and communities where we live and work.
        In 2009, for the 7th year in a row, Nike received a perfect
    score on the Human Rights Campaign Foundation's Corporate
    Equality Index. The Index rates corporations' nondiscrimination
    policies, partner benefits, affinity group support, and
    engagement of the LGBT community. In 2002, Nike was 1 of only
    13 to be given a perfect score, and 7 years later, Nike and its
    employees are proud to share the recognition with 259 other
    companies.
        So, clearly Nike isn't the only company that is having this
    conversation and ensuring workplace equality through policy and
    practice. Currently, over 85 percent of Fortune 500 companies
    include sexual orientation in their equal employment policies,
    and more than one-third include gender identity. While this
    celebrates the strides made in workplace fairness, it is also a
    clear indicator that Federal legislation is lagging, and that
    we need a Federal standard that protects everyone's right to
    earn a living. That is why Nike is part of the Business
    Coalition for Workplace Fairness, a group of over 80 leading
    companies that support passage of the Employment Non-
    Discrimination Act.
        Unfortunately, not all Americans experience this basic
    protection. As we've heard, in 29 States it is still legal to
    fire or refuse to hire or promote someone because of their
    sexual orientation, and in 38 States it is still legal to do so
    based on gender identity and expression.
        In supporting ENDA, you support the conviction that every
    American deserves the chance to compete and prosper on a level
    playing field. That fairness is fundamental to our country's
    core.
        To conclude, one of Nike's corporate maxims is ``Do The
    Right Thing.'' This maxim challenges our employees to embrace
    the truth, offer transparency, and help shape Nike's evolution
    as a global citizen. I am very proud and am very fortunate to
    work for a company that consistently strives to uphold this
    core value.
        On behalf of Nike, we urge you to support this legislation
    and do the right thing. Both government and the private sector
    have a basic obligation to uphold the principles of equality
    and fairness. Act swiftly and pass the Employment Non-
    Discrimination Act into law.
        Thank you so very much for this opportunity to share our
    testimony.
        [The prepared statement of Ms. Nguyen follows:]

                     Prepared Statement of Virginia Nguyen

        Chairperson Tom Harkin, and Honorable Members of the committee: My
    name is Virginia Nguyen, I am part of Nike Inc's Diversity & Inclusion
    team in Beaverton, Oregon, and it is an honor and pleasure to speak on
    Nike's behalf today. Thank you for the opportunity to address this
    important and vital hearing. Thank you, especially, Senator Merkley,
    for this invitation and for your continued commitment to workplace
    protections. It was a proud moment in Nike's home State, Oregon, when
    in 2007, Governor Ted Kulongoski signed into law Senate bill 2--the
    Oregon Equality Act--a bill strongly championed by you, Senator
    Merkley. This law prohibits discrimination based on sexual orientation
    in employment, housing, public accommodations and other areas. This law
    passed with strong bi-partisan support and Nike led the effort to build
    support within the Oregon business community to pass the bill. Once
    again, we are proud to testify our support behind the long-overdue
    Employment Non-Discrimination Act and are very encouraged that with
    your and the committee's leadership, we are moving a step closer toward
    passage of this essential piece of legislation.

                                NIKE'S APPROACH

        Nike brand's mission is to bring inspiration & innovation to every
    athlete in the world. And if you have a body, you are an athlete. For
    us, that is the ultimate statement of inclusion and it speaks to what
    we at Nike prioritize as our work, and that is to unleash human
    potential. Not only for our athletes, but also for ourselves. Diversity
    and Inclusion at Nike is about respecting our differences, mining the
    skills and talents that exist, leveraging our strengths and maximizing
    opportunity for all. These values are our competitive advantage and
    make Nike a better company, passionately supportive of our employees,
    respectful of our consumers and more competitive in our industry. Our
    ability to continually innovate and positively influence as a global
    corporate citizen hinges on our ability to welcome diverse perspectives
    and ideas and to make an investment in all of our employees.
        Nike's support of this bill is a reflection of our employment
    policies, practices, and training programs, which have been in place
    for decades. These are designed to reinforce a culture of inclusion and
    respect where each employee can reach their full potential. This can
    only happen in an environment that is free from discrimination of all
    types. To that end, Nike's policy prohibits discrimination and
    harassment, and provides employees with an effective complaint process.
    This policy applies to all of Nike's employees worldwide, which total
    over 30,000 across six continents, and is consistently enforced.
        From our perspective, ENDA is good for business, for our employees
    and our community. Here's why:

         Nike firmly believes that diversity drives innovation,
    which is a cornerstone of our business.
         High performing teams grow and thrive in an open and
    welcoming work environment, where individuals are bringing their full
    selves to work.
         An inclusive work environment and community enables us to
    attract and retain the best and the brightest people around the world.

                             DOING THE RIGHT THING

        We support the active involvement of our Nike teammates in a
    variety of employee networks, including the Lesbian, Gay, Bisexual,
    Transgender and Friends Network (LGBT&F). Employee networks influence
    Nike on a variety of issues impacting the lives of our employees and
    communities where we live and work.
        In 2009, for the seventh year in a row, Nike received a perfect
    score on the Human Rights Campaign Foundation's Corporate Equality
    Index. The Index rates corporations' treatment of gay, lesbian,
    bisexual and transgender employees through their non-discrimination
    policies, partner benefits, affinity group support, and engagement of
    the LGBT community. In 2002, Nike was one of only 13 companies to be
    given a perfect score. Seven years later, Nike and its employees are
    proud to share the recognition with 259 other companies--a twenty-fold
    increase.

                             THE BUSINESS COMMUNITY

        Clearly, Nike isn't the only company that is having this
    conversation and ensuring workplace equality through policy and
    practice. Currently, 85 percent of Fortune 500 companies include sexual
    orientation in their equal employment policies, and more than one-third
    also include gender identity. While this celebrates the strides made in
    workplace fairness, it is also a clear indicator that Federal
    legislation is lagging and that we need a Federal standard that
    protects everyone's right to earn a living. That's why Nike is part of
    the Business Coalition for Workplace Fairness, a group of over 80
    leading companies that support passage of the Employment Non-
    Discrimination Act.
        In supporting ENDA, you support the conviction that every American
    deserves a chance to compete and prosper on a level playing field; that
    fairness is fundamental to our country's core.
        Unfortunately, not all Americans experience this basic protection.
    In 29 States, it is still legal to fire or refuse to hire or promote
    someone because of their sexual orientation. In 38 States, it is still
    legal to do so based on gender identify or expression. The Federal
    Government and the private sector have an obligation to act upon and to
    uphold the principles of equality and fairness that are the foundation
    of the Constitution.

                                   CONCLUSION

        One of Nike's corporate Maxims is Do the Right Thing. This maxim
    strives to challenge our employees to embrace the truth, offer
    transparency and help shape Nike's evolution as a global citizen. I am
    very proud and fortunate to work for a company that consistently
    strives to uphold this core value.
        On behalf of Nike, we urge you to support this legislation and do
    the right thing. Both government and the private sector have a basic
    obligation to uphold the principles of equality and fairness. Act
    swiftly and pass the Employment Non-Discrimination Act into law. Thank
    you for the opportunity to share our testimony.

        The Chairman. Ms. Nguyen, thank you very much for an
    excellent presentation and for being here today on behalf of
    Nike.
        Now we'll turn to Mr. Mike Carney, whom I introduced
    earlier, from Springfield, MA. Right?
        Mr. Carney. I am sir.
        The Chairman. Alright, thank you, Mr. Carney--
        Mr. Carney. Thank you. Good morning.
        The Chairman. Please proceed.

        STATEMENT OF MICHAEL P. CARNEY, POLICE OFFICER, CITY OF
             SPRINGFIELD POLICE DEPARTMENT, SPRINGFIELD, MA

        Mr. Carney. I'd like to thank you and the Senate Committee
    on Health, Education, Labor, and Pensions for the opportunity
    to speak on your work on this very important bill.
        The Employment Non-Discrimination Act is vitally important
    to the gay and lesbian, bisexual, and transgendered community,
    but it's even more important to America.
        As a first-generation Irish American, I grew up hearing
    stories 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 these days were behind us, that we could be
    anything we wanted to be, in America. I found out the hard way
    that that wasn't true.
        Today, there remains an invincible but insidious obstacle
    to equal employment that cuts across all racial and religious
    and ethnic lines in America.
        I realized, soon after graduating from the police academy,
    that because I was gay, my safety as a police officer and my
    future as a public servant was seriously jeopardized. I felt
    that I had no choice but to keep my personal life a secret from
    my co-workers and my supervisors.
        Not being able to share my personal life with those who I
    spent time with was extremely painful. Can you imagine going to
    work everyday fearing to talk about last night's date, your
    spouse, your weekend, or your family? Not being able to share
    any part of your personal life to fear of reappraisal or being
    ostracized? I did this in a career that prides itself on
    integrity, honesty, and professionalism, and where a close bond
    with one's colleagues and partner is critical to surviving
    dangerous and potential deadly situations.
        At my police graduation, a colleague's sexual orientation
    became the topic of conversation because he brought a man to
    the graduation party. Although he told everybody he was just a
    friend, by the end of the evening this new recruit was
    assaulted by another officer. That evening I got an early
    lesson in 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.
        After a few years, another classmate and his partner were
    gunned down in the streets, murdered, and it forever changed
    the way that I viewed my job as a gay cop. Every time my
    partner and I would roll down on a domestic or a gun call, all
    I could think of was, Who would notify my life partner? Who'd
    be the first--would he be the first to learn about my shooting
    on the 11 o'clock news? Who--how many of my colleagues would
    show at the funeral? Would they support him?
        The more I thought of these things, the more isolated and
    insecure I felt, the more singled out, second-class I really,
    truly felt I was. I was beginning to feel how my grandfather's
    generation felt, that I wasn't good enough; I was a second-
    class citizen.
        That's when 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 on
    fundamental principle that all men are created equal, endowed
    by their creator with certain inalienable rights, that amongst
    these are life, liberty, and a pursuit of happiness?
        Every day I felt the disconnect, the pain, and the gut-
    wrenching fear for my safety as a cop. In 1989, after years of
    torment, I hit bottom and I resigned as a police officer. Three
    years later, after finding the support that I needed, I decided
    to reapply for the job that I loved. After a series of layoffs,
    our department was interviewing officers for rehiring, so four
    of my colleagues and I applied. During my interview, I told the
    police commission I was gay. Of the five applicants, only one
    was not rehired. The mayor intervened and asked that I be
    granted another interview. At that interview, the police chief
    told the police commission I did a commendable job as a police
    officer.
        In 1994, sighting the police commission's rationale for my
    rejection as pretext, the Mass Commission Against
    Discrimination ruled probable cause that discrimination did
    appear.
        I'm a good cop, but I lost 2\1/2\ years of my employment
    fighting to get my job back because I'm gay. I never would have
    been able to do that if I didn't live in Massachusetts or 1 of
    the 13 other States or the District of Columbia that protects
    gay employees from discrimination. In fact, if I were a Federal
    employee living in Massachusetts, I wouldn't be protected at
    all. Do you think that impacts Federal recruitment efforts? I
    bet it does.
        Workplace discrimination impacts the lives of everyone. It
    deprives people of jobs and safe working conditions. It robs
    the Federal Government of an exceptional pool of specialists,
    and it robs our citizens of the services that they would have
    received from talented, dedicated gay and lesbian, bisexual,
    transgender workers.
        We are much more tolerant of individual differences today
    than 10 years ago. I see it in our streets. I see it in the
    younger generation and I see it in the older generation. I
    believe America is ready to tear down the last walls of
    discrimination in our workplace. Encouraged by this wind at our
    backs, I hope that Congress will legislate the right of
    employees to be judged solely on their work performance. This
    is not a Democratic or Republican value; this is an American
    value.
        I am personally grateful to Chairman Harkin and the
    Assistant Attorney General Tom Perez for their kind comments,
    and I'm especially grateful to Senator Kennedy--the late
    Senator Kennedy and his staff, and to Congressman Barney Frank,
    as well as Diego Sanchez, who is Congressman Frank's and
    Capitol Hill's first transgendered staff person.
        Thank you.
        [The prepared statement of Mr. Carney follows:]
                    Prepared Statement of Michael P. Carney
        My name is Michael Carney and I am a police officer in the
    Springfield, MA Police Department.
        The Employment Non-Discrimination Act is vitally important to the
    Gay, Lesbian, Bisexual and Transgender community. But it is even more
    important to America.
        As a first generation Irish-American, I grew up hearing stories
    that when the Irish looked for work in the United States, they found
    signs that said, ``Irish need not apply.''
        I was also told that those days were behind us; that I could be
    anything I wanted to be in America.
        I found out the hard way it's not true. Today, sexual orientation
    and gender identity remains an invisible but insidious obstacle to
    equal employment that cuts across all racial, religious and ethnic
    lines in America.
        I was gay. And there was nothing I could do about it. I didn't
    choose to be. I just was.
        It doesn't affect my job performance, but it continues to affect my
    employability in America. The following is how I learned it.
        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 1982, after I graduated from the 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 fearing to talk about last
    night's date, your spouse, your weekend, your family--not being able to
    share 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 close bond with one's colleagues and
    partner is critical to surviving dangerous and potentially deadly
    situations.
        At my police graduation, a colleague's sexual orientation became
    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 new recruit was assaulted by a fellow officer.
        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 my
    colleagues at my funeral treat him?
        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 how 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; 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
    with myself openly.
        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 four of my colleagues and 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, ``other candidates
    were more enthusiastic and more forthright.''
        The Massachusetts Commission Against Discrimination's investigation
    took 2\1/2\ years of my life--2\1/2\ 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 Governors Hate Crimes Task
    Force for 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 1 of the 13 other States and the District of
    Columbia that protect GLBT people from discrimination.
        In fact, if I were a Federal employee living in Massachusetts I
    would not be protected at all. Do you think that impacts Federal
    recruitment efforts? You bet it does.
        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.
        Workplace discrimination impacts the lives of everyone. It deprives
    people of jobs and safe working conditions; it robs the Federal
    Government of an exceptional pool of specialists; and it robs our
    citizens of services they would have received from talented and
    dedicated GLBT workers.
        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 keep their jobs, solely
    because of their sexual orientation or gender identity.
        I'm proud to be an Irish-American. I'm proud to be gay. And I'm
    proud to be a cop in Springfield, MA.
        We are much more tolerant of individual differences today than 10
    years ago. I see it on the streets. I see it in our younger
    generations. I see it in our older generations. I believe America is
    ready to tear down the last walls of discrimination in the workplace.
        Encouraged by this wind at our backs, I hope that Congress will
    legislate the right of employees to be judged solely on their
    performance. This is not a Democratic or Republican value. It is an
    American value.
        I am personally grateful to Chairman Harkin and everyone on this
    committee for your extraordinary efforts.
        I am especially grateful to the late Senator Kennedy and his staff,
    and to Congressman Barney Frank and his staff--including Diego Sanchez,
    Capitol Hill's first transgender staff.
        Thank you.

        The Chairman. Mr. Carney, thank you very much for your
    courage, both as a police officer, but also your courage in
    just being out in front on this for so long and taking those
    courageous first steps. I think you stand as a shining example
    to so many others. Thanks for being here.
        Mr. Carney. Thank you. I'm honored to be here, sir. Thank
    you.
        The Chairman. Now we turn to Mr. Craig Parshall, senior
    vice president and general counsel of the National Religious
    Broadcasters Association.
        Mr. Parshall, thank you very much for being here.

       STATEMENT OF CRAIG L. PARSHALL, SENIOR VICE PRESIDENT AND
     GENERAL COUNSEL, NATIONAL RELIGIOUS BROADCASTERS ASSOCIATION,
                              MANASSAS, VA

        Mr. Parshall. Thank you. Thank you, Chairman Harkin. I'd
    also like to thank Ranking Member Enzi and the other members of
    the committee.
        I'm Craig Parshall, senior vice president and general
    counsel for National Religious Broadcasters. We do oppose ENDA,
    the Employment Non-Discrimination Act of 2009, and I hope to
    set forth some of the considerations that have brought us to
    that position.
        My organization, NRB, is a nonprofit association
    representing the interests, first of all, of broadcasters--
    Christian radio, Christian television, and Internet
    broadcasters--but, we also represent a wide variety of other
    Christian ministries, as well: Christian-
    oriented public relation agencies, publishing companies,
    churches with media outreach, programmers, teaching and
    preaching ministries, faith-based humanitarian organizations
    that operate worldwide, and more than a dozen Christian
    colleges and bible schools.
        It's my opinion that ENDA, in its present form, would
    impose a substantial and unconstitutional burden on religious
    organizations, and would interfere with their effectiveness, in
    terms of pursuing their mission. Now, I say that for four
    reasons:
        No. 1, I believe ENDA, in its current State, would violate
    the free exercise of religion. I've examined the exemption, in
    Section 6 of ENDA, which merely cross-references the existing
    religious exemption under title VII. However, the Federal
    courts have construed title VII to mean that a religious
    employer can only be exempt regarding its faith-based decisions
    that relate to the religious beliefs of the employee.
        Now, this is a very important distinction to make, because
    secular courts will most likely rule, let's say, if ENDA is
    passed and we have a Christian bookstore, as an example, that
    decides they do not want to hire a homosexual--the courts will
    most likely decide that the decision was really not based on
    the job applicant's religion, but on his sex--or her--sexual
    orientation or gender identity. As a result, no exemption will
    prove to be effective.
        Now, this scenario is substantiated by a host of court
    cases that have noticed that concept of discrimination based on
    gender or sex is very close to, very analogous to,
    discrimination based on homosexuality or gender identity. The
    courts have already expressed difficulty in drawing the lines
    of distinction between those various forms of discrimination.
        However, the cases are pretty uniform in one respect:
    religious groups gets no exemption when the discrimination is
    deemed to be on the basis of gender or sex. As a practical
    matter, then many religious employers are simply not going to
    be protected under title VII's language that's been imported
    into Section 6 of ENDA. That, of course, is going to have a
    chilling effect, not only on those that are prohibited, but
    those who must guess whether or not they're covered, because of
    the language of section 6. This is simply unconstitutional. A
    failure to sufficiently provide for the religious autonomy of
    private religious employers violates the First Amendment.
        No. 2, I believe ENDA would violate the Establishment
    Clause: it's a basic principle that courts are prohibited from
    conducting searching investigations into the religious doctrine
    or dogma of religious groups, because that would constitute
    excessive entanglement. But, that's exactly the kind of
    invasive inquiry that courts are going to have to make under
    title VI as they try to grapple with, let's say, as an example,
    a Christian book publisher who decides they don't want to hire
    a transgender person in their editorial department. The court's
    going to ask, ``Well, does this really have to do with the
    religion of the applicant or the applicants sexual orientation
    or gender identity?'' Depending on how they decide that, there
    may be absolutely no exemption available to a Christian
    publisher.
        No. 3, It would violate, I believe, freedom of association.
    In two recent U.S. Supreme Court cases, civic groups have been
    held to have a first amendment Freedom of Association right to
    deny participation by openly gay persons. ENDA collides with
    those decisions, simply because title VII's religious exemption
    scheme is much narrower than the Freedom of Association rights
    that have been outlined by the U.S. Supreme Court in those two
    cases.
        No. 4, Section 6 is going to create massive uncertainty for
    religious groups simply because of the history of religious
    exemption under title VII. The factors, as an example, used by
    the courts in deciding whether a religious group does or does
    not qualify varies from circuit to circuit. The Ninth Circuit,
    as an example, has a six-factor test. The Third Circuit has
    used a nine-factor test. The Third Circuit gives a somewhat
    fluid interpretation of title VII Religious Exemptions, but
    title IX has construed it narrowly.
        There is, frankly, a confusing and crazy-quilt landscape of
    cases that give similar organizations different treatment from
    circuit to circuit.
        But, there's another complication that I see that impacts
    our broadcasters. The FCC has specifically developed its own
    EEO guidelines exempting from employment discrimination with
    regard to faith-based decisions broadcasters that are defined
    as, ``religious broadcasters.'' But, the test the FCC uses is
    much different than the test that the courts have used under
    title VII. What effect ENDA will have on the FCC and hundreds
    and thousands of broadcasters around the country, we simply do
    not know.
        In conclusion, I would urge this committee not to jettison
    the rights, or forget the rights, of people of faith or to
    treat them as lesser privileges or to reduce the Freedom of
    Religion rights of religious organizations to a miniature of
    what our founding fathers envisioned. If that happens here, it
    means that we've set ourselves on a very dangerous path, I
    believe--a radical departure from basic liberties for which our
    founders risked their lives, their fortunes, and their sacred
    honor.
        Thank you.
        [The prepared statement of Mr. Parshall follows:]

                    Prepared Statement of Craig L. Parshall

        I am Craig Parshall, Senior Vice-President and General Counsel for
    National Religious Broadcasters (NRB). I am appearing today to voice
    NRB's opposition to S. 1584, the Employment Non-Discrimination Act of
    2009 (ENDA). It is my legal opinion that S. 1584, if passed into law,
    would impose a substantial, unconstitutional burden on religious
    organizations and would interfere with their ability to effectively
    pursue their missions, both of which are non-profit groups, as well as
    faith-based institutions and enterprises which operate commercially.
        NRB is the pre-eminent association representing the interests of
    Christian television, radio and Internet broadcasters. Our organization
    also includes in its membership Christian groups not directly engaged
    in broadcasting activities but which are involved in activities which
    provide support services specifically to religious broadcasters or are
    involved in communications-related activities, such as public relations
    agencies, law firms with an emphasis on media law, Christian publishing
    companies, churches with a media outreach, Christian programmers,
    preaching and teaching ministries and faith-based charity and
    humanitarian organizations. NRB also has among its membership more than
    a dozen Christian colleges and Bible schools. Thus, the wide variety of
    Christian organizations comprising our membership provides National
    Religious Broadcasters with a unique view of the potential collision
    between S. 1584 and the religious liberties of faith-based
    organizations.

       S. 1584 THREATENS THE CONSTITUTIONAL RIGHTS OF RELIGIOUS EMPLOYERS

        S. 1584 is a sweeping new piece of employment discrimination
    legislation which protects persons from adverse employment actions that
    are based on the ``actual or perceived sexual orientation or gender
    identity'' of that person. While the bill references Title VII of the
    Civil Rights Act of 1964 as amended, 42 U.S.C. 2000e, et seq., it
    structurally stands alone as a separate form of substantive employment
    law.
        The bill provides a purported ``exemption'' for ``religious
    organizations'' in section 6, and then defines the organizational
    status that would qualify an employer for exemption by directly
    referencing the exemption scheme under title VII.\1\ Section 6 will be
    discussed at more length below. However it is my opinion that section 6
    is fatally insufficient to protect religious employers. As such, it is
    infirm because it violates several protections under the first
    amendment.
    ---------------------------------------------------------------------------
        \1\ Title VII exempts religious organizations regarding the
    employment of persons ``of a particular religion to perform work
    connected with the carrying on'' of the organization's ``activities''
    (emphasis added).
    ---------------------------------------------------------------------------
    Free Exercise of Religion
        When a government law sweeps into its regulatory purview religious
    groups whose operations are thereby substantially and selectively
    burdened, and it fails to provide ample exemptions for those religious
    organizations, it violates the Free Exercise provisions of the first
    amendment. Church of the Lakumi Babalu Aye v. Hialeah, 508 U.S. 520,
    531-532 (1997).
        In the realm of private religious employers, broad and adequate
    exemptions for religious organizations are constitutionally imperative.
    Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 336 (1987)
    (holding that title VII religious exemptions do not collide with the
    Establishment Clause but are fully consistent with it, the court in
    Amos going on to state: ``Nonetheless, it is a significant burden on a
    religious organization to require it, on pain of substantial liability,
    to predict which of its activities a secular court will consider
    religious.''). The principal expressed in Amos is clear: where
    attempted ``exemptions'' in discrimination laws are so unclear,
    confusing, or overly broad so as to cause religious organizations to
    guess or speculate as to whether they are sufficiently ``religious''
    either in structure of activities to qualify for the exemption, then
    the religious liberty provisions of the first amendment are violated.
    Moreover, where a law is passed in the area of employment
    discrimination and it fails, as S. 1584 does here, to provide a
    sufficiently adequate exemption for religious institutions regarding
    faith-based employment decisions it also violates the Free Exercise
    Clause of the first amendment. Montrose Christian School Corp. v.
    Carver, Montrose Christian School Corp. v. Walsh, 770 A.2d 111 (Md. Ct.
    App. 2001) (county employment discrimination code violated the Free
    Exercise rights of a private religious school by failing to provide a
    satisfactory, substantive exemption for it, the Court noting that ``[a]
    uniform line of cases apply[] this principle, namely that the free
    exercise guarantee limits governmental interference with the internal
    management of religious organizations . . .''). The Free Exercise
    guarantee of the first amendment reflects ``a spirit of freedom for
    religious organizations, and independence from secular control or
    manipulation . . .'' Kedroff v. St. Nicholas Cathedral of Russian
    Orthodox Church, 344 U.S. 94, 116 (1952).

    Establishment Clause
        The Establishment Clause prohibits excessive entanglement between
    government and religion. N.L.R.B. v. Catholic Bishop of Chicago, 440
    U.S. 490 (1979) (exemption of religious schools from Federal National
    Labor Relations Board oversight). Walz v. Tax Commission, 397 U.S. 664
    (tax exemption for religious groups wisely facilitates a ``desired
    separation [of government from religion] insulating each from the
    other''). Confusion has been created in the section 6 religious
    exemption of S. 1584, as it attempts to exempt only those religious
    groups that would be exempt under title VII. But by doing that, section
    6 will invite courts to engage in searching inquiries into the beliefs
    and doctrines of religious employers regarding homosexuality,
    lesbianism, bisexuality, transgenderism and similar issues in an
    attempt to parse-out the scope of the religious exemption in section 6;
    i.e. to determine whether, under the provisions of S. 1584 (which does
    expressly include sexual orientation and gender identity as categories
    for protection) a religious employer would, under the language of
    section 6, be ``exempt from the religious discrimination provisions of
    title VII'' (which does not expressly provide protections for sexual
    orientation or gender identity). This kind of apples-and-oranges
    incorporation of title VII into section 6 of S. 1584 creates another
    world of uncertainty for religious organizations. As will be discussed
    in more detail below, if sexual orientation and gender discrimination
    are construed by courts to be more like traditional ``sex''
    discrimination under title VII, then religious groups will be given no
    practical exemption or a very limited one, but if those categories of
    discrimination are deemed to be more like ``religious discrimination''
    then some religious groups (i.e. those recognized organizationally
    under the title VII religious exemption) might be entitled to
    exemption.
        One added concern is that section 6 of S. 1584, through its
    adoption wholesale by cross-reference to the title VII religious
    exemption scheme, has also incorporated title VII's separate exemption
    provision for religious schools. That exemption applies where the
    school's curriculum is determined to have been ``directed toward the
    propagation of a religion.'' However, this is an intensely intrusive
    and unconstitutional inquiry for any secular court to undertake. A
    school seeking this exemption paradoxically would have to forfeit its
    private religious autonomy, in effect, in order to try to save it. When
    the government exercises an ``official and continuing surveillance''
    over the internal operations of a religious institution, religious
    freedom under the first amendment is jeopardized. Walz v. Tax
    Commission of the City of New York, 397 U.S. 664, 675 (1970). A secular
    court may not review a religious body's decisions on points of faith,
    discipline, or doctrine, Watson v. Jones, 80 U.S. 679 (1872), nor may
    it govern the affairs of religious organizations. Serbian E. Orthodox
    Diocese v. Milivojevich, 426 U.S. 696 (1976).

    Freedom of Association
        The first amendment's free association guarantee has been
    interpreted to mean that a discrimination law could not be used to
    force the Boy Scouts of America to employ a professed homosexual as an
    assistant scout leader. Boy Scouts of America v. Dale, 530 U.S. 640
    (2000). And while Dale did involve a non-profit association as a party,
    and it addressed the groups ``moral'' (as opposed to religious)
    objections to homosexuality, the Supreme Court nowhere conditioned its
    reasoning on that fact that the Boy Scouts were a non-profit
    organization. Further, ``moral'' beliefs are not explicitly protected
    under the first amendment as a stand-alone right; rather they were
    protected in Dale because they were anchored to the Free Speech aspects
    of the right of Association. By contrast, religion is given explicit
    protection in the first amendment in its own right and therefore ought
    to receive even more protection under the principals of the Dale case.
    This would mean that S. 1584 is of questionable constitutionality
    regarding its negative impact on those religious group that have faith-
    based objections to hiring persons who are self-identified as
    homosexuals or persons of non-heterosexual gender identity. Private
    religious employers, like private associations, must be given the right
    to reject members or staff who would conflict with the religious
    organization's declared mission and beliefs. A religious group has
    ``the autonomy to choose the content of [it's] own message.'' Hurley v.
    Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557
    (1995)

           S. 1584'S RELIGIOUS EXEMPTION PROVISION IS FATALLY FLAWED

        S. 1584 prohibits employment discrimination regarding the ``actual
    or perceived sexual orientation or gender identity'' of any person.
    Sec. 6 purports to provide an exemption for ``a corporation,
    association, educational institution, or society that is exempt from
    the religious discrimination provisions of Title VII of the Civil
    Rights Act . . .'' (hereinafter title VII). Thus, sec. 6 shifts the
    inquiry back to the ``religious discrimination provisions'' of title
    VII. However, S. 1584 does not define what it means by the phrase
    ``religious discrimination provisions'' of title VII. One likely
    interpretation is that the phrase could be construed to mean
    ``discrimination on the basis of religion.'' See: E.E.O.C. v.
    Mississippi College, 626 F.2d 477, 484 (5th Cir. 1980). But what does
    title VII's exemption mean when it says that it permits discrimination
    ``on the basis of religion? '' According to Petruska v. Gannon
    University, 462 F. 3d 294 (3rd Cir. 2006) it means this: ``The statute
    exempts religious entities and educational organizations from its non-
    discrimination mandate to the extent that an employment decision is
    based on an individual's [i.e. the plaintiff 's] religious
    preferences'' (emphasis added). The current state of the law is that
    organizations can be exempted from the operation of title VII only
    regarding adverse employment decisions which are made ``on the basis of
    [the] religion'' of the plaintiff; however, generally speaking, title
    VII grants no exemption for religious organizations whose actions are
    held to implicate discrimination on the basis of the ``race, color, sex
    or national origin'' of the plaintiff, regardless of the alleged
    religious motivations of the religious organization. Id. See also:
    Rayburn v. Gen'l Conf. of Seventh Day Adventists, 772 F.2d 1164, 1166
    (4th Cir. 1985).
        This distinction is critical. It is foreseeable that future courts
    could construe the adverse decisions of faith-based groups regarding
    non-hiring of homosexuals, as an example, as being more akin to
    discrimination based on ``race . . . [or] sex'' than discrimination
    ``on the basis of religion.'' An even stronger argument might be made
    that ``gender identity'' discrimination by a religious organization is
    tantamount to discrimination based on ``sex'' (a gender issue) and
    therefore, because the religious group would not qualify for exemption
    under title VII for sex discrimination, neither will it receive
    exemption for ``gender identity'' discrimination under S. 1584. This
    likely confusion by the courts is not just idle speculation. As the
    Court said in Powel v. Wise Business Forms, Inc.,_F.3d_(3rd Circuit,
    August 28, 2009) appeal No. 07-3997, slip op. page 14: ``. . . the line
    between sexual orientation discrimination and discrimination `because
    of sex' can be difficult to draw.'' The end result of the uncertainty
    created by section 6 could well be that the supposed protections
    contained in its religious ``exemption'' in S. 1584 would prove in the
    end to have been only a mirage.
        But even aside from these intractable problems of whether the
    wholesale adoption of title VII religious exemptions into a ``sexual
    preference'' and ``gender identity'' discrimination law actually
    provides any protection whatsoever from a religious liberty standpoint,
    there are other insurmountable difficulties in S. 1584.

     SEC. 6 SIMPLY COMPOUNDS A CRAZY QUILT OF INCONSISTENT COURT DECISIONS

        By bootstrapping title VII's religious exemption language into sec.
    6, the ENDA bill, S. 1584, subjects religious organizations to a crazy-
    quilt of inconsistent decisions that have been rendered by the courts
    in construing the exemption language of title VII. This approach will
    stultify and confuse religious groups and lead to endless, expensive,
    and harassing litigation.
        Title VII (42 U.S.C. Sec. Sec. 2000e et seq.) provides in part:

              This title . . . shall not apply to . . . a religious
            corporation, association, educational institution, or society
            with respect to the employment of individuals of a particular
            religion to perform work connected with the carrying on by such
            corporation, association, educational institution, or society
            of its activities.

        Unfortunately, Congress ``did not define what constitutes a
    religious organization,--`a religious corporation, association,
    educational institution, or society' '' under title VII. Spencer v.
    World Vision, Inc., 570 F. Supp. 2d 1279, 1283 (W.D. Wash. 2008). As a
    result, ``courts conduct a factual inquiry and weigh `[a]ll significant
    religious and secular characteristics . . .' '' Id. (citations
    omitted).
        What has resulted is a sad pattern of inconsistent and complex
    decisions which render very scant religious freedom to faith groups but
    which have sent a chilling pall over their activities not to mention
    their budgets: Leboon v. Lancaster Jewish Community Center Association,
    503 F. 3d 217 (3rd Cir. 2007) (Jewish Community Center qualified as a
    religious organization so that its firing of a Christian was non-
    actionable under title VII); but compare: EEOC v. Townley Eng'g & Mfg.
    Co., 859 F. 2d 610 (9th Cir. 1988) (no exemption for small, closely
    held manufacturing shop whose owner had a clearly Christian world view
    and wanted it to permeate the work place). A Christian humanitarian
    organization dedicated to ministering to the needs of poverty-stricken
    children and families around the world was entitled to take adverse
    employment actions against an employee because of that person's
    religion because it qualified for exemption under title VII (Spencer v.
    World Vision, Inc., supra); but a Methodist orphan's home dedicated to
    instilling in orphaned children Christian beliefs was held not to be
    qualified as a ``religious corporation . . .'', etc. where it had a
    temporary period of increased secular leadership followed by return to
    its original spiritual mission, Fike v. United Methodist Children's
    Home of Virginia, Inc., 547 F. Supp. 286 (E.D. Va. 1982). Further
    compare: Feldstein v. Christian Science Monitor, 555 F. Supp. 974 (D.
    Mass. 1983) (newspaper covering secular news but with close
    relationship with the Christian Science Church allowed to discriminate
    on basis of religion).
        The legal tests employed by the courts in deciding religious
    exemptions under title VII are complex and discordant. The 9th Circuit
    has employed a complicated six-factor test. Spencer, supra at 570 F.
    Supp. 2d 1284. Whereas the 6th Circuit has applied an even more complex
    nine-factor test. Id. at 1285-86. In addition, the 9th Circuit has
    construed the religious exemption narrowly, whereas the 3rd Circuit has
    not. Id.
        The chances that the religious exemption in sec. 6 of S. 1584 would
    be given a very narrow, cramped interpretation are substantial. Where
    general discrimination laws collide with sincerely held religious
    beliefs, religion often loses. See: Bob Jones University v. U.S., 461
    U.S. 574 (1983) (private religious college loses its tax exempt status
    as a non-profit religious corporation because, while it admitted
    students from all races, its inter-racial dating rules were found to
    violate a national policy regarding discrimination). In Bob Jones
    University the Supreme Court could only muster a meager reference to
    the thoroughly religious school's Free Exercise rights, holding that
    the compelling interest of the government in stamping out
    discrimination outweighed ``whatever burden'' was caused to the
    organization's freedom of religion. Id. at 604. To the extent that
    ``sexual preference'' or ``gender identity'' discrimination are likened
    by the courts to racial discrimination, religious organizations will
    find little comfort under sec. 6 of S. 1584. See also Swanner v.
    Anchorage Equal Rights Commission,_U.S._, 115 S.Ct. 460 (1994)(Thomas,
    J., dissenting) where the Supreme Court declined the chance to grant
    certiorari and to vindicate the rights of a landlord successfully sued
    for State housing discrimination where he refused on religious grounds
    to rent to unmarried couples.
        Title VII grants a separate exemption specifically for religious
    schools. 42 U.S.C. Sec. Sec. 2000e-2 (e)(2) provides exemption for such
    religious institutions provided that they are at least ``in substantial
    part owned, supported, controlled, or managed by a particular religion
    or by a particular religious corporation, association, or society . .
    .'' or where the curriculum ``is directed toward the propagation of a
    religion.''
        But here again the resulting court interpretations there have been
    just as dismal: EEOC v. Kamehameha School/Bishop Estate, 990 F.2d 458
    (9th Cir. 1993), cert. denied, 114 S. Ct. 439 (1993) (private
    Protestant religious school was denied title VII religious exemption
    even though it had numerous religious characteristics and activities);
    Pime v. Loyola University of Chicago, 585 F. Supp. 435 (N.D. Ill.
    1984)(Catholic college held not to be entitled to religious exemption
    relating to its preference for Jesuit professors over a Jewish
    professor), reversed on other grounds at 803 F.2d 351 (7th Cir.
    1986)(where Judge Posner noted in his concurrence that, regarding the
    religious exemption issue, ``the statute itself does not answer it,''
    and ``the legislative history . . . is inconclusive,'' Id. at 357).
    Contrast with: Hall v. Baptist Memorial Care Corp., 215 F. 3d 618 (6th
    Cir. 2000) (Baptist entity training students for health care had
    sufficiently religious overtones to qualify for exemption regarding its
    firing of a lesbian staffer who was a minister at a pro-homosexual
    church).
        N.R.B.'s membership includes some 200 Christian radio stations that
    are commercial in their organizational structure. Considering the
    chilly reception such commercial religious entities receive by the
    courts when they are other than non-profit corporations, they can
    expect to be shut out of any exemption under S. 1584 in litigation. We
    can add to that list other of our for-profit members whose mission is
    Christian in nature but who will be denied exemption: Christian
    publishers, religious media consulting groups and agencies. Also, food
    vendors who work exclusively with Christian schools may be denied
    exemption; Christian-oriented bookstores, adoption agencies, counseling
    centers and drug rehab facilities will also suffer the same fate.

                 CONFUSION REGARDING THE FCC'S EEO JURISDICTION

        Currently, the Federal Communications Commission has promulgated
    EEO rules regarding broadcast licensees. An exemption is provided for a
    ``religious broadcaster'' regarding all employment decisions impacting
    religious belief, but they still must abide by a non-discrimination
    standard respecting ``race . . . or gender.'' Review of the
    Commission's Broadcast and Cable Equal Employment Opportunity Rules and
    Policies, 17 FCC Rcd. 24018 (2002) (``EEO Order''),  50, 128.
        Would S. 1584 supersede the regulations of the FCC regarding the
    employment activities of broadcasters? We simply do not know. The only
    help we have in answering that comes from a sparse comment in The
    King's Garden, Inc. v. FCC, 498 F. 2d 51, 53 (D.C. Cir. 1974)(FCC is
    justified in pursuing its own EEO regulations against religious
    broadcasters where ``Congress has given absolutely no indication that
    it wished to impose the [title VII] exemption upon the FCC''). Nothing
    in the language of S. 1584 gives us any congressional intent to
    regulate broadcasters. On the other hand, would this new legislation be
    held to regulate those broadcasters that do not qualify for the FCC's
    definition of a ``religious broadcaster? '' The FCC has generated a
    ``totality of the circumstances'' test for what is, or is not, a
    ``religious broadcaster'' that differs from the title VII language. S.
    1584 exponentially increases the uncertainty regarding which law
    applies. Furthermore, would ``gender identity'' protections under S.
    1584 be viewed as the same, or different from the requirement imposed
    by the FCC that even religious broadcasters not discriminate on the
    basis of ``gender? '' Again, such uncertainties only ratchet-up the
    probability that the religious liberties of Christian broadcasters and
    communicators will be chilled as they try to speculate what the law
    actually provides and what their rights really are.

          SEXUAL ORIENTATION AND GENDER IDENTITY ARE ALREADY PROTECTED

        S. 1584 declares that the ``purposes of his Act'' are in part ``to
    provide . . . meaningful and effective remedies'' for ``employment
    discrimination on the basis of sexual orientation or gender identity.''
    Section 2, Purposes, paragraph (1). Yet that stated purpose behind S.
    1584 ignores the fact that remedies already exist in Federal employment
    law. Title VII has been construed to already provide ``gender
    stereotyping'' discrimination protection for homosexuals or persons of
    non-heterosexual gender identity under existing ``sex discrimination''
    provisions. Powel v. Wise Business Forms, Inc.,_F.3d_ (3rd Circuit,
    August 28, 2009) appeal No. 07-3997. See also: Vickers v. Fairfield
    Med. Ctr., 453 F.3d 757 (6th Cir. 2006); Nichols v. Azteca Rest.
    Enters., Inc., 256 F 3d 864 (9th Cir. 2001); Higgins v. New Balance
    Athletic Shoe, Inc., 194 F. 3d 252 (1st Cir. 1999).

                                   CONCLUSION

        S. 1584, and its companion ENDA bill in the House of
    Representatives, H.R.  3017, are the result of a public debate over
    sexual orientation and gender identity legal protections. But when we
    consider the entire course of American history, that debate is of very
    recent vintage.
        Compare, by contrast, the long-standing recognition in our Nation
    that religious liberty is a foundational right and that government
    should have few occasions to invade it. In fact, that concept of
    religious freedom pre-dates the Constitution. America's first Supreme
    Court Chief Justice, John Jay, a decade before the constitutional
    convention, described the notion of free exercise of religion this way:
    ``. . . Adequate security is also given to the rights of conscience and
    private judgment. They are by nature subject to no control but that of
    the Deity, and in that free situation they are now left. Every man is
    permitted to consider, to adore, and to worship his Creator in the
    manner most agreeable to his conscience.'' \2\
    ---------------------------------------------------------------------------
        \2\ John Jay's ``Charge to the Grand Jury of Ulster County,'' April
    20, 1777 cited in Henry P. Johnston, ed., The Correspondence and Public
    Papers of John Jay 1745-1826, (New York: Da Capo Press, 1971), Volt. I,
    page 163.
    ---------------------------------------------------------------------------
        John Witherspoon, a member of the Continental Congress and signer
    of the Declaration of Independence was an evangelical minister who also
    served as President of the College of New Jersey (later renamed
    Princeton). His students at that school included future signers of the
    Declaration as well as delegates to the constitutional convention.
    James Madison was one of them. Witherspoon recognized the inherent
    relationship between civil liberty and religious freedom and when
    assaults came against either, both rallied in support of the other. He
    stated the matter well when he said in the paradigm of a prayer: ``God
    grant that in America true religion and civil liberty may be
    inseparable and that unjust attempts to destroy the one, may in the
    issue tend to the support and establishment of both.'' \3\
    ---------------------------------------------------------------------------
        \3\ ``The Dominion of Providence Over the Passions of Men,''
    delivered at Princeton on May 17, 1776, from The Selected Writings of
    John Witherspoon, edited by Thomas Miller (Carbondale, Ill.: Southern
    Illinois University Press 1990), page 147.
    ---------------------------------------------------------------------------
        S. 1584 and its companion in the House represent an assault on
    these historical notions of religious freedom. Time and the
    deliberative decisions of this Senate will determine whether the idea
    behind John Witherspoon's prayer will be honored. We urge this
    committee not to jettison the rights of people of faith, turn them into
    lesser privileges, or reduce them to a mere miniature of the concept
    that our Founder's held. If that happens here, it means that we have
    set ourselves on a very dangerous path, a radical departure from those
    basic liberties for which our Founders risked their lives, their
    fortunes and their sacred honor. Thank you.

        The Chairman. Thank you very much, Mr. Parshall.
        Now we turn to Ms. Camille Olson, a partner of Seyfarth
    Shaw, LLP.
        Ms. Olson, welcome back. You've been here before.
        Ms. Olson. Thank you.
        The Chairman. Thank you.
        Ms. Olson. It's good to be here again.

      STATEMENT OF CAMILLE A. OLSON, PARTNER, SEYFARTH SHAW, LLP,
                              CHICAGO, IL

        Ms. Olson. Good morning. Thank you, Chairman Harkin and
    other members of the committee.
        My name is Camille Olson. I'm a partner with Seyfarth Shaw,
    a national law firm, where I'm the chair of its National
    Complex Discrimination Litigation Practice Group. I also
    regularly teach equal employment opportunity law at Loyola
    University School of Law in Chicago, IL, which is my hometown.
        My practice is focused on representing employers to ensure
    that their policies and their practices comply with equal
    employment opportunity laws and nonharassment laws in the
    workplace. That work entails developing practices, policies,
    and compliance strategies, training managers and supervisors on
    their legal obligations in the workplace, as well as defending
    companies regarding challenges to those employment policies and
    practices.
        I strongly support equal employment opportunities in
    employment, and in particular ensuring that employment
    decisions are based upon an individual's qualifications for a
    job and other legitimate nondiscriminatory factors. I believe
    that the fair and consistent application of workplace policies
    and practices is instrumental to an employer's success as an
    employer of choice in the community.
        With respect to my comments today, my testimony is provided
    as a summary of some of my legal analysis on certain provisions
    of Senate bill 1584 as it applies to private employers. My
    testimony is provided in the hopes that it will result in
    clarification of certain of the provisions for the benefit of
    both employees and employers alike.
        ENDA already demonstrates the significant examination and
    debate that has taken place over the years concerning the
    extension of protections in employment to individuals on the
    basis of sexual orientation and/or gender identity. Indeed,
    certain changes from the current version, as compared to early
    bills, reflect an understanding of the need to provide clarity
    in the workplace to ensure compliance with the legislation by
    carefully describing the obligations of employers and
    employees.
        My written testimony highlights six points of uncertainty
    which I believe would benefit from further clarification, and
    I'd like to summarize those for you now.
        There are three general points of clarification.
        The first one is that I believe ENDA should be clarified to
    eliminate the possibility of double coverage and/or a double
    recovery for claims filed under both title VII and ENDA based
    on a common set of facts. This is because, as set forth in my
    written testimony, some courts have recognized that conduct
    based on sex stereotyping may be actionable under title VII,
    issues that would also be actionable under ENDA. Given the
    complicated issues inherent in gender discrimination, ENDA has
    been drafted as a stand-alone bill--stand-alone, as opposed to
    an amendment to title VII--to address these specific issues
    specific to gender identity claims. A number of the reasons for
    that have been articulated already in the testimony of other
    witnesses today.
        Second, I believe ENDA should also be clarified to include
    a definition of ``disparate impact.'' ``Disparate impact'' is
    stated in ENDA. but it doesn't reference a definition. If it is
    intended to pick up a definition from title VII, as other
    definitions in ENDA are intended to be picked up from title
    VII, those title VII provisions are specifically identified in
    ENDA. I would ask that the committee consider incorporating the
    definition that's contained in section 2000(e)(2)(k) of title
    VII as the ``disparate impact'' definition of ENDA, to make it
    clear what, in fact, is being talked about in connection with
    that particular phrase.
        Third, with respect to another general clarification, ENDA
    should be clarified to make sure that it's clear that it is
    intended to include the same remedies that are contained within
    title VII. That's particularly true with respect to the
    remedies provisions. ENDA states that the procedures and
    remedies available under title VII are those that should be
    applicable under ENDA, and yet that isn't what the language of
    ENDA says after that particular statement. Instead, it says
    that it provides for attorney's fees with respect to
    administrative proceedings, for example.
        ENDA should clearly State that it is not intended to allow
    the EEOC to award attorney's fees to private-sector
    participants in administrative hearings before it. Any other
    result would provide more remedies for sexual orientation or
    gender identity discrimination that are currently available for
    discrimination under title VII or available under the Age
    Discrimination and Employment Act.
        Let me also mention there are three specific provisions
    that require clarification with respect to an employer's
    obligations to accommodate employees with respect to gender
    identity issues in the workplace.
        There are two provisions in ENDA that require employers to
    accommodate employees with respect to employment practices.
    Those obligations are triggered, upon notification by the
    employee that the employee has undergone, or is undergoing,
    gender transition. A few issues come immediately to mind.
        First, I think it would be very helpful to employers and
    employees if everyone knew what triggered an employer's
    affirmative obligation with regard to shared facilities and
    application of the employer's dress and grooming standard. What
    notice is required? Is it written or verbal? Is it permissible
    for an employer to request documentation from a third-party
    professional, much like an employer does with respect to an ADA
    issue or an FMLA issue? Currently, ENDA doesn't really address
    that issue.
        Second, what does it mean to have undergone, or to be
    undergoing, gender transition? The terms are undefined in ENDA,
    as it currently exists, and the process may include a variety
    of steps. I think it would be helpful to have that defined.
        Third, and this is an important issue, in connection with
    ENDA, ENDA describes a fact that certain shared facilities,
    with respect to shared facilities where it may be inevitable
    that a person might be unclothed, would have certain
    accommodation obligations. As defined in ENDA, though, the
    certain shared facilities are shared showers or dressing
    facilities, and it doesn't--and it provides very good guidance
    to employers on those issues and describes a number--two
    different ways in which employers and employees can comply with
    a modification of a policy. The question that I raise is, Is
    that analysis also to apply to restrooms? I'm not suggesting
    that Section 8(a)(3) of ENDA be revised to include all
    restrooms, but that the committee consider whether it should be
    revised to include certain restrooms where being clothed would
    be unavoidable.
        Finally, the last issue is, I believe ENDA should be
    clarified to specifically state whether employers are required
    to modify existing facilities with respect to section 8(a)(3).
    The language says that an employer is not required to construct
    new facilities. It doesn't really address the issue of
    modification. Is an employer required to modify? I believe that
    the committee could provide guidance through specific language
    in ENDA. And, if so, if a modification is required, on what
    timetable and to what extent? There would be less ambiguity,
    less confusion, and there would be more likelihood that
    individuals would understand how to comply with ENDA.
        In conclusion, I believe the issues raised here should be
    considered and addressed as the committee continues to consider
    ENDA. I'd like to thank the committee, including, in
    particular, Chairman Harkin and other members of the committee,
    for the opportunity for me to share my thoughts with respect to
    ENDA.
        Thank you very much.
        [The prepared statement of Ms. Olson follows:]

                     Prepared Statement of Camille A. Olson

        Good afternoon, Mr. Chairman and members of the committee. My name
    is Camille A. Olson, and I am pleased to present this testimony
    addressing S. 1584, the Employment Non-Discrimination Act of 2009 (``S.
    1584'' or ``ENDA''). I am a Partner with the law firm of Seyfarth Shaw
    LLP. Seyfarth Shaw is a national firm with 10 offices nationwide, and
    one of the largest labor and employment practices in the United States.
    Nationwide, over 350 Seyfarth Shaw attorneys provide advice, counsel,
    and litigation defense representation in connection with equal
    employment opportunities, as well as other labor and employment matters
    affecting employees in their workplaces.\1\
    ---------------------------------------------------------------------------
        \1\ I would like to acknowledge Seyfarth Shaw attorneys Annette
    Tyman and Sam Schwartz-Fenwick for their invaluable assistance in the
    preparation of this testimony.
    ---------------------------------------------------------------------------
                                I. INTRODUCTION

        I am the Chairperson of Seyfarth Shaw's Labor and Employment
    Department's Complex Discrimination Litigation Practice Group. I have
    practiced in the areas of employment discrimination counseling and
    litigation defense for over 20 years in Chicago, IL. I am a member of
    both the California and Illinois bars. Members of our firm, along with
    our training subsidiary, Seyfarth Shaw at Work, have written a number
    of treatises on employment laws; advised thousands of employers on
    compliance issues; and trained tens of thousands of managers and
    employees with respect to compliance with their employer's policies
    relating to equal employment opportunities and non-harassment in the
    workplace, as well as the requirements of State and Federal employment
    laws. We have also actively conducted workplace audits and developed
    best practices for implementation of new policies addressing employer
    obligations on a companywide, statewide, and/or nationwide basis
    (depending on the particular employment practice at issue).
        My personal legal practice specializes in equal employment
    opportunity compliance--counseling employers as to their legal
    obligations under Federal and State law, developing best practices in
    the workplace, training managers and supervisors on the legal
    obligations they have in the workplace, and litigating employment
    discrimination cases. I also teach equal employment opportunity law at
    Loyola University School of Law in Chicago, IL. I am a frequent
    lecturer and have published numerous articles and chapters on various
    employment and equal employment opportunity issues. For example, in
    2009 I co-edited a book now in its Sixth Edition entitled Guide to
    Employment Law Compliance for Thompson Publishing Group; and, in late
    2008 and 2009, I, along with other Seyfarth Shaw partners, have
    conducted numerous webinars, teleconferences, and full-day seminars
    across the country for employers and the Society for Human Resource
    Management on an employer's new obligations under the recently passed
    amendments to the Americans with Disabilities Act, 42 U.S.C.
    Sec. Sec. 12101-12213 (1994) (``ADA'').\2\ I am also a member of the
    U.S. Chamber of Commerce's Policy Subcommittee on Equal Employment
    Opportunity, and I am a member of the Board of Directors of a number of
    business and charitable institutions.
    ---------------------------------------------------------------------------
        \2\ The amendments to the ADA are contained in the Americans with
    Disabilities Act Amendments Act, 42 U.S.C. Sec. 12101, et seq. and 29
    U.S.C. Sec. 705 (2008) that became effective January 1, 2009.
    ---------------------------------------------------------------------------
                            II. SUMMARY OF TESTIMONY

        Today, I have been invited to discuss with you the impact of the
    Employment Non-Discrimination Act of 2009 in the employment context,
    separate and apart from my relationship with the above-noted
    institutions, clients, and associations. I strongly support equal
    opportunities in employment, and, in particular, ensuring that
    employment decisions are based upon an individual's qualifications for
    a job (including education, experience, and other relevant
    competencies), as well as other legitimate nondiscriminatory factors.
    Similarly, I believe that fair and consistent application of workplace
    practices and policies is instrumental to an employer's success as an
    employer of choice in the community.\3\
    ---------------------------------------------------------------------------
        \3\ Seyfarth Shaw is a nationwide employer of over 1,650 persons
    providing services throughout the United States. Seyfarth Shaw's non-
    discrimination policy, applicable to all employees, states as follows:
    ``Seyfarth Shaw is committed to the principles of equal employment
    opportunity. Firm practices and employment decisions, including those
    regarding recruitment, hiring, assignment, promotion and compensation,
    shall not be based on any person's sex, race, color, religion, ancestry
    or national origin, age, disability, marital status, sexual
    orientation, gender identity or expression, veteran status, citizenship
    status, or other protected group status as defined by law. Sexual
    harassment or harassment based on other protected group status as
    defined by law is also prohibited.''
    ---------------------------------------------------------------------------
        My purpose in providing this testimony is not to comment positively
    or negatively on whether the U.S. Senate should enact S. 1584 into law
    as sound public policy. Rather, my testimony is provided as a summary
    distillation of my legal analysis of certain provisions of S. 1584 as
    they apply to private sector employers only.\4\ This analysis is
    provided within the context of other Federal non-discrimination in
    employment legislation, such as Title VII of the Civil Rights Act of
    1964, as amended, 42 U.S.C. Sec. 2000e et seq. It is also provided to
    highlight certain practical uncertainties sure to be faced by employers
    attempting to comply with its provisions, and by employees attempting
    to understand their rights and obligations under ENDA. As such, this
    testimony is provided in the hopes that this information will result in
    the clarification of certain of S. 1584 provisions for the benefit of
    employees and employers alike. If S. 1584 passes; such clarifications
    would minimize confusion and litigation over the meaning of certain
    provisions, and enable employers to conform with congressional intent
    as expressed through S. 1584's plain language. This would also better
    track the protections afforded to other protected groups under title
    VII, as amended, and related Federal employment discrimination
    statutes.
    ---------------------------------------------------------------------------
        \4\ My testimony is limited to S. 1584's application to private
    sector employers. It does not specifically address S. 1584's provisions
    unique to religious organizations (Section 6), the Armed Forces
    (Section 7), or to local, State, or Federal Governments (Section
    3(a)(4)((b-d)).
    ---------------------------------------------------------------------------
        As drafted, S. 1584 clearly provides the following:

         S. 1584 prohibits employers from discriminating against an
    individual based on that person's actual or perceived sexual
    orientation or gender identity with respect to employment decisions and
    other terms, conditions, and privileges of employment.\5\
    ---------------------------------------------------------------------------
        \5\ S. 1584, Section 4 (a)(1).
    ---------------------------------------------------------------------------
         S. 1584 prohibits employers from discriminating against
    employees or applicants by limiting, segregating, or classifying them
    on the basis of their actual or perceived sexual orientation or gender
    identity in a way that adversely affects them.\6\
    ---------------------------------------------------------------------------
        \6\ S. 1584, Section 4(a)(2).
    ---------------------------------------------------------------------------
         S. 1584 prohibits employers from discriminating against an
    individual based on the perceived or actual sexual orientation or
    gender identity of a person with whom that person associates.\7\
    ---------------------------------------------------------------------------
        \7\ S. 1584, Section 4(e).
    ---------------------------------------------------------------------------
         S. 1584 prohibits employers from retaliating against an
    individual based on the individual's opposition to an unlawful
    employment practice, or for participating in a charge, investigation,
    or hearing.\8\
    ---------------------------------------------------------------------------
        \8\ S. 1584, Section 5.
    ---------------------------------------------------------------------------
         S. 1584 does not prohibit an employer from enforcing rules
    and policies that do not intentionally circumvent its purposes.\9\
    ---------------------------------------------------------------------------
        \9\ S. 1584, Section 8(a)(1).
    ---------------------------------------------------------------------------
         S. 1584 does not require an employer to treat an unmarried
    couple in the same manner as a married couple for employee benefits
    purposes.\10\ The term ``married'' as used in S. 1584 is defined in the
    Defense of Marriage Act, 1 U.S.C. Sec. 7 et seq.
    ---------------------------------------------------------------------------
        \10\ S. 1584 Section 8(b).
    ---------------------------------------------------------------------------
         S. 1584 requires that an employee notify their employer if
    the employee is undergoing gender transition and requests the use of
    shower or dressing areas that do not conflict with the gender to which
    the employee is transitioning or has transitioned. An employer may
    satisfy the employee's request in one of two ways, through either
    providing access to the general shower or dressing areas of the gender
    the employee is transitioning to or has transitioned to; or by
    providing reasonable access to adequate facilities that are not
    inconsistent with that gender.\11\
    ---------------------------------------------------------------------------
        \11\ S. 1584, Section 8(a)(3).
    ---------------------------------------------------------------------------
         S. 1584 does not require employers to build new or
    additional facilities.\12\
    ---------------------------------------------------------------------------
        \12\ S. 1584, Section 8(a)(4).
    ---------------------------------------------------------------------------
         S. 1584 does not require or permit employers to grant
    preferential treatment to an individual because of the individual's
    actual or perceived sexual orientation or gender identity.\13\
    ---------------------------------------------------------------------------
        \13\ S. 1584, Section 4(f)(1).
    ---------------------------------------------------------------------------
         S. 1584 does not require or permit an employer to adopt or
    implement a quota on the basis of actual or perceived sexual
    orientation or gender identity.\14\
    ---------------------------------------------------------------------------
        \14\ S. 1584, Section 4(f)(2).
    ---------------------------------------------------------------------------
         S. 1584 allows employers to continue to require an
    employee to adhere to reasonable dress and grooming standards compliant
    with other applicable laws consistent with the employee's sex at birth,
    so long as an employee who has notified their employer that they have
    undergone or are undergoing gender transition is allowed the
    opportunity to follow the same dress or grooming standards for the
    gender to which the employee has transitioned or is transitioning.\15\
    ---------------------------------------------------------------------------
        \15\ S. 1584, Section 8(a)(5).
    ---------------------------------------------------------------------------
         S. 1584 requires employers to post notices that describe
    its provisions.\16\
    ---------------------------------------------------------------------------
        \16\ S. 1584, Section 13.
    ---------------------------------------------------------------------------
         S. 1584 would be effective 6 months following the date of
    its enactment, and it does not apply to conduct occurring prior to its
    effective date.\17\
    ---------------------------------------------------------------------------
        \17\ S. 1584, Section 17.

        However, as drafted, S. 1584 creates the following ambiguity and
    ---------------------------------------------------------------------------
    uncertainty:

         Whether title VII and ENDA will provide duplicate causes
    of action for sex stereotyping;
         How ``disparate impact'' claims will be defined under
    ENDA;
         Whether ENDA was intended to provide more robust remedies
    for attorney's fees than those available under title VII;
         Determining what triggers an employer's affirmative
    obligations with regard to shared facilities and application of its
    dressing and grooming standards;
         Whether ``certain shared facilities'' include restrooms;
    and
         Whether employers are required to modify existing
    facilities.

                III. THE EMPLOYEE NON-DISCRIMINATION ACT OF 2009

    A. Existing Protections Against Sex Discrimination in Employment
        Existing Federal employment laws prohibit discrimination on the
    basis of an individual's sex. Under Federal law it is unlawful to:

         Discriminate against a person because she is a female;
    \18\
    ---------------------------------------------------------------------------
        \18\ See Title VII of the Civil Rights Acts of 1964, 42 U.S.C.
    Sec. 2000e et seq. (``Title VII''); see also The Equal Pay Act of 1963,
    29 U.S.C. Sec. 206(d) et seq. (the ``EPA'').
    ---------------------------------------------------------------------------
         Discriminate against a person because he is a male;
         Discriminate against a person because she is pregnant;
    \19\
    ---------------------------------------------------------------------------
        \19\ See Pregnancy Discrimination Act of 1978, amending title VII
    Sec. 2000e(k).
    ---------------------------------------------------------------------------
         Discriminate against a person by sexually harassing a
    member of the opposite sex based on his or her sex; \20\
    ---------------------------------------------------------------------------
        \20\ See Meritor Say. Bank v. Vinson, 477 U.S. 57 (1986).
    ---------------------------------------------------------------------------
         Discriminate against a person by sexually harassing a
    member of the same sex based on his or her sex; \21\ and
    ---------------------------------------------------------------------------
        \21\ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78
    (1998) (male employee alleging he was sexually harassed by his male
    supervisor and two male co-workers, none of whom were alleged to be
    gay, alleges same-sex sexual harassment which is a violation of title
    VII).
    ---------------------------------------------------------------------------
         Discriminate against a person due to gender stereotyping
    because of his or her sex.\22\
    ---------------------------------------------------------------------------
        \22\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female
    employee alleging she was denied a promotion as a result of being
    described as being ``macho,'' ``overcompensating for being a woman,''
    and being given advice to ``take a course at charm school,'' and ``walk
    more femininely, talk more femininely, dress more femininely, wear
    make-up, have her hair styled, and wear jewelry'' in order to improve
    her chances for promotion, stated a cause of action under title VII for
    sex discrimination because she did not conform to the stereotypes
    associated with being a woman).

        No Federal law, however, prohibits employers from discriminating
    against employees based on their sexual orientation or gender
    identity.\23\ Courts have recognized the difficulty that they often
    face in determining under title VII whether certain conduct is
    ``because of the individual's sex'' as opposed to their sexual
    orientation or gender identity. For example, the Seventh Circuit Court
    of Appeals has described the various factual settings raised by these
    cases as obligating them to ``navigate the tricky legal waters of male-
    on-male sex harassment.'' \24\ As a result, some courts have reached
    inconsistent results as to whether similar factual situations are
    covered by title VII's prohibition against sex discrimination where
    there is evidence that the discrimination was ``because of . . . sex.''
    For instance, some courts have found that males who behave femininely
    or who dress in women's clothing are not protected by title VII, while
    others conclude that they are protected by title VII.\25\
    ---------------------------------------------------------------------------
        \23\ See, e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr.,
    Inc., 224 F.3d 704 (7th Cir. 2000) (the protections of title VII do not
    permit claims based on an individual's sexual orientation); Etsitty v.
    Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (employer did not
    violate title VII when it terminated a transgendered employee finding
    that discrimination against a transsexual is not ``discrimination
    because of sex'').
        \24\ See, e.g., Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058,
    1061 (7th Cir. 2003) (sexual orientation not covered by title VII).
        \25\ Compare Etsitty, 502 F.3d 1215 (10th Cir. 2007) (employer did
    not violate title VII when it terminated a transgendered employee,
    finding that discrimination against a transsexual is not
    ``discrimination because of sex'') with Smith v. City of Salem, 378
    F.3d 566 (6th Cir. 2004) (concluding a transgender plaintiff could
    bring a sex discrimination claim under title VII) and Schroer v.
    Billington, 577 F. Supp. 2d 293 (D.C. Cir. 2008) (employer violated
    title VII when it rescinded an employment offer upon learning the
    employee was transgendered). See, also, Hamm, 332 F.3d at 1066 (Judge
    Posner's concurring opinion describing case law in this area as having
    ``gone off the tracks'' under title VII) and Nichols v. Azteca Rest.
    Enters., Inc. and The Legacy of Price Waterhouse v. Hopkins: Does Title
    VII Prohibit ``Effeminacy'' Discrimination?, 54 Ala. L. Rev. 193, Fall
    2002, and Sex Stereotyping Per Se: Transgender Employees and Title VII,
    95 Cal. L. Rev. 561, Apr. 2007.
    ---------------------------------------------------------------------------
        A number of jurisdictions have enacted legislation prohibiting
    discrimination based on sexual orientation and/or gender identity. To
    date, 12 States and the District of Columbia prohibit discrimination
    based on gender identity and sexual orientation.\26\ Twenty-one States
    and the District of Columbia prohibit discrimination based on sexual
    orientation.\27\ The legal obligations imposed by such State laws
    differ from State to State.
    ---------------------------------------------------------------------------
        \26\ These jurisdictions include California, Colorado, Illinois,
    Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island,
    Vermont, and Washington, as well as the District of Columbia.
        \27\ These jurisdictions include those set forth directly above, as
    well as Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada,
    New Hampshire, New York, and Wisconsin.
    ---------------------------------------------------------------------------
    B. Summary of Federal Legislative Efforts to Enact ENDA
        Legislation to prohibit employment discrimination on the basis of
    sexual orientation was first introduced in 1994 before the 103rd
    Congress.\28\ Since then, legislation has been introduced in almost
    every session of Congress to address this topic. For instance, in 2002,
    hearings on S. 1284, legislation introduced in the 107th Congress, were
    held before this committee. This committee favorably reported the bill
    and it was placed on the Senate calendar. In 2007, protections on the
    basis of gender identity were included for the first time in a bill
    introduced only in the House of Representatives.\29\ Although hearings
    were held, the legislation proposed in 2007 did not garner enough
    support for passage in the House. Later that year, legislation that
    included only a prohibition against discrimination on the basis of
    sexual orientation was introduced and passed by the U.S. House of
    Representatives.\30\ Similar legislation was not introduced in the
    Senate in 2007.
    ---------------------------------------------------------------------------
        \28\ Human Rights Campaign, Timeline: The Employment Non-
    Discrimination Act, http://www.hrc.org/issues/workplace/5636.htm (last
    visited Nov. 3, 2009).
        \29\ H.R. 2015.
        \30\ H.R. 3685.
    ---------------------------------------------------------------------------
        Many of S. 1584's provisions track the language of title VII, the
    principal equal employment opportunity statute that employers have used
    as their guidepost in developing appropriate policies and practices
    regarding non-discrimination in employment. For example, S. 1584
    references existing provisions of title VII to define certain terms,
    such as employee, employer, and employment agencies; and to reference
    specific enforcement powers, procedures, and remedies.\31\
    ---------------------------------------------------------------------------
        \31\ See, e.g., S. 1584, Section 3 (Definitions--partial); Section
    4 (Employment Discrimination Prohibited--partial); Section 5
    (Retaliation Prohibited); Section 10 (Enforcement--partial); and
    Section 13 (Posting Notices).
    ---------------------------------------------------------------------------
        The language contained in S. 1584 demonstrates the significant
    examination and debate that has taken place over the years concerning
    the extension of protections in employment to individuals on the basis
    of sexual orientation and now, gender identity. Indeed, certain changes
    from the current version as compared to S. 1284 and/or the bill
    introduced in the House in 2007 (``ENDA 2007''), reflects an
    understanding of the need to provide clarity in the workplace to ensure
    compliance with the legislation, by carefully describing the
    obligations of employers and employees. Some examples of the
    clarifications urged in prior hearings and addressed in S. 1584 are set
    forth below:

         ENDA 2007, Section 5 prohibited retaliation against an
    individual for opposing any practice made unlawful by the Act, or
    against an individual who made a charge or who provided testimony under
    the Act.\32\ Given that the concept of retaliation is a well understood
    principle in employment law, legal practitioners suggested that
    language track the language already available under existing laws to
    minimize confusion and litigation. S. 1584 includes revised retaliation
    language that parallels the well established language prohibiting
    retaliation contained in title VII.\33\
    ---------------------------------------------------------------------------
        \32\ H.R. 2015.
        \33\ Compare H.R. 2015, Section (5) with S. 1584, Section 5.
    ---------------------------------------------------------------------------
         ENDA 2007, Section 8(a)(1) provided:

        IN GENERAL.--Nothing in this Act shall be construed to prohibit a
    covered entity from enforcing rules and policies that do not circumvent
    the purposes of this Act, if the rules or policies are designed for,
    and uniformly applied to, all individuals regardless of actual or
    perceived sexual orientation or gender identity.\34\
    ---------------------------------------------------------------------------
        \34\ Compare H.R. 2015, section 8(a)(1) with S. 1584, section
    8(a)(1).
    ---------------------------------------------------------------------------
        Practitioners urged drafters to insert the word ``intentionally''
    before the phrase, ``circumvent the purposes of this Act'' to ensure
    that section 8(a)(1) would not be used to unintentionally incorporate
    concepts of disparate impact claims into ENDA. S. 1584 has been revised
    to include the word ``intentionally.''
         ENDA 2007 section 17 and S. 1284 section 19 provided that
    ENDA would take effect 60 days after the date of enactment. S. 1584
    provides for its effective date to be 6 months after the date of
    enactment. This 6-month lead time will be particularly helpful to
    employers to allow sufficient time to make necessary revisions to their
    policies, practices, and procedures. This will also provide adequate
    time for employers to train managers, human resource professionals, and
    employees to ensure compliance with a new Federal law.
    C. S. 1584 Requires Clarification
        As described in Section III.B. above, as drafted, S. 1584 has
    provided clarity concerning certain provisions in prior House and
    Senate bills regarding many of the new obligations ENDA would impose
    upon employers. Notwithstanding these clarifications, certain
    ambiguities remain that warrant further discussion and analysis. These
    ambiguities are described below in two sections. Section 1 addresses
    general ENDA points requiring clarification. Section 2 addresses
    specific points with regard to the application of specific provisions
    of ENDA regarding an employer's facilities and policies to an
    employee's gender identity protections, and specifically to individuals
    who have undergone or are undergoing gender transition.

                   1. General Points Requiring Clarification

                a. Whether Title VII and ENDA Will Provide Duplicate Causes
                        of Action for Sex Stereotyping

        ENDA is the only Federal legislation, that, if enacted, would
    expressly prohibit discrimination or retaliation on the basis of sexual
    orientation \35\ and gender identity.\36\ While courts have made clear
    that no Federal cause of action exists for discrimination on the basis
    of an individual's sexual orientation or gender identity,\37\ as noted
    on pages 6-7, supra, some Federal courts have inconsistently extended
    title VII protections to factual situations brought on the basis of
    sex-stereotyping that more accurately involve claims of sexual
    orientation and/or an individual's gender identity.
    ---------------------------------------------------------------------------
        \35\ Sexual orientation is defined as ``homosexuality,
    heterosexuality, or bisexuality.'' H.R. 3017, Section 3(9).
        \36\ Gender identity is defined 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.'' S. 1584, section 3(6).
        \37\ Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2004); Bibby
    v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001);
    Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000); Spearman v. Ford Motor
    Co., 231 F.3d 1080 (7th Cir. 2000); Hamm, supra, 332 F.3d 1058; Centola
    v. Potter, 183 F.Supp.2d 403 (D.Mass. 2002).
    ---------------------------------------------------------------------------
        If enacted in its current form, these same factual scenarios would
    clearly be actionable under ENDA given its broad definition of gender
    identity. What is sex-stereotyping if it is not discrimination based
    upon an individual's ``appearance, or mannerisms or other gender-
    related characteristics . . . with or without regard to the
    individual's designated sex at birth?'' \38\ These concepts are
    overlapping, thus, certain factual situations that some courts have
    found actionable under title VII would most assuredly also be
    actionable under ENDA.
    ---------------------------------------------------------------------------
        \38\ S. 1584, Section 3(6); see also Price Waterhouse, 490 U.S.
    228.
    ---------------------------------------------------------------------------
        Moreover, with regard to the relationship between ENDA and other
    laws, section 15 of ENDA specifically provides as follows:

              This Act shall not invalidate or limit the rights, remedies,
            or procedures available to an individual claiming
            discrimination prohibited under any other Federal law or
            regulation or any law or regulation of a State or political
            subdivision of a state.

    Given this language, it is clear that ENDA, as currently drafted,
    serves only to add protections on the basis of sexual orientation and
    gender identity, and that it does not replace any claims that would
    otherwise be actionable under title VII.
        Yet, such a reading of the two statutes would lead to the
    unintended consequence of a potential dual recovery by a successful
    plaintiff filing claims under both title VII and ENDA for the same
    alleged wrongful conduct. As such, it is critical that ENDA include
    language which makes clear that ENDA is the exclusive Federal remedy
    for any alleged conduct on the basis of sexual orientation or gender
    identity as those terms have been defined. Accordingly, I urge this
    committee to carefully consider the interplay between ENDA and title
    VII to ensure that there is not an unintended duplication of remedies
    and that congressional intent be made abundantly clear in this regard.

                b. Disparate Impact Claims Are Not Available Under S. 1584

        Disparate treatment claims are actionable under S. 1584.\39\ S.
    1584 prohibits intentional discrimination only.\40\
    ---------------------------------------------------------------------------
        \39\ S. 1584, Section 4(g).
        \40\ S. 1584, Section 8(a)(1).
    ---------------------------------------------------------------------------
        In contrast, disparate impact claims are not available under S.
    1584.\41\ In other words, S. 1584 does not provide individuals with a
    remedy for alleged discrimination that is based on a rule or policy
    that does not intentionally circumvent ENDA, so long as the rules and
    policies are applied equally to all individuals regardless of their
    sexual orientation or gender identity.
    ---------------------------------------------------------------------------
        \41\ Id.
    ---------------------------------------------------------------------------
        The most familiar statutory definition of a disparate impact claim
    is in title VII.\42\ Thus, to ensure that disparate impact claims are
    appropriately defined, and properly excluded from ENDA, a reference to
    title VII's statutory definition of a disparate impact claim should be
    included in ENDA. The current language leaves some ambiguity. For
    example, section 4(g) of ENDA provides as follows: Disparate Impact--
    Only disparate treatment claims may be brought under this Act.
    ---------------------------------------------------------------------------
        \42\ 42 U.S.C. Sec. 2000e-2(k).
    ---------------------------------------------------------------------------
        Thus, while section 4(g) is entitled ``Disparate Impact''--the text
    of the provision does not explicitly define disparate impact claims, or
    expressly state that they may not be brought under ENDA. Rather, the
    provision instead affirmatively states that only disparate treatment
    claims may be brought under ENDA. Accordingly, this committee should
    also consider adding a provision that explicitly defines disparate
    impact claims and excludes disparate impact claims for sexual
    orientation and gender identity from ENDA's prohibitions to ensure that
    congressional intent is clear as to the claims that are exempted from
    S. 1584.

                c. The Remedies Available Under S. 1584. Should Parallel

                        Those Available Under Title VII

        S. 1584, Section 10(b)(1) specifically provides that the procedures
    and remedies applicable are those set forth in title VII (42 U.S.C.
    Sec. 2000e et seq.). Despite this provision, Section 12 of ENDA expands
    the remedies with respect to attorney's fees for claims arising under
    ENDA beyond those currently available under title VII. Specifically,
    section 12 provides as follows with regard to attorney's fees:

              Notwithstanding any other provision of this Act, in an action
            or administrative proceeding for a violation of this Act, an
            entity described in section 10(a) (other than paragraph (4) of
            such section), in the discretion of the entity, may allow the
            prevailing party, other than the Commission or the United
            States, a reasonable attorney's fee (including expert fees) as
            part of the costs. The Commission and the United States shall
            be liable for the costs to the same extent as a private
            person.\43\
    ---------------------------------------------------------------------------
        \43\ S. 1584, Section 12. Attorney's Fees (emphasis added).

        In contrast, title VII provides as follows with regard to
    ---------------------------------------------------------------------------
    attorney's fees:

              In any action or proceeding under this subchapter the court,
            in its discretion, may allow the prevailing party, other than
            the Commission or the United States, a reasonable attorney's
            fee (including expert fees) as part of the costs, and the
            Commission and the United States shall be liable for costs the
            same as a private person.'' \44\
    ---------------------------------------------------------------------------
        \44\ Title VII Sec. 2000e-5(k). Attorney's Fees; Liability of
    Commission and United States for Costs (emphasis added).

        Specifically, S. 1584, Section 12, expands the remedies that would
    otherwise be available under title VII by permitting a prevailing party
    in an ``administrative proceeding'' to recover a ``reasonable
    attorney's fee (including expert fees) as part of the costs.'' Although
    it is unclear who is a ``prevailing party'' under ENDA, employees who
    receive a finding of substantial evidence from the Equal Employment
    Opportunity Commission (``EEOC'') or another administrative agency as
    described in section 10(a) may arguably be entitled to attorney's fees.
    This is a significant expansion of the remedies available under title
    VII.
        This inconsistency between ENDA and title VII would mean that a
    plaintiff who alleges discrimination on the basis of sexual orientation
    or gender identity would be entitled to greater remedies than a
    plaintiff who alleges discrimination on the basis of race, color,
    religion, sex, or national origin. Moreover, other employment
    discrimination statutes, including the ADA, adopt title VII's remedies.
    ENDA, in contrast, as discussed, would add new remedies.
        Moreover, the very nature of the investigative proceeding at the
    administrative agency phase demonstrates why an award of attorney's
    fees would not be appropriate. First, EEOC decisions are not considered
    ``final orders'' subject to appeal, thus an employer would be deprived
    of its due process rights to contest any such award. In fact, the EEOC
    is not required to provide documented reasons for its decisions.
    Accordingly, an employer may not be provided a written basis for the
    EEOC's decision. Moreover, information submitted at the EEOC phase is
    produced to assist the EEOC in its investigation, and is not subject to
    the Federal Rules of Evidence.
        The second significant departure contained in ENDA, as compared to
    title VII, relates to who is granted the authority and discretion to
    grant such awards. As noted above, under ENDA, courts and
    administrative agencies, such as the EEOC, are granted the authority to
    award attorney's fees. In contrast, title VII appropriately limits the
    authority to grant such remedies to the courts. Courts, and not
    administrative agencies, are best positioned to decide who is a
    ``prevailing party'' under the law. Such decisions should be made only
    after careful consideration and review of the admissible evidence as
    presented by both the plaintiff and the employer.
        For these reasons, this committee should undertake a careful
    examination of Section 12 of ENDA to ensure that the remedies available
    to a plaintiff under ENDA are consistent with provisions under title
    VII, consistent with S. 1584's expressed congressional intent.

        2. Specific Provisions Requiring Clarification Regarding Gender

                                    Identity

        Among other protections, S. 1584 makes it a violation of Federal
    law for an employer to ``discriminate against any individual with
    respect to the compensation, terms, conditions, or privileges of
    employment of the individual, because of such individual's actual or
    perceived sexual orientation or gender identity.'' \45\ S. 1584 further
    provides as follows:
    ---------------------------------------------------------------------------
        \45\ S. 1584, Section 4(a)(1).

              [Section 8(a)(3)] CERTAIN SHARED FACILITIES.--Nothing in this
            Act shall be construed to establish 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 seen unclothed 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.\46\
    ---------------------------------------------------------------------------
        \46\ S. 1584, Section 8(a)(3) (emphasis added).

              [Section 8(a)(5)] DRESS AND GROOMING STANDARDS.--Nothing in
            this Act shall prohibit an employer from requiring an employee,
            during the employee's hours at work, to adhere to reasonable
            dress or grooming standards not prohibited by other provisions
            of Federal, State, or local law, provided that the employer
            permits any employee who has undergone gender transition prior
            to the time of employment, and any employee who has notified
            the employer that the employee has undergone or is undergoing
            gender transition after the time of employment, to adhere to
            the same dress or grooming standards for the gender to which
            the employee has transitioned or is transitioning.\47\
    ---------------------------------------------------------------------------
        \47\ S. 1584, Section 8(a)(5) (emphasis added).

        Thus, in addition to prohibiting discrimination in employment on
    the basis of gender identity, ENDA places affirmative obligations on
    employers. Specifically, employers are required to adjust their
    policies, practices, or procedures with regard to ``certain shared
    facilities'' and ``dress and grooming standards'' for a subset of
    individuals who have either ``undergone'' or who are ``undergoing''
    transition to a gender other than their gender at birth.'' \48\ These
    affirmative obligations present unique issues in the workplace that
    merit further consideration and reflection.
    ---------------------------------------------------------------------------
        \48\ Id. at Section 8(a)(3) and 8(a)(5).
    ---------------------------------------------------------------------------
                a. What Triggers an Employer's Affirmative Obligation?
        The first issue that requires additional consideration relates to
    the use of the phrases, ``upon notification'' and ``notified the
    employer.'' As an initial matter, it is unclear whether these similar,
    though different, phrases mean the same thing. For the sake of clarity,
    one phrase should be selected and used consistently throughout to avoid
    confusion.
        Second, the terms ``notification'' and ``notified'' are vague terms
    that should be modified to clarify what the employee is required to do
    before an employer's obligations are triggered. For instance, does the
    employee have to notify the employer in writing, or does a verbal
    conversation satisfy the employee's obligation to notify? Is the
    employee's own statement sufficient, or is it permissible for an
    employer to request confirmation from a third-party professional before
    it is required to amend its policies, procedures, or practices for the
    requesting individual? Are the employer's obligations to modify its
    existing policies triggered immediately upon notification? And if not,
    how soon is the employer required to act? Should the employee be
    required to provide sufficient lead time to allow the employer the
    opportunity to make adjustments as appropriate? And if so, how much
    time is necessary? These questions are not currently addressed in S.
    1584.

                b. Who Is Covered by Sections 8(a)(3) and 8(a)(5)?

        Sections 8(a)(3) and 8(a)(5) are applicable to only a subset of
    employees that are otherwise covered under ENDA. Specifically, these
    sections are applicable to those individuals that have ``undergone'' or
    who are ``undergoing gender transition.'' Absent from ENDA, however, is
    a definition of the phrases ``undergone,'' ``undergoing,'' or ``gender
    transition.'' These undefined phrases are particularly problematic
    given that ``gender transition'' is a broad term used to describe a
    combination of social, medical, and legal steps that an individual may,
    or may not, choose to undergo in their decision to define their gender
    identity.\49\
    ---------------------------------------------------------------------------
        \49\ Transgender Visibility Guide: A Note on Transitioning,
    available at http://www.hrc.org/issues/transgender/13105.htm. (last
    viewed Sept. 21, 2009); see also The Transsexual Person in Your Life,
    Responses To Some Frequently Asked Questions/Frequently Held Concerns,
    available at http://www.tsfaq.info/. (last viewed Sept. 21, 2009).
    ---------------------------------------------------------------------------
        For instance, social steps in the process might include asking to
    be referred to by a different name or pronouns (i.e., ``she'' instead
    of ``he'' or vice versa).\50\ Such steps may also involve an employee
    using clothing or accessories traditionally worn by individuals of the
    sex and/or gender the employee identifies with, or taking on mannerisms
    associated with a particular gender.\51\
    ---------------------------------------------------------------------------
        \50\ Id.
        \51\ Id.
    ---------------------------------------------------------------------------
        Certain employees may also choose to take medical steps to further
    conform to their core gender identity. Such medical interventions may
    include hormonal therapies and/or surgery to further modify their
    physical appearance or attributes.\52\ Finally, transitioning
    individuals may utilize courts or other agencies to achieve legal
    recognition of their new name and/or gender.\53\ Thus, the term
    ``gender transition'' implicates a wide range of steps that employees
    may be said to have ``undergone'' or be ``undergoing.''
    ---------------------------------------------------------------------------
        \52\ Id.
        \53\ Id.
    ---------------------------------------------------------------------------
        As previously stated, one of the social steps in the gender
    transition process may include the use of clothing, make-up, or
    accessories commonly associated with an individual's true identity
    rather than with his or her gender at birth. As currently written,
    ``undergoing'' may be so broadly interpreted as to cover any employee
    who presents in a gender non-conforming manner on a single day.
        Such distinctions on issues that most employers may not fully
    comprehend may be cause for significant concern and confusion in the
    employer community. Thus, defining more specifically those individuals
    who can make requests under sections 8(a)(3) and 8(a)(5) should be
    clearly defined in ENDA.

                c. Do ``Certain Shared Facilities'' Include Restrooms?

        Section 8(a)(3) implicates a common, yet controversial, issue
    related to transitioning employees. Specifically, which ``certain
    shared facilities'' should transitioning employees use, and when is it
    appropriate for these employees to begin using shared facilities
    designated for members of the ``opposite sex.'' Though entitled
    ``Certain Shared Facilities,'' Section 8(a)(3) provides only limited
    guidance on this issue. As written, it applies only to ``shared shower
    or dressing facilities in which being seen unclothed is unavoidable.''
    \54\ In such shared facilities, an employer who has been notified that
    an employee has or is undergoing gender transition has the following
    two options: (1) to allow the transitioning employee access to the
    shared facilities designated for the gender to which the individual is
    transitioning; or (2) to provide the transitioning employee with
    ``reasonable access to adequate facilities'' that are not inconsistent
    with the gender to which they are transitioning.
    ---------------------------------------------------------------------------
        \54\ S. 1584, section 8(a)(3).
    ---------------------------------------------------------------------------
        Glaringly absent from ENDA, however, is guidance for employers with
    respect to bathrooms or restrooms. Indeed, far more prevalent in the
    workplace than ``shared shower or dressing facilities in which being
    seen unclothed is unavoidable'' are restrooms. The same privacy issues
    that give rise to the use of ``shared showers or dressing facilities''
    are applicable to some bathrooms where being seen unclothed is also
    unavoidable. Employers should be provided the same flexibility that
    H.R. 3016 provides employers with respect to shared shower or dressing
    facilities by expressly permitting employers to decide which restrooms
    transitioning employees will have access to so long as they are
    permitted ``reasonable access to adequate'' restrooms.
        Moreover, because the definition of ``gender identity'' in S. 1584
    is broader than the subgroup of individuals who have or who are
    undergoing gender transition, it should also be clarified to expressly
    state whether an employer has any obligation to allow anyone other than
    transgendered employees access to shared facilities that are designated
    for use by only members of one particular sex. Given that restroom
    accommodations may be perhaps one of the most controversial issues
    employers will be required to face if ENDA is enacted in its current
    form, congressional guidance on this point would be helpful to
    employers who will be required to implement policies, practices, and
    procedures consistent with ENDA.

                d. Are Employers Required to Modify Existing Facilities
                        Under ENDA?

        Section 8(a)(4) of ENDA provides as follows:

              ADDITIONAL FACILITIES NOT REQUIRED.--Nothing in this Act
            shall be construed to require the construction of new or
            additional facilities.\55\
    ---------------------------------------------------------------------------
        \55\ H.R. 3917, Section 8(a)(4).

        Given the language in the text, it is clear that ENDA does not
    require an employer to construct new or additional facilities. Left
    unanswered, however, is whether employers are nonetheless required to
    modify existing facilities. Clarification concerning this issue is
    critical so as to have certainty with respect to the scope of an
    employer's obligations under ENDA. \56\
    ---------------------------------------------------------------------------
        \56\ If ENDA were clarified to require an employer to undertake
    such affirmative obligations with respect to modification of existing
    facilities, it is critical to also provide guidance on when those
    obligations are triggered and when they must be completed.
    ---------------------------------------------------------------------------
                                 IV. CONCLUSION

        In conclusion, I believe that the issues raised herein should be
    considered and addressed as the committee considers the Employment Non-
    Discrimination Act of 2009. Chairman Harkin, Ranking Member Enzi, and
    members of the committee, I thank you for the opportunity to share my
    thoughts with you today. Please do not hesitate to contact me if I can
    be of further assistance in suggesting ways in which to improve ENDA's
    language to ensure that it meets congressional objectives.

        The Chairman. Thank you, Ms. Olson.
        Again, I thank all of you for being here today.
        I'll just start my first 5-minute round, and then we can
    continue on.
        I would like to get right to the issue basically raised by
    Mr. Parshall. I would direct this, again, to Professor Norton.
    ENDA has a very broad religious exemption based on that that
    already exists in title VII. Yet we've heard criticism that
    this bill is an attack on religious liberties, especially the
    ability of religious organizations to object to what they
    consider immoral behavior. So, I guess I'd liked to have any
    response that you might have, that--if you heard Mr. Parshall's
    testimony--(a) Do you think religious organizations are at risk
    under this bill? Do you believe that the Civil Rights Act and
    ENDA strike a balance where religious institutions should be
    able to make employment decisions consistent with their
    religious beliefs, but nonreligious employers are not exempt?
    Is it appropriate that private employers whose primary purpose
    and character is not religious should not be exempted?
        So, again, I just--I throw those out, but I just want your
    response on the religious exemption and how ENDA might impact
    that.
        Ms. Norton. Certainly, Chairman Harkin.
        In short, I do believe that ENDA, as currently drafted,
    strikes a clear and appropriate balance between the interests
    of religious institutions and the equal employment opportunity
    rights of all Americans. Let me make several points.
        First, let me emphasize that the language of the bill is
    crystal clear. This is section 6, ``This Act''--meaning ENDA--
    ``This Act shall not apply''--this Act, which would prohibit
    sexual orientation discrimination and gender identity
    discrimination--``shall not apply''--period--to a, ``a
    religious corporation or association, educational institution,
    or society that is exempt from title VII's religious
    discrimination provision.''
        So, in other words, if an institution qualifies for the
    title VII exemption--under current law, that means that an
    organization may discriminate on the basis of religion--it's
    also clear that, under this bill, that organization is also
    free from the prohibition on sexual orientation and gender
    identity discrimination that would be created by this act.
        Second, the U.S. Supreme Court has held that a 1987
    decision in Amos--that the title VII religious exemption does
    strike an appropriate constitutional balance between free
    exercise and establishment-clause violations as applied to the
    nonprofit activities of religious institution. That Court said
    that title VII, as drafted, does exempt religious institutions,
    in that, as applied to their nonprofit activities, religious or
    otherwise, that is constitutional. The Court declined to rule
    whether a broader exemption would pass constitutional scrutiny.
    In fact, several members of the Court concurred separately to
    emphasize their concern that a broader exemption--for example,
    an exemption that relieved religious institutions' for-profit
    activities from compliance with title VII--they concurred
    separately that to emphasize that a broader exemption of that
    nature may well run afoul of establishment-clause principles.
    So, the Court has, in fact, endorsed the balance struck by the
    title VII exemptions.
        Third, we have a long history--a 45-year history--of courts
    interpreting the scope of the religious institution exemptions
    under title VII. The rule is--that is applied in that--in those
    cases is clear across all circuits. Courts determine whether or
    not the institution is primarily religious or primarily secular
    in function and purpose. In many cases, this is an easy call.
    If the institution is a church, a parochial school, a religious
    mission, a house of worship, clearly it's a religious
    institution that qualifies for the exemption under title VII
    and would qualify for the exemption under ENDA, as well.
        Different facts will lead to different outcomes. Different
    facts that suggest a different religious or secular character
    will lead to different outcomes. That's a single rule applied
    to different facts that, understandably, would get you to
    different outcomes.
        In the small universe of cases in which institutions have
    been denied the exemption, I would characterize them as falling
    into one or two categories. Again, this is a small universe of
    characters.
        First, a for-profit employer producing a secular product
    will not be found to be a religious institution. It's not
    primarily religious in function and purpose.
        Second, an institution that was founded with a religious
    mission--perhaps hundreds of years ago--but has changed in
    operation over time and is now, in fact, secular in operation
    may no longer qualify for the religious institution exemption.
    Courts look at its operation at the time of the employment
    decision in question.
        Mr. Parshall. Senator, may I respond just very quickly to
    the----
        The Chairman. Mr. Parshall.
        Mr. Parshall. I appreciate Professor Norton's comments. And
    she is right, I agree, absolutely, that the language of section
    6 is crystal clear. Its meaning, however, is hopelessly complex
    and, I think, inscrutable. Here's the reason why. Section 6
    simply says, ``If you're covered under title VII, you are
    covered under ENDA as a religious organization.''
        I think it seems to be an effortless analysis. The problem
    is--let's look at title VII. Title VII language says that
    religious organizations are exempt regarding employment
    decisions of persons, ``of a particular religion,'' to perform
    work connected with the carrying on of the organization's
    activities. ``Of a particular religion.'' The courts have
    indicated, as I've cited in my testimony, that what that means
    is, if the employer's religious views conflict with the
    employee's religious views, they get a pass. Only as to that.
    Sex and gender discrimination, they don't get a pass.
        There is an exception, called the ``ministerial
    exception,'' but that only applies to a rabbi in a synagogue, a
    Imam in a house of worship under Islam, a Christian pastor in a
    church, as an example. But, 99 percent of the problems are not
    dealing with the head clergy person in an organization.
        Now, if we have a person who is non-hired because of sexual
    orientation, the court will then ask, ``Well, is this because
    of the religion of the employee?'' The answer would have to be
    ``no.'' As a result, title VII's being incorporated into
    section 6 is going to be a meaningless exercise and will
    provide no protection at all.
        Second, Professor Norton mentioned the Amos case, and it
    was a significant case, and they did indicate that it was
    limited to nonprofit organizations. In that case, it was a
    religion decision made by the Mormons about the religious
    viewpoint of a certain person. But, my concern is that we have
    many, many broadcasters, as an example, who are for-profit.
    Now, most of our broadcasters are nonprofit, tax-exempt
    organizations, religious organizations, but many are religious
    Christians in their charter, their mission, their
    characterization, and yet, they are for-profit, in terms of
    taking advertising dollars. Those, it is my firm belief, will
    get absolutely no protection under ENDA, regardless of how you
    interpret section 6.
        And the last point that Professor Norton made about the
    scope of past decisions being sort of fact-specific. That is
    true, courts look at them as a case-by-case basis. But, when I
    look at, for instance, the fact that a child welfare society in
    a U.S. District Court in Virginia, an orphanage, was--clearly
    Christian in its mission, Christian in its nature of its
    operations, and yet it had a head of the organization that, for
    a short period of time, started steering toward more secular
    goals, then they returned to their original Christian mission.
    They were denied an exemption. A thoroughly Christian small
    business that employed Christians at bible studies and wanted
    to integrate Christianity in all aspects of the workplace, that
    was denied exemption under title VII.
        So, those are some of the complicated problems that I
    foresee in getting any meaningful protection for religious
    groups under title VII being incorporated into ENDA.
        The Chairman. I've used up more than my 5-minutes.
        I ask the indulgence of my fellow Senators, if I might get
    a response on that.
        I'd like to, Ms. Norton--but, Attorney General Madigan,
    you've had experience in Illinois under this. You've heard the
    exchange. Do you think there's adequate protections for bona
    fide religious organizations and churches under ENDA?
        Ms. Madigan. Let me tell you the experience of the State of
    Illinois, in terms of the amendments to our Human Rights Act,
    which, as you all know, includes sexual orientation and gender
    identity. We have seen no more than a handful of complaints
    against religious institutions. In fact, we haven't seen any
    for the last 2 fiscal years, so the last one would have been
    prior to July 1, 2008.
        I will not be as eloquent, nor will I--I don't practice in
    this area; I'm mainly defending the State of Illinois--as
    Professor Norton was able to explain. So, I think that, you
    know, in all legal cases there are two sides to a story. The
    courts throughout this country, as has been noted, have had
    slightly less than 45 years--I think the current language in
    that section is from 1972; so, since 1972 they have been
    interpreting that language, and have done a good job of it,
    creating, again, as Professor Norton said, a standard that is
    applicable across the circuits. So, I do believe, No. 1, based
    on the experience in Illinois, this has not been an issue; and,
    No. 2, that the courts will definitely understand the
    implication of importing the title VII standard.
        The Chairman. Ms. Norton, do we know--I probably should ask
    Senator Franken this--has there been any problems in the States
    that have had such a law on their books for a long time? Now,
    Iowa's only had it on its books for a couple of years, but some
    States go back to the 1990s. What's been the experience in
    these States, dealing with the religious exemption?
        Ms. Norton. Right. I think it--backing up Attorney General
    Madigan's experience, as well, I think there's been very, very
    little experience. There's very few complaints of any type
    being filed under the statute. In Colorado, for example, and in
    most States, you see only dozens of complaints filed at all
    under this statute in any given year. Larger States, like New
    York and California, maybe a few hundred. But, a very small
    fraction of the total human rights caseload in those States.
    Actually, I can't give you an example of a case involving a
    religious institution as a defendant; not to say that they
    don't exist, but just to say that the sample size is very
    small.
        The Chairman. Thank you very much. I've used double my
    amount of time.
        Senator Merkley.
        Senator Merkley. Thank you very much, Mr. Chair.
        Officer Carney, thank you for your terrific testimony. You
    note that our Constitution says that, ``All men are created
    equal, endowed by their creator, with certain inalienable
    rights, that among these are life, liberty, and the pursuit of
    happiness.'' Do you find, from your experience, that equal
    opportunity at your job is integral to life, liberty, and the
    pursuit of happiness?
        Mr. Carney. Well, the only thing I can do is tell you from
    experience that the first 30 years of my life were hell. I hid,
    and I tormented myself over my sexual orientation, my identity
    issue. Since then, since I filed my complaint and it became
    public knowledge that I was gay, everything in my life has
    gotten better. I truly feel that I am much healthier, I take
    care of myself, and I feel that--and hope that I'm a better
    employee as a result of that.
        So, I really feel strongly that having somebody out in the
    workforce is tremendously an asset to--and hopefully our
    department, as well as others.
        Senator Merkley. In your testimony, you described how you
    were denied re-application three times, spent 2\1/2\ years
    appealing that. The Commission Against Discrimination found
    that you had been discriminated against, and you were restored.
    And since then, you've been a police academy instructor, a
    detective in the Youth Assessment Center, detective in the
    Narcotics Division, and an aide to the chief of police. Would
    any of that have been possible if you lived in a State that did
    not have protections against discrimination?
        Mr. Carney. No, sir.
        Senator Merkley. Thank goodness you were in a State that
    did. It's too bad it took so long and interrupted your life.
        This makes me want to turn to Professor Norton and some of
    your testimony. The court found that David Martin was subject
    to a constant stream of degrading sexual comments, lewd
    conduct, posting of profane graffiti, other forms of
    harassment, but his case was dismissed because, ``The torment
    endured by Martin, as reprehensible as it is, relates to his
    sexual orientation, and is thus unremedied by the law.'' So,
    harassment of gay, lesbian, and transgender people are legal in
    States that do not have protection against discrimination.
        Ms. Norton. That's correct, Senator.
        Senator Merkley. That is unbelievable to me.
        To go on, Michael Vickers, who befriended a gay colleague,
    was then the subject of sexual slurs, derogatory remarks,
    irritant chemicals in his food and personal property, engaged
    in a long list of harassment. And the court found,

              ``While the harassment alleged by Vickers reflects
            conduct that is socially unacceptable and repugnant to
            workplace standards of proper treatment and civility,
            his claim does not fit within the probations of the
            law.''

        In Kentucky, this intense harassment was legal because
    Vickers was gay.
        Ms. Norton. That's correct, sir.
        Senator Merkley. And I could go on. The next example cited
    that the court found that, ``No doubt the conduct engaged,''--
    this is regarding Dwayne Simonton--``engaged in Simonton's co-
    workers is morally reprehensible whenever and in whatever
    context it occurs, particularly in the modern workplace.'' But,
    the court went on to reject his claim, saying, ``The law is
    well-suited, does not protect harassment or discrimination.''
        If we pass the Employment Non-Discrimination Act, will this
    ``morally reprehensible''--as described by one court--
    ``repugnant behavior,'' this direct harassment, making people
    extraordinarily miserable in the workplace, will it finally be
    illegal for the GLBT community to be subject to that kind of
    treatment?
        Ms. Norton. Yes, sir, it will make that treatment illegal.
        Senator Merkley. Thank you. As you can tell, I think that
    it's about time that we protect all American citizens, giving
    them both the chance to have a job that they would like to
    apply for--without discrimination hiring--and certainly against
    this repugnant, unacceptable, harassment in the workplace.
        Attorney General Madigan, we've had the experience in
    Oregon for a year and a half now; so, a shorter period of time.
    We've had a modest number of complaints. The press calls it--
    and the headline was, ``Gay Discrimination Complaints, Few
    Under Oregon Law. An Oregon law protecting gays from
    discrimination, housing, work has produced a mere trickle of
    complaints.'' It goes on to analyze those complaints. And finds
    that basically, the law is doing what it should. Conduct has
    changed as a result of the law.
        And I believe, in your testimony, you said you had more
    complaints about GLBT treatment in the workplace--I think it
    was 10 percent versus 2 to 4 percent now--and you've seen the
    impact. People recognize, ``Oh, I can't harass people in the
    workplace like I did before,'' and there's actually fewer
    complaints now than previously.
        Ms. Madigan. The complaint levels have--initially they were
    low, they went up in the second year, down in the third,
    they're up in the fourth. I think that happens for a number of
    reasons.
        No. 1, initially people are not aware of the law. Our
    Department of Human Rights has been very proactive in educating
    people and employers about the laws. Employers, as I mentioned,
    have adopted this into their policies, are doing training
    programs on it. So, there's a greater awareness.
        But, nonetheless, when you look at the total number of
    complaints, they're still relatively small. If I average it
    out, I would say no more than 100 a year, under sexual
    orientation and gender identity, that have been filed.
        Senator Merkley. Chair, I see I'm over my time, but I had
    one more question to pursue, here. Thank you.
        You also note that charges filed with IDHR show that
    religious--and I assume it's Illinois Department of Human
    Rights?
        Ms. Madigan. Correct.
        Senator Merkley. Show that religious institutions have not
    been impacted by the 2006 amendments to the Illinois Human
    Rights Act. Can you expand on that? You don't see a stream of
    complaints from religious institutions saying that they're
    being unfairly constrained?
        Ms. Madigan. We do not. In fact, when we went to amend our
    Human Rights Act in 2005, there was significant support among
    people in the religious communities of our State for this
    amendment to include sexual orientation and gender identity. In
    addition, as my testimony indicates, no more than a handful of
    complaints. We have none since fiscal year 2009, so that would
    have been July 1, 2008.
        Senator Merkley. It's probably appropriate to note here
    that we have received a letter from the Union of Orthodox
    Jewish Congregations of America, from the U.S. Conference of
    Catholic Bishops, and the General Conference of Seventh-Day
    Adventists, that I'd like to have entered into the record.
        [The information referred to follows:]

      General Conference--Seventh Day Adventist Church,
                                       Silver Spring, MD 20904,

     Union of Orthodox Jewish Congregations of America,
                                          Washington, DC 20001,

                   U.S. Conference of Catholic Bishops,
                                          Washington, DC 20017,
                                                      October 18, 2007.
    Hon. George Miller, Chairman,
    Hon. Howard ``Buck'' McKeon, Ranking Member,
    House Committee on Education and Labor,
    U.S. House of Representatives,
    Washington, DC 20515.
        Dear Chairman Miller and Ranking Member McKeon: While we have no
    position on the underlying legislation, we write to you on behalf of
    our respective organizations--the General Conference of Seventh-Day
    Adventists, the Union of Orthodox Jewish Congregations of America, and
    the United States Conference of Catholic Bishops--to express our
    support for the religious exemption language found in section 6 and
    section 3(a)(8) of H.R. 3685, the Employment Non-discrimination Act of
    2007 (ENDA), being considered by the committee today.
        As was the case in versions of ENDA that were introduced in
    previous congresses, the language in section 6 of H.R. 3685 contains a
    single sentence exempting religious organizations from its provisions.
    Also as in previous congresses, H.R. 3685 defines religious
    organization in a manner that is consistent with the language found in
    Title VII of the Civil Rights Act of 1964. We believe this language
    provides an indispensable protection for the free exercise rights of
    religious organizations and strongly support its inclusion in ENDA.
        We understand that an amendment may be offered in the committee's
    markup that would alter the carefully calibrated language contained in
    section 6 and section 3(a)(8) of H.R. 3685. Adoption of such an
    amendment would present our organizations with grave concerns about
    unacceptable government infringement upon the freedoms guaranteed to
    religious organizations by the U.S. Constitution, as well as by Supreme
    Court and statutory precedents. We would oppose any such amendment.
        By including language that is consistent with the religious
    exemption language from previous congresses, we believe that the
    religious liberties guaranteed by the U.S. Constitution, Supreme Court
    jurisprudence, and existing Federal law are better protected. We urge
    you to oppose any amendment that would upset this tradition.
                Sincerely,
                  Nathan J. Diament, Director of Public Policy,
                     Union of Orthodox Jewish Congregations of America.

                            Anthony Picarello, General Counsel,
                                   U.S. Conference of Catholic Bishops.

                          James Standish, Legislative Director,
                          General Conference of Seventh-Day Adventists.

        Senator Merkley. They have written to,

            ``express our support for the religious-exemption
            language found in section 6, section 3(a)(8) of H.R.
            3685, the Employment Non-Discrimination Act, being
            considered by the committee today.''

        I'll tell you, we had an intense discussion. Many of the
    types of detailed concerns, ``the sky is falling'' concerns,
    expressed by Mr. Parshall were part of the conversation we had
    in Oregon 2 years ago. We worked very hard to bring a lot of
    common sense to creating that boundary of fairness to religious
    institutions. We have had, to my knowledge, exactly zero
    complaints following implementation of this law. It sounds like
    that parallels your experience over a greater period of time in
    Illinois.
        Ms. Madigan. It does, Senator. Again, this is a necessary
    and useful law to protect people--all people in the State of
    Illinois--and certainly it is long overdue that these
    protections exist across the country.
        Senator Merkley. I'm out of time. But, thank you, Nike----
        [Laughter.]
        Senator Merkley [continuing]. So much for your leadership.
        Thank you, to Diane Rosenbaum. She's a State senator from
    Oregon who was absolutely the heart of our effort to create
    fairness in the workplace, and I appreciate that she was able
    to come this morning.
        Thank you.
        The Chairman. We welcome you here. Thank you very much.
        Senator Franken.
        Senator Franken. Mr. Chairman, thank you.
        Mr. Carney, I heard you bring up, ``life, liberty, and the
    pursuit of happiness.''
        Mr. Carney. Yes, sir.
        Senator Franken. It seems like that's a pretty basic
    principle here----
        Mr. Carney. One would think so, sir.
        Senator Franken [continuing]. In this country.
        Mr. Carney. Yes.
        Senator Franken. Ms. Nguyen, you brought up one of the
    credos of Nike--and by the way, I've been to the campus there
    in Beaverton; it is unbelievable. And all these credos that you
    have there seem to be working pretty good. And yours is,
    ``bringing their full selves to work.'' Is that right? How did
    you put that?
        Ms. Nguyen. ``An inclusive environment where people are
    bringing their full selves to work,'' yes.
        Senator Franken. OK.
        Now, it seems like the result of not having this law is
    that people can't bring their full selves to work----
        Ms. Nguyen. Right.
        Senator Franken [continuing]. If they're fearing, ``I could
    get fired, I could get harassed, I could be driven out of my
    job by an unfriendly environment if I let everybody know who I
    was.'' So, you feel like you get productivity from people when
    they bring their full selves to work.
        Ms. Nguyen. Yes. That's absolutely correct.
        Senator Franken. But, it seems like not having ENDA means
    that people aren't able to bring their full selves to work, and
    I just wonder about the loss in productivity, and what you see
    in the gain in productivity at Nike from people being able to
    bring their full selves to work.
        Ms. Nguyen. That's a great question.
        For us, the heart of Nike is around innovation. We firmly
    believe, as I mentioned, that diversity is one of those key
    levers that keeps Nike on the leading edge of innovation. If we
    are not creating an environment that is inclusive and
    celebrates the diversity and is able to tap into all the
    diverse perspectives that our wealth of talent brings, then we
    suffer--our innovation suffers, our creativity suffers, and our
    morale suffers.
        Senator Franken. So, in a way, what we're doing, by not
    letting people be themselves in the workplace, is suppressing
    productivity.
        Ms. Nguyen. Yes. People are not going to be giving their
    all, essentially, or playing at the top of their game in the
    workplace----
        Senator Franken. OK.
        Ms. Nguyen [continuing]. If they're not comfortable with
    being who they are in the workplace.
        Senator Franken. Professor Norton, I want to ask you a
    question. Mr. Parshall, I want you to be able to respond to it.
    So, I might go over my time, but not anywhere near----
        [Laughter.]
        Senator Franken [continuing]. As much as Senator Merkley.
        But, I'm not a lawyer. I'm one of the few members of this
    committee that isn't, but I did some research, and I discovered
    that most Americans aren't----
        [Laughter.]
        Senator Franken [continuing]. So, I'm representing them.
        But, as I was hearing Mr. Parshall talk about title VII and
    the religious exemption, which you heard all these different
    religious groups in Oregon commended and signed on to.
        Senator Merkley. These are national groups.
        Senator Franken. Oh, those are national groups, sorry.
        It seemed like he was making a kind of distinction. He was
    saying that the exemption is built around what the person is
    being discriminated against--like in title VII, which is race
    or gender--as opposed to defining the kind of organization
    that's exempt. I want you to speak to this, Mr. Parshall. It
    seems like you're kind of making a false distinction here, that
    title VII was basically defining what kind of organization and
    what kinds of organizations are exempt, and not really defining
    what the thing you can't be prejudiced against is. You
    understand what I'm saying? Because I'm not saying it so great.
        [Laughter.]
        Ms. Norton. I understand you very well, Senator Franken.
    Thank you for the question.
        I, respectfully but strongly, disagree with Mr. Parshall's
    description of the religious exemption and how it works.
        Title VII, you're exactly right, defines a range of
    institutions--institutions that are exempt from title VII's
    prohibition on religious discrimination. There are two
    provisions.
        One exempts religious corporations, associations,
    educational institutions, and societies. If you fall into that
    category of institutions, you may discriminate on the basis of
    religion without running afoul of title VII.
        Title VII has another exemption for educational
    institutions that don't fall into that earlier exemption, but
    nonetheless are, in whole or in substantial part, owned,
    controlled, managed, or operated by a religious institution, or
    that had a curriculum that's directed toward the propagation of
    a religion. Again, if you fall in that category of
    institutions, you are relieved from title VII's prohibition on
    religious discrimination.
        Now, if you fall into either of those categories, you must
    still comply with the remainder of title VII, which means you
    cannot discriminate on the basis of race, color, sex, or
    national origin.
        ENDA very clearly--section 6 is very clear--that, ``This
    Act shall not apply''--this Act, which prohibits sexual
    orientation and gender identity discrimination--``shall not
    apply to those institutions that are exempt under title VII.''
    So, once this bill becomes law, if you fall into one of the
    religious institution exemptions, you are relieved from title
    VII's prohibition on religious discrimination, and you are
    relieved from ENDA's prohibition on sexual orientation and
    gender identity discrimination, period.
        Senator Franken. OK.
        Mr. Parshall, I want you to respond to that.
        Mr. Chairman, I really--I'm sorry about this, but----
        I'd like you to respond to that Mr. Parshall. I am over my
    time. I wouldn't mind if you had a chance to respond to the
    response. OK?
        [Laughter.]
        Mr. Parshall. Thank you for your fundamental fairness,
    Senator, I appreciate that.
        Senator Franken. Fundamental fairness would have me
    allowing you to respond to her response to your response. And
    I'm not going to do that.
        [Laughter.]
        Mr. Parshall. Sometimes we lawyers enjoy a refreshing
    nonlawyer's perspective in getting down to the bottom of the
    bottom line. I think you've just touched on it. What does title
    VII really exempt? You've hit on part of it, but not all of it.
    No. 1, the nature of the organization--and it has a list--
    religious corporations, institutions, educational, and so
    forth--that describes the nature of the organization. That's
    one inquiry. But, there's a second prong that the courts apply,
    and that is, No. 1, are you a religious organization falling
    within title VII's language, but, No. 2, what is the focus of
    your conduct? The case--cases have said, ``If your focus is to
    discriminate based on race or sex or gender, the exemption
    doesn't apply, but if it's directed to the faith, or lack of,
    of the employee, then we have a collision between faith and
    faith, and that's where the exemption kicks in.''
        Now, the problem is, if a homosexual or lesbian or
    transgender person applies at a Christian bookstore, as an
    example, and they said, ``We're not going to hire you.'' Let's
    say they say, ``We aren't hiring you because of your sexual
    orientation,'' the courts will look at the language--and I'm
    just going to quote one case, that is a Third Circuit case--
    Third Circuit Court of Appeals--that interprets the religious
    exemption under title VII this way, ``The statute exempts
    religious entities and educational organizations from its
    nondiscrimination mandate to the extent that an employment
    decision''--and this is the important part--``is based on the
    individual's''--that is, the employee or prospective
    employee's--``religious preferences.'' So, if a person of
    sexual orientation that doesn't happen to coincide with the
    religious beliefs of a Christian bookstore or a Christian
    publisher, says, ``Well, I'm a Lutheran. This isn't a Lutheran
    publishing company. No problem. You don't have an exemption.''
    But, if he says, ``I'm an atheist and a transgender,'' then the
    Christian publishing might have an exemption. That's part of
    the confusion that I think occurs by section 6 just simply
    importing the whole title VII scheme.
        Senator Franken. Yes. I think I understand that. Can I just
    have a brief response to that?
        Ms. Norton. Yes, sir. Again, I respectfully but strongly
    disagree with Mr. Parshall's characterization. Title VII first
    asks, ``Do you fall into one of these institutional
    categories?'' If so, you're relieved from the prohibition on
    religious discrimination. If so, section 6 of ENDA is
    completely clear that you're also relieved of the prohibition
    on discrimination on the basis of sexual orientation and gender
    identity.
        Senator Franken. But, he's saying that religious
    discrimination is discriminating against the person's religious
    beliefs, as opposed to discriminating against their gender or
    sexual orientation or their gender identification.
        Ms. Norton. Sure, those are different things. But, the
    significance of the exemption in ENDA is that if, for example--
    we'll just use the example he used--if you are a Lutheran
    religious institution--actually, I don't want to pick on
    Lutherans; there's many in Minnesota and Iowa and elsewhere.
        Senator Franken. That's right. They're terrific.
        [Laughter.]
        Ms. Norton. If you're--I'm Lutheran--if you're a religious
    institution within the meaning of title VII, you are free from
    ENDA. So, it's OK if you say, ``I'm discriminating against him
    or her because''--it's OK as a legal standard, not as a moral
    standard.
        Senator Franken [I have actually gone further over my time
    than Senator Merkley.
        Senator Merkley. Far over.
        Senator Franken. Yes.
        Senator Merkley. Far over.
        [Laughter.]
        Senator Franken. OK, thank you, Senator. That just took
    more time, didn't it?
        [Laughter.]
        But, why don't you guys talk between yourselves and settle
    this and let us know how it came out.
        [Laughter.]
        Thank you, Mr. Chairman.
        The Chairman. I would say--Do you have a response to that,
    Mr. Parshall?
        Mr. Parshall. Well, I do. I'll give you an example. This is
    a case--this is a recent case. I cited it in my written
    testimony. It's at the bottom of page 4 of my testimony--
    written testimony, page 5. Prowel versus Wise Business Forms,
    this is an August 28th, 2009, just but 2 months fresh out of
    the docket, from the Third Circuit Court of Appeals. This is a
    case where a person was clearly a person whose sexual
    orientation didn't meet the agreement of some people who are
    religious people in that small business. They directed
    religious comments, the plaintiff felt, in a harassing way. One
    of the claims this employee made was gender discrimination and
    also religious discrimination. Now, again, we don't have ENDA,
    so the court had to face whether or not there's the sex
    stereotyping theory that can be used. By the way, by my count,
    four Federal Circuits--it would be the First Circuit, Third
    Circuit, Sixth Circuit, the Ninth Circuit of the Federal
    Circuits--have adopted the theory that if you're a homosexual
    and you're harassed on the job because you don't meet the
    gender stereotype of these heterosexuals that don't like you,
    you can file a claim without ENDA. But, in the course of that--
    in that decision, the Wise Business Forms decision, 2 months
    old, said that the nature of the discrimination against this
    individual really wasn't religious, even though he cited
    examples of it being motivated by the religious positions of
    employees and the employer allowed it to happen. They said,
    basically, this is gender--this is sex or gender type
    discrimination. I think that's what the courts are going to
    say. They've already said, in a number of cases, that the
    situation of a person who is discriminated based on sexual
    orientation is very similar to a gender discrimination case
    that we've already had under title VII. So, the proclivity of
    the court is, I think, clear, they're going to probably orient
    their decision and say, ``It's very much like sex
    discrimination,'' which religious groups don't have a pass on,
    ``or race discrimination,'' where we don't have a pass on,
    rather than say it's really having to do with the faith of the
    employee.
        Ms. Norton. Can I make--I'll make one last pass. With all
    due respect, Mr. Parshall's creating a problem that does not
    exist. The effect of the title VII religious exemption is that
    if a plaintiff files a claim of religious discrimination
    against an organization that falls within one of those
    exemptions, that plaintiff will lose on a motion to dismiss. We
    will never get to the merits. The courts will say, ``Exempt
    under title VII.'' The effect of ENDA, once it becomes an act,
    is, if a plaintiff files a sexual orientation or gender
    identity discrimination claim against an institution that falls
    within that exemption, that plaintiff will lose on a motion to
    dismiss. We will not get to the merits. Those institutions do
    not have to comply with ENDA's prohibitions on sexual
    orientation and gender identity discrimination.
        The Chairman. But, I assume that the court will look at the
    essence of the fundamental structure of the entity that the
    complaint is being filed against.
        Ms. Norton. To determine whether the exemption applies,
    that's true, yes.
        The Chairman. Sure. To get back to facts, what are the
    facts in the case. No legislation that we ever pass here can
    cover every perceivable factual situation that might arise in
    the future. So, that's why--sure, you can bring up a fact
    situation and a fact that maybe we hadn't anticipated. But,
    again, we can't anticipate every factual situation that might
    come up. All we can do is give the broad guidance to courts as
    to exactly what we meant in this, with both the legislation as
    we frame it and the report language that encompasses it.
        I've had that same experience with the Americans with
    Disabilities Act for all these years, for crying out loud. We
    had to come back, as you know, last year, and pass the ADA Act
    amendments to instruct that court over there as to what we
    meant. We did it with a bipartisan majority. So, this is not
    unusual for courts to either misinterpret or to kind of veer
    off from what we wanted to do. So, I say that in the way of
    saying that when we pass broad civil rights legislation as the
    Americans with Disabilities Act was, or as this is, or title
    VII or some civil rights act, that we may have to from time to
    time come back as a Congress to instruct the courts as to what
    it is that we mean. I have no doubt that that's going to
    continue far beyond my lifetime.
        I want to switch to a different subject. Ms. Nguyen--
    because this is going to come up; it was brought up by Ms.
    Olson, and it's going to come up--and that is accommodations--
    --
        Ms. Nguyen. Yes.
        The Chairman [continuing]. Accommodations about bathroom
    facilities. How do you handle that issue?
        Ms. Nguyen. Right.
        The Chairman. Well, how do you do it at Nike?
        Ms. Nguyen. Thank you, Senator. At Nike, employees use the
    facility that corresponds to the gender to which they identify,
    regardless of their gender at birth, and that includes locker
    rooms in our fitness centers and our restrooms. So, in our
    locker rooms and, of course, the restrooms, there are private
    areas that employees could use if they so choose. If there are
    unusual circumstances that arise, those are dealt with on a
    case-by-case basis to arrive at solutions that are safe and
    convenient and dignified for our employees.
        The Chairman. So, you haven't experienced a real problem.
        Ms. Nguyen. No, not at all.
        The Chairman. That's why I wanted to cover it.
        Senator Merkley.
        Senator Merkley. Thank you very much, Mr. Chairman. I want
    to ask a couple more questions.
        I want to note that the letter that I submitted for the
    record from the Union of Orthodox Jewish Congregations of
    America, the U.S. Conference of Catholic Bishops, and the
    General Conference of Seventh-Day Adventists, was a letter
    written 2 years ago about the other religious exemption
    language found in the House bill. It is the same language we've
    incorporated into this Senate bill. But, I did want to clarify
    that this was a 2007 letter written in the context of the House
    discussion.
        I wanted to switch now and ask a little bit more, Ms.
    Nguyen, about Nike's leadership. The last year that we held a
    hearing on ENDA here in the Senate was 2002--7 years ago. In
    2002, you testified, Nike was 1 of just 13 companies that got a
    perfect score from the Human Rights Campaign's Corporate
    Equality Index, but that there's been a lot of change over the
    last 7 years, in terms of companies signing up to provide
    fairness in the workplace. Maybe you could just describe the--
    I'm not sure how long you've been at Nike; I didn't catch that.
    But, can you describe----
        Ms. Nguyen. Since 2004.
        Senator Merkley. OK. Then, since 2004, what kind of
    transition have you seen in the business community across
    America?
        Ms. Nguyen. Thank you. That's a good question. Someone said
    it before, I think, that the conversation has changed,
    especially around diversity in a corporate environment. We know
    that there is a direct correlation between diversity and
    leveraging diversity and inclusion and a company's bottom line.
    So, looking at it from that perspective, it just makes sense.
    It's a huge business benefit for us at Nike. It's sort of
    simple as that.
        Senator Merkley. Thank you. Can you expand a little bit on
    the group, Business Coalition for Workplace Fairness, a
    coalition of 80 leading companies who support passage. In
    addition to advocating for passage of this law, what kinds of
    other things are they doing to advance fairness in the
    workplace?
        Ms. Nguyen. I don't have all the information that the
    Coalition is doing; however, after the hearing, I'm happy to
    have someone contact you for more information specifically
    related to the Coalition.
        [The information referred to may be found in Additional
    Materials.]
        Senator Merkley. That would be great.
        Ms. Nguyen. Absolutely.
        Senator Merkley. In terms of the Fortune 500 companies, if
    we turned the clock back just 6 years, 360 of the 500 companies
    provided protection, and now it's up to 425, only 75 that
    don't--a diminishing number. It's a similar progress, in terms
    of gender identity; it was only 26 companies, 6 years ago, and
    in your testimony, I believe, you said it was more than a
    third.
        Ms. Nguyen. Yes.
        Senator Merkley So, more than 100-and-about-60 companies,
    at this point.
        I'd just like to invite anyone else to speak, who has been
    part of this conversation over the years, on the type of
    transitions that have occurred between 2002, when we last held
    a hearing, and 2009. Would anybody like to share any comments
    or insights on that?
        Ms. Olson. If I might share just some comments on that
    question, as well as, I think, on the question from Senator
    Harkin that was posed earlier, in terms of, What are really the
    biggest challenges or the biggest impediments, in terms of
    incorporation of the kinds of prohibitions that we're talking
    about in ENDA and the workplace? I speak from an experience of
    both myself as well as over 100 labor and employment lawyers
    who work with employers across the country, counseling
    employers regarding their policies and practices and
    implementation of those policies and practices through training
    and through other methods, in terms of developing what are the
    appropriate practices. I think it is absolutely critical to
    have clarity. I noted a number of different issues, and I note
    them not as theoretical possibilities or issues, but I note
    them. The issue of shared facilities is an issue that comes up
    quite a bit. It does. ENDA, unlike almost all State laws--
    currently, the draft that you're looking at, contains specific
    language which directs employers, ``Here are the two
    alternatives you have when this issue is posed.'' That's very,
    very helpful to employers.
        And, in terms of the other issues that I raised, I think
    the more we can have clarity, the more that--the draft of ENDA
    that we're looking at has a 6-month implementation cycle. And
    to ensure that we have our policies and practices, we have
    training with employees and their supervisors regarding, What
    are the obligations if these policies and programs aren't
    already in place or if, because they have a policy that's not
    exactly in line with the requirements of ENDA, that it's
    amended appropriately, I think it would be really helpful in
    terms of seizing an opportunity to make sure everybody has
    clear guidance and that they can implement the direction of
    Congress in this area.
        Senator Merkley. Like my colleague from Minnesota, I'm not
    a lawyer, either.
        [Laughter.]
        Shocking, isn't it?
        [Laughter.]
        As you were going through your list, I was thinking back to
    the conversations we had in Oregon about very fine points of
    the law, what could produce a lawsuit, what could produce this.
    I think that conversation is very responsible. I think it's
    very useful. I also want to point out that the number of
    complaints that have come in States that have implemented
    workplace fairness from employers, it's incredibly few compared
    to the number of employers covered. We're not aware of a single
    such concern from a religious institution or any other
    institution in Oregon in the 18-month history of our
    implementation. While I think we should consider being as smart
    as we can, I also want to recognize that--let's not lose track
    of the forest for the trees. And that is that once you
    establish a principle of equality under the law, of equal
    opportunity, people get it, and their behavior changes, and it
    works. And we need to get to that point by passing this law.
        Thank you, to the whole panel--oh, yes, Mr. Carney. We'll
    take this off of my colleague's clock.
        [Laughter.]
        Mr. Carney. Glad to do that, sir. I just wanted to say one
    thing. I find it twisted and ironic that my job as a public
    servant is to go out on the streets every day and to protect
    the civil rights of everyone. Most of those civil rights, I
    don't have as a gay American. I think it's time that Americans
    speak up to this. It's an act like this and a bill like this
    that offers a level playing field for all. It really, truly
    means that we will all be treated equal. Isn't this what it's
    all about?
        Thank you.
        Senator Merkley. That is what it's all about. Thank you.
    Thank you for your earlier powerful testimony.
        The Chairman. Senator Franken.
        Senator Franken. Thank you.
        I want to thank Senator Merkley for the statement he made,
    which is that once you lay out these principles--that it's not
    lawful to be prejudiced, to discriminate against people who are
    gay and transgender and lesbian and bisexual--it changes
    things.
        I want to get into an area with Mr. Carney here. You spoke
    to the nature of your job: law enforcement. It seems to me that
    we've had problems, in the history of law enforcement, in terms
    of the police and being biased, in the way they protect the
    public safety, against, at certain times, blacks and against
    gays. To what extent do you think that it probably helps
    everybody to have a diverse population in our law enforcement?
        Mr. Carney. Thank you, Senator. Very well put. You know,
    the last 19 years of my life, since I've come out, has truly
    been an unbelievable experience. It's been a learning
    experience for myself, as well. Working with my community and
    my department, we have come up with several programs to work
    with kids. It builds and bonds the trust between the citizens
    and the police officers. We do the same thing with the gay
    community. The concept of community policing, which is, you
    know, a term that we've all used over the years, is having a
    department that looks like the community that it serves. I
    believe that that should be a department that should be
    integrated by race, gender, and sexual orientation. We have had
    a lot of luck working with the community. Specifically, I have
    been given information from the gay community on murders, that
    we were able to solve. We were targeted--we had a heterosexual
    man who was targeting gay men, and robbing them, and beating
    them. They came to me, and they asked me what I could find out
    about it. I went into the community, and we were able to solve
    these problems. We can. I can't, but we can. It's a
    fundamental--you know, it's just a concept that we need to work
    together on. I think that it really brings in a whole new
    concept into policing, having a department that looks like the
    communities that we serve. And that's everyone.
        Senator Franken. Thank you.
        Mr. Carney. Thank you.
        Senator Franken. Thank you, Mr. Chairman.
        The Chairman. Very true, Mr. Carney. Very true.
        Mr. Carney. Thank you, Senator.
        The Chairman. Let me cover one thing. Being a lawyer but
    not a very good one.
        [Laughter.]
        I do want to get something in the record regarding
    sovereign immunity. And again, for instructions to the courts
    down the way.
        Attorney General Madigan, as the attorney general of
    Illinois, do you support abrogating sovereign immunity here?
    And, both you and Ms. Norton, do you think this is within the
    purview of Congress, within our constitutional authority, to
    abrogate sovereign immunity here?
        Ms. Madigan. As the attorney general of Illinois, I have no
    objection to abrogating State eleventh amendment immunity under
    ENDA. In fact, the recent trend in Illinois has been for the
    State to abrogate that immunity itself from suits under Federal
    employment and Federal civil rights laws. So, I believe that
    the citizens of the State of Illinois should have an unfettered
    right to vindicate their Federal antidiscrimination claims. As
    I mentioned, we have been doing this since I've been the
    attorney general.
        The Chairman. Very good.
        Ms. Norton.
        Ms. Norton. Mr. Chairman, I certainly agree that ENDA, as
    drafted, satisfies the U.S. Supreme Court's criteria for
    congressional abrogation of State sovereign immunity. First,
    ENDA clearly and unequivocally announces Congress's intention
    to abrogate. And second, the record that has been developed
    over 15 years, and continues through today, clearly
    demonstrates that Congress has a valid source of congressional
    authority through the Fourteenth Amendment to abrogate State
    sovereign immunity here. That longstanding record was most
    recently supplemented by the Williams Institute report that you
    alluded to. That's the most recent, and assuredly the most
    extensive, discussion of widespread, persistent, and
    irrational--irrational--discrimination on the basis of sexual
    orientation and gender identity by State government employers.
    Because that discrimination is irrational and has no relation
    to ability in the workplace, it is unconstitutional, under any
    standard, and, as a result, fully develops the record necessary
    to establish that Congress has the fourteenth amendment
    authority to abrogate State sovereign immunity in this context.
        The Chairman. Very good.
        I believe we have a vote on the floor now on cloture on
    Commerce, State, and Justice Appropriations Act. Did anyone
    have any final comments, from our panel? You've come a great
    distance, some of you, and is there any final question that we
    didn't ask that you would like to make a statement on before we
    close shop here? Going once, going twice.
        [No response.]
        The record will remain open for 10 days for member
    statements and questions for the record.
        Thank you all. I thank my fellow Senators for being here
    today. This is, again, I believe, one of the most important
    issues confronting us as Americans, the ongoing issue of the
    evolvement of our Nation in fulfilling civil rights. I don't
    believe our country has ever gone wrong when we expand civil
    rights. Never.
        But I am respectful of Mr. Parshall and the community that
    he's here to represent. This is a balance. I am very respectful
    of people's religious beliefs. That's civil rights, also. But,
    we have to balance those out for the good of the Nation. Quite
    frankly, I feel that, through the evolvement of ENDA and
    through the evolve-
    ment--through the experiences that we have had with title VII,
    with other civil rights bills, one that--again, I'm
    particularly close to, the Americans With Disabilities Act--we
    find our way through these things. I remember the debate around
    the ADA, and, oh my gosh, the sky was going to fall, we were
    going to have to do all these things, and were going to have to
    hire people we didn't want to hire, and just--all these things
    we heard. None of it really came to fruition. Fears were
    shunted aside. Employers have found out that in many cases, the
    best employees they can hire are people with disabilities.
    We've opened up our whole society for families with children
    with disabilities.
        Again, I think--in this context also, I think we're always
    going to be bumping up against different groups and what they
    consider to be their civil rights compared to the civil rights
    of other groups. But, I believe that, as I said earlier, courts
    will have their role to play, but, as the U.S. Supreme Court
    said in a very famous civil rights case involving the Americans
    With Disabilities Act, as the Court said, ``We're not the final
    word on this. The Congress is.'' This Congress will continue to
    come back, come back in the future to look at these, and to
    make sure that we balance these out so that people's civil
    rights are respected in this country, but where no group can
    impose on another group their beliefs. No group can take their
    beliefs or their situations and force somebody else to do
    something against their conscience. We're not about that. We're
    about making sure that people can enjoy employment, can have
    their rights protected, so when they go to work they are judged
    not on what their belief is or whether they're male or female,
    whether they're gay, bisexual, or transgender. Their status
    should not be relevant. That's what this is all about, is
    making sure that the structure is fair for everyone, and
    everyone gets an equal shot at employment opportunities in this
    country. That's what ENDA's about, and that's why I'm
    determined, as chairman, to get this bill through next year.
        Thank you all very much for being here, and the committee
    will stand adjourned.
        [Additional material follows.]

                              ADDITIONAL MATERIAL

                       Prepared Statement of Senator Dodd

        Chairman Harkin, fellow members of the committee, thank you
    for holding this hearing.
        While I am proud to speak in favor of this landmark civil
    rights legislation, I am troubled and a bit baffled that the
    question of whether or not we should permit discrimination in
    the workplace is still up for debate.
        I'm proud to report that my home State of Connecticut has
    had laws on the books prohibiting employment discrimination
    based solely on sexual orientation since 1991. Nevertheless, in
    29 other States, it is legal to fire someone because of their
    sexual orientation. In 38 States, it is legal to fire someone
    because of their gender identity. In an era that has seen so
    much progress towards equality, those are shocking numbers.
        The 1964 Civil Rights act prohibits employment
    discrimination based on race, national origin, religion, and
    sex. We are, as a nation, rightfully proud of that legislation,
    and of the steps we have taken since to follow through on the
    promise of a society--or, at the very least, a workplace--free
    of discrimination.
        But these employment protections have not been universally
    applied to gay, lesbian, bisexual, and transgender Americans.
    And that should offend us all.
        I am proud to be an original co-sponsor of the Employment
    Non-Discrimination Act (ENDA). Modeled after Title VII of the
    Civil Rights Act, ENDA will make it illegal for private
    employers in this country to fire, refuse to hire, or otherwise
    discriminate against individuals because of their actual or
    perceived sexual orientation or gender identity. It will also
    empower the U.S. Equal Employment Opportunity Commission (EEOC)
    and the Justice Department to enforce these new protections in
    the same manner as for other forms of discrimination, and it
    will prohibit the use of preferential treatment or quotas in
    employment decisions.
        For those who have faced discrimination in the workplace
    because of who they are, and for those who fear it today, this
    legislation is long overdue. But it is never too late to make
    history. Last week, we did so when we expanded Federal hate
    crimes statutes to cover violence motivated by sexual
    orientation and gender identity. Let us do so again today by
    finally remedying this unconscionable gap in our efforts to
    build a more perfect union. Thank you.

                      Prepared Statement of Senator Brown

        Thank you, Mr. Chairman, for holding this hearing.
        I am sure it was with a heavy heart that you took over the
    HELP Chairmanship after the passing of our dear friend Ted
    Kennedy.
        But we are comforted knowing it is his spirit and his
    legacy of fighting for civil rights for all Americans that
    brings us to this important day.
        Fifteen years ago, Ted Kennedy first introduced the
    Employment Non-Discrimination Act.
        While there have been many battles since to extend the
    equal protection of law to all Americans, I am encouraged that
    the Senate will finally consider and pass this critical civil
    rights and labor legislation during the 111th Congress.
        It's unacceptable that in this day and age, qualified,
    hard-working Americans are denied job opportunities or are
    fired simply because they are gay, lesbian, bisexual, or
    transgender (GLBT).
        It's disheartening that many others live in fear that they
    may lose their jobs if they are open about their sexuality.
        Many Americans believe, erroneously, that current Federal
    labor laws protect the GLBT community from discrimination of
    this type.
        But it is a sad fact that no such protection exists--it is
    unfortunate that in many States, it is perfectly legal to fire
    qualified individuals simply because of their sexual
    orientation or identity.
        The Employment Non-Discrimination Act is a common-sense
    solution to this problem.
        It extends current Federal employment discrimination
    protections based on race, religion, gender, national origin,
    age, and disability to include sexual orientation and gender
    identity.
        ENDA extends fair employment practices--not special
    rights--to all Americans. It would prohibit employers,
    employment agencies, and labor unions from using an
    individual's sexual orientation or gender identity as the basis
    for employment decisions such as hiring, firing, promotion, or
    compensation.
        In a nation based on equal rights for all, it is inherently
    wrong that hardworking individuals could lose their incomes,
    their benefits, and their livelihoods simply for being who they
    are.
        The time has come to afford all Americans equal protection
    under the law, to provide all Americans the dignity and respect
    they deserve.
        The time has come to pass the Employment Non-Discrimination
    Act.

                     Prepared Statement of Senator Sanders

        I would like to thank Chairman Harkin for holding this
    hearing on legislation that seeks to end employment
    discrimination based on sexual orientation. Let me add that
    this bill honors the late Senator Ted Kennedy, who strongly
    supported, through many years of dedicated work, ending
    discrimination in the workplace.
        The battle for the rights of lesbian, gay, bisexual and
    transgendered citizens is part of the long and important
    struggle to ensure the civil rights of all Americans.
    Unfortunately, today 29 States still permit employers to make
    critical employment decisions based solely on an employee's
    sexual orientation. And in 38 States it is still legal to
    discriminate based on gender identity.
        The Employment Non-Discrimination Act of 2009 (ENDA), of
    which I am a cosponsor, is not only an appropriate but a
    necessary step towards guaranteeing the civil rights of all
    Americans.
        ENDA extends protections to lesbian, gay, bisexual and
    transgendered workers similar to protections provided in Title
    VII of the Civil Rights Act of 1964. Currently, employers are
    restricted from discriminating against citizens based on race,
    religion, national origin, sex, age, or disability. This
    legislation would make it illegal for business with more than
    15 employees to fire, refuse to hire, or refuse to promote
    employees based on their sexual orientation and/or gender
    identity. The bill's language is, I believe, free of
    ambiguities, and furthermore addresses sexual harassment and
    shared facilities.
        This legislation has widespread support: 50 civil rights
    groups, over 60 Fortune 500 companies, the Business Coalition
    for Workplace Fairness, Conference of Catholic Bishops, and the
    Union of Orthodox Jewish Congregations of America support the
    bill. Forty-two Senators have cosponsored it. According to a
    2008 Gallup Poll, 89 percent of the Americans believe that gay
    and lesbian Americans should have ``equal rights in terms of
    job opportunities.''
        We know that our Nation benefits when all people can
    contribute their talents and skills in the workplace, where our
    economy and our society is built. I believe we have a
    responsibility to assure that all citizens are protected from
    losing their jobs based on their sexual or gender identity.
        Vermont is one of the 13 States that have already
    recognized and protected the rights of all its citizens in the
    workplace. My State, 15 years ago, enacted legislation to
    prohibit discrimination based on sexual orientation. In 2007,
    Vermont extended its protections to include gender identity.
        The movement to guarantee fairness and equality in
    employment for those individuals who identify as lesbian, gay,
    bisexual, or transgendered is a major step forward for our
    Nation and its citizens. I strongly support the Employment Non-
    Discrimination Act, and I commend Chairman Harkin and the HELP
    Committee for holding this hearing today on the need for, and
    importance of, this legislation.

                             Statements of Support

    Prepared Statement of Eliza Byard, Ph.D., Executive Director on Behalf
               of the Gay, Lesbian and Straight Education Network

        Chairman Harkin, Ranking Member Enzi, and members of the
    committee: On behalf of the Gay, Lesbian and Straight Education
    Network (GLSEN), I am pleased to submit written testimony
    expressing our support for S. 1584, the Employment Non-
    Discrimination Act of 2009 (ENDA). We appreciate your
    addressing this important legislation that will support
    workplace fairness for all Americans by prohibiting employment
    discrimination based on sexual orientation and gender identity.
    I would like to especially thank Chairman Harkin, along with
    Ranking Member Enzi, for convening this hearing. It is
    absolutely critical for this committee and Congress to address
    the issue of workplace fairness, and to act decisively to end
    employment discrimination by passing ENDA.
        GLSEN is the leading national education organization
    focused on ensuring safe schools for all students. Established
    nationally in 1995, GLSEN envisions a world in which every
    child learns to respect and accept all people, regardless of
    sexual orientation or gender identity and expression. In
    addition, we strive to ensure that each member of every school
    community is valued and respected regardless of sexual
    orientation or gender identity and expression.
        Every year numerous qualified, hard-working Americans are
    denied job opportunities, are terminated, or experience on-the-
    job discrimination merely because they are lesbian, gay,
    bisexual, or transgender (LGBT). This kind of discrimination
    occurs in both public and private sector workplaces, across a
    range of types of workplaces, all across the country. Workplace
    discrimination threatens the well-being and economic survival
    of workers and their families. Like other workers, LGBT workers
    deserve to be judged on their skills and qualifications, on
    their work and its merit, not on their sexual orientation or
    gender identity, factors which are unrelated to job
    performance.
        Experience has shown us that, as with all workers, sexual
    orientation and gender identity are not related in any way to
    an educator's performance in schools. Unfortunately, State and
    local governments have engaged in a widespread pattern of
    discrimination against LGBT education employees.
        Because LGBT education employees often fear being out in
    the workplace, they have been reluctant to out themselves
    further by pursuing complaints, and have faced administrative
    courts that have been hostile to their claims; there may be
    significantly more employment discrimination against LGBT
    education employees than the reported cases and surveys would
    indicate. Because of their actual or perceived sexual
    orientation or gender identity, educators have been removed
    from specific teaching or co-curricular responsibilities, or
    forced from the classroom and education profession altogether.
        In considering discrimination against LGBT education
    employees, local discrimination cannot be meaningfully
    separated from discrimination by State governments; it is part
    of the same system of discrimination. Discrimination at the
    local level is rooted in a history of State purges of LGBT
    education employees; a history of State laws specifically
    prohibiting LGBT teachers from teaching; State licensing
    requirements for teachers that included morality fitness tests
    that were interpreted to exclude LGBT employees; State laws
    criminalizing same-sex behavior, including sodomy laws; and
    State laws that prohibit positive portrayals or discussions of
    same-sex or non-heterosexual topics, including sexuality
    education laws that stigmatize LGBT people.
        As an organization that is working to end bullying and
    harassment of all students, GLSEN has explored the experiences
    of students and teachers in order to develop recommendations to
    improve school climate. One important factor is the presence of
    educators who are supportive of LGBT students. GLSEN's 2007
    National School Climate Survey showed that students who could
    identify supportive educators were less likely to feel unsafe
    in school; had less absenteeism related to safety; and reported
    better educational indicators that included a greater sense of
    belonging, higher grade point averages, and higher educational
    aspirations.
        The presence of LGBT school personnel who are out or open
    at school about their sexual orientation and/or gender identity
    provides another source of support for LGBT students by serving
    as visible examples of a supportive and accepting school
    climate. Yet only a third (36.5 percent) of students said they
    could identify any openly LGBT personnel at their school.
        GLSEN understands that school employees best serve students
    when they have workplaces that are free from discrimination and
    harassment, and calls upon public policymakers to adopt and
    enforce measurable non-discrimination and anti-harassment
    policies that include sexual orientation and gender identity.
    ENDA would help to achieve the goals of improving academic
    outcomes, as well as ensuring basic fairness for hard-working
    Americans, by protecting employees from discrimination on the
    basis of their actual or perceived sexual orientation or gender
    identity.
        Again, GLSEN thanks Chairman Harkin and Ranking Member Enzi
    for this hearing on the Employment Non-Discrimination Act. We
    appreciate the committee's attention to this issue, and we urge
    you to move forward in sending S. 1584 favorably to the full
    U.S. Senate. We deeply appreciate your efforts to ensure
    workplace fairness for all Americans, and an end to
    discrimination. If you have any questions, need any further
    information, or if there is any other way that GLSEN can be of
    assistance while you consider this important legislation,
    please contact Shawn Gaylord, Director of Public Policy, at
    202-621-5822 or sgaylord@GLSEN.org.

     Prepared Statement of Rea Carey, Executive Director, National Gay and
                         Lesbian Task Force Action Fund

        Mr. Chairman, Vice-Chairman, and members of the committee:
    We thank Chairman Harkin and the committee for holding a
    hearing on the Employment Non-Discrimination Act (ENDA), S.
    1584. On behalf of the National Gay and Lesbian Task Force--the
    oldest national organization advocating for the rights of
    lesbian, gay, bisexual and transgender (LGBT) people--we urge
    you to support this critically important legislation. Hard work
    and fair treatment are core American values and no American
    should be denied the opportunity to work because of factors
    unrelated to job performance.
        Improvements in the Nation's current economic crisis hinge
    on the talents and expertise of a fully functioning workplace.
    An analysis of Census 2000 data shows a strong link between
    thriving tech-oriented economies and diverse populations,
    including those with high LGBT populations. Workplace equity
    encourages regional growth centers, as top-notch employees have
    migrated to centers where they can be assured that their
    talents will not be suppressed due to legal inequities and
    arbitrary prejudices. ENDA will ensure that all Americans have
    an equal playing field as they seek to secure a livelihood for
    their families and grow our communities.\1\
    ---------------------------------------------------------------------------
        \1\ Gates and Florida, 2002. The link between diversity and
    economic success was first proposed in a paper that examined 5 urban
    centers with the largest LGBT population--San Francisco, Washington,
    DC, Austin, Atlanta and San Diego. Richard Florida's research in this
    arena suggests a strong linkage between equal justice in the workplace
    and creativity and success within companies and communities.
    ---------------------------------------------------------------------------
        Currently, the playing field is far from even. Analyses of
    existing studies and new data suggest that up to two thirds of
    LGB people--and nearly all transgender people--have experienced
    employment discrimination. ENDA is essential to addressing this
    widespread problem.

          LGBT AMERICANS FACE HIGH LEVELS OF EMPLOYMENT DISCRIMINATION

        Over 50 studies of discrimination against LGB people have
    established that they face significant barriers to equality.
    Fewer studies have been conducted about discrimination against
    transgender people; our work surveying 6,450 transgender and
    gender non-conforming people about gender identity-based
    discrimination in the workplace begins to fill that gap.
    Further research is needed, particularly the inclusion of
    sexual orientation and gender identity in population-based
    surveys of the workforce, such as the Bureau of Labor
    Statistics surveys.
        Discrimination against lesbian, gay, bisexual and
    transgender people in the workplace persists despite the
    increasing visibility of these communities and improved local
    and statewide protections against anti-LGBT prejudice and
    violence.
        A 2007 meta-analysis of 50 studies of workplace
    discrimination against LGBT people found consistent evidence of
    bias in the workplace. Ranges for critical workplace concerns
    such as overt discrimination, firing, denial of promotion or
    negative performance evaluation (based on bias) were as
    follows:

         16 percent to 68 percent of LGBT people report
    experiencing employment discrimination;
         8 percent to 17 percent were fired or denied
    employment;
         10 percent to 28 percent were denied a promotion
    or given negative performance evaluations;
         7 percent to 41 percent were verbally/physically
    abused or had their workplace vandalized;
         10 percent to 19 percent reported receiving
    unequal pay or benefits.

        In addition, 12 to 30 percent of heterosexual co-workers
    report witnessing discrimination against their LGB peers. These
    realities, often minimized as a problem of subjective ``self-
    reporting,'' have been confirmed in a study that surveyed
    observations of heterosexual co-workers. Researchers querying
    heterosexuals about witnessing discrimination against their LGB
    peers found that 12 percent to 30 percent of respondents in
    certain occupations, such as the legal profession, have
    witnessed anti-LGB discrimination in employment.
        Discrimination and attendant loss of income and benefits
    can lead to poverty for LGB people over their lifespan.
    According to the Williams Institute, lesbian couples have a
    poverty rate of 6.9 percent compared to 5.4 percent for
    different-sex married couples and 4.0 percent for gay male
    couples. Outcomes are more severe when we examine LGB families.
    When we calculate the poverty rates for all members of the
    family, that is two adults and their children, the poverty rate
    for lesbian families is 9.4 percent compared to 6.7 percent for
    those in different-sex married couple families and 5.5 percent
    for those in gay male coupled families. In general, lesbian
    couples have much higher poverty rates than either different-
    sex couples or gay male couples. Lesbians who are 65 or older
    are twice as likely to be as poor as heterosexual married
    couples.
        Poverty rates for children of same-sex couples are twice as
    high as poverty rates for children of married couples. Although
    gay and lesbian couples are less likely to have children in
    their households than are heterosexual married couples,
    children of same-sex couples are twice as likely to be poor as
    children of married couples. One out of every five children
    under 18 years old living in a same-sex couple family is poor,
    compared to almost 1 in 10 (9.4 percent) children in different-
    sex married couple families. The research points to the
    negative outcomes of discrimination for LGB people and refutes
    the common misconception that gay people have more money and
    live large. Workplace discrimination affects the entire
    family.\2\
    ---------------------------------------------------------------------------
        \2\ The Williams Institute: Bias in the Workplace: Consistent
    Evidence of Sexual Orientation and Gender Identity Discrimination, 2007
    and Poverty in the Lesbian, Gay, and Bisexual Community, 2009.
    ---------------------------------------------------------------------------

             NATIONAL STUDY FINDS RAMPANT WORKPLACE DISCRIMINATION

        The Bureau of Labor Statistics fails to ask sexual
    orientation and gender identity questions in its annual data
    collection efforts, making it impossible to get randomized data
    on LGBT people's experiences of workplace discrimination.
    Instead, the work of chronicling the community's experiences of
    bias has been left to community-based organizations and a
    handful of pioneering researchers and institutes. While the
    data on discrimination against LGB people is relatively scarce,
    there have been even fewer studies on the workplace experiences
    of transgender Americans.
        To address this gap, in a joint effort with the National
    Center for Transgender Equality, the Task Force recently
    undertook a national survey of transgender people and the
    discrimination they endure in employment, education, health
    care, housing, public accommodation, criminal justice, family
    life, and access to governmental documents. Over a 6-month
    period, we surveyed 6,450 transgender people throughout the
    United States via an extensive questionnaire, including people
    in every State of the Nation as well as Washington, DC, Puerto
    Rico, Guam, and the U.S. Virgin Islands. Until this study, data
    on the prevalence of this discrimination has been limited to
    small studies and anecdotal reports.
        Our key finding is this: the State of the workplace for
    transgender Americans is absolutely shameful.
        Discrimination in employment against transgender people is
    a nearly universal experience.

         Ninety-seven percent (97 percent) of our sample
    reports transgender people being mistreated or harassed at
    work.
         Nearly half (47 percent) lost their jobs, were
    denied a promotion, or denied a job as a direct result of being
    transgender. These statistics are alarming and have multiple,
    spiraling negative affects on quality of life.

        Transgender Americans face twice the rate of unemployment
    as the general population for our sample during the time of the
    study.
        Black transgender people reported nearly four times the
    rate of unemployment as the general population (26 percent),
    while Latino and Multi-racial transgender people experienced
    nearly three times the rate of unemployment.
        High unemployment had predictably detrimental effects on
    income, with participants in our study experiencing twice the
    level of extreme poverty as those in the general population.
    Census figures for 2005-7 show 7 percent of the general
    population living on incomes at or below $10,000 while our
    study found 15 percent in this income category. Again,
    transgender people of color are struggling with poverty at
    significantly higher rates, with 23 percent of multiracial
    transgender people living on $10,000 or less, Latino/as at 28
    percent, and African-American transgender people at an
    outrageous 35 percent.
        Survey respondents experienced a series of devastating
    negative outcomes, many of which stem from the challenges they
    face in employment. A large percentage of our sample has
    experienced negative impacts on their housing security as a
    direct result of their gender identity, with almost one-fifth
    of the respondents becoming homeless because they are
    transgender. In addition, 26 percent of our sample reported
    having to find different places to sleep for a short period of
    time and 25 percent were forced to leave their homes and move
    in with family or friends.
        Employment issues also impact transgender people's access
    to health care. Transgender and gender non-conforming people do
    not have adequate health insurance coverage or access to
    competent providers. Respondents in our sample are uninsured at
    the same rate of the general population in the United States--
    19 percent--but only 40 percent of the sample enjoys employer-
    based insurance coverage, compared to 62 percent of the
    population at large. This figure underscores how high
    unemployment creates multiple liabilities for our sample.
        These preliminary figures represent the tip of the iceberg
    for what employment discrimination does to transgender people.
    In the weeks to come, the Task Force and National Center for
    Transgender Equality will release data on housing instability,
    inability to access shelter, poor health care provision,
    harassment and violence at school and other alarming outcomes
    of far-reaching discrimination. Without work, transgender
    people are at the mercy of systems that are unwelcoming at best
    and, more often, actively hostile.

                           ENDA BENEFITS REAL PEOPLE

        As our study and those of the Williams Institute
    demonstrate, employment discrimination against LGBT people is
    more prevalent and widespread than statistics drawn from
    reported court decisions and administrative complaints
    generally indicate.
        Our mandate today is clear: employment protections are
    paramount.
        Because the law protects LGBT people in only 40 percent of
    the country, and many of these protections are in the form of
    hard-to-enforce local laws, there is unfortunately very little
    LGBT people can do to seek re-dress. Where there are laws and
    complaint processes, LGBT employees often are reluctant to use
    these processes because they must ``out'' themselves to members
    of the community or to future employers by filing official
    complaints.
        ENDA is crucial because it will create a Federal standard
    that imposes a baseline of respect and equal treatment for LGBT
    people as a whole, while specifically addressing a desperate
    need for protections for transgender people in the workplace
    that are demonstrated by our survey data.
        ENDA recognizes that a person's sexual orientation or
    gender identity bears no relationship to his or her ability to
    perform at work and provides employees with the same
    protections for sexual orientation and gender identity that all
    people receive for race, color, religion, sex, and national
    origin under Title VII of the Civil Rights Act. ENDA does not
    give special protection; it covers heterosexual and non-
    transgender people if they are discriminated against as well.
        Nevertheless, those who are the most likely to benefit from
    this legislation are members of the LGBT community. Nearly
    every type of employer regularly engages in discrimination:
    there is no sector, private or public, technical, skilled or
    unskilled, in which LGBT people are safe from discrimination.
    State governments, in their capacities as employers, have acted
    as every other employer, engaging in a widespread pattern of
    employment discrimination against LGBT employees and
    applicants. When 97 percent of transgender people are
    experiencing mistreatment and harassment in employment and
    reporting rampant unemployment and underemployment, as our
    study showed, it is clear that every employment sector is
    discriminating, including State employers.
        Below are a few examples of the employment discrimination
    and problems with underemployment that lesbian, gay, bisexual
    and transgender people have endured in the workplace simply for
    being who they are.

         Laura Calvo: Laura Calvo, a transgender woman in
    her fifties who resides in Portland, OR, worked for the
    Josephine County, Oregon Sheriff 's Office for 16 years as a
    Deputy Sheriff and Sergeant. During the course of her
    employment, she served in many capacities: shift supervisor,
    Sheriff Sub-Station Commander, Detective in the Major Crimes
    Unit, Detective in the Josephine County Interagency Narcotics
    Task Force, S.W.A.T. team leader and Commander. Laura remained
    closeted in the workplace because she wanted to carry on a
    responsible career where she could contribute to society and
    knew if her transgender status was discovered she would be
    terminated. In October 1996, Laura Calvo was the victim of a
    burglary and many of her personal belongings were stolen. In
    the course of the recovery effort her transgender identity was
    discovered by her employers. She was called into her
    supervisor's office and told she could not retrieve her
    belongings because they needed to be examined for evidence of
    violations of department policy and potential crimes. She was
    then ordered by her supervisor to undergo a psychiatric
    determination for fitness of duty to return to work. The panel
    of doctors, selected by the Sheriff 's office, determined she
    was not fit to return to duty. Laura was told that she could
    not return to work and that the Sheriff thought she was a
    ``freak.'' Laura was then forced to resign. Source: Testimony
    to the Oregon State Senate, 2007.
         Linda Czyzyk: Linda is an attorney and her partner
    is a college professor who teaches biology and genetics. The
    couple lived in North Carolina and Linda worked at a law firm
    where she was openly gay. When Linda's partner accepted a
    faculty position at a university in Virginia, the couple needed
    to relocate to Virginia.
        In August 2000, Linda had a phone interview with a law firm
    in Virginia and was invited for a second interview at the
    firm's office. During the interview, the firm repeatedly asked
    her why she was moving to Virginia. Linda replied that her
    spouse had taken a position at a local university, making sure
    that she avoided using pronouns. The law firm asked Linda to
    come back for a third interview, but this time she was told to
    bring her spouse because the interview would include a dinner
    with all the partners and their spouses ``to make sure we all
    got along.''
        Linda told the only female partner at the law firm that her
    spouse was a woman. The female partner said that was fine by
    her, but she would have to inform the other two partners at the
    firm. After talking to the male partners, the female partner
    called Linda back to tell her that the male partners said the
    firm would not hire a lesbian and Linda should not bother
    coming to the third interview. Source: American Civil Liberties
    Union, Living in the Shadows: Ending Employment Discrimination
    for LGBT Americans, 2007.
         Alexandra: Prior to Illinois passing a gender
    identity inclusive non-discrimination law in 2002,
    Alexandra,\3\ a transgender woman, worked in an Illinois State
    government office at the College of Lake County in Grayslake,
    IL. She transitioned from male to female at work with the help
    of her therapist who met with staff and supervisors. At this
    meeting, Alexandra's supervisors told her to continue to use
    the men's restroom. After the meeting, her supervisor and co-
    workers persisted in calling her by her male name and referring
    to her as ``he.'' Alexandra voiced her issue with this, asking
    to be treated as the woman she had transitioned to become. She
    was told by her supervisor that she was acting
    confrontationally. This ``confrontationalism'' was cited as a
    reason Alexandra needed to improve her personal relations at
    work. The supervisor claims that the staff is trying to make
    ``adjustments'' for Alexandra, but the supervisor is one of the
    biggest culprits who continue to call Alexandra by male
    pronouns. Alexandra went to the steward of her union to ask for
    assistance in this matter, but even the steward did not want to
    help. Now, Alexandra believes she may have to get her own
    representation to deal with discrimination she has faced in the
    workplace. Source: 6th Report on Discrimination and Hate Crimes
    Against Gender Variant People. It's Time, Illinois . . .
    Political Action for the Gender Variant Community, Spring 2002.
    ---------------------------------------------------------------------------
        \3\ This is not the true name of the victim to protect her privacy.
    ---------------------------------------------------------------------------
         Ronald Fanelle: Ronald Fanelle taught seventh and
    eighth graders at a California middle school. The other faculty
    and the principal knew that Ronald was gay, but his students
    did not. A month after Ronald and his partner were married in
    February 2004, his co-workers congratulated him at a staff
    meeting. Then a teacher told his students that Ronald had
    gotten married to a man over the weekend and the news spread
    around the school. Ronald's students asked if it was true that
    he married a man. Ronald told them it was true.
        In the following weeks, one parent, a personal friend of
    the school board president, vocalized his opposition to a gay
    man teaching in the school and arbitrarily accused him of
    bringing ``his homosexual agenda into the classroom.'' The
    school hired a private investigator to investigate the
    situation and Ronald's background. Nothing damaging emerged.
    Ronald, however, received hate mail on his school e-mail
    account and dozens of viruses were sent to the district, which
    shut down its system. Ronald was instructed in writing to open
    a private e-mail account in order for parents and students to
    communicate with him.
        In the following year, a few students created an anti-gay
    Web page that ridiculed Ronald. Offensive stickers relating to
    Ronald's sexual orientation were posted all over the school.
    The principal called a meeting prior to the new 2006-7 school
    year. In the meeting, the principal made disparaging comments
    to Ronald in front of another principal, the union president,
    and the district's superintendent of personnel. His principal
    went on to tell Ronald: ``Your problem is you're angry because
    no one will accept your gay marriage!'' The school district
    then began interrogating students about Ronald. The students
    reported that Ronald did not talk about his personal life and
    he was well liked. A week later, the superintendent of
    personnel formally disciplined Ronald for ``inappropriate e-
    mail communication'' with students and parents because Ronald
    was sending e-mail from a private e-mail account instead of his
    school account. Ronald was only using a private account because
    the school had shut down his school account, due to the amount
    of hate mail and viruses. Over 3 years, four students were
    removed from Ronald's classroom because their parents
    disapproved of his sexual orientation. The district's response
    to Ronald was simply stated as: ``It's a conflict of family
    values.'' In February 2007, due to the principal's and the
    district's harassment, Ronald took an extended sick leave.
    Source: American Civil Liberties Union, Living in the Shadows:
    Ending Employment Discrimination for LGBT Americans, 2007.
         Tony: Tony, \4\ a transgender man, was employed
    for 13 years by a nightclub in San Francisco, CA, a State that
    includes gender identity in its employment non-discrimination
    law. Tony informed his employers that he is transgender and his
    direct supervisor began egregiously harassing him. Tony's
    supervisor repeatedly asked Tony inappropriate questions about
    his body and his sexual preferences. The supervisor refused to
    address Tony with male pronouns and often made comments to Tony
    such as, ``You are not a real man.'' Tony was demoted from a
    high-level management position to a low-level service position
    and his pay was severely cut. He became incredibly depressed.
    The harassment escalated over many months and finally
    culminated in an incident wherein Tony's supervisor chased Tony
    in the club calling him a ``freak'' and a ``b**ch'' and
    threatening him with physical violence. Tony could no longer
    handle the harassment and was forced to quit his job. Tony
    brought a lawsuit against his former employer under
    California's Fair Employment and Housing Act, which bars
    discrimination based on gender identity, and reached a
    favorable settlement. Source: Transgender Law Center, Kristina
    Wertz, Legal Director.
    ---------------------------------------------------------------------------
        \4\ This is not the true name of the victim to protect his privacy.
    ---------------------------------------------------------------------------
         Juan Moreno: Juan is a Latino community college
    student studying nursing who also works to help support his
    single mom and teenage sister. Juan applied for a part-time job
    at a local fast food restaurant where his friend worked. He
    interviewed with a shift manager in February 2007. He had a
    successful interview with the shift manager who told Juan's
    friend that Juan would work out. The shift manager recommended
    to the store manager that Juan be hired. The store manager knew
    Juan was friends with a current employee and had seen Juan come
    into the store to visit his friend. The store manager asked
    Juan's friend: ``Is he into men or women? '' Juan's friend
    informed the store manager that Juan was gay, but then asked,
    ``what does that have to do with hiring him? '' The store
    manager replied: ``I'm the head manager and I can do what I
    want to do.'' Juan was not hired. Source: American Civil
    Liberties Union, Living in the Shadows: Ending Employment
    Discrimination for LGBT Americans, 2007.
         Jacqui Charvet: Jacqui Charvet, a transgender
    woman, worked for 10 years as a consultant in computer
    technology with a firm with clients in the New Jersey and New
    York areas, with 16 years of computer technology experience
    that preceded her years as a consultant. Numerous consulting
    gigs were with the State of New Jersey, including with the NJ
    Department of Health, NJ Department of Treasury, and NJ
    Department of Human Services. She let her supervisor at the
    consulting firm know that, between assignments, she had plans
    to transition gender, so that at the next assignment, she would
    be coming to work as her new gender, including using her new
    name, Jacqui (instead of her old male name), dressing as other
    women employees, and that female pronouns would be appropriate
    for her at that point. She had planned to transition between
    assignments to keep the process as smooth as possible. However,
    instead of supporting her transition, her supervisor laid her
    off, refusing to assign her to a new gig. For the next 3\1/2\
    years she attempted to find a job, public or private, in New
    Jersey, but to no avail. Upon discovering she was transgender
    and used to be a man, many hopeful employers turned her away.
    At one interview, she walked in and was told that they wanted
    to hire a ``real man'' for the position. With 26 years of work
    experience, 10 years as a consultant at the firm that ``laid''
    her off, Jacqui found herself forced to leave the State to find
    employment with a private company in Florida that hired her
    after a phone interview. Source: Conversations between Task
    Force staff and Jacqui Charvet, 2008 & 2009.
         Brooke Waits: Brooke worked as the inventory
    control manager for a cell phone vendor. In the 4 months Brooke
    worked for the company, her supervisor continually praised her
    for her work. Brooke was not out to her co-workers at the
    store. She was quiet and kept to herself because she did not
    fit in with the other women who worked at the store and her
    male coworkers told a lot of lesbian jokes. In an effort to
    avoid controversy, Brooke did not say anything when her co-
    workers made anti-gay jokes and derogatory comments.
        In May 2006, Brooke's manager approached Brooke's desk to
    ask her a question. Brooke was on the other side of the room
    sending a fax. Brooke's manager picked up Brooke's cell phone
    off of her desk, opened it, and then exclaimed ``Oh my
    goodness!'' Brooke's manager had seen the screen saver inside
    Brooke's cell phone, which was a picture of Brooke and her
    partner sharing a New Year's Eve kiss. Brooke's manager
    immediately left the room and did not speak to Brooke at all
    for the rest of the day. Later in the day, Brooke overheard the
    manager tell another co-worker, ``I knew there was something
    off about her.''
        The next day, Brooke arrived at work and, as soon as she
    walked in the door, her manager asked to speak with her. The
    manager told Brooke that she was fired. When Brooke asked why,
    the manager told her that they needed someone more
    ``dependable.'' Brooke told the manager that she was dependable
    and, in fact, had been coming to work an hour early every day
    to work on implementing the new inventory system. The manager
    replied: ``I'm sorry, we just need to let you go.'' Source:
    American Civil Liberties Union, Living in the Shadows: Ending
    Employment Discrimination for LGBT Americans, 2007.
         Dylan Scholinski: Dylan Scholinski, a transgender
    man, lives on the edge of poverty despite holding a master's
    degree and writing an award-winning memoir of his
    institutionalization as a teenager for ``gender identity
    disorder.'' Dylan was forced into ``treatment'' from the ages
    of 14-17 that included mandatory make-up sessions and the
    wearing of skirts and other attire to ``cure'' him of his
    gender identity. Now in his 40s, despite having experienced
    life-long depression as a result of abuse from teachers,
    medical providers and mental health professionals, Dylan has
    never qualified for disability as is commonly available to
    people with PTSD and debilitating depression. Dylan currently
    runs a free teen suicide prevention arts program out of an art
    studio in Denver, CO. He is not compensated for his work,
    despite serving hundreds of LGBT youth struggling with gender
    identity and sexual orientation issues. Having lived his youth
    in enforced isolation and torment, he is committed to creating
    a safe space for LGBT youth in his community. Dylan continues
    to search for sustainable income to no avail. Source:
    Conversation between Jaime Grant, Ph.D., Task Force Policy
    Institute and Dylan Scholinksi, 2009.
         Janice Dye: Janice worked as a mechanic in an oil
    change service center in San Diego. Janice got along well with
    the other mechanics at the service center, who were excited to
    have a female mechanic working with them. Janice was out at
    work and her girlfriend occasionally brought her lunch at work.
    The service center's management, however, was not supportive of
    Janice. Janice was the only female mechanic in the shop, as
    well as the only African-American and lesbian who worked at the
    service center.
        In 1997, Janice applied for a 3-month training program to
    become an assistant manager. At the end of the training
    program, she had to take timed tests. Janice was fired because
    she could not complete an oil change in less than 10 minutes.
    However, management made her do the oil change alone, even
    though the usual procedure was to use two workers to complete
    an oil change (one in the ground pit below the car, and one on
    the ground floor at the car's hood). Janice's coworkers told
    her that they heard managers in the break room saying: ``we
    won't let that lesbo-b**ch get that job.''
        After being fired, Janice left the service center and
    started to work at another location owned by the same company.
    She hoped she would not be discriminated against at the new
    location, but the managers treated her the same. She had to
    take the same test of completing an oil change in 10 minutes
    and, again, she had to do the oil change alone (taking time to
    run up and down the stairs to the pit below the car).
    Management did not even let her finish the oil change because
    she had gone over the 10-minute limit. After 10 minutes, the
    manager yelled: ``time's up'' and ``you're fired.'' Source:
    American Civil Liberties Union, Living in the Shadows: Ending
    Employment Discrimination for LGBT Americans, 2007.
         Michelle Hansen: Michelle Hansen is an Episcopal
    priest and computer industry trainer who lives in Connecticut.
    Michelle worked successfully at a medium-sized computer repair
    and training company for nearly 18 years, the latter part of
    her time as the company's senior technical trainer. In June
    2004, a week after notifying her employer of her plans to
    transition from male to female, she was terminated from her
    job. Michelle's employer claims to have terminated her for
    economic reasons; however, the company had recently hired two
    other employees who were not fully trained or certified.
    Michelle has two Master's degrees from Yale University and a
    long list of certifications in the computer industry, but she
    has not been able to find employment since being terminated
    several years ago. Source: Testimony to the Judiciary Committee
    of the Connecticut General Assembly, 2009.
         Brad Nadeau: In April 2002, an insurance company
    in Bangor, ME employed Brad as a receptionist. After about a
    month, Brad was called into a meeting for his performance
    review. All of his work was rated satisfactory--he was not told
    that any areas of performance needed improvement. In fact, Brad
    trained a new employee who was hired a couple weeks after he
    was hired. Brad was not out at work because he was concerned
    that if he was honest about his sexual orientation, he might
    lose his job.
        On June 2, 2002, Brad's partner picked him up at work and
    they went out for lunch together. When his partner brought him
    back to the office, they kissed goodbye in the parking lot.
    Brad noticed that an agency executive saw their kiss. The very
    same day, Brad was called into a meeting with his supervisor
    and the executive. His supervisor told Brad that he was being
    fired because his work was not satisfactory, despite his
    positive performance evaluation and the fact that he had over 4
    years of office and administrative work experience.
        Brad's termination seems to have violated company policy.
    The company policy states that the company is ``committed to
    providing a work environment that is free of discrimination.''
    The company also has a policy of progressive discipline, which
    the company states is ``intended to give employees advance
    notice, whenever possible, of problems with their conduct or
    performance in order to provide them an opportunity to correct
    any problems.'' Regardless, the company did not give Brad any
    warning before they fired him. Source: American Civil Liberties
    Union, Living in the Shadows: Ending Employment Discrimination
    for LGBT Americans, 2007.
         Kim Dower: Kim Dower is a transgender woman who is
    employed as a pharmacist in Colorado. After working for 9 years
    as a pharmacist, Kim told her employer of her future plans to
    transition from male to female. In March 2004, Kim was ready to
    start coming to work as herself, but her employer informed her
    that she would not be allowed to work at the pharmacy unless
    she continued to dress as a man. In effect, this would block
    her from transitioning to her new gender at work. In response,
    Kim filed a claim under Denver's anti-discrimination ordinance.
    She was given a preliminary ruling in her favor. However, this
    only resulted in mandatory mediation. In this mediation, Kim's
    employer refused to allow her to present as a woman unless she
    signed a nondisclosure agreement that would prevent her from
    telling anyone that she had won her case and that people in
    Denver do have the right to transition gender at work. Kim,
    wanting to be able to share her story so that other transgender
    people would know they have rights to transition and dress as
    themselves at work, refused to agree to this gag order. An
    entire year had passed with her employer threatening to fire
    her if she dared come to work dressed as herself. Eventually,
    with great trepidation, she came to work dressed as a woman
    hoping that her employer would choose not to fire her on the
    spot as they had threatened. To Kim's surprise the employer did
    not take action against her as they had previously threatened
    to do. All in all, it was a terrible year for Kim, unsure that
    the local law would be strong enough to protect her if she came
    to work as her true self. Source: Testimony to the Colorado
    Civil Rights Commission, July 30, 2009.
         John Schumacher: John is a Marine veteran who
    worked the overnight shift as stocker and ``four star'' cashier
    at a large retail store in Michigan's Upper Peninsula. In 3
    years on the job, he was named ``Associate of the Month'' four
    times. He is the primary breadwinner because his partner has a
    disability. He and the cashier supervisor carpooled to work
    everyday. At the time, the cashier supervisor was not John's
    supervisor, however, because John worked in the stockroom.
    After 3 months of carpooling, John told the cashier supervisor
    he was gay and she immediately began treating him coldly.
        For several months, John was ignored by the cashier
    supervisor and he went about his business. But when John was
    promoted to cashier, the cashier supervisor became his direct
    supervisor. ``It was hell, starting off the bat,'' John said.
    The cashier supervisor treated John differently than the other
    cashiers. She assigned John stocking tasks in the shelves
    around the checkout lanes then yelled at him for leaving his
    register. This pattern of treatment continued over time. John
    complained to the head manager to no avail; each night the
    cashier supervisor would find a new way to make it more
    difficult for John to do his job.
        On February 5, 2007, John came to work and realized he
    forgot to bring lunch. John called home and asked his partner
    to bring something for lunch. His partner brought him a frozen
    dinner from home. John ate the dinner in the break room in view
    of other workers and the cashier supervisor. Two weeks later,
    John was accused of stealing a frozen dinner from the store's
    grocery section. He was not able to produce a receipt for the
    frozen dinner because he and his partner had bought it weeks
    before and did not save the receipt. He was fired on the spot.
    Source: American Civil Liberties Union, Living in the Shadows:
    Ending Employment Discrimination for LGBT Americans, 2007.
         Ethan St. Pierre: Ethan St. Pierre, a transgender
    man from Massachusetts, was a respected security junior manager
    at Barton Protective Services, overseeing 30 employees that
    staffed the East Coast offices of Sun Microsystems. He was
    hired by Barton in 2001 and received numerous favorable
    performance evaluations and a number of corresponding pay
    raises. In 2002, he talked to his direct supervisor at Barton
    and the Sun Microsystems security manager that interfaced with
    him at Barton about his desire and intention to undergo a
    gender transition from female to male, and generally he was
    received favorably. When the time was right, an announcement
    was made to the 30 employees Ethan supervised that Ethan was
    now going to be Ethan and would be going by male pronouns. All
    of his 30 employees treated him with respect, including using
    his new name and male pronouns. All was fine for 6 months,
    until the Sun Microsystems manager happened to interface with
    Ethan for the first time since Ethan had transitioned and saw
    that Ethan had transitioned. The Sun Microsystems manager
    slowly whittled away Ethan's responsibilities. In the meantime,
    Ethan's supportive manager at Barton was replaced by someone
    who did not respect Ethan. This new manager told coworkers,
    including Ethan's supervisers, that he did not agree with
    Ethan's ``lifestyle.'' One day, this manager informed Ethan
    that he was being removed from his position at Sun Microsystems
    because the Sun Microsystems manager did not believe Ethan
    could do the job because of his gender transition. That was the
    final word. Ethan repeatedly asked to be assigned to another of
    Barton Protective Services' clients, but to no avail.
    Ultimately, he had to seek unemployment benefits. Ethan's
    attempts to find other jobs in the security field failed
    because Barton provided an unfavorable job performance review.
    Ethan was never able to find another job in the security field
    after this experience. Source: Testimony of Ethan St. Pierre to
    the Massachusetts Legislature, available at: http://
    www.masstpc.org/publications/legis/StPierre
    Firing.pdf.
         Jacinda Meyer: Jacinda is Latina and a licensed
    life and health insurance agent in California. She worked for a
    company that administers employee benefits to client companies.
    After she worked at the company for 9 months, she received
    positive feedback about her job performance and was given a
    raise. Her supervisors even gave her handwritten cards to thank
    her for her good service, teamwork, and positive attitude.
        Throughout her tenure at the company, Jacinda's supervisors
    made several derogatory comments about lesbians. One of
    Jacinda's supervisors ``warned'' her before a meeting that the
    client was a lesbian and said: ``I'm telling you now so you
    don't freak out when you see the pictures of two women on her
    desk.'' Jacinda did not respond to this comment but later told
    another of her supervisors about the conversation. That
    supervisor asked: ``Do you swing that way? '' Jacinda replied
    that she was gay. The supervisor said: ``Well, I'm fine with it
    as long as you don't kiss or hold hands in public.''
        Soon after Jacinda came out to her supervisor, the owner of
    the company approached her and told her about a book, The Road
    Less Traveled, which helped his son, who was a recovering drug
    addict. Jacinda interpreted the owner's comment as comparing
    being gay to being a drug addict. Her supervisor gave Jacinda
    the assignment of reading the book and writing a one-page essay
    about how it could improve her life.
        Jacinda was offended by the book's characterization of
    homosexuality as immoral behavior. She was also offended by
    other passages that mentioned masturbation. Additionally, the
    book's perspective on spiritual growth made her uncomfortable.
    Jacinda wrote a letter to her supervisor saying she was
    uncomfortable with the assignment because the book's message
    violated her beliefs and she requested that her assignment be
    changed to read another book. After she requested a different
    assignment, Jacinda's co-workers stopped talking to her and
    stopped asking her to join them at lunch. Shortly after that,
    Jacinda was fired on March 23, 2007. The company claimed that
    she was fired because the company's revenue was too low, but
    the company hired other people for the same job after they
    fired Jacinda. Source: American Civil Liberties Union, Living
    in the Shadows: Ending Employment Discrimination for LGBT
    Americans, 2007.
         Alynna Lunaris: Alynna Lunaris, a transgender
    woman from Maryland, was employed at the Washington Humane
    Society (WHS), a non-profit that receives a government contract
    from the District of Columbia for animal control services. She
    was first hired by WHS in January 2005, as a front desk
    assistant at the District of Columbia Animal Shelter, where she
    quickly rose through the ranks, being promoted to an Animal
    Control Officer soon after she started. In June 2006, Alynna
    began taking hormones and making other steps as part of her
    transition from male to female in all areas of her life. In
    September 2006, she took vacation, informing management that
    when she returned, she would be returning as a woman. When she
    returned, Alynna submitted a court order showing her change of
    name, as well as a copy of her new driver's license, which
    designated her as a female. Within 2 weeks of her return,
    however, she started feeling discrimination from WHS
    management. This began when a promotion to Field Services
    Supervisor became available. Alynna was asked to apply only to
    be told later that an application from her would not be
    considered.
        Over the next 5 months she suffered under discriminatory
    conditions fostered by two managers. The managers continually
    referred to Alynna using male pronouns and were otherwise
    hostile toward Alynna. The situation escalated to the point
    where WHS transferred her to a position in the private law
    enforcement department that was not under the control of those
    two managers. Alynna worked for the next 6 months without
    incident, receiving many compliments on her work. Things were
    going well until the executive director left his position. One
    of the managers who had unfairly treated Alynna in her previous
    position was promoted to interim executive director. Upon the
    manager's promotion, the harassment and discrimination began
    again. Within 3 months, Alynna was fired from WHS by e-mail
    after management had filed several fabricated incident reports
    against her. Alynna has filed a complaint with the District of
    Columbia's Office of Human Rights which enforces the city's
    transgender-inclusive nondiscrimination law and has recently
    received preliminary findings related to probable cause. The
    appeals process is underway. Source: Testimony to the Maryland
    House of Delegates, February 25, 2009 and Senate, March 3,
    2009; Conversation between Thomas Bousnakis, Task Force Fellow
    and Alynna Lunaris, 2009.

                         ENDA PROTECTS AMERICAN WORKERS

        ENDA will help protect workers from discrimination in the
    workplace by prohibiting discrimination on the basis of sexual
    orientation or gender identity in the same way that Title VII
    of the Civil Rights Act prohibits discrimination on the basis
    of race, color, religion, sex, or national origin. ENDA
    provides employees with the same meaningful remedies that are
    available under title VII.
        ENDA covers public employers, private employers, employment
    agencies, and labor organizations. It makes it unlawful to
    fire, refuse to hire, or take any other action that would
    negatively impact a person's status as an employee based on
    that person's sexual orientation or gender identity.
    Additionally, it would prohibit discrimination against an
    employee as a result of the sexual orientation or gender
    identity of someone with whom the employee associates.
    Furthermore, ENDA would make illegal any discrimination against
    an individual because that person has opposed or spoken out
    about an unlawful employment practice.
        The military, religious organizations, and employers with
    fewer than 15 employees are all exempt from ENDA.
        ENDA is consistent with existing Federal law and requires
    no changes in enforcement mechanisms. ENDA would grant the
    Equal Employment Opportunity Commission (EEOC) and other
    appropriate agencies the power to enforce its provisions. If an
    aggrieved employee's complaint is not resolved by the EEOC, the
    individual may then file suit.

                      MOST AMERICANS ALREADY SUPPORT ENDA

        The Employment Non-Discrimination Act is also consistent
    with the opinions of the American public. According to numerous
    surveys, substantial majorities of likely voters in the United
    States support an inclusive Federal employment non-
    discrimination law. The Hart Research poll conducted in 2007,
    found that 6 in 10 Americans specifically support ENDA. Voters
    and their representatives in 12 States and more than 100
    localities--areas comprising nearly 40 percent of the U.S.
    population--have already taken action by adopting employment
    protections for employees based upon their sexual orientation
    and gender identity.
        Businesses, too, have realized the importance of
    nondiscrimination policies that protect against discrimination
    based upon sexual orientation or gender identity; 177 of the
    Fortune 500 companies have enacted non-discrimination policies
    inclusive of sexual orientation and gender identity to protect
    their employees. Companies such as AT&T, Bank of America, Best
    Buy, Boeing, Coca-Cola, Dell, Ford Motor, Google, IBM, Kraft
    Foods, Marriott International, Microsoft, Monsanto, Pfizer,
    Procter & Gamble, and Target have all adopted non-
    discrimination policies that include sexual orientation and
    gender identity.

                                   CONCLUSION

        Employment discrimination affects all Americans, preventing
    them from contributing to our Nation's workforce. Rampant
    discrimination leaves many LGBT Americans with the choice of
    either hiding their LGBT identity in the workplace or
    disclosing their LGBT identity and risking discriminatory
    treatment and harassment in the workplace.
        The United States cannot afford to allow qualified people
    to be irrationally excluded from employment simply because of
    prejudice against their sexual orientation or gender identity.
    The competitiveness of the Nation in the world market depends
    on U.S. companies, and government employers, hiring and
    retaining the best qualified employees.
        We urge Congress to support the Employment Non-
    Discrimination Act as a measured response to the problem of job
    discrimination and the havoc wreaked upon American families by
    job discrimination. Although we are unaware of efforts to
    measure the cost to society of employment discrimination, it is
    real. Ending both the toll that discrimination takes on
    individuals and families, and on society, is a worthwhile
    governmental and financial goal.
        Passing ENDA into law would reaffirm America's longtime
    commitment to the values of honest, hard work and fair
    employment and would assure all Americans that they will be
    judged upon the merits of their work, not on the people they
    love or the gender they express.
        In support of this goal, we respectfully ask that the
    committee support ENDA as a critical step toward securing fair
    treatment for all Americans.

         Prepared Statement of Jennifer Chrisler, Executive Director,
                            Family Equality Council

        Mr. Chairman and members of the committee, on behalf of the
    thousands of families that support Family Equality Council, the
    national organization working to ensure equality for lesbian, gay,
    bisexual, and transgender (LGBT) families by building community,
    changing hearts and minds, and advancing social justice for all
    families, I am pleased to submit written testimony expressing our
    support for the Employment Non-Discrimination Act of 2009. I would like
    to thank especially Chairman Harkin, along with Ranking Member Enzi,
    for convening this hearing on the Employment Non-Discrimination Act (S.
    1584) (ENDA). It is imperative for this committee and Congress to
    support workplace fairness for all Americans by addressing the issue of
    employment discrimination based on sexual orientation and gender
    identity, and to act decisively to end employment discrimination by
    passing ENDA.
        The mission of Family Equality Council is to create and protect
    happy, healthy families. At the foundation of a healthy family is
    economic security, the ability to earn a living, the economic stability
    to provide for a dependent partner and children. Each year in the
    United States, however, Americans are denied job opportunities, are
    terminated, or experience on-the-job discrimination merely because they
    are lesbian, gay, bisexual or transgender. This discrimination takes
    place at many different types of employers, including private
    employers, local governments, State governments, and companies large
    and small. Only 12 States and the District of Columbia currently have
    laws that specifically ban workplace discrimination based on sexual
    orientation and gender identity. Another nine States have laws that ban
    discrimination based on sexual orientation, but do not have clear
    gender identity protections. Right now, this patchwork of State and
    local laws protects only 40 percent of the U.S. population from
    employment discrimination based on sexual orientation or gender
    identity; 60 percent of Americans live in jurisdictions without
    explicit job protections based on sexual orientation and gender
    identity, or with protections that do not protect the LGBT community
    comprehensively.
        Data from the 2000 U.S. Census shows that approximately 20 percent
    of LGBT Americans are parents, who are raising 2 million children
    across the United States. Substantial concentrations of these families
    live in Southern and Midwestern States, where they have limited or no
    protection from workplace discrimination based on sexual orientation
    and gender identity. Yet, like other parents, LGBT parents need to work
    to support themselves and their families. For these families, workplace
    discrimination has devastating consequences that reach beyond the well-
    being and economic survival of individual LGBT workers to that of the
    partners and children who depend upon them.
        As a parent, I know what a struggle it would be to navigate such
    vulnerability and still raise my twin boys to be the happy, healthy,
    thriving pre-adolescents they currently are. My organization serves
    parents all across the Nation who face this struggle. On their behalf,
    I appeal to members of this committee to put S. 1584 on the fast track
    to passage. Let not one more day go by in the United States without
    protecting the ability of LGBT people to contribute to the workforce
    and provide for their families without fear of arbitrary and
    devastating discrimination.
        In addition to its critical legal implications, this legislation
    also has symbolic value that should not go unrecognized. A member of my
    staff who has a gay dad who came out to her when she was 10 years old
    speaks eloquently about the personal shame and stigma she endured
    growing up in Arizona with a parent who she knew was unequal to other
    dads in the eyes of her State. Do not let children who have LGBT
    parents grow up feeling that their country does not value the economic
    stability and success of their parents and their families. America can
    do better than that. We have a long tradition of valuing and protecting
    individuals and families for the contributions they make to the
    workforce, through such laws as Title VII of the Civil Rights Act of
    1964, the model which ENDA closely follows.
        The actions of this committee today will send a message about
    whether America is truly a land of opportunity for all who work hard.
    LGBT people want to work and support their families. Like other
    workers, they deserve to be judged on their skills and qualifications,
    not on factors unrelated to job performance, such as sexual orientation
    or gender identity. As a parent, and on behalf of all the LGBT parents
    and children Family Equality Council serves, I urge this committee to
    act immediately to send ENDA to the full Senate.
        I would like to thank Chairman Harkin and Ranking Member Enzi again
    for bringing this much-needed visibility in Congress to workplace
    discrimination based on sexual orientation and gender identity. I would
    also like to thank the committee for holding this hearing and for
    taking the time to review Family Equality Council's written testimony
    in support of the Employment Non-Discrimination Act of 2009. On behalf
    of all our supporter families, I appreciate your efforts to ensure
    workplace fairness for all Americans. Please feel free to contact me
    regarding this important measure at any time.

            Prepared Statement of Masen Davis, Executive Director,
                             Transgender Law Center

        Mr. Chairman, Vice-Chairman, and members of the committee, we thank
    Chairman Harkin and the committee for holding a hearing on the
    Employment Non-
    Discrimination Act (ENDA), S. 1584. On behalf of the Transgender Law
    Center (TLC), we are writing to provide you with information showing
    why it is crucial that you support this critically important
    legislation.
        TLC is a California statewide, non-profit, civil rights
    organization advocating for transgender communities. Created in 2002 in
    response to the overwhelming discrimination that transgender people and
    our families face in nearly every institution in California, we utilize
    direct legal services, education, community organizing, and policy and
    media advocacy to overcome this discrimination and help the State
    become one where every person's gender identity is respected and
    supported. We provide legal information and assistance to over 1,000
    transgender and gender non-
    conforming people per year. Approximately 10-15 percent of the inquires
    we receive are related to employment. We also provide technical advice
    and assistance to private attorneys representing transgender and gender
    non-conforming clients. Accordingly, TLC has extensive knowledge of the
    widespread pattern of discrimination against transgender and gender
    non-conforming workers.
        In 2008, TLC conducted the first California statewide survey
    documenting the financial, employment, health and housing experiences
    of transgender Californians. With data from nearly 650 respondents, we
    worked with a team of social scientists to create The State of
    Transgender California: Results from the 2008 California Transgender
    Economic Health Survey. The outcomes are stark. The State of
    Transgender California confirms that transgender and gender non-
    conforming people experience overwhelming discrimination and
    marginalization in employment based on their gender identity. A copy of
    The State of Transgender California is attached*, and the findings are
    discussed throughout this statement.
    ---------------------------------------------------------------------------
        * The report referred to may be found at
    www.transgenderlawcenter.org/pdf/StateTrans
    CA_report_2009Print.pdf.
    ---------------------------------------------------------------------------
        The protection that (ENDA) would provide is crucial to ensuring
    that transgender and gender non-conforming employees are able to work
    in an environment that is safe, respectful and professional, regardless
    of gender identity.

         TRANSGENDER PEOPLE ARE WELL QUALIFIED TO WORK IN A VARIETY OF
               INDUSTRIES, YET FACE SIGNIFICANT ECONOMIC BARRIERS

        The State of Transgender California reveals that transgender people
    who responded to the survey have remarkably high education levels.
    Respondents are almost twice as likely to hold a bachelor's degree as
    the general California population. Ninety-four percent of the
    transgender respondents over the age of 25 hold a high school diploma
    or equivalent compared to 80 percent in California generally. Overall
    46 percent of transgender people hold a Bachelor's degree or higher
    compared to 29 percent of the general California population.
        Nonetheless, transgender people are disproportionately represented
    below the poverty line. According to the most recent State census,
    approximately 11.7 percent of people 18-64 years old in California live
    below the national poverty level of $10,400 for single adult
    households. Yet 1 in 4 transgender people in California earn wages
    below the national poverty level. This disconcerting trend continues,
    even at higher education levels. The average income for all individuals
    with a Bachelor's degree residing in California is over $50,000. The
    average yearly income for transgender respondents with a Bachelor's
    degree is below $30,000--40 percent less than the average college
    graduate in California.
        The State of Transgender California also found that respondents who
    are employed work in a variety of fields and occupations. Thirty-nine
    percent work in the private sector, 28 percent work in the non-profit
    sector, 16 percent work in government, and 16 percent are self-
    employed. Despite high education levels and experience in a broad range
    of fields, less than half of respondents are currently employed full-
    time. The overall unemployment rate for transgender persons was twice
    the statewide average for the period this survey was administered.

        TRANSGENDER PEOPLE FACE A WIDESPREAD PATTERN OF DISCRIMINATION
                          AND HARASSMENT IN EMPLOYMENT

        Discrimination and harassment based on gender identity is a reality
    for transgender and gender non-conforming workers. According to the The
    State of Transgender California, two thirds of transgender
    Californians,  or 67 percent report some form of workplace harassment
    or discrimination directly related to their gender identity. This
    harassment and discrimination ranged from verbal harassment to unfair
    scrutiny or discipline to termination of employment. Almost half of the
    surveyed population reports that they had experienced some loss of
    employment either directly as a result of their gender or as a possible
    result of their gender identity.
        There was no difference between experiencing discrimination and
    type of employer. The widespread pattern of discrimination and
    harassment faced by transgender workers exists in private companies, in
    the non-profit sector, and in government.

         DISCRIMINATION AGAINST TRANSGENDER EMPLOYEES IS UNDER-REPORTED

        Despite widespread employ merit discrimination, only 15 percent of
    those transgender Californians who reported some form of discrimination
    or harassment filed a complaint. California has explicit protections
    against workplace discrimination based on gender identity, and still
    reporting rates are shockingly low. One can assume that reporting rates
    in States without such protections are far lower. Without explicit
    Federal protections, State and local employees are not only vulnerable
    to discrimination, but are also less likely to speak out about it or
    make complaints out of fear of retaliation by the employer, and a lack
    of legal recourse for such discrimination or retaliation.
        The findings in The State of Transgender California are made even
    more compelling by the fact that the survey was conducted exclusively
    in California. Our State has strong employment nondiscrimination laws
    that support safer and more effective integration of transgender people
    into the workplace. However, a lack of Federal protections has a
    tremendous effect on the transgender community nationwide. Every week
    transgender people are living in States without protective legislation
    call TLC. These hard working Americans have little to no recourse in
    their home States.
        Allowing employers to make decisions about hiring, firing.
    promotions, and discipline based on a worker's identity goes against
    America's core value of equal opportunity. All too often, we see
    transgender Americans forced out of successful careers when they
    express their gender identity. Many transgender people fear and
    experience discrimination and therefore must either hide who they are,
    to the detriment of their health; leave jobs they love in order to
    transition without risking termination; or face rampant harassment and
    discrimination in their current workplace. Federal protection from
    discrimination and harassment based on gender identity would help
    liberate the transgender community from this stark reality. Such
    legislation would allow transgender Americans to continue contributing
    to our country's workforce without fear of being terminated simply
    because of who we are.
        We urge the committee to recognize this issue of basic fairness.
    Transgender Americans deserve to be ourselves in a workplace where we
    are judged exclusively on our ability to do our jobs. Work is an
    integral part of our lives, of who we are, just like our gender. No
    American should have to choose between their gender and their job.
    Thank you for your time and for your attention to the serious
    discrimination facing tens of thousands of workers in the United States
    that passage of EndA would address.

    Prepared Statement of Joe Laymon, Vice President, Chevron Corporation,
                                Human Resources

        On behalf of Chevron Corporation, I am pleased to submit this
    statement for the record regarding S. 1584, the ``Employment Non-
    Discrimination Act of 2009.'' This legislation would prohibit
    discrimination in employment on the basis of sexual orientation and
    gender identity, which is consistent with the policies and practices
    established by Chevron in this area. It is Chevron's policy to provide
    equal employment opportunity to all applicants and employees. No one
    should ever be subject to discrimination on the basis of race,
    religion, color, national origin, age, sex, gender identity,
    disability, veteran status, political preference, and sexual
    orientation.
        Chevron is the second-largest U.S.-based integrated energy company,
    conducting business in more than 100 countries, producing crude oil,
    natural gas and other products essential for economic growth and
    progress. Our diverse and highly skilled global workforce consists of
    approximately 62,000 employees, of whom 27,000 work here in the United
    States. Chevron works to maintain an inclusive work environment and we
    actively embrace a diversity of people, ideas, talent and experience.
    Diversity and inclusion are a part of Chevron's core values. Our
    commitment is laid out in detail in several Chevron policies, from the
    Chevron Way to formal policies on employment, nondiscrimination and
    anti-harassment.
        Chevron was the first major energy company in the United States to
    add ``sexual orientation'' to its equal employment opportunity
    policies. We have also extended our domestic-partnership benefits
    package to include same-sex couples and their families in the United
    States, and extended our equal employment opportunity policies to
    include ``gender identity.'' We have rigorous and mandatory employee
    training to re-inforce our policies; encourage reporting of EEO
    concerns, including by maintaining a toll-free Hotline; and maintain
    extensive non-retaliation policies for reporting such concerns.
        We believe that this commitment is both the right thing to do and
    key to our ongoing success as a business. We operate in one of the most
    competitive industries in the world and our diverse and talented
    workforce is our most important asset. The richness of our culture and
    diversity increases our ability to achieve our vision and enhances
    Chevron's work environment. Chevron believes that as a company we can
    leverage our differences and similarities to achieve new perspectives
    and strengths, to reach common objectives.
        In our view, the equal employment opportunity principles espoused
    in the Employment Non-Discrimination Act of 2009 would not require any
    changes in our existing policies, would promote practices that we
    believe in and follow, and Chevron continues to support the passage of
    this legislation. Please contact me if you have questions. I would be
    happy to provide more detail about our policies, practices, and
    commitment to a diverse workplace.

    Prepared Statement of the National Center for Transgender Equality and
         the National Gay and Lesbian Task Force--National Transgender
                             Discrimination Survey

                       Employment and Economic Insecurity

        Transgender people are targets of discrimination in many areas of
    their lives; this marginalization exposes them to tremendous social and
    economic insecurity. Until now, data on the prevalence and character of
    this discrimination has been limited to small studies and anecdotal
    reports. In the first comprehensive national effort to document this
    problem, the National Center for Transgender Equality and the National
    Gay and Lesbian Task Force launched a 6-month data collection process,
    interviewing 6,450 transgender people via an extensive questionnaire
    that covered critical topics such as employment, education, health
    care, housing, public accommodation, criminal justice, family life and
    access to government documents. Our final sample included residents of
    all 50 States, Puerto Rico, Guam and the U.S. Virgin Islands. Data
    gathered from respondents was compared to U.S. Census Bureau and
    Department of Labor data.

                                  KEY FINDINGS

         Double the rate of unemployment: Survey respondents
    experience unemployment at twice the rate of the population as a whole.
         Near universal harassment on the job: Ninety-seven percent
    of those surveyed reported experiencing harassment or mistreatment on
    the job.
         Significant losses of jobs and careers: Forty-seven
    percent had experienced an adverse job outcome, such as being fired,
    not hired or denied a promotion.
         High rates of poverty: Fifteen percent of transgender
    people in our sample lived on $10,000 per year or less--double the rate
    of the general population.
         Significant housing instability: Nineteen percent of our
    sample have been or are homeless, 11 percent have faced eviction and 26
    percent were forced to seek temporary space.

                             EMPLOYMENT CHALLENGES

    Unemployment and Loss of Jobs (26 Percent lost their jobs because they
            are transgender)
        Transgender people are unemployed at alarming rates. Overall 13
    percent of respondents were unemployed, nearly double the national
    average at the time of the survey. This is even more acute for
    respondents who are Black (26 percent), Latino (18 percent) and
    Multiracial (17 percent).
        Forty-seven percent of survey respondents experienced an adverse
    job action because they are transgender--they did not get a job, were
    denied a promotion or were fired--that directly impacted their
    employment status. A staggering number of the people surveyed, 26
    percent, lost their jobs due to their gender identity/expression.
    Particularly hard hit were those who were Black (32 percent) or
    Multiracial (37 percent).

    Mistreatment and Harassment at Work--A Universal Experience (97 percent
            were mistreated at work because they are transgender)
        Ninety-seven percent have experienced mistreatment, harassment, or
    discrimination on the job including: invasion of privacy, verbal abuse,
    and physical or sexual assault.

    Poverty (Twice the national average earn less than $10,000/year because
            they are transgender)
        Study respondents experience poverty at a much higher rate than the
    general population, with more than 27 percent reporting incomes of
    $20,000 or lower and more than 15 percent reporting incomes of $10,000
    or lower. Only 7 percent of the general population reports incomes of
    $10,000 or lower.

           negative outcomes as a result of employment discrimination
    Housing Instability
        Survey respondents experienced a series of negative outcomes, many
    of which stem from challenges they face in employment. A large
    percentage of our sample reports experiencing housing insecurity due to
    their gender identity, with almost one-fifth becoming homeless because
    they are transgender.

    Lack of Health Insurance and Access to Appropriate Care
        Employment issues also impact transgender people's access to health
    care. Transgender and gender non-conforming people do not have adequate
    health insurance coverage or access to competent providers. Respondents
    in our sample are uninsured at the same rate of the general population
    in the United States--19 percent--but only 40 percent of the sample
    enjoys employer-based insurance coverage, compared to 62 percent of the
    population at large. This figure underscores how high unemployment
    creates multiple liabilities for our sample.

                                    SUMMARY

        Employment protections are paramount. Transgender people face
    discrimination, harassment and anti-transgender violence in many areas
    of their lives. These conditions create significant barriers to
    employment and lead to devastating economic insecurity.
        Basic employment protections for transgender people provide a
    crucial foundation for dignified, economically secure lives. Employment
    should be based on one's skills and ability to perform a job. No one
    deserves to be unemployed or fired because of their gender identity or
    expression.

                              SAMPLE DEMOGRAPHICS

        Our sample reflects the geographic and racial and ethnic diversity
    of the Nation as a whole. The maps below show that the geographic
    distribution of our sample very much parallels that of the general
    population. Further, the 2007 American Community Survey reports that
    75.1 percent of the Nation identifies as white and 24.9 percent
    identify as people of color across a range of racial and ethnic
    categories. Transgender and gender non-conforming people in the NCTE/
    Task Force sample identify as white at a percentage of 76 percent,
    while 24 percent of respondents identify as one or more of the
    following: Black/African-American, American Indian or Alaska Native,
    Hispanic or Latino, Asian or Pacific Islander, Arab or Middle Eastern,
    Multiracial or Mixed Race.

                                METHODOLOGY NOTE

        A project team comprised of researchers, LGBT advocates and trans-
    community leaders distributed on-line links to our survey through a
    network of more than 800 trans-serving and trans-led advocacy and
    service organizations, support groups, list-serves and online social
    networks. Nearly 2,000 paper surveys were distributed to hard-to-reach
    transgender and gender non-conforming populations. A total of 6,456
    completed questionnaires were included in the final data set.

        Prepared Statement of Nancy Ratzan, President, National Council
                             of Jewish Women (NCJW)

        The 90,000 members and supporters of the National Council of Jewish
    Women (NCJW) strongly support the Employment Non-Discrimination Act
    (ENDA). ENDA protects basic civil rights in the workplace by
    prohibiting discrimination based on sexual orientation and gender
    identity.
        For over a century, NCJW has been at the forefront of social
    change, speaking out on important issues of public policy. Inspired by
    our Jewish values, NCJW has been, and continues to be, an advocate for
    the needs of women, children, and families and a supporter of equal
    rights for all, regardless of sexual orientation and gender identity.
    Our national resolutions state: ``discrimination on the basis of race,
    gender, national origin, ethnicity, religion, age, disability, marital
    status, sexual orientation or gender identity must be eliminated.''
    ENDA is an important step toward that goal.
        Federal law currently protects employees from discrimination on the
    basis of race, religion, gender, national origin and disability, but
    not sexual orientation or gender identity. ENDA remedies this unjust
    gap in Federal non-discrimination protections by prohibiting employers,
    labor unions and employment agencies from using an individual's sexual
    orientation or gender identity as the basis for employment decisions
    including hiring, promotion, and firing.
        ENDA does not create ``special rights'' for gay Americans. It
    simply extends the same legal protections against discrimination
    provided for other individuals who have historically been denied equal
    employment opportunities. ENDA provides exemptions for small
    businesses, religious organizations, and the military and explicitly
    prohibits the adoption of quotas.
        All people should have the right to seek employment and to work
    free from unfair and prejudicial practices. Job performance and ability
    are the only factors that should influence employment decisions. The
    National Council of Jewish Women supports and urges immediate passage
    of a strong Employment Non-Discrimination Act.

         Prepared Statement of Allyson Robinson, Associate Director of
                     Diversity, Human Rights Campaign (HRC)

        Chairman Harkin and members of the committee, my name is Allyson
    Robinson. I serve as Associate Director of Diversity at the Human
    Rights Campaign (HRC), the Nation's largest lesbian, gay, bisexual, and
    transgender civil rights advocacy organization, where I am staff lead
    for issues of concern to the transgender community. Prior to my tenure
    at HRC I was an ordained Baptist minister, serving congregations in the
    United States and Europe for nearly a decade. I am a 1994 graduate of
    the U.S. Military Academy at West Point (nominated by Senator Arlen
    Specter) and served 5 years as a U.S. Army officer in Europe and the
    Middle East. I am also a transgender woman.
        A recent, first-of-its-kind comprehensive national survey of the
    transgender community \1\ found that we are unemployed at distressing
    rates--overall, 13 percent of respondents, nearly twice the national
    average at the time of the survey, reported being out of work. Even
    more alarming is the finding that 97 percent had experienced harassment
    or mistreatment on the job solely due to their gender identity. As a
    result, 15 percent of respondents reported incomes below $10,000 a
    year, again, over double the rate of the general population.
    ---------------------------------------------------------------------------
        \1\ National Center for Transgender Equality and National Gay and
    Lesbian Task Force, ``National Transgender Discrimination Survey,
    Preliminary Results,'' http://docs.google.com/
    fileview?id=0BwKC1El_YwUWOTc1M2M2ZGQtN2JhMS00YTc0LWI2ODctNWI3MDE4NGE
    wOWJl&hl=en (accessed November 2, 2009).
    ---------------------------------------------------------------------------
        Behind each of these statistics are stories, thousands of them.
    They are the stories of men and women who worked hard to prepare
    themselves in America's high schools, colleges, and universities. (A
    2008 study of the transgender population in California by the
    Transgender Law Center found we are almost twice as likely to hold a
    bachelor's degree as the general population.) \2\ They entered the
    workforce with high hopes and high ideals, devoted themselves to
    building successful careers and productive lives, and earned the
    respect of their managers and peers along the way--only to see it all
    vanish the moment they made the agonizing decision to be open and
    honest about who they were.
    ---------------------------------------------------------------------------
        \2\ Transgender Law Center, ``The State of Transgender California
    Report: Results from the 2008 California Transgender Economic Health
    Survey,'' http://www.transgenderlawcenter.org/pdf/
    StateTransCA_report_2009Print.pdf (accessed November 2, 2009).
    ---------------------------------------------------------------------------
        But standing unseen behind these brave men and women are others--
    wives, husbands, and children--who saw their own hopes and dreams
    dashed by discrimination as well. These families are frequently ignored
    or forgotten when discrimination against transgender people is
    discussed, but their suffering is very real. Most Americans assume that
    a married or partnered adult's decision to change genders necessarily
    means divorce from their spouse and estrangement from their children.
    Today, this is far less likely to be the case than it was decades ago.
    As a result, workplace harassment and employment discrimination against
    transgender people has a negative impact that increasingly reaches far
    beyond the target to the families they support, and that have supported
    them through their gender transition.
        My own family's story illustrates the point. I have been married to
    my wife, a West Point classmate of mine, for 15 years, and we have four
    young children together. She and the children were my closest allies
    and strongest supporters throughout my gender transition. But in
    December, 2007 I began a transition of another kind that would test us
    all: I completed a graduate degree at Baylor University and began my
    first job search as an openly transgender woman.
        As a family, we had prepared well for this career transition. We
    saved up several months' worth of income, organized our household for a
    potential move, and put our children's school records in order. I spent
    much of my last semester of graduate school researching the job market,
    working with a career counselor, and expanding my network. Given my
    West Point degree, my excellent military record, my high academic
    achievements, and my proven leadership ability in the non-profit
    sector, we believed I would receive a job offer within a relatively
    short amount of time.
        Unfortunately, this proved not to be the case. Though I sent out
    dozens of resumes, I was rarely asked to interview and received no
    offers. As our savings began to dwindle, we were forced to look to our
    birth families to provide housing for our family of six. Though my own
    parents were very supportive of my gender transition and would have
    loved to host us, their homes were simply too small to accommodate our
    family. My wife's parents had a large home, but would only allow my
    wife and children to live with them; they refused to support my gender
    transition, pressured my wife to divorce me, and would not even speak
    to me. As a result, we had no choice but to enter into a very difficult
    arrangement. My wife and the children moved in with her parents in
    Billings, MT, a home environment which was openly hostile to my gender
    transition, while I moved in with my mother in Phoenix, AZ. We endured
    this painful separation for almost 10 months.
        Though I was eventually offered an excellent position and our
    family was reunited, the effects of our forced separation, particularly
    on our children, linger to this day. My work requires me to travel
    often, and the children suffer tremendous separation anxiety, even if
    I'll only be away from them overnight. Recently, while watching a
    children's film with them which featured a subplot about a child
    separated from his parents, my 7-year-old daughter began to weep
    uncontrollably and could not be consoled. And this is to say nothing of
    the strain that unemployment and separation placed on our marriage
    relationship or our financial situation. We were forced to spend much
    of our retirement savings to support ourselves, money we had set aside
    years ago while still serving in the Army. Pastoral counseling, offered
    by our church, has helped my family begin to overcome the emotional
    effects of this painful experience.
        My work with the Human Rights Campaign takes me all over the United
    States, speaking with groups of transgender people and listening to
    their stories. I've heard stories of marriages which survive the very
    real challenges presented by a spouse's gender transition, only to
    collapse under the pressure of job termination and prolonged
    unemployment. I've listened to a transgender man describe having to
    live with his partner and their 2-year-old son out of their van for
    nearly a year because he was fired from his job in journalism for
    transitioning and could not find work. I've hugged a transgender woman
    while she told me through tears of being forced because of
    underemployment and poverty to choose between purchasing medication she
    herself needed or asthma medicine for her son. I've listened to
    transgender people tell of enduring years of brutal workplace
    harassment, terrified to seek a more inclusive employer because they
    believed they'd never find another job, who turned to alcohol or drugs
    to deal with the trauma. The effect of this on their families was just
    as traumatic. Many of the stories behind the statistics are like this--
    stories of sons and daughters, husbands and wives, who suffer
    needlessly because someone they love has chosen to follow the medically
    prescribed path to health, wholeness, and inner peace.
        Our family has been very fortunate, and yet even we have learned
    that a happy ending alone sometimes doesn't heal the pain of the
    journey. To be sure, we aren't the only family that has had to endure a
    long separation--families do it every day and suffer the negative
    consequences. In our case, however, as with that of so many families
    like ours, these experiences are unnecessary and avoidable. It should
    not be so difficult for transgender people to find meaningful work
    through which we can support ourselves and our families. Our decision
    to live in ways that are honest, faithful to ourselves, and supported
    by the very best wisdom America's medical and mental health
    professionals can offer, should not be a barrier to gainful employment.
        It is perhaps a sad fact of human nature that we tend to
    marginalize those whom we do not understand. In America, however, we
    have a proud history of rising above this nature and striking down
    policies and practices based on unawareness, misinformation, or bias. I
    urge the Senate to add to that proud history by passing the Employment
    Non-Discrimination Act in its fully transgender inclusive form as soon
    as possible.
        Thank you most sincerely for receiving this testimony and holding
    this important hearing.

     Prepared Statement of Joe Solmonese, President, Human Rights Campaign

        Mr. Chairman and members of the committee, my name is Joe
    Solmonese, and I am the president of the Human Rights Campaign,
    America's largest civil rights organization working to achieve lesbian,
    gay, bisexual and transgender (LGBT) equality. By inspiring and
    engaging all Americans, HRC strives to end discrimination against LGBT
    citizens and realize a nation that achieves fundamental fairness and
    equality for all. On behalf of our over 750,000 members and supporters
    nationwide, I am honored to submit this statement in support of S.
    1584, the Employment Non-Discrimination Act (``ENDA'').
        Work is central to all of our lives. Our jobs enable us to support
    our families, develop our talents, contribute to our communities and
    our country, and realize our dreams. We all share the challenges of an
    economic downturn. But for far too many hardworking LGBT people, those
    pressures are intensified by the fear that they can be denied job
    opportunities, fired or otherwise be discriminated against just because
    of who they are. LGBT Americans, like everyone else, want their success
    to reflect their skills, ambition, and dedication. But this modest goal
    is not a reality for many LGBT people. In 29 States, it is still legal
    to fire someone because of their sexual orientation, and in 38 States,
    it is legal to fire someone because of their gender identity.
        Because an employer in these States may legally fire, refuse to
    hire, or fail to promote an employee based upon sexual orientation or
    gender identity, LGBT people are at a great disadvantage in the
    workplace. For instance, studies show that sexual orientation has a
    negative impact on earnings among individuals with similar education
    and background. A 2007 survey of these studies found that gay men earn
    from 10 percent to 22 percent less than heterosexual men with the same
    education, experience, race, occupation, and geographic location.
        Across this country, lesbian, gay, and bisexual employees must
    avoid simple actions that their heterosexual coworkers take for
    granted--placing a family picture on a desk; describing weekend plans
    over lunch; commuting to work with a partner; wearing a ring. For a
    transgender employee, the challenge is even greater. A person could
    have to forego living in her true gender at all, whether on or off of
    the job, in order to stay employed.
        It is time for a Federal law that would make it illegal to fire a
    LGBT person just because of who they are. ENDA will bring the value of
    meritocracy to a community that has had to do without it for too long.
        ENDA is a narrow, focused piece of legislation modeled after Title
    VII of the Civil Rights Act of 1964, the landmark legislation which
    protects individuals against employment discrimination on the bases of
    race and color, as well as national origin, sex, and religion. Title
    VII is a long-standing, respected employment statute with which
    employers, employees, courts and the American people are very familiar.
    By following this model, ENDA provides a clear roadmap to employers and
    employees as to their obligations and available remedies under the law,
    and treats the issue of discrimination against LGBT people in the same
    way as other victims of workplace bias. ENDA does not create any
    ``special rights.'' It simply extends to all Americans basic employment
    protection from discrimination based on irrational prejudice.
        Support for this legislation is strong. Polls demonstrate
    overwhelming public support for the principle of equal job
    opportunities for lesbian and gay Americans (89 percent in a May 2008
    Gallup poll). Six in ten Americans specifically support the Employment
    Non-Discrimination Act (Hart Research poll, January-February 2007),
    including majorities of white (58 percent), African-American (61
    percent), and Latino (56 percent) voters, as well as self-described
    Democrats (70 percent), independents (55 percent), and Republican women
    (52 percent).
        America's top corporations and small businesses know, in order to
    remain competitive, they must recruit and retain the best possible
    talent, including members of the LGBT community. As of September 2009,
    434 (87 percent) of the Fortune 500 companies have implemented non-
    discrimination policies that include sexual orientation. Two hundred
    and seven (41 percent) of those companies also cover gender identity in
    their policies--up from only 3 in 2000. Currently, 80 large
    corporations and 57 small businesses have joined the Business Coalition
    for Workplace Fairness in support of ENDA. Among this group of
    corporations from a wide range of geography and industry are: BP
    America, Citigroup, Coors Brewing, Ernst & Young, General Mills,
    General Motors, Kaiser Permanente, Marriott International, Microsoft,
    Nike and Time Warner. These companies understand that fairness and
    diversity are good for business.
        The civil rights community also stands behind the Employment Non-
    Discrimination Act. The Leadership Conference on Civil Rights, a
    coalition of over 200 civil rights, religious, labor, and women's
    rights organizations, has endorsed ENDA. In addition, such well known
    leaders of the civil rights movement as Coretta Scott King and Rep.
    John Lewis have spoken out in support of ENDA in the past.
        Some of ENDA's critics would like to misrepresent it as
    inconsistent with religious liberties. However, many communities of
    faith also support fairness. Numerous Christian and Jewish
    organizations and denominations, including The Interfaith Alliance;
    Presbyterian Church U.S.A.; Union for Reform Judaism; United Church of
    Christ; and the United Methodist Church have taken a strong stand
    against discrimination.
        ENDA, like other civil rights laws, is sensitive to religious
    organizations and contains a very broad religious exemption. The act
    exempts the same religious entities that are exempt from the religious
    discrimination provisions of Title VII of the Civil Rights Act of 1964.
    As a result, houses of worship, parochial and similar religious schools
    and missions, as well as positions at other entities owned by or
    closely affiliated with a religious organization are not subject to
    ENDA's prohibition of discrimination based on sexual orientation or
    gender identity. In short, ENDA in no way interferes with a religious
    entity's ability to follow its beliefs in making employment decisions.
        We are a country predicated on equality. And over the years, we
    have embraced a more inclusive vision of what that means. In the past
    five decades, Congress and the President have recognized that race,
    sex, national origin, religion, age and disability are irrelevant to
    the ability of a person to do a job and have enacted laws to address
    discrimination based on those characteristics. These civil rights laws
    have improved job opportunity for millions of Americans, raising
    standards of living and providing hope of a better future for each
    successive generation. Yet, there remains no Federal law protecting
    LGBT people from being fired from a job, being denied a promotion, or
    experiencing harassment at work simply because of who they are. The
    time has come for Congress to finally act and ensure that
    discrimination has no place in the American workplace.

                      Prepared Statement of Meghan Stabler

        Chairman Harkin and members of the committee, thank you for this
    opportunity to submit written testimony in support of S. 1584, the
    Employment Non-Discrimination Act (ENDA), critical but incredibly
    simple legislation which would protect people from workplace
    discrimination based on their sexual orientation or gender identity. I
    commend the committee for holding the first hearing on a version of
    ENDA that protects lesbian, gay, bisexual and transgender people.
    Protecting Americans from gender identity-based employment
    discrimination is critically important. Lesbian, gay, bisexual and
    transgender people face a high risk of job discrimination and have no
    adequate remedy in Federal law. This bill would provide critically
    needed job protections.
        My statement will focus on the discrimination faced by so many
    transgender men and women in the workplace, and its devastating
    implication on personal finance, health care insurance availability and
    even homelessness. My testimony, and that of others, is given in the
    hopes that you move forward with workplace protections, for all
    lesbian, gay, bisexual and transgender workers and help stop
    discrimination in any aspect of employment.
        My name is Meghan Stabler; first and foremost I am a former
    business executive, having worked for major corporations throughout
    Europe and North America for the last 27 years.
        Before transitioning my gender from male to female to resolve an
    inner sense of gender conflict that had been known to me since the age
    of 5, I enjoyed an amazing career with respect, increasing
    responsibilities, compensation, and an unlimited career path. I was
    married and have a wonderful teenage daughter.
        Second, I am a woman, however, I am also labeled transgender, and
    more specifically transsexual, meaning I transitioned genders, as I
    mentioned, in my case from male to female. Simply and solely, because I
    am transgender, employers are able to fire, refuse to hire, demote, or
    refuse to promote or otherwise discriminate against me in 38 States,
    despite my job performance, history of accomplishments or the merits of
    my ability to perform my job.
        My ability to finance health care coverage, and to provide myself
    with a home, is clearly linked to my ability to work and remain
    employed. Given the current economic climate in the USA this is tough
    enough; however because of discrimination in the workplace against
    transgender employees, it is harder still. Many transgender people face
    discrimination in the workplace, sometimes with employers terminating
    their jobs within hours of their coming out and ``telling'' their
    employer that they are transgender. Losing a job impacts access to
    health care, and faced with dwindling finances, can ultimately lead
    transgender people to homelessness. In fact, during 2006, the
    Transgender Law Center conducted a survey of transgender people living
    in San Francisco which discovered the following: only 25 percent of the
    transgender people surveyed were employed full-time, and altogether 35
    percent were unemployed. Only 4 percent made more than the estimated
    median income for a San Franciscan. This is a remarkable statistic,
    considering that the wider Bay Area is considered ``home'' to my
    profession of software and even more remarkable as San Francisco is
    considered one of the most progressive cities in North America.
        I, too, have experienced discrimination during and, following my
    transition from male to female. Let me share my story.
        Since my earliest memories I felt different.
        I did not feel right about my gender.
        This is known medically as Gender Identity Disorder.
        Simply put, my emotional and psychological gender was not in
    alignment with my genetic, physiological sex. This is not an acquired
    condition; rather, it is an intrinsic part, a lifelong aspect of my
    being, something that I, and many others are born with. Despite all of
    the behaviors that I learned in trying to deny my true identity and
    feelings, this condition had been the source of unease and discomfort
    throughout my life. Eventually I received treatment through accepted
    medical practices for Gender Identity Disorder. While the types of
    medical or other treatments range widely, I took the necessary steps to
    change my physical gender from male to female. Doing so did not change
    the person I was or my ability to perform my job, or as a matter of
    fact, any job, but finally dealing with this, lifted a huge weight off
    my shoulders.
        As a male in the workplace I enjoyed what I call ``entitlements'',
    I enjoyed a successful career, in meetings I was seen as a leader and I
    had employment protections. As I began to transition it changed.
    Initially there was no policy of protection in my place of work, but
    over time my employer was willing to place EEO and Sexual Harassment
    policies in place. As a female in the workplace I see the ``other
    side'' of the business table, yet with a societal stigmatism labeled
    upon me as transgender, and like the majority of transgender persons I
    know, I have faced workplace issues.
        Since I openly transitioned, I have received a number of job
    demotions: I am no longer a senior executive.
        As a result, I have seen significant salary reductions, along with
    reductions in my participation and involvement in meetings, business
    transactions and customer meetings. As a result, I face a monthly
    struggle to keep my house payments and related bills, while ensuring
    that I pay court-ordered child support. I have had to use much of my
    savings to make up shortfalls and bill payments, including my
    daughter's educational needs.
        Having a job is so important to transgender people, without the
    income we may not have access to essential medications and treatments,
    or even expensive surgeries that enable us to slip back into society in
    the new ``legal'' gender. Overall, I have been one of the fortunate
    few, yet I would like to cite a number of examples from friends that
    have not been so lucky.
        The first is a story of a transgender friend who transitioned over
    5 years ago. She was a Chief Technology Officer in a software
    development company, but upon announcing her need to transition from
    male to female, she was terminated from her position. She faced
    immediate workplace discrimination.
        She relocated in the hopes that she could start a new life, without
    her male history following her. Over the coming months that evolved
    into years; her life savings dwindled to nothing despite her applying
    for jobs not only within her home State, but across the country. She
    was overlooked for many positions, and for those for which she received
    an initial call back, she never received a second interview. She used
    her remaining savings to complete a variety of necessary surgeries, as
    she still needed to resolve her inner need to change gender. With
    escalating costs and a declining source of finances, she became
    increasingly suicidal. Without a job and income, completing surgery was
    out of reach. She was very educated and qualified for positions; her
    knowledge of technology never changed between the day she announced
    transition and the day prior to transition, yet she was never hired for
    a job for over 5 years.
        Second is the experience of another good friend of mine, a
    commercial pilot, who was placed on ``paid-administrative leave''
    within 2 hours of talking to her companies HR executives about her
    intent to transition genders. Within 4 days, the company asked her to
    tender her resignation.
        Third is the story of another friend, who was once a manufacturing
    engineer in a predominantly-male business. On announcing her need to
    transition, she was immediately terminated. She needed to complete
    transition, yet her finances were reduced and she found it increasingly
    hard to get a job in the line of work in which she was experienced. She
    relocated, but still could not find a position equal to her former job.
    After 2 years, despite her engineering expertise, she was working as a
    housekeeper in a Denver hotel.
        For transgender (transsexual) people, gender transition is not a
    choice, but is rather an essential need.
        Like other transgender people, I have been, and am still a
    productive, responsible, dedicated, loyal and passionate employee. I
    wish only to be measured on the merits of the job I do, and the
    capability to perform to the best of my ability. It is only when we are
    subject to discriminatory actions and a lack of workplace protections
    that our work begins to suffer.
        Without work, we lose income.
        Without income or savings, we lack access to affordable healthcare,
    and sometimes healthcare is not even available to us from certain
    providers just because of our transitional history or status.
        Without healthcare we often cannot complete transition. With the
    stress placed on us, often suicide is a considered option.
        I hope that you are able to comprehend from mine and other stories
    how much lesbian, gay, bisexual and transgender Americans need you to
    pass the Employment Non-Discrimination Act.
        For every example of workplace discrimination you hear or read
    today, there are thousands, more across the country who have faced, and
    continue to face discrimination in silence, often without any recourse
    at all. Their voices cannot be heard today, but I assure you that they
    are watching, listening, and reading what happens with regards to this
    bill. They are productive Americans, they are hard working Americans.
    They, like I, are asking for the right to work.
        I hope that we can move forward and finally end workplace injustice
    and discrimination based on a person's Sexual Orientation or Gender
    Identity and finally pass S. 1584 to ban discrimination against
    lesbian, gay, bisexual, and transgender people in the workplace and to
    protect LGBT people from being fired, refused a job, or harassed in the
    workplace.
        In closing, I thank the committee for holding this important
    hearing on the Employment Non-Discrimination Act and for allowing me to
    submit written testimony in favor of this important legislation. I
    would like to leave you with this quote from Robert Francis Kennedy:

              ``Each time a man stands for an ideal, or acts to improve the
            lot of others, or strikes out against injustice, he sends a
            tiny ripple of hope, and crossing each other from a million
            different centers of energy and daring, those ripples build a
            current which can sweep down the mightiest walls of oppression
            and resistance.''
                                     ______

           U.S. Government Accountability Office (GAO),
                                                Washington, DC,
                                                       October 1, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate.

    Hon. Susan M. Collins,
    U.S. Senate.

    Hon. Jeff Merkley,
    U.S. Senate.

    Subject:  Sexual Orientation and Gender Identity Employment
    Discrimination: Overview of State Statutes and Complaint Data

        Federal law prohibits discrimination in employment based on a
    number of factors, including race, color, religion, sex, national
    origin, disability, and age. Although Federal law does not prohibit
    discrimination in employment on the basis of sexual orientation,\1\ 21
    States \2\ and the District of Columbia provide such protection in
    their statutes. Thirteen of these States \3\ also have statutes
    explicitly prohibiting discrimination in employment on the basis of
    gender identity.\4\ Based on your request to update our 2002 report on
    this subject,\5\ we (1) reviewed State statutes that prohibit
    discrimination in employment on the basis of sexual orientation and
    gender identity, including the characteristics, coverage, and
    exclusions of the laws, and (2) gathered information concerning the
    number of administrative employment discrimination complaints filed in
    each State--both the total number and the number of complaints listing
    sexual orientation or gender identity as one of the claimed bases for
    discrimination.
    ---------------------------------------------------------------------------
        \1\ Executive Order 13087, issued on May 28, 1998, amended
    Executive Order 11478 to prohibit discrimination based upon sexual
    orientation within executive branch civilian employment.
        \2\ These States are California, Colorado, Connecticut, Delaware,
    Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
    Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode
    Island, Vermont, Washington, and Wisconsin.
        \3\ Except where otherwise specified, we use the term ``State''
    throughout this correspondence to refer to the District of Columbia as
    well as to the 21 States.
        \4\ Additionally, some States may permit gender identity complaints
    to be filed under provisions prohibiting discrimination based on sex,
    sexual orientation, or disability.
        \5\ U.S. General Accounting Office, Sexual Orientation-Based
    Employment Discrimination: States' Experience with Statutory
    Prohibitions, GAO-02-878R (Washington, DC: July 9, 2002).
    ---------------------------------------------------------------------------
        In response to your request, we utilized legal databases to
    determine which States have laws specifically prohibiting
    discrimination in employment on the basis of sexual orientation and
    gender identity and compared our results with other organizations'
    lists.\6\ We sent questionnaires to the 22 States we identified having
    such laws. We asked the States to verify information concerning their
    statutes and to provide us with data on the numbers of administrative
    employment discrimination complaints filed for the most recent 3 years
    for which data is available. All data are as reported by the State
    agency; we did not verify these data. We created a table for each State
    incorporating each State's responses and other information and sent
    these tables to the States for their comments, which we incorporated as
    appropriate. We conducted our review during August and September 2009.
    ---------------------------------------------------------------------------
        \6\ Specifically, we compared our research to information compiled
    by the Human Rights Campaign and the National Gay and Lesbian Task
    Force.
    ---------------------------------------------------------------------------
        Of the 22 States that have laws prohibiting discrimination based on
    sexual orientation, the statutory definitions in all but one State
    (Minnesota),\7\ define ``sexual orientation'' as including in some form
    the categories of heterosexuality, homosexuality, and bisexuality. All
    but five \8\ of the statutory definitions include people who are
    perceived by others to be, or are identified with, a specific
    orientation, whether or not they identify with that orientation.
    Therefore, for instance, a person who is discriminated against because
    he is incorrectly perceived by an employer to be homosexual, but who is
    actually heterosexual, may still file an employment discrimination
    complaint based on sexual orientation.
    ---------------------------------------------------------------------------
        \7\ Minnesota's statute defines ``sexual orientation'' in part as
    ``having or being perceived as having an emotional, physical, or sexual
    attachment to another person without regard to the sex of that
    person,'' or ``having or being perceived as having a self-image or
    identity not traditionally associated with one's biological maleness or
    femaleness.'' Minn. Stat. Sec. 363A.03, Subd. 44.
        \8\ The States that do not include such language in their
    definitions are Delaware, the District of Columbia, Maryland, Vermont,
    and Washington.
    ---------------------------------------------------------------------------
        Thirteen of the 22 States have laws explicitly prohibiting
    discrimination based on gender identity.\9\ Gender identity generally
    refers to a person's identity and/or appearance, whether or not
    associated with a person's sex at birth. Five of these States \10\ do
    not provide a separate statutory definition for ``gender identity.''
    \11\ Some States reported that although their State statutes may not
    specifically prohibit discrimination based on gender identity, the
    State may nevertheless accept gender identity employment discrimination
    complaints under another basis, such as sexual orientation or sex. For
    instance, Massachusetts reported that it will accept, investigate, and
    adjudicate gender identity cases under the section of Massachusetts law
    prohibiting employment discrimination on the basis of sex. Wisconsin
    reported that, depending on the facts of the particular situation, an
    individual with a gender identity issue may be able to bring a claim of
    discrimination based on disability or sex.
    ---------------------------------------------------------------------------
        \9\ These States are California, Colorado, the District of
    Columbia, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico,
    Oregon, Rhode Island, Vermont, and Washington.
        \10\ Colorado, Illinois, Maine, Minnesota, and Oregon.
        \11\ Colorado's statute refers to ``transgender status'' rather
    than ``gender identity.''
    ---------------------------------------------------------------------------
        Under the State statutes, the number of employees an employer has
    is a factor in determining coverage. Nine States cover employers having
    one or more employees.\12\ Only four States require more than six
    employees for coverage.\13\ In Illinois, the minimum number of
    employees an employer must have in order for the statutory protection
    from employment discrimination on the basis of sexual orientation and
    gender identity to be in effect is a different number than for the
    statutory protection for other bases of employment discrimination.
    Specifically, the sexual orientation discrimination and gender identity
    provisions apply only to a private employer with 15 or more employees,
    whereas an employer need only employ one person to invoke the
    application of the provisions providing protection from employment
    discrimination on the basis of sexual harassment or physical or mental
    handicap unrelated to ability.
    ---------------------------------------------------------------------------
        \12\ Some State laws explicitly state ``one.'' Where a specific
    number was not stated in the law, the States confirmed that the minimum
    number of employees for coverage was one.
        \13\ Washington requires 8 and Illinois, Maryland, and Nevada each
    require 15.
    ---------------------------------------------------------------------------
        All the States provide at least a limited exemption for employers
    that are religious organizations, although the exemptions may vary in
    scope.\14\ They generally permit religious organizations to give
    preference to those of the same religion in hiring. In Maryland, the
    statute mentions sexual orientation specifically in exempting religious
    organizations from the employment non-discrimination provisions.\15\
    Washington provides a clear exception for religious organizations.\16\
    Minnesota law states that for religious or fraternal organizations, if
    sexual orientation is a bona fide occupational qualification for
    employment, the sexual orientation discrimination provisions do not
    apply; moreover, a not-for-profit religious association is exempt from
    these provisions except when the association is engaged in secular
    business activities unrelated to the religious and educational purposes
    for which it is organized.\17\
    ---------------------------------------------------------------------------
        \14\ We are using the term ``exemption'' to include any cases in
    which a State statute provides any sort of exception, however limited,
    for religious organizations.
        \15\ Under Maryland statute the employment non-discrimination
    provision does not apply to ``[a] religious corporation, association
    educational institution or society with respect to the employment of
    individuals of a particular religion or sexual orientation to perform
    work connected with the carrying on by such corporation, association,
    educational institution or society of its activities.'' Md. Ann. Code
    art. 49B, Sec. 18(2).
        \16\ Under Washington law, the definition of employer ``does not
    include any religious or sectarian organization not organized for
    private profit.'' Rev. Code Wash. Ann. Sec. 49.60.040(3).
        \17\ Minn. Stat. Sec. Sec. 363A.20, Subd. 20 and 363A.26(2).
    ---------------------------------------------------------------------------
        All but one (Massachusetts) of the States include employers that
    are non-profit organizations in the coverage of their sexual
    orientation and gender identity nondiscrimination statutes. However,
    these States may exempt specific types of organizations. For example,
    Minnesota exempts nonpublic service organizations whose primary
    function is providing occasional services to minors.\18\ New Hampshire
    exempts exclusively fraternal and social clubs,\19\ and Maryland and
    Nevada exempt private membership clubs.\20\ Finally, all the State
    statutes include coverage of State and local government employers.
    ---------------------------------------------------------------------------
        \18\ Minn. Stat. Sec. 363A.20, Subd. 3.
        \19\ N.H. Rev. Stat. Ann. Sec. 354-A:2(VII).
        \20\ Md. Ann. Code art. 49B, Sec. 15(b); Nev. Rev. Stat. Ann.
    Sec. 613.310(2)(c).
    ---------------------------------------------------------------------------
        Generally, the administrative complaint data reported by States
    show relatively few employment discrimination complaints based on
    sexual orientation and gender identity. In some States, the laws
    proscribing sexual orientation and gender identity employment
    discrimination were enacted relatively recently; therefore, these
    States could not provide complete complaint data for the requested 3-
    year period.
        Enclosed with this correspondence are tables for each of the 22
    States for which we compiled information. For each State we listed
    specific information about the State statute, including relevant
    definitions and coverage (e.g., minimum number of employees and
    applicability of exemptions), and listed the complaint data provided by
    the States.\21\ Some of the information in the tables came from our
    reading of the State statute, as verified by the States, and other
    information came from the States' responses to our questionnaire. It is
    important to note that case law, regulation, or other guidance may also
    address the specific elements listed in the tables. Our focus in this
    report was only on the language of the State statutes.
    ---------------------------------------------------------------------------
        \21\ All complaint data in the State tables are reported by State
    fiscal year (generally, July 1 through June 30), except where noted.
    ---------------------------------------------------------------------------
        James M. Rebbe, Senior Attorney, and Doreen S. Feldman, Assistant
    General Counsel, prepared this report.
        If you have any questions about this letter, please contact me at
    202-512-8208.

                                                 Dayna K. Shah,
                                    Managing Associate General Counsel.

                                  State Tables
    ------------------------------------------------------------------------
                       State                             Information
    ------------------------------------------------------------------------
    California:
      Statutory provision(s) providing          Cal. Gov. Code Sec.  12940
       protection from employment                (sexual orientation and
       discrimination on the basis of sexual     gender identity), Cal. Gov.
       orientation and/or gender identity.       Code Sec.  12926(p) (gender
                                                 identity).
      Definition of ``sexual orientation''....  ``Heterosexuality,
                                                 homosexuality, and
                                                 bisexuality,'' including
                                                 ``a perception that the
                                                 person has any of those
                                                 characteristics or that the
                                                 person is associated with a
                                                 person who has, or is
                                                 perceived to have, any of
                                                 those characteristics.''
                                                 Cal. Gov. Code Sec. Sec.
                                                 12926(m) and (q).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identify''.......  The definition of ``sex''
                                                 for purposes of the
                                                 California fair employment
                                                 statute ``includes, but is
                                                 not limited to, a person's
                                                 gender.'' This section then
                                                 refers to the definition of
                                                 ``gender'' in the
                                                 California Penal Code,
                                                 which is defined as ``sex,
                                                 and includes a person's
                                                 gender identity and gender-
                                                 related appearance and
                                                 behavior whether or not
                                                 stereotypically associated
                                                 with the person's assigned
                                                 sex at birth.'' Cal. Gov.
                                                 Code Sec.  12926(p); Cal.
                                                 Pen. Code Sec.  422.56(c).
      Minimum number of employees for coverage  5\22\.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                2008\23\: 18,786; 2007:
       discrimination administrative             16,396; 2006: 15,312.
       complaints filed for the 3 most recent
       years for which data is available.
      Total number of employment                2008: 821; 2007: 815; 2006:
       discrimination administrative             722.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                California does not have
       discrimination administrative             separate statistics on
       complaints filed for the 3 most recent    gender identity complaint
       years for which data is available where   data because gender
       at least one of the claimed bases for     identity discrimination is
       discrimination is gender identity..       characterized as sex
                                                 discrimination.
    Colorado:
      Statutory provision(s) providing          Colo. Rev. Stat. 24-34-402
       protection from employment                (sexual orientation and
       discrimination on the basis of sexual     gender identity), Colo.
       orientation and/or gender identity.       Rev. Stat. 24-34-401(7.5)
                                                 (gender identity).
      Definition of ``sexual orientation''....  ``A person's orientation
                                                 toward heterosexuality,
                                                 homosexuality, bisexuality,
                                                 or transgender status or an
                                                 employer's perception
                                                 thereof.'' Colo. Rev. Stat.
                                                 24-34-401(7.5).
      Does statute prohibit discrimination on   Yes\24\.
       the basis of gender identity?.
      Definition of ``gender identity''.......  The Colorado statute
                                                 includes ``transgender
                                                 status'' in the definition
                                                 of ``sexual orientation''
                                                 as a protected class but
                                                 does not define that term
                                                 in the statute.
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 712; FY 2007-
       discrimination administrative             2008: 635; FY 2006-2007:
       complaints filed for the 3 most recent    593.
       years for which data is available.
      Total number of employment                FY 2008-2009: 36; FY 2007-
       discrimination administrative             2008: 23.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual
       orientation\25\.
      Total number of employment                FY 2008-2009: 2; FY 2007-
       discrimination administrative             2008: 1.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity\26\.
    Connecticut:
      Statutory provision(s) providing          Conn. Gen. Stat. Sec.  46a-
       protection from employment                81c (sexual orientation).
       discrimination on the basis of sexual
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Having a preference for
                                                 heterosexuality,
                                                 homosexuality or
                                                 bisexuality, having a
                                                 history of such preference
                                                 or being identified with
                                                 such preference, but
                                                 excludes any behavior which
                                                 constitutes a violation of
                                                 part VI of chapter 952
                                                 [relating to sex
                                                 offenses].'' Conn. Gen.
                                                 Stat. Sec.  46a-81a.
      Does statute prohibit discrimination on   No\27\.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  3.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-09: 1,716; FY 2007-
       discrimination administrative             08: 1,814; FY 2006-07:
       complaints filed for the 3 most recent    1,783.
       years for which data is available.
      Total number of employment                FY 2008-09: 44; FY 2007-08:
       discrimination administrative             61; FY 2006-07: 72.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                Connecticut does not track
       discrimination administrative             gender identity complaints
       complaints filed for the 3 most recent    separately. They may appear
       years for which data is available where   as complaints based on
       at least one of the claimed bases for     sexual orientation,
       discrimination is gender identity.        complaints based on sex, or
                                                 both.
    Delaware:
      Statutory provision(s) providing          19 Del. C. Sec.  711 (sexual
       protection from employment                orientation).
       discrimination on the basis of sexual
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Exclusively means
                                                 heterosexuality,
                                                 homosexuality, or
                                                 bisexuality.'' 19 Del. C.
                                                 Sec.  710(18).
      Does statute prohibit discrimination on   No.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  4.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 728; FY 2007-
       discrimination administrative             2008: 619; FY 2006-2007:
       complaints filed for the 3 most recent    648.
       years for which data is available.
      Total number of employment                Coverage based upon sexual
       discrimination administrative             orientation status went
       complaints filed for the 3 most recent    into effect July 1, 2009,
       years for which data is available where   so Delaware has not yet
       at least one of the claimed bases for     collected any data.
       discrimination is sexual orientation.
      Total number of employment                N/A.
       discrimination administrative
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    District of Columbia:
      Statutory provision(s) providing          D.C. Code Sec.  2-1402.11
       protection from employment                (sexual orientation and
       discrimination on the basis of sexual     gender identity).
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Male or female
                                                 homosexuality,
                                                 heterosexuality and
                                                 bisexuality, by preference
                                                 or practice.'' DC. Code
                                                 Sec.  2-1401.02(28).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  `` `Gender identity or
                                                 expression' means a gender-
                                                 related identity,
                                                 appearance, expression, or
                                                 behavior of an individual,
                                                 regardless of the
                                                 individual's assigned sex
                                                 at birth.'' D.C. Code Sec.
                                                 2-1401.02(12A).
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008: 357; FY 2007: 282;
       discrimination administrative             FY 2006: 350.
       complaints filed for the 3 most recent
       years for which data is available\28\.
      Total number of employment                FY 2008: 28; FY 2007: 17; FY
       discrimination administrative             2006: 29.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                FY 2008: 2; FY 2007: 0; FY
       discrimination administrative             2006: 0.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Hawaii:
      Statutory provision(s) providing          H.R.S. Sec.  378-2 (sexual
       protection from employment                orientation).
       discrimination on the basis of sexual
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Having a preference for
                                                 heterosexuality,
                                                 homosexuality, or
                                                 bisexuality, having a
                                                 history of any one or more
                                                 of these preferences, or
                                                 being identified with any
                                                 one or more of these
                                                 preferences'' but ``shall
                                                 not be construed to protect
                                                 conduct otherwise
                                                 proscribed by law.'' H.R.S.
                                                 Sec.  378-1.
      Does statute prohibit discrimination on   No\29\.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2007-2008: 617; FY 2006-
       discrimination administrative             2007: 461; FY 2005-2006:
       complaints filed for the 3 most recent    515.
       years for which data is available.
      Total number of employment                FY 2007-2008: 8; FY 2006-
       discrimination administrative             2007: 3; FY 2005-2006: 7.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                Hawaii does not track gender
       discrimination administrative             identity complaints
       complaints filed for the 3 most recent    separately, but considers
       years for which data is available where   gender identity
       at least one of the claimed bases for     discrimination a form of
       discrimination is gender identity.        sex discrimination.
    Illinois:
      Statutory provision(s) providing          Sec.  775 ILCS 5/1-102(A),
       protection from employment                Sec.  775 ILCS 5/2-102(A),
       discrimination on the basis of sexual     Sec.  775 ILCS 5/1-103(O-1)
       orientation and/or gender identity.       (sexual orientation and
                                                 gender identity).
      Definition of ``sexual orientation''....  ``Actual or perceived
                                                 heterosexuality,
                                                 homosexuality, bisexuality,
                                                 or gender-related identity,
                                                 whether or not
                                                 traditionally associated
                                                 with the person's
                                                 designated sex at birth.
                                                 `Sexual orientation' does
                                                 not include a physical or
                                                 sexual attraction to a
                                                 minor by an adult.' '' Sec.
                                                  775 ILCS 5/1-103(O-1).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  There is not a separate
                                                 definition of ``gender
                                                 identity'' in Illinois
                                                 statute. See definition of
                                                 ``sexual orientation.''
      Minimum number of employees for coverage  15\30\.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 3,855; FY 2007-
       discrimination administrative             2008: 3,522; FY 2006-2007:
       complaints filed for the 3 most recent    3,287.
       years for which data is available.
      Total number of employment                FY 2008-2009: 145; FY 2007-
       discrimination administrative             2008: 81; FY 2006-2007:
       complaints filed for the 3 most recent    103.
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                FY 2008-2009: 5; FY 2007-
       discrimination administrative             2008: 1; FY 2006-2007: 3.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Iowa:
      Statutory provision(s) providing          Iowa Code Sec.  216.6
       protection from employment                (sexual orientation and
       discrimination on the basis of sexual     gender identity).
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Actual or perceived
                                                 heterosexuality,
                                                 homosexuality, or
                                                 bisexuality.'' Iowa Code
                                                 Sec.  216.2(14).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  ``A gender-related identity
                                                 of a person, regardless of
                                                 the person's assigned sex
                                                 at birth.'' Iowa Code Sec.
                                                 216.2(10).
      Minimum number of employees for coverage  4.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2007-2008: 1,453; FY 2006-
       discrimination administrative             2007: 1,413; FY 2005-2006:
       complaints filed for the 3 most recent    1,526.
       years for which data is available.
      Total number of employment                FY 2008-2009: 29; FY 2007-
       discrimination administrative             2008\31\: 17.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                FY 2008-2009: 3; FY 2007-
       discrimination administrative             2008: 4.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Maine:
      Statutory provision(s) providing          5 M.R.S.A. Sec.  4552, 5
       protection from employment                M.R.S.A. Sec.  4553(9-C)
       discrimination on the basis of sexual     and (10), 5 M.R.S.A. Sec.
       orientation and/or gender identity.       4571, 5 M.R.S.A. Sec.  4572
                                                 (sexual orientation and
                                                 gender identity).
      Definition of ``sexual orientation''....  ``A person's actual or
                                                 perceived heterosexuality,
                                                 bisexuality, homosexuality
                                                 or gender identity or
                                                 expression.'' 5 M.R.S.A.
                                                 Sec.  4553(9-C).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  Maine does not have a
                                                 separate statutory
                                                 definition for this term.
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 494; FY 2007-
       discrimination administrative             2008: 604; FY 2006-2007:
       complaints filed for the 3 most recent    544.
       years for which data is available.
      Total number of employment                FY 2008-2009: 6; FY 2007-
       discrimination administrative             2008: 17; FY 2006-2007: 19.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                FY 2008-2009: 0; FY 2007-
       discrimination administrative             2008: 1; FY 2006-2007: 0.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Maryland:
      Statutory provision(s) providing          Md. Ann. Code art. 49B, Sec.
       protection from employment                Sec.  14, 16\32\ (sexual
       discrimination on the basis of sexual     orientation).
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``The identification of an
                                                 individual as to male or
                                                 female homosexuality,
                                                 heterosexuality, or
                                                 bisexuality.'' Md. Ann.
                                                 Code art. 49B, Sec.  15(j).
      Does statute prohibit discrimination on   No.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  15.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No\33\.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 741; FY 2007-
       discrimination administrative             2008: 663; FY 2006-2007:
       complaints filed for the 3 most recent    645.
       years for which data is available.
      Total number of employment                FY 2008-2009: 23; FY 2007-
       discrimination administrative             2008: 24; FY 2006-2007: 28.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                Maryland does not track
       discrimination administrative             gender identity complaints
       complaints filed for the 3 most recent    separately. It does accept
       years for which data is available where   gender identity complaints
       at least one of the claimed bases for     under ``sex'' but not
       discrimination is gender identity.        ``sexual orientation.''
    Massachusetts:
      Statutory provision(s) providing          M.G.L. c. 151B, Sec.  4(1),
       protection from employment                (3) (sexual orientation).
       discrimination on the basis of sexual
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Having an orientation for
                                                 or being identified as
                                                 having an orientation for
                                                 heterosexuality,
                                                 bisexuality, or
                                                 homosexuality.'' M.G.L. c.
                                                 151B, Sec.  3(6).
      Does statute prohibit discrimination on   No\34\.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  6.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  Yes\35\.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                2008: 2,951; 2007: 2,862;
       discrimination administrative             2006: 2,641.
       complaints filed for the 3 most recent
       years for which data is available\36\.
      Total number of employment                2008: 100; 2007: 96; 2006:
       discrimination administrative             85.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                N/A.
       discrimination administrative
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Minnesota:
      Statutory provision(s) providing          Minn. Stat. Sec.  363A.02,
       protection from employment                Minn. Stat. Sec.  363A.08,
       discrimination on the basis of sexual     Minn. Stat. Sec.  363A.03,
       orientation and/or gender identity.       Subd. 44 (sexual
                                                 orientation and gender
                                                 identity).
      Definition of ``sexual orientation''....  ``Having or being perceived
                                                 as having an emotional,
                                                 physical, or sexual
                                                 attachment to another
                                                 person without regard to
                                                 the sex of that person or
                                                 having or being perceived
                                                 as having an orientation
                                                 for such attachment, or
                                                 having or being perceived
                                                 as having a self-image or
                                                 identity not traditionally
                                                 associated with one's
                                                 biological maleness or
                                                 femaleness,'' but ``does
                                                 not include a physical or
                                                 sexual attachment to
                                                 children by an adult.''
                                                 Minn. Stat. Sec.  363A.03,
                                                 Subd. 44.
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  Minnesota does not have a
                                                 separate statutory
                                                 definition of ``gender
                                                 identity,'' but includes
                                                 this category in its
                                                 definition of ``sexual
                                                 orientation.''
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes\37\.
      Non-profit organizations exempt?........  No\38\.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                2008: 880; 2007: 821; 2006:
       discrimination administrative             926.
       complaints filed for the 3 most recent
       years for which data is available\39\.
      Total number of employment                2008: 24; 2007: 21; 2006:
       discrimination administrative             28.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                The definition of sexual
       discrimination administrative             orientation under Minnesota
       complaints filed for the 3 most recent    statue includes gender
       years for which data is available where   identity and therefore the
       at least one of the claimed bases for     numbers listed above for
       discrimination is gender identity.        sexual orientation
                                                 complaints encompass all
                                                 gender identity complaints.
    Nevada:
      Statutory provision(s) providing          Nev. Rev. Stat. Ann. Sec.
       protection from employment                233.010, Nev. Rev. Stat.
       discrimination on the basis of sexual     Ann. Sec.  613.330 (sexual
       orientation and/or gender identity.       orientation).
      Definition of ``sexual orientation''....  ``Having or being perceived
                                                 as having an orientation
                                                 for heterosexuality,
                                                 homosexuality or
                                                 bisexuality.'' Nev. Rev.
                                                 Stat. Ann. Sec.
                                                 613.310(6).
      Does statute prohibit discrimination on   No.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  15.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No\40\.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2007-2008: 1,401; FY 2006-
       discrimination administrative             2007: 1,218; FY 2005-2006:
       complaints filed for the 3 most recent    972.
       years for which data is available.
      Total number of employment                FY 2007-2008: 55; FY 2006-
       discrimination administrative             2007: 30; FY 2005-2006: 25.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                N/A.
       discrimination administrative
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    New Hampshire:
      Statutory provision(s) providing          N.H. Rev. Stat. Ann. Sec.
       protection from employment                354-A:6 (sexual
       discrimination on the basis of sexual     orientation).
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Having or being perceived
                                                 as having an orientation
                                                 for heterosexuality,
                                                 bisexuality, or
                                                 homosexuality. This
                                                 definition is intended to
                                                 describe the status of
                                                 persons and does not render
                                                 lawful any conduct
                                                 prohibited by the criminal
                                                 laws of this State or
                                                 impose any duty on a
                                                 religious organization.
                                                 This definition does not
                                                 confer legislative approval
                                                 of such status, but is
                                                 intended to assure the
                                                 basic rights afforded under
                                                 New Hampshire law.'' N.H.
                                                 Rev. Stat. Ann. Sec.
                                                 21:49.
      Does statute prohibit discrimination on   No.
       the basis of gender identity?.
      Definition of gender identity...........  N/A.
      Minimum number of employees for coverage  6.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No\41\.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2007-2008: 251; FY 2006-
       discrimination administrative             2007: 318; FY 2005-2006:
       complaints filed for the 3 most recent    274.
       years for which data is available.
      Total number of employment                FY 2007-2008: 7; FY 2006-
       discrimination administrative             2007: 14; FY 2005-2006: 5.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                New Hampshire does not allow
       discrimination administrative             a claim based on gender
       complaints filed for the 3 most recent    identity, but claims from
       years for which data is available where   transsexuals can be filed
       at least one of the claimed bases for     under the ``sex'' and
       discrimination is gender identity.        ``disability'' categories.
    New Jersey:
      Statutory provision(s) providing          N.J. Stat. Sec.  10:2-1,
       protection from employment                N.J. Stat. Sec.  10:5-3,
       discrimination on the basis of sexual     N.J. Stat. Sec.  10:5-4,
       orientation and/or gender identity.       N.J. Stat. Sec.  10:5-12
                                                 (sexual orientation and
                                                 gender identity).
      Definition of ``sexual orientation''....  `` `Affectional or sexual
                                                 orientation' means male or
                                                 female heterosexuality,
                                                 homosexuality or
                                                 bisexuality by inclination,
                                                 practice, identity or
                                                 expression, having a
                                                 history thereof or being
                                                 perceived, presumed or
                                                 identified by others as
                                                 having such an
                                                 orientation.'' N.J. Stat.
                                                 Sec.  10:5-5(hh).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  `` `Gender identity or
                                                 expression' means having or
                                                 being perceived as having a
                                                 gender related identity or
                                                 expression whether or not
                                                 stereotypically associated
                                                 with a person's assigned
                                                 sex at birth.'' N.J. Stat.
                                                 Sec.  10:5-5(rr).
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes\42\.
       employers?.
      Total number of employment                2008: 692; 2007: 717; 2006:
       discrimination administrative             885.
       complaints filed for the 3 most recent
       years for which data is available\43\.
      Total number of employment                2008: 34; 2007: 39; 2006:
       discrimination administrative             47.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                New Jersey has not received
       discrimination administrative             any complaints alleging
       complaints filed for the 3 most recent    employment discrimination
       years for which data is available where   based on gender identity or
       at least one of the claimed bases for     expression since the law
       discrimination is gender identity.        went into effect in
                                                 February 2007 banning such
                                                 discrimination.
    New Mexico:
      Statutory provision(s) providing          N.M. Stat. Ann. Sec.  28-1-7
       protection from employment                (sexual orientation and
       discrimination on the basis of sexual     gender identity).
       orientation and gender identity.
      Definition of ``sexual orientation''....  ``Heterosexuality,
                                                 homosexuality or
                                                 bisexuality, whether actual
                                                 or perceived.'' N.M. Stat.
                                                 Ann. Sec.  28-1-2(P).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  ``A person's self-
                                                 perception, or perception
                                                 of that person by another,
                                                 of the person's identity as
                                                 a male or female based upon
                                                 the person's appearance,
                                                 behavior or physical
                                                 characteristics that are in
                                                 accord with or opposed to
                                                 the person's physical
                                                 anatomy, chromosomal sex or
                                                 sex at birth.'' N.M. Stat.
                                                 Ann. Sec.  28-1-2(Q).
      Minimum number of employees for coverage  15\44\.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 674; FY 2007-
       discrimination administrative             2008: 747; FY 2006-2007:
       complaints filed for the 3 most recent    705.
       years for which data is available.
      Total number of employment                FY 2008-2009: 30; FY 2007-
       discrimination administrative             2008: 46; FY 2006-2007: 45.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                FY 2008-2009: 1; FY 2007-
       discrimination administrative             2008: 1; FY 2006-2007: 0.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    New York:
      Statutory provision(s) providing          NY CLS Exec. Sec.  296
       protection from employment                (sexual orientation).
       discrimination on the basis of sexual
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Heterosexuality,
                                                 homosexuality, bisexuality
                                                 or asexuality, whether
                                                 actual or perceived.
                                                 However, nothing contained
                                                 herein shall be construed
                                                 to protect conduct
                                                 otherwise proscribed by
                                                 law.'' NY CLS Exec. Sec.
                                                 292(27).
      Does statute prohibit discrimination on   No\45\.
       the basis of gender identity?.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  4.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009\46\: 6,434; FY
       discrimination administrative             2007-2008: 6,088; FY 2006-
       complaints filed for the 3 most recent    2007: 4,623.
       years for which data is available.
      Total number of employment                FY 2008-2009: 312; FY 2007-
       discrimination administrative             2008: 216; FY 2006-2007:
       complaints filed for the 3 most recent    141.
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                New York does not track this
       discrimination administrative             subset of sex and/or
       complaints filed for the 3 most recent    disability complaints in
       years for which data is available where   its system.
       at least one of the claimed bases for
       discrimination is gender identity.
    Oregon:
      Statutory provision(s) providing          ORS Sec.  659A.006, ORS Sec.
       protection from employment                 659A.030 (sexual
       discrimination on the basis of sexual     orientation and gender
       orientation and gender identity.          identity), ORS Sec.
                                                 174.100 (gender identity)
                                                 (as amended by 2007 Oregon
                                                 Laws Ch. 100 (S.B. 2)).
      Definition of ``sexual orientation''....  ``An individual's actual or
                                                 perceived heterosexuality,
                                                 homosexuality, bisexuality
                                                 or gender identity,
                                                 regardless of whether the
                                                 individual's gender
                                                 identity, appearance,
                                                 expression or behavior
                                                 differs from that
                                                 traditionally associated
                                                 with the individual's
                                                 assigned sex at birth.''
                                                 ORS Sec.  174.100(6).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  Oregon does not have a
                                                 separate statutory
                                                 definition of ``gender
                                                 identity.''
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                2008: 1957; 2007: 1916;
       discrimination administrative             2006: 1857.
       complaints filed for the 3 most recent
       years for which data is available\47\.
      Total number of employment                2009 (year to date): 34;
       discrimination administrative             2008: 28; 2007 and 2006:
       complaints filed for the 3 most recent    There are no data for these
       years for which data is available where   years because Oregon's
       at least one of the claimed bases for     statute prohibiting
       discrimination is sexual orientation.     employment discrimination
                                                 on the basis of sexual
                                                 orientation and gender
                                                 identity went into effect
                                                 in January 2008.
      Total number of employment                These data are included in
       discrimination administrative             the sexual orientation data
       complaints filed for the 3 most recent    listed above.
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Rhode Island:
      Statutory provision(s) providing          R.I. Gen. Laws Sec.  28-5-3,
       protection from employment                R.I. Gen. Laws Sec.  28-5-7
       discrimination on the basis of sexual     (sexual orientation and
       orientation and/or gender identity.       gender identity), R.I. Gen.
                                                 Laws Sec.  28-5-6(15)
                                                 (sexual orientation), R.I.
                                                 Gen. Laws Sec.  28-5-6(10)
                                                 (gender identity).
      Definition of ``sexual orientation''....  ``Having or being perceived
                                                 as having an orientation
                                                 for heterosexuality,
                                                 bisexuality, or
                                                 homosexuality. This
                                                 definition is intended to
                                                 describe the status of
                                                 persons and does not render
                                                 lawful any conduct
                                                 prohibited by the criminal
                                                 laws of this State nor
                                                 impose any duty on a
                                                 religious organization.
                                                 This definition does not
                                                 confer legislative approval
                                                 of that status, but is
                                                 intended to assure the
                                                 basic human rights of
                                                 persons to obtain and hold
                                                 employment, regardless of
                                                 that status.'' R.I. Gen.
                                                 Laws Sec.  28-5-6(15).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  `` `Gender identity or
                                                 expression' includes a
                                                 person's actual or
                                                 perceived gender, as well
                                                 as a person's gender
                                                 identity, gender-related
                                                 self image, gender-related
                                                 appearance, or gender-
                                                 related expression; whether
                                                 or not that gender
                                                 identity, gender-related
                                                 self image, gender-related
                                                 appearance, or gender-
                                                 related expression is
                                                 different from that
                                                 traditionally associated
                                                 with the person's sex at
                                                 birth.'' R.I. Gen. Laws
                                                 Sec.  28-5-6(10).
      Minimum number of employees for coverage  4.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 277; FY 2007-
       discrimination administrative             2008: 336; FY 2006-2007:
       complaints filed for the 3 most recent    301.
       years for which data is available.
      Total number of employment                FY 2008-2009: 3; FY 2007-
       discrimination administrative             2008: 11; FY 2006-2007: 5.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                FY 2008-2009: 0; FY 2007-
       discrimination administrative             2008: 0; FY 2006-2007: 1.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is gender identity.
    Vermont:
      Statutory provision(s) providing          21 V.S.A. Sec.  495 (sexual
       protection from employment                orientation and gender
       discrimination on the basis of sexual     identity)\48\.
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Female or male
                                                 homosexuality,
                                                 heterosexuality, or
                                                 bisexuality'' but ``shall
                                                 not be construed to protect
                                                 conduct otherwise
                                                 proscribed by law.'' 1
                                                 V.S.A. Sec.  143.
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  ``An individual's actual or
                                                 perceived gender identity
                                                 or gender-related
                                                 characteristics
                                                 intrinsically related to an
                                                 individual's gender or
                                                 gender identity, regardless
                                                 of the individual's
                                                 assigned sex at birth.'' 1
                                                 V.S.A. Sec.  144.
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes (see also footnote 48).
       employers?.
      Total number of employment                2008: 45; 2007: 41; 2006:
       discrimination administrative             38.
       complaints filed for the 3 most recent
       years for which data is available\49\.
      Total number of employment                2008: 4; 2007: 4; 2006: 2.
       discrimination administrative
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                2008: 1; 2007: 0; 2006: N/A
       discrimination administrative             because gender identity
       complaints filed for the 3 most recent    discrimination was not
       years for which data is available where   proscribed at the time.
       at least one of the claimed bases for
       discrimination is gender identity.
    Washington:
      Statutory provision(s) providing          Rev. Code Wash. Ann. Sec.
       protection from employment                49.60.030 and Sec.
       discrimination on the basis of sexual     49.60.180 (sexual
       orientation and gender identity.          orientation and gender
                                                 identity).
      Definition of ``sexual orientation''....  ``Heterosexuality,
                                                 homosexuality, bisexuality,
                                                 and gender expression or
                                                 identity.'' Rev. Code Wash.
                                                 Ann. Sec.  49.60.040(15).
      Does statute prohibit discrimination on   Yes.
       the basis of gender identity?.
      Definition of ``gender identity''.......  ``Gender expression or
                                                 identity means having or
                                                 being perceived as having a
                                                 gender identity, self-
                                                 image, appearance,
                                                 behavior, or expression,
                                                 whether or not that gender
                                                 identity, self-image,
                                                 appearance, behavior, or
                                                 expression is different
                                                 from that traditionally
                                                 associated with the sex
                                                 assigned to that person at
                                                 birth.'' Rev. Code Wash.
                                                 Ann. Sec.  49.60.040(15).
      Minimum number of employees for coverage  8.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 692; FY 2007-
       discrimination administrative             2008: 791; FY 2006-2007:
       complaints filed for the 3 most recent    607.
       years for which data is available.
      Total number of employment                FY 2008-2009: 23; FY 2007-
       discrimination administrative             2008: 25; FY 2006-2007: 34.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                The statistics for ``sexual
       discrimination administrative             orientation'' employment
       complaints filed for the 3 most recent    discrimination complaints
       years for which data is available where   also encompass ``gender
       at least one of the claimed bases for     identity'' employment
       discrimination is gender identity.        discrimination complaints.
                                                 Washington does not track
                                                 this category separately.
    Wisconsin:
      Statutory provision(s) providing          Wis. Stat. Sec.  111.31
       protection from employment                (sexual orientation).
       discrimination on the basis of sexual
       orientation and/or gender identity.
      Definition of ``sexual orientation''....  ``Having a preference for
                                                 heterosexuality,
                                                 homosexuality or
                                                 bisexuality, having a
                                                 history of such a
                                                 preference or being
                                                 identified with such
                                                 preference.'' Wis. Stat.
                                                 Sec.  111.32(13m).
      Does statute prohibit discrimination on   No.
       the basis of gender identity?\50\.
      Definition of ``gender identity''.......  N/A.
      Minimum number of employees for coverage  1.
      Does statute address workplace access to  No.
       shared facilities?.
      Religious organizations exempt?.........  Yes.
      Non-profit organizations exempt?........  No.
      Does statute apply to government          Yes.
       employers?.
      Total number of employment                FY 2008-2009: 3,430; FY 2007-
       discrimination administrative             2008: 3,504; FY 2006-2007:
       complaints filed for the 3 most recent    3,502.
       years for which data is available.
      Total number of employment                FY 2008-2009: 62; FY 2007-
       discrimination administrative             2008: 56; FY 2006-2007: 51.
       complaints filed for the 3 most recent
       years for which data is available where
       at least one of the claimed bases for
       discrimination is sexual orientation.
      Total number of employment                The Wisconsin Fair
       discrimination administrative             Employment Law does not
       complaints filed for the 3 most recent    provide for filing of a
       years for which data is available where   complaint based on gender
       at least one of the claimed bases for     identity.
       discrimination is gender identity.
    ------------------------------------------------------------------------
    \22\ California law also prohibits harassment on all the protected
      bases, including sexual orientation or gender identity harassment; the
      minimum number of employees for this protection is one.
    \23\ All complaint data in this table are reported by calendar year.
    \24\ Colorado's statute covers ``transgender status.''
    \25\ Sexual orientation status was not covered before FY 2007-2008.
    \26\ Transgender status was not covered before FY 2007-2008.
    \27\ According to a Connecticut official, discrimination based on gender
      identity or expression is treated as a form of discrimination because
      of sex, which is prohibited under Conn. Gen. Stat. Sec.  46a-60. The
      Connecticut Commission on Human Rights and Opportunities treats gender
      identity discrimination in this manner based on a declaratory ruling
      involving a transsexual. See Declaratory Ruling on Behalf of John/Jane
      Doe (November 9, 2000). http://www.ct.gov/chro/cwp/
      view.asp?a=2526&Q=315942.
    \28\ The District of Columbia uses the Federal fiscal year, which runs
      from October 1 through September 30.
    \29\ According to a Hawaii official, the Hawaii Civil Rights Commission
      has interpreted the ``because of sex'' provision of Haw. Rev. Stat.
      Sec.  378-2 to include discrimination on the basis of gender identity.
      (H.R.S. Sec.  378-2(1)(A) provides, in part: ``It shall be an unlawful
      discriminatory practice [b]ecause of . . . sex . . . [f]or any
      employer to refuse to hire . . . '') See D.R. No. 02-0015, June 29,
      2002 (found at http://hawaii.gov/labor/hcrc/decisions/decl_relief_pet/
      DR15OR.pdf), reversed on other grounds, RGIS Inventory v. Hawaii Civil
      Rights, 104 Hawaii 158 (2004).
    \30\ The minimum number of employees required for application of the non-
      discrimination provisions depends upon the type of employer and/or the
      type of discrimination being alleged. For instance, State and other
      governmental employers need only employ one person. Private employers
      must employ 15 or more employees within Illinois during 20 or more
      calendar weeks within the calendar year of or preceding the alleged
      violation. In cases where the complainant alleges discrimination based
      upon his or her physical or mental handicap unrelated to ability, or
      sexual harassment, the non-discrimination provisions apply if the
      employer employs a minimum of one person.
    \31\ Iowa started accepting employment discrimination complaints on the
      basis of sexual orientation and gender identity on July 1, 2007.
    \32\ Effective Oct. 1, 2009, article 49B will be recodified as State
      Government Article, Sec.  20-101, et seq., Md. Ann. Code.
    \33\ The statute exempts a ``bona fide private membership club (other
      than a labor organization) which is exempt from taxation under Sec.
      501(c) of the Internal Revenue Code.'' Md. Ann. Code art. 49B, Sec.
      15(b).
    \34\ According to a Massachusetts official, the Massachusetts Commission
      Against Discrimination will accept, investigate and adjudicate gender
      identity cases under the section of Massachusetts statute prohibiting
      discrimination on the basis of sex. In addition, the official stated
      that there is State case law concluding that a transgender individual
      could fall within the definition of handicapped.
    \35\ Under M.G.L. c. 151B, Sec.  1(5), ``[t]he term `employer' does not
      include a club exclusively social, or a fraternal association or
      corporation, if such club, association or corporation is not organized
      for private profit. . . .''
    \36\ All complaint data in this table are reported by calendar year.
    \37\ See discussion of Minnesota's religious exemption in the letter
      preceding the State tables.
    \38\ Nonpublic service organizations whose primary function is providing
      occasional services to minors are exempt.
    \39\ All complaint data in this table are reported by calendar year.
    \40\ Tax-exempt private membership clubs are exempt.
    \41\ Exclusively fraternal and social clubs are exempt.
    \42\ The statute does not cover bi-state entities such as the Port
      Authority of New York and New Jersey.
    \43\ All complaint data in this table are reported by calendar year.
    \44\ New Mexico's non-discrimination statute generally applies to
      employers having at least four employees; however, an employer must
      have at least 15 employees for the non-discrimination protections
      based on sexual orientation and gender identity to apply.
    \45\ A New York official provided a citation from the Resource Guide to
      the New York State Human Rights Law, 2008 Edition, which states ``The
      definition of `sexual orientation' set forth in the Human Rights Law
      does not specifically include transsexuals. However, precedent exists
      under other, pre-existing provisions of the Human Rights Law to the
      effect that post-operative transsexuals are deemed to belong to the
      gender to which they have been surgically reassigned, and that
      discrimination against them is deemed to be sex discrimination.
      Richards v. U.S. Tennis Association, 93 Misc.2d 713, 400 N.Y.S.2d 267
      (Sup.Ct.N.Y.Co. 1977). Furthermore, transsexuals who state that they
      have a disability are protected from discrimination under the
      disability provisions of the Human Rights Law, inasmuch as gender
      dysphoria is a recognized medical condition.''
    \46\ New York's fiscal year runs from April 1 through March 31.
    \47\ All complaint data in this table are reported by calendar year.
    \48\ This statute is part of the Vermont Fair Employment Practices Act
      (VFEPA) and is the principal statute proscribing sexual orientation
      and gender identity discrimination in employment. Claims alleging
      employment discrimination by private sector or municipal employers are
      enforced by the Civil Rights Unit of the State Attorney General's
      Office (CRU) and claims against Vermont State employers are enforced
      by the Vermont Human Rights Commission (HRC). VFEPA applies to all
      private and public sector employers. In addition, other non-
      discrimination statutes may also apply to State executive, judicial,
      and municipal employers and are enforced by the Vermont Labor
      Relations Board and/or State courts.
    \49\ Pursuant to Vermont's work-sharing agreement with the Equal
      Employment Opportunity Commission, the CRU and HRC also receive
      complaints alleging employment discrimination in violation of Federal
      law. The statistics shown only include those that allege at least one
      violation of the VFEPA. In addition, number of complaints is listed by
      calendar year.
    \50\ According to a Wisconsin official, Wisconsin does not specifically
      provide for filing of a discrimination complaint based on gender
      identity. However, depending on the facts of the particular situation,
      an individual with a gender identity issue may be able to bring a
      claim of discrimination based on disability or sex.

                               Letters of Support
          African-American Ministers In Action (AAMIA),
                                          Washington, DC 20036,
                                                      November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Senate Committee on Health, Education, Labor, and Pensions,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.
        Dear Chairman Harkin: On behalf of the African-American Ministers
    in Action, a project of People For the American Way, we applaud the
    Senate Committee on Health, Education, Labor, and Pensions for holding
    this hearing on S. 1584, the bipartisan Employment Non-Discrimination
    Act of 2009 (ENDA). We would also like to take this opportunity to once
    again thank Senator Merkley and the late Edward Kennedy for their
    relentless leadership in moving ENDA through Congress. It is time for
    Congress to pass this important civil rights legislation.
        Discrimination is wrong no matter how it manifests itself, however
    it disguises itself. If we're going to build the beloved community that
    Dr. King spoke of, we must be conscious of discrimination, no matter
    where it rears its ugly head. As African-American ministers, we know
    what it takes to stand up against systemic oppression. It is in
    solidarity and love that we recognize the plight of others and support
    this struggle for the same protections. Passage of ENDA would be a
    major step in the right direction by ensuring that current protections
    are extended to include sexual orientation and gender identity.
        In most States, it is currently legal for employers to engage in
    such discrimination despite the basic unfairness of such practices.
    These road blocks stand in the way of those Americans not protected
    under current law and who have found themselves unable to financially
    support themselves and their families. It is time for the laws of the
    country to reflect public support for the principle of employment
    fairness.
        It is still legal to fire or refuse to hire someone simply because
    of his or her sexual orientation in 29 States, and in 38 States
    employers can do so solely based on an individual's gender identity.
    ENDA prohibits discrimination based on sexual orientation and gender
    identity in most workplaces.
        ENDA is commonsense legislation that addresses injustice with a
    sensible solution. And, as we have noted, it would extend protections
    that some States and many large corporations already provide--without
    disruptive business consequences. We strongly urge the committee to
    swiftly pass ENDA, and we urge Senate Leadership to bring the bill to
    the floor as soon as possible.
                Sincerely,
                                         Rev. Timothy McDonald,
                        Chairman, African-American Ministers in Action.

                                          Rev. Robert P. Shine,
                      Vice Chair, African-American Ministers In Action.
                                     American Airlines,
                                              October 30, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, & Pensions,
    U.S. Senate,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Hon. Michael Enzi, Ranking Member,
    Committee on Health, Education, Labor, & Pensions,
    U.S. Senate,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Hon. George Miller, Chairman,
    Committee on Education and Labor,
    U.S. House of Representatives,
    2181 Rayburn House Office Building,
    Washington, DC 20515.

    Hon. John Kline, Ranking Member,
    Committee on Education and Labor,
    U.S. House of Representatives,
    2101 Rayburn House Office Building,
    Washington, DC 20515.
        Dear Chairman Harkin, Chairman Miller, Ranking Member Enzi and
    Ranking Member Kline: On behalf of our 80,000 employees, American
    Airlines is proud to express our strong support for S. 1584 and H.R.
    3017, the Employment Non-Discrimination Act (ENDA), which would extend
    basic job protections to gay, lesbian, bisexual and transgender
    Americans. We are proud to have been the first major airline to
    implement same-sex domestic partner benefits, first to implement both
    sexual orientation and gender identity in our workplace non-
    discrimination policies, and first to have a recognized LGBT employee
    resource group--GLEAM.
        Our endorsement of ENDA is consistent with our longstanding
    Statement of Equal Opportunity, which reads,

              ``It is the expressed policy of American Airlines to provide
            equal employment opportunity to everyone without regard to age,
            race, sex, gender, gender identity, color, religion, national
            origin, sexual orientation, citizenship status, disability, or
            veteran status.''

        The principles fostered by ENDA are consistent with our corporate
    principles in treating all employees with fairness and respect. We
    appreciate your consideration and encourage Congress to enact this
    important legislation.
                Sincerely,
                                                   Denise Lynn,
                     Vice President, Diversity & Leadership Strategies.

                                                Michael Wascom,
                           Managing Director, Int'l Government Affairs.

                                             George Carraricho,
                    National Sales & Marketing Manager, LGBT Community.
                                     ______

                        American Bar Association (ABA),
                                     Washington, DC 20005-1022,
                                                      November 4, 2009.
        Dear Chairman Harkin and Senator Enzi: On behalf of the American
    Bar Association (ABA), I write to emphasize the ABA's long tradition of
    actively opposing discrimination. Whenever any of our basic civil
    rights are diminished or marginal-
    ized unjustifiably on the basis of personal characteristics, all of our
    basic civil rights are diminished and jeopardized. Neither our
    Constitution nor our Congress should tolerate such discrimination.
    Specifically, in 1989, the ABA adopted a policy calling upon local,
    State, and Federal lawmakers to prohibit discrimination on the basis of
    sexual orientation.
                Sincerely,
                                               Carolyn B. Lamm.

               American Psychological Association (APA)
                                               October 1, 2009.
    Hon. Jeff Merkley,
    B40b Senate Dirksen Building,
    Washington, DC 20510.
        Dear Senator Merkley: On behalf of the 150,000 members of the
    American Psychological Association (APA), I am writing to express our
    strong support for the Employment Non-Discrimination Act (ENDA) of 2009
    (S. 1584).
        APA is the largest scientific and professional organization
    representing psychology in the United States and is the world's largest
    association of psychologists. Comprising researchers, educators,
    clinicians, consultants, and students, APA works to advance psychology
    as a science, a profession, and as a means of promoting health,
    education and human welfare.
        APA has a longstanding commitment to ending discriminatory
    practices targeting lesbian, gay, bisexual and transgendered (LGBT)
    persons. Specifically, APA adopted a resolution on ``Opposing
    Discriminatory Legislation and Initiatives Aimed at Lesbian, Gay, and
    Bisexual Persons'' in 2007, and another policy statement on
    ``Transgender, Gender Identity, and Gender Expression Non-
    Discrimination'' in 2008 (both enclosed for your consideration). As
    stated in these resolutions, not only is there no basis for
    discrimination against LGBT individuals, but also such discrimination
    is harmful to their mental health and the public good.
        S. 1584, the Employment Non-Discrimination Act of 2009, lays a
    strong foundation for instituting a policy of nondiscrimination based
    on sexual orientation and gender identity in the U.S. workplace,
    consistent with anti-discrimination policies concerning race, gender,
    and disability status. In particular, this critical legislation would
    prohibit employers from making decisions about hiring, firing,
    promoting, or compensating an employee who belongs to a sexual or
    gender minority. As you probably know, it is currently legal to
    discriminate in the workplace based on sexual orientation in 29 States
    and in 38 States based on gender identity.
        Psychological research supports the conclusion that people who
    accept and integrate their sexual orientation and gender identity are
    psychologically better adjusted than those who do not. To promote
    psychological well-being among workers, individuals should have the
    opportunity to disclose personal information without the threat of
    negative ramifications. Furthermore, research has consistently found
    that heterosexuals who have contact with LGBT populations have more
    positive attitudes towards LGBT people as a group. Taken together,
    these findings suggest that the presence of LGBT coworkers does not
    undermine employee morale or relationships, but rather may strengthen
    worker rapport.
        Allowing an atmosphere of intolerance based on sexual orientation
    or gender identity in the workplace is detrimental for LGBT individuals
    as well as for everyone in the workplace. In addition, employment
    discrimination based on sexual orientation and gender identity
    inadvertently legitimizes other forms of prejudice and discrimination,
    including anti-gay violence.
        In closing, we would like to thank you for your efforts in
    developing the Employment Non-Discrimination Act of 2009, and offer our
    association's assistance in furthering passage of this vital
    legislation. If you have any questions or would like more information,
    please contact Jutta Tobias, Ph.D., in our Government Relations Office,
    at (202) 336-5668.
                Sincerely,
                                Gwendolyn Puryear Keita, Ph.D.,
                       Executive Director, Public Interest Directorate.
                                     ______

                 American Civil Liberties Union (ACLU),
                                       New York, NY 10004-2400,
                                                      November 4, 2009.
    Hon. Tom Harkin, Chairman,
    Hon. Michael Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.
        Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
    American Civil Liberties Union (ACLU), I write to share our view that
    the enactment of S. 1584, the Employment Non-Discrimination Act of 2009
    (ENDA), which would prohibit employment discrimination on the basis of
    sexual orientation or gender identity and, in doing so, abrogate the
    sovereign immunity that States enjoy under the 11th Amendment, would
    constitute a valid exercise of congressional power under Section 5 of
    the 14th Amendment.
        The ACLU is a non-partisan, non-profit, national legal
    organization, the oldest and largest of its kind, with a presence in
    every State. Its mission has long included the defense of the civil
    liberties, and the fight for the civil rights, of lesbian, gay,
    bisexual, and transgender (LGBT) individuals. Indeed, its advocacy on
    behalf of this population dates back to the 1930s. For over 25 years,
    the ACLU has housed a legal division that is specifically devoted to
    the advancement of the full range of LGBT rights, including those
    related to State employment. In light of its longstanding work with the
    LGBT community, the ACLU is well-positioned to speak to both the
    ongoing concerns that LGBT State employees face as well as the legal
    considerations that they implicate.
        Section 11(a) of ENDA would provide as follows: ``A State shall not
    be immune under the 11th Amendment to the Constitution from a suit
    brought in a Federal court of competent jurisdiction for a violation of
    this Act.'' The 11th Amendment grants States immunity from suit by
    individuals in Federal court:

              The Judicial power of the United States shall not be
            construed to extend to any suit in law or equity, commenced or
            prosecuted against one of the United States by Citizens of
            another State, or by Citizens or Subjects of any Foreign State.

    U.S. Const. 11th Am. At the same time, the Fourteenth Amendment grants
    Congress authority to enforce, among other things, its prohibition of
    irrational discrimination by States against individuals:

              Section 1 . . . No State shall make or enforce any law which
            shall abridge the privileges or immunities of citizens of the
            United States; nor shall any State deprive any person of life,
            liberty, or property, without due process of law; nor deny to
            any person within its jurisdiction the equal protection of the
            laws.
              * * * * * * *
              Section 5. The Congress shall have power to enforce, by
            appropriate legislation, the provisions of this article.

    U.S. Const. 14th Am. The Supreme Court has articulated the proper
    balancing of these constitutional considerations where Federal civil
    rights legislation provides enforcement mechanisms by individuals
    against States.

           I. THE INTERPLAY BETWEEN THE 11TH AMENDMENT AND SECTION 5
                          OF THE FOURTEENTH AMENDMENT

        In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court held that
    States are not immune from suit under Title VII of the Civil Rights Act
    of 1964, 42 U.S.C. Sec. Sec. 2000e, et seq., which prohibits, among
    other things, employment discrimination on the basis of sex. In doing
    so, the Court emphasized that Congress expressly enacted title VII
    pursuant to its authority under section 5 of the Fourteenth Amendment.
    Fitzpatrick, 427 U.S. at 452-53 & n.9. The Court explained the
    relationship between the 11th Amendment and the Fourteenth Amendment as
    follows:

              [W]e think that the 11th Amendment, and the principle of
            State sovereignty which it embodies are necessarily limited by
            the enforcement provisions of [Section] 5 of the Fourteenth
            Amendment. In that section Congress is expressly granted
            authority to enforce ``by appropriate legislation'' the
            substantive provisions of the Fourteenth Amendment, which
            themselves embody significant limitations on State authority.
            When Congress acts pursuant to [Section] 5, not only is it
            exercising legislative authority that is plenary within the
            terms of the constitutional grant, it is exercising that
            authority under one section of a constitutional Amendment whose
            other sections by their own terms embody limitations on State
            authority. We think that Congress may, in determining what is
            ``appropriate legislation'' for the purpose of enforcing the
            provisions of the Fourteenth Amendment, provide for private
            suits against States or State officials which are
            constitutionally impermissible in other contexts.

    Id. at 456 (citations, and footnote omitted). The Court thereby
    confirmed that Congress may abrogate sovereign immunity under the 11th
    Amendment where it acts pursuant to Section 5 of the 14th Amendment.
        In City of Boerne v. Flores, 521 U.S. 507 (1997), in the course of
    holding that States are immune from suit under the Religious Freedom
    Restoration Act of 1993 (RFRA), 42 U.S.C. Sec. Sec. 2000bb, et seq.,
    which expressly overrides Employment Div., Dep't of Human Res. v.
    Smith, 494 U.S. 872 (1990), and requires that a neutral law of general
    applicability that substantially burdens religious liberty be narrowly
    tailored to further a compelling interest, the Court clarified the
    circumstances under which Congress properly acts to abrogate sovereign
    immunity. The Court began by confirming that, in enacting RFRA,
    ``Congress relied on its Fourteenth Amendment enforcement power.''
    Boerne, 521 U.S. at 516 (citations omitted). The Court then turned to
    whether RFRA was a proper exercise of congressional power under section
    5 of the Fourteenth Amendment to enforce rights guaranteed by Due
    Process Clause, which include those guaranteed by the Free Exercise
    Clause.
        The Court emphasized that Congress may enforce rights guaranteed by
    the Fourteenth Amendment, as interpreted by the courts:

              Congress' power under Sec. 5 . . . extends only to
            ``enforc[ing]'' the provisions of the Fourteenth Amendment. . .
            . The design of the Amendment and the text of Sec. 5 are
            inconsistent with the suggestion that Congress has the power to
            decree the substance of the Fourteenth Amendment's restrictions
            on the States . . . Congress does not enforce a constitutional
            right by changing what the right is. It has been given the
            power ``to enforce,'' not the power to determine what
            constitutes a constitutional violation.

    Id. at 519. At the same time, the Court emphasized that ``[l]egislation
    which deters or remedies constitutional violations can fall within the
    sweep of Congress' enforcement power even if in the process it
    prohibits conduct which is not itself unconstitutional.'' Id. at 518.
    To determine whether such legislation properly abrogates sovereign
    immunity, the Court set forth the following test: ``There must be a
    congruence and proportionality between the injury to be prevented or
    remedied and the means adopted to that end.'' Id. at 519-20. Thus, in
    Boerne, the Court clarified that Congress properly exercises its power
    under section 5 of the Fourteenth Amendment to abrogate sovereign
    immunity either (1) where legislation enforces rights guaranteed by the
    Fourteenth Amendment, as interpreted by the courts, or (2) where
    legislation sweeps beyond the Fourteenth Amendment but is congruent and
    proportional to the injury to be prevented or remedied.
        The Court could not have concluded that RFRA simply enforces rights
    guaranteed by the Free Exercise Clause, as interpreted by the courts.
    Given that RFRA expressly overrides Smith, to have concluded otherwise
    would have permitted Congress to alter the scope of the Free Exercise
    Clause, as interpreted by the courts. See Boerne, 521 U.S. at 532
    (``[RFRA] appears . . . to attempt a substantive change in
    constitutional protections.''). Accordingly, the Court applied the
    congruence and proportionality test.
        In applying the test, the Court declared that ``[t]he
    appropriateness of remedial measures must be considered in light of the
    evil presented.'' Id. at 530. Thus, while acknowledging that
    ``[j]udicial deference, in most cases, is [not] based . . . on the
    state of the legislative record,'' Id. at 531, the Court examined
    RFRA's legislative record. Because ``RFRA's legislative record lacks
    examples of modern instances of generally applicable laws passed
    because of religious bigotry,'' the Court found that ``it is difficult
    to maintain . . . that [RFRA's legislative record] indicate[s] some
    widespread pattern of religious discrimination in this country.'' Id.
    at 530.
        Moreover, the Court found that, because RFRA sweeps so far beyond
    the Free Exercise Clause, it is not proportional to the injury to be
    prevented or remedied:

              Regardless of the state of the legislative record, RFRA
            cannot be considered remedial, preventive legislation, if those
            terms are to have any meaning. RFRA is so out of proportion to
            a supposed remedial or preventive object that it cannot be
            understood as responsive to, or designed to prevent,
            unconstitutional behavior . . . Preventive measures prohibiting
            certain types of laws may be appropriate when there is reason
            to believe that many of the laws affected by the congressional
            enactment have a significant likelihood of being
            unconstitutional . . . RFRA is not so confined.

    Id. at 532 (citation omitted).
        In light of both the absence of an evil of a magnitude that would
    justify an abrogation of sovereign immunity, and the overly broad
    sweep, the Court concluded that ``[t]he stringent test RFRA demands of
    State laws reflects a lack of proportionality or congruence between the
    means adopted and the legitimate end to be achieved.'' Id. at 533.
        The principles articulated in Boerne are reflected in both the
    reasoning and the result of both Kimel v. Fla. Bd. of Regents, 528 U.S.
    62 (2000), and Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S.
    356 (2001), in which the Court concluded, respectively, that the Age
    Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
    Sec. Sec. 621, et seq., which prohibits employment discrimination on
    the basis of age, and Title I of the Americans with Disabilities Act of
    1990 (ADA), 42 U.S.C. Sec. Sec. 12111, et seq., which prohibits
    employment discrimination on the basis of disability, were not valid
    exercises of congressional power to abrogate sovereign immunity.
        In Kimel, the Court began by observing that the 11th Amendment
    ``does not provide for Federal jurisdiction over suits against
    nonconsenting States.'' Kimel, 528 U.S. at 73 (citations omitted).
    Nevertheless, the Court recognized that States are not immune from suit
    by individuals in Federal court where both (1) ``Congress unequivocally
    expressed its intent to abrogate that immunity,'' and (2) ``Congress
    acted pursuant to a valid grant of constitutional authority.'' Id.
    (citation omitted).
        Undertaking this two-step analysis, the Court first concluded that,
    in enacting the ADEA, Congress clearly expressed its intent to abrogate
    the rights that States enjoy under the 11th Amendment:

              To determine whether a Federal statute properly subjects
            States to suits by individuals, we apply a simple but stringent
            test: Congress may abrogate the States' constitutionally
            secured immunity from suit in Federal court only by making its
            intention unmistakably clear in the language of the statute. We
            agree with petitioners that the ADEA satisfies that test. . . .
            Read as a whole, the plain language of these provisions clearly
            demonstrates Congress' intent to subject the States to suit for
            money damages at the hands of individual employees.

    Id. at 73-74 (quotation omitted). The Court, however, went on to hold
    that Congress did not properly exercise its authority under section 5
    of the Fourteenth Amendment to abrogate sovereign immunity.
        As in Boerne, the Court in Kimel recognized that Congress may
    abrogate sovereign immunity either (1) where legislation enforces
    rights guaranteed by the Fourteenth Amendment, as interpreted by the
    courts, or (2) where ``prophylactic'' legislation is congruent and
    proportional to the injury to be prevented or remedied. Id. at 81.
    Because classifications based on age, unlike classifications based on
    race or sex, do not enjoy a presumption of unconstitutionality that may
    be overcome only upon the requisite evidentiary showing, see, e.g.,
    Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), the ADEA's
    broad prohibition of employment discrimination based on age does not
    purport to simply enforce rights guaranteed by the Equal Protection
    Clause. Accordingly, the Court applied the congruence and
    proportionality test.
        Although the Court acknowledged that ``[i]t is for Congress in the
    first instance to determine whether and what legislation is needed to
    secure the guarantees of the Fourteenth Amendment, and its conclusions
    are entitled to much deference,'' and that ``Congress must have wide
    latitude in determining where [the] line [between appropriate remedial
    legislation and a substantive redefinition of the Fourteenth Amendment
    right at issue] lies,'' the Court affirmed that ``there must be a
    congruence and proportionality between the injury to be prevented or
    remedied and the means adopted to that end.'' Kimel, 528 U.S. at 80-81
    (quotations omitted). The Court defined the congruence and
    proportionality test as an inquiry into both (1) whether the law is in
    proportion to its remedial or preventive objective such that it can be
    understood as responsive to, or designed to prevent, unconstitutional
    behavior (hereinafter, ``the proportionality inquiry''), and (2)
    whether the legislative record contains evidence of unconstitutional
    conduct that reveals a widespread pattern of discrimination by States
    against individuals (hereinafter, ``the evidentiary inquiry''). Id. at
    81-82.
        With respect to the proportionality inquiry, the Court reached the
    following conclusion:

              Judged against the backdrop of our equal protection
            jurisprudence, it is clear that the ADEA is so out of
            proportion to a supposed remedial or preventive object that it
            cannot be understood as responsive to, or designed to prevent,
            unconstitutional behavior. The Act, through its broad
            restriction on the use of age as a discriminating factor,
            prohibits substantially more State employment decisions and
            practices than would likely be held unconstitutional under the
            applicable equal protection, rational basis standard.

    Id. at (86 quotation omitted). In reaching its conclusion, the Court
    relied on the fact that classifications based on age, unlike
    classifications based on race or sex, do not enjoy a presumption of
    unconstitutionality that may be overcome only upon the satisfaction of
    the requisite evidentiary showing:

              Age classifications . . . cannot be characterized as so
            seldom relevant to the achievement of any legitimate State
            interest that laws grounded in such considerations are deemed
            to reflect prejudice and antipathy. Older persons . . . have
            not been subjected to a history of purposeful unequal
            treatment. Old age also does not define a discrete and insular
            minority because all persons, if they live out their normal
            life spans, will experience it. . . .
              . . . Under the Fourteenth Amendment, a State may rely on age
            as a proxy for other qualities, abilities, or characteristics
            that are relevant to the State's legitimate interests.

    Id. at 83-84 (quotations and citation omitted); see also id. at 85 (age
    is a rational proxy for the physical and mental fitness that certain
    types of employment require).
        With respect to the evidentiary inquiry, the Court found that, in
    enacting the ADEA, ``Congress never identified any pattern of age
    discrimination by the States, much less any discrimination whatsoever
    that rose to the level of constitutional violation.'' Id. at 89. In
    doing so, the Court bolstered its conclusion that the ADEA did not
    constitute a valid exercise of congressional power to abrogate
    sovereign immunity:

              ``A review of the ADEA's legislative record as a whole . . .
            reveals that Congress had virtually no reason to believe that
            State and local governments were unconstitutionally
            discriminating against their employees on the basis of age.''

    Id. at 91.
        Significantly, the Court expressly stated that its finding under
    the proportionality inquiry, standing alone, was not dispositive:

              That the ADEA prohibits very little conduct likely to be held
            unconstitutional, while significant, does not alone provide the
            answer to our Sec. 5 inquiry. Difficult and intractable
            problems often require powerful remedies, and we have never
            held that Sec. 5 precludes Congress from enacting reasonably
            prophylactic legislation. . . . The appropriateness of remedial
            measures must be considered in light of the evil presented.

    Id. at 88-89 (quotation omitted). Similarly, the Court made clear that
    its finding under the evidentiary inquiry, standing alone, was not
    dispositive:

              Although that lack of support is not determinative of the
            Sec. 5 inquiry, Congress' failure to uncover any significant
            pattern of unconstitutional discrimination here confirms that
            Congress had no reason to believe that broad prophylactic
            legislation was necessary in this field.

    Id. at 91 (citations omitted). Thus, its holding necessarily rested on
    both ``the indiscriminate scope of the Act's substantive requirements''
    and ``the lack of evidence of widespread and unconstitutional age
    discrimination by the States.'' Id.
        In Garrett, the Court engaged in a similar analysis. Because
    classifications based on disability are presumptively constitutional,
    see, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432
    (1985), Title I of the ADA's broad prohibition of employment
    discrimination does not purport to simply enforce rights guaranteed by
    the Equal Protection Clause. Accordingly, after confirming that, in
    enacting Title I of the ADA, Congress acted pursuant to section 5 of
    the Fourteenth Amendment, Garrett, 531 U.S. at 363-64, the Court
    applied the congruence and proportionality test.
        The Court first ``examine[d] whether Congress identified a history
    and pattern of unconstitutional employment discrimination by the States
    against the disabled.'' Id. at 369. In doing so, the Court found that
    ``[t]he legislative record of the ADA . . . simply fails to show that
    Congress did in fact identify a pattern of irrational State
    discrimination in employment against the disabled.'' Id.
        The Court then found that, even if it were otherwise, ``the rights
    and remedies created by the ADA against the States would raise . . .
    concerns as to congruence and proportionality.'' Id. at 372. Its
    assessment that Title I of the ADA sweeps far more broadly than the
    Equal Protection Clause was predicated on the absence of a presumption
    of unconstitutionality, given that disabled individuals constitute a
    ``large and amorphous class'' that ``possesses distinguishing
    characteristics relevant to interests the State has authority to
    implement.'' Id. at 366 (quotations omitted).
        In light of its findings, the Court held that Title I of the ADA
    did not abrogate sovereign immunity:

            [I]n order to authorize private individuals to recover money
            damages against the States, there must be a pattern of
            discrimination by the States which violates the Fourteenth
            Amendment, and the remedy imposed by Congress must be congruent
            and proportional to the targeted violation. Those requirements
            are not met here.

    Id. at 374.
        In sum, the case law confirms that the interplay between the 11th
    Amendment and section 5 of the Fourteenth Amendment requires an
    analysis of whether (1) Congress unequivocally expressed its intent to
    abrogate sovereign immunity, and (2) Congress acted pursuant to a valid
    grant of constitutional authority. With respect to the second step of
    the analysis, the threshold inquiry is whether (1) the legislation at
    issue is legislation that enforces rights guaranteed by the Fourteenth
    Amendment, as interpreted by the courts, or (2) the legislation at
    issue is prophylactic legislation that is congruent and proportional to
    the injury to be prevented or remedied. Legislation that generally
    prohibits the use of a classification that is presumptively
    unconstitutional falls under the first category, and no further inquiry
    is necessary. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). In
    contrast, legislation that generally prohibits the use of a
    classification that is presumptively constitutional falls under the
    second category, and the congruence and proportionality test applies.
    See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001);
    Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); City of Boerne v.
    Flores, 521 U.S. 507 (1997). The congruence and proportionality test is
    an inquiry into both (1) whether the law is in proportion to its
    remedial or preventive objective such that it can be understood as
    responsive to, or designed to prevent, unconstitutional behavior, and
    (2) whether the legislative record contains evidence of
    unconstitutional conduct that reveals a widespread pattern of
    discrimination by States against individuals.

      II. SECTION 11(A) OF ENDA WOULD PROPERLY ABROGATE SOVEREIGN IMMUNITY

        Where ENDA is concerned, there is no question that section 11(a)
    would clearly express congressional intent to abrogate sovereign
    immunity. Thus, we focus our analysis on whether section 11(a) would
    constitute a valid exercise of congressional power under section 5 of
    the Fourteenth Amendment. Given the principled conclusion that
    classifications based on sexual orientation or gender identity are
    presumptively unconstitutional, ENDA's prohibition of employment
    discrimination based on sexual orientation or gender identity simply
    enforces rights guaranteed by the Equal Protection Clause. See
    Sec. II.A. infra. Even if this were not so, the proposed scope of ENDA
    is in proportion to the scope of the Equal Protection Clause, and there
    is evidence of a widespread pattern of irrational discrimination by
    States against their LGBT employees, and therefore ENDA satisfies the
    congruence and proportionality test. See Sec. II.B. infra. Either way,
    section 11(a) of ENDA would properly abrogate sovereign immunity.
        At the outset, we emphasize that municipal employment
    discrimination has unique relevance to the analysis where sexual
    orientation and gender identity are concerned. See Tennessee v. Lane,
    541 U.S. 509, 527 n.16 (2004) (``THE CHIEF JUSTICE dismisses as
    irrelevant the portions of this evidence that concern the conduct of
    nonstate governments. This argument rests on the mistaken premise that
    a valid exercise of Congress' Sec. 5 power must always be predicated
    solely on evidence of constitutional violations by the States
    themselves. . . . [O]ur cases have recognized that evidence of
    constitutional violations on the part of non-state governmental actors
    is relevant to the Sec. 5 inquiry.'') (quotation omitted). This is so
    because such discrimination has often been the product of
    unconstitutional discrimination by States against LGBT individuals. In
    particular, until recently, State laws criminalizing same-sex sodomy
    have translated into high barriers to municipal employment for LGBT
    individuals. See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (``[T]he
    Texas criminal conviction carries with it the other collateral
    consequences always following a conviction, such as notations on job
    application forms.''). This has been true across all areas of municipal
    employment, including law enforcement and public education. See, e.g.,
    Nat'l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir.
    1984) (``We see no constitutional problem in the statute's permitting a
    teacher to be fired for engaging in `public homosexual activity.' '');
    Clearfield City v. Dep't of Employment Sec., 663 P.2d 440, 443 (Utah
    1983) (``The act of sodomy violated the laws the officer and his
    employer had a sworn duty to uphold and enforce. . . . This entire
    course of events . . . would surely have a significant adverse effect
    upon the officer's credibility as a police officer and as a witness in
    the courts of law.''). The adverse effects of such laws on LGBT
    individuals linger to this day.
        Accordingly, we present scores of instances in which both States
    and municipalities across the country have engaged in unconstitutional
    discrimination against their employees on the basis of sexual
    orientation or gender identity. See Sec. II.B.2. infra. Such
    discrimination encompasses all types of adverse employment actions--
    whether termination, refusal to hire, refusal to promote, hostile work
    environment, differential terms and conditions of employment,
    retaliation, or censorship. It encompasses actual as well as perceived
    sexual orientation or gender identity, as well as associational
    discrimination based on sexual orientation or gender identity.
    Significantly, it is commonly intertwined with unconstitutional
    discrimination on the basis of sex, whether in the form of sex
    stereotyping, sexual harassment, or associational discrimination based
    on sex.

    A. ENDA Would Properly Abrogate Sovereign Immunity Because
            Classifications Based on Sexual Orientation or Gender Identity
            Are Presumptively Unconstitutional Absent the Requisite
            Evidentiary Showing
        As a prudential matter, the Supreme Court has thus far refrained
    from ruling on whether classifications on the basis of sexual
    orientation enjoy a presumption of constitutionality that may be
    overcome only upon the requisite evidentiary showing. See Romer v.
    Evans, 517 U.S. 620, 632 (1996) (``[I]f a law neither burdens a
    fundamental right nor targets a suspect class, we will uphold the
    legislative classification so long as it bears a rational relation to
    some legitimate end. Amendment 2 fails, even defies, this conventional
    inquiry.'') (citation omitted); see also Hooper v. Bernalillo County
    Assessor, 472 U.S. 612, 618 (1985) (``[I]f the statutory scheme cannot
    pass even the minimum rationality test, our inquiry ends.''). The Court
    has not yet had an opportunity to consider whether classifications on
    the basis of gender identity merit such a presumption.
        The principled conclusion is that classifications based on sexual
    orientation or gender identity are presumptively unconstitutional. Each
    of the factors that independently renders a classification especially
    suspect because the classification is especially likely to reflect
    invidious discrimination is satisfied where classifications based on
    sexual orientation or gender identity are concerned. LGBT people have
    ``experienced a history of purposeful unequal treatment'' and have
    ``been subjected to unique disabilities on the basis of stereotyped
    characteristics not truly indicative of their abilities.'' Cleburne,
    473 U.S. at 441, 445 (quotation omitted). In addition, neither sexual
    orientation nor gender identity is an aspect of personal identity that
    an individual either can or should be compelled to change in order to
    escape governmental discrimination, see Frontiero v. Richardson, 411
    U.S. 677, 685, 686 (1973), and LGBT people are particularly vulnerable
    politically so as to ``command extraordinary protection from the
    political processes,'' Murgia, 427 U.S. at 313, although neither of
    these factors is essential to a finding that a classification is
    presumptively unconstitutional. See generally Br. of Amici Curiae Nat'l
    Lesbian & Gay Law Ass'n, et al., Lawrence v. Texas, No. 02-102, 2003 WL
    152348 (Jan. 16, 2003) (enclosed).

        [Editor's Note: The enclosed information referred to may be found
    at: www.aclu.org/files/assets/ACLU_Letter_to_Senate_HELP_Committee_
    on_ENDA_and_Sovereign_Immunity_Enclosure_Part_1.pdf.]

        It cannot be seriously disputed that LGBT people have long suffered
    and continue to suffer systemic and egregious discrimination. See
    Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009) (``The County does
    not, and could not in good faith, dispute the historical reality that
    gay and lesbian people as a group have long been the victims of
    purposeful and invidious discrimination because of their sexual
    orientation.'') (ruling under State analog to Equal Protection Clause);
    Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 434 (Conn. 2008)
    (``There is no question . . . that gay persons historically have been,
    and continue to be, the target of purposeful and pernicious
    discrimination due solely to their sexual orientation.'') (ruling under
    State analog to Equal Protection Clause); In re Marriage Cases, 183
    P.3d 384, 442 (Cal. 2008) (``[S]exual orientation is a characteristic .
    . . that is associated with a stigma of inferiority and second-class
    citizenship, manifested by the group's history of legal and social
    disabilities.'') (citations omitted) (ruling under State analog to
    Equal Protection Clause); Tanner v. Or. Health Scis. Univ., 971 P.2d
    435, 447 (Or. Ct. App. 1998) (``[C]ertainly it is beyond dispute that
    homosexuals in our society have been and continue to be the subject of
    adverse social . . . prejudice.'') (ruling under State analog to Equal
    Protection Clause).
        It also cannot be seriously disputed that one's sexual orientation
    and one's gender identity are not indicative of one's ability to
    participate in or contribute to society. See Varnum, 763 N.W.2d at 892
    (``[I]t is clear sexual orientation is no longer viewed in Iowa as an
    impediment to the ability of a person to contribute to society.'');
    Kerrigan, 957 A.2d at 435 (``[H]omosexuality bears no relation at all
    to an individual's ability to contribute fully to society.'')
    (quotation omitted); Marriage Cases, 183 P.3d at 442 (``[S]exual
    orientation is a characteristic . . . that bears no relation to a
    person's ability to perform or contribute to society.'') (citation
    omitted); Tanner, 971 P.2d 435 at 447 (``[C]ertainly it is beyond
    dispute that homosexuals in our society have been and continue to be
    the subject of adverse social stereotyping.''); see also http://
    www.aclu.org/pdfs/lgbt/ discrim_map_bw.pdf (21 States and the District
    of Columbia have sexual orientation-inclusive civil rights laws; 13
    States and the District of Columbia have gender identity-inclusive
    civil rights laws).
        Moreover, sexual orientation and gender identity are so intrinsic
    to personal identity that, even if one could, one should not be
    compelled to change them to escape governmental discrimination. See
    Varnum, 763 N.W.2d at 893 (``Sexual orientation is not the type of
    human trait that allows courts to relax their standard of review
    because the barrier is temporary or susceptible to self-help.'');
    Kerrigan, 957 A.2d at 438-39 (``This prong of the suspectness inquiry
    surely is satisfied when, as in the present case, the identifying trait
    is so central to a person's identity that it would be abhorrent for
    government to penalize a person for refusing to change it. In other
    words, gay persons, because they are characterized by a central,
    defining trait of personhood, which may be altered if at all only at
    the expense of significant damage to the individual's sense of self are
    no less entitled to consideration as a suspect or quasi-suspect class
    than any other group that has been deemed to exhibit an immutable
    characteristic. To decide otherwise would be to penalize someone for
    being unable or unwilling to change a central aspect of individual and
    group identity, a result repugnant to the values animating the
    constitutional ideal of equal protection of the laws.'') (quotations
    and citations omitted); Marriage Cases, 183 P.3d at 442 (``Because a
    person's sexual orientation is so integral an aspect of one's identity,
    it is not appropriate to require a person to repudiate or change his or
    her sexual orientation in order to avoid discriminatory treatment.'')
    (citations omitted); Tanner, 971 P.2d 435 at 446-47 (``[T]he focus of
    suspect class definition is not necessarily the immutability of the
    common, class-defining characteristics, but instead the fact that such
    characteristics are historically regarded as defining distinct,
    socially-recognized groups that have been the subject of adverse social
    or political stereotyping or prejudice. . . . Sexual orientation . . .
    is widely regarded as defining a distinct, socially recognized group of
    citizens, and certainly it is beyond dispute that homosexuals in our
    society have been and continue to be the subject of adverse social and
    political stereotyping and prejudice.'').
        Finally, LGBT people have long lacked and continue to lack
    political power to a sufficient degree to warrant judicial solicitude.
    See Varnum, 763 N.W.2d at 895 (``We are convinced gay and lesbian
    people are not so politically powerful as to overcome the unfair and
    severe prejudice that history suggests produces discrimination based on
    sexual orientation.''); Kerrigan, 957 A.2d at 444 (``We apply this
    facet of the suspectness inquiry not to ascertain whether a group that
    has suffered invidious discrimination borne of prejudice or bigotry is
    devoid of political power but, rather, for the purpose of determining
    whether the group lacks sufficient political strength to bring a prompt
    end to the prejudice and discrimination through traditional political
    means. Consequently, a group satisfies the political powerlessness
    factor if it demonstrates that, because of the pervasive and sustained
    nature of the discrimination that its members have suffered, there is a
    risk that that discrimination will not be rectified, sooner rather than
    later, merely by resort to the democratic process. Applying this
    standard, we have little difficulty in concluding that gay persons are
    entitled to heightened constitutional protection despite some recent
    political progress.'') (citation omitted); Marriage Cases, 183 P.3d at
    443 (``[O]ur cases have not identified a group's current political
    powerlessness as a necessary prerequisite for treatment as a suspect
    class.'') (emphasis in original); Tanner, 971 P.2d 435 at 447
    (``[C]ertainly it is beyond dispute that homosexuals in our society
    have been and continue to be the subject of adverse . . . political
    stereotyping and prejudice.'').
        Significantly, Federal case law concluding that discrimination
    based on sexual orientation or gender identity is presumptively
    constitutional heavily relies on Bowers for the proposition that the
    liberty interest in forming an intimate relationship with a partner
    does not extend to LGBT people. Bowers has been wholly repudiated. The
    Supreme Court has held not only that Bowers ``is not correct today''
    but indeed that it ``was not correct when it was decided.'' Lawrence,
    539 U.S. at 578. Thus, for example, Lofton v. Sec'y of Dep't of
    Children & Fam. Servs., 358 F.3d 804, 818 & n.6 (11th Cir. 2004), is
    unpersuasive because it relies on Federal case law that in turn relies
    on Bowers. See Equality Found. of Greater Cincinnati, Inc. v. City of
    Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997) (``[U]nder Bowers . .
    . and its progeny, homosexuals [do] not constitute either a `suspect
    class' or a `quasi-suspect class' because the conduct which define[s]
    them as homosexuals [is] constitutionally proscribable.'') (citation
    and footnote omitted); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126,
    1132 (9th Cir. 1997) (relying on progeny of Bowers); Richenberg v.
    Perry, 97 F.3d 256, 260 & n.5 (7th Cir. 1996) (relying on Bowers and
    its progeny); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895
    F.2d 563, 571 (9th Cir. 1990) (``[A]lthough the Court in [Bowers]
    analyzed the constitutionality of the sodomy statute on a due process
    rather than equal protection basis, by the [Bowers] majority holding
    that the Constitution confers no fundamental right upon homosexuals to
    engage in sodomy, and because homosexual conduct can thus be
    criminalized, homosexuals cannot constitute a suspect or quasi-suspect
    class entitled to greater than rational basis review for equal
    protection purposes.'') (citations and footnote omitted); Ben-Shalom v.
    Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (``If homosexual conduct may
    constitutionally be criminalized, then homosexuals do not constitute a
    suspect or quasi-suspect class entitled to greater than rational basis
    scrutiny for equal protection purposes.'') (footnote omitted); Woodward
    v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (``After
    [Bowers] it cannot be logically asserted that discrimination against
    homosexuals is constitutionally infirm.'').\1\
    ---------------------------------------------------------------------------
        \1\ The remaining Federal case law on which Lofton relies does not
    address whether sexual orientation is presumptively constitutional.
    ---------------------------------------------------------------------------
        Moreover, such Federal case law erroneously relies on Romer for the
    proposition that classifications based on sexual orientation are
    presumptively constitutional. As discussed above, in Romer, the Court
    did not reach whether classifications based on sexual orientation are
    presumptively constitutional. Thus, such case law is unpersuasive. See,
    e.g., Lofton, 358 F.3d at 818 & n.6 (relying on Holmes, 124 F.3d at
    1132, and Richenberg, 97 F.3d at 260 n.5, both of which in turn rely on
    a misapprehension of Romer).
        Finally, we note that discrimination against LGBT people is also
    presumptively unconstitutional both because it implicates the liberty
    interest in forming an intimate relationship with a same-sex partner,
    see, e.g., Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008)
    (holding, in the public employment context, that a penalty on formation
    of an intimate relationship with a same-sex partner is subject to
    heightened scrutiny), and because it implicates sex discrimination,
    see, e.g., Glenn v. Brumby,_F. Supp. 2d_, No. 1:08-CV-2360-RWS, WL
    1849951 (N.D. Ga. June 25, 2009) (transgender State employee was
    subjected to sex stereotyping); see also, e.g., Smith v. City of Salem,
    378 F.3d 566 (6th Cir. 2004) (transgender municipal employee was
    subjected to sex stereotyping); Schroer v. Billington, 577 F. Supp. 2d
    293 (D.D.C. 2008) (transgender Federal applicant was subjected to sex
    stereotyping and discrimination on the basis of change of sex).
        Because classifications based on sexual orientation or gender
    identity enjoy a presumption of unconstitutionality that may be
    overcome only upon the requisite evidentiary showing, no further
    inquiry is necessary. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

    B. In the Alternative, ENDA Would Properly Abrogate Sovereign Immunity
            Because it Would Satisfy the Congruence and Proportionality
            Test

                         1. The Proportionality Inquiry

        Even if classifications based on sexual orientation or gender
    identity were not presumptively constitutional, ENDA would easily
    satisfy the proportionality inquiry. As discussed below, the proposed
    scope of ENDA would largely mirror the Equal Protection Clause's
    prohibition on irrational discrimination. Moreover, it would be in
    proportion to the Equal Protection Clause's prohibition on sex
    discrimination. Furthermore, it would be in proportion to the Due
    Process Clause's prohibition on penalizing the exercise of a liberty or
    expression interest.
        The Equal Protection Clause prohibits States from classifying on
    any basis where the classification does not even rationally further a
    legitimate State interest. Hooper, 472 U.S. at 618. In other words, the
    Equal Protection Clause prohibits irrational discrimination by States.
    Thus, it is significant that courts have routinely found that
    discrimination by States and municipalities against their LGBT
    employees lacks even a rational basis. See, e.g., Lovell v. Comsewogue
    Sch. Dist., 214 F. Supp. 2d 319 (E.D.N.Y. 2002); Miguel v. Guess, 51
    P.3d 89 (Wash. Ct. App. 2002); Emblen v. Port Auth., No. 00 Civ. 8877
    (AGS), 2002 WL 498634 (S.D.N.Y. Mar. 29, 2002); Quinn v. Nassau County
    Police Dep't, 53 F. Supp. 2d 347 (E.D.N.Y. 1999); Glover v.
    Williamsburg Local Sch. Dist. Bd. of Educ., 20 F. Supp. 2d 1160 (S.D.
    Ohio 1998); Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah
    1998); Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska
    2005) (ruling under State analog to Equal Protection Clause);
    Snetsinger v. Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004) (same); see
    also United States v. Georgia, 546 U.S. 151, 158 (2006) (``[N]o one
    doubts that Sec. 5 grants Congress the power to `enforce . . . the
    provisions' of the Amendment by creating private remedies against the
    States for actual violations of those provisions.'') (emphasis in
    original). While significant, it is not surprising that courts have
    found that employment discrimination based on sexual orientation or
    gender identity is generally irrational.\2\ Simply put, one's sexual
    orientation and gender identity have no bearing on one's ability to do
    one's job.\3\
    ---------------------------------------------------------------------------
        \2\ It need be only that employment discrimination based on sexual
    orientation or gender identity is generally irrational. See Nev. Dep't
    of Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003) (``Congress may, in
    the exercise of its Sec. 5 power, do more than simply proscribe conduct
    that we have held unconstitutional. Congress' power `to enforce' the
    Amendment includes the authority both to remedy and to deter violation
    of rights guaranteed thereunder by prohibiting a somewhat broader swath
    of conduct, including that which is not itself forbidden by the
    Amendment's text. In other words, Congress may enact so-called
    prophylactic legislation that proscribes facially constitutional
    conduct, in order to prevent and deter unconstitutional conduct.'')
    (quotation and citation omitted).
        \3\ Whether discrimination based on sexual orientation or gender
    identity is generally irrational in contexts other than employment is
    immaterial to the analysis. See Lane, 541 U.S. at 530-31 (``[N]othing
    in our case law requires us to consider title II, with its wide variety
    of applications, as an undifferentiated whole. Whatever might be said
    about title II's other applications, the question presented in this
    case is not whether Congress can validly subject the States to private
    suits for money damages for failing to provide reasonable access to
    hockey rinks, or even to voting booths, but whether Congress had the
    power under Sec. 5 to enforce the constitutional right of access to the
    courts. Because we find that title II unquestionably is valid Sec. 5
    legislation as it applies to the class of cases implicating the
    accessibility of judicial services, we need go no further.'') (citation
    and footnotes omitted).
    ---------------------------------------------------------------------------
        Moreover, the factors on which the Court specifically relied in
    Kimel and Garrett for the proposition that discrimination based on age
    or disability is generally rational are not present where
    discrimination based on sexual orientation or gender identity is
    concerned. Even courts that have held that classifications based on
    sexual orientation or gender identity do not enjoy a presumption of
    unconstitutionality have acknowledged that LGBT individuals constitute
    a discrete and insular minority who have suffered a history of
    discrimination, and that one's sexual orientation and gender identity
    are not indicative of one's ability to participate in or contribute to
    society. See Conaway v. Deane, 932 A.2d 571, 614 (Md. 2007) (holding
    that sexual orientation classifications are subject to rational basis
    review under State analog to Equal Protection Clause, but acknowledging
    that ``gay, lesbian, and bisexual persons in recent history have been
    the target of unequal treatment in the private and public aspects of
    their lives, and have been subject to stereotyping in ways not
    indicative of their abilities, among other things, to work and raise a
    child'') (emphasis added); Andersen v. King County, 138 P.3d 963, 974
    (Wash. 2006) (holding that sexual orientation classifications are
    subject to rational basis review under State analog to Equal Protection
    Clause, but acknowledging that ``[t]here is no dispute that gay and
    lesbian persons have been discriminated against in the past'').
        Furthermore, ENDA would sweep less broadly than the Equal
    Protection Clause in significant ways. In particular, section 8(b) of
    ENDA makes express that ENDA would not apply to the differential terms
    and conditions of employment that the LGBT employees of 28 States
    suffer with respect to the health, pension, and other dependent
    benefits that constitute a substantial portion of the compensation
    package of employees who may marry their partners in a manner that
    would be recognized under ENDA. See www.hrc.org/documents/
    Employment_Laws_and_
    Policies.pdf. Such differential treatment violates the Equal Protection
    Clause. See, e.g., Alaska Civil Liberties Union v. Alaska, 122 P.3d 781
    (Alaska 2005) (ruling under State analog to Equal Protection Clause);
    Snetsinger v. Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004) (same);
    Tanner v. Or. Health Scis. Univ., 971 P.2d 435 (Or. Ct. App. 1998)
    (same). ENDA's express limitations serve only to bolster the conclusion
    that ENDA would satisfy the proportionality inquiry.
        Separate and apart from the analysis above, it is significant that
    the discrimination at issue is commonly intertwined with sex
    discrimination. See, e.g., Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061
    (9th Cir. 2002) (gay employee was subjected to sexual harassment);
    Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (transgender
    municipal employee was subjected to sex stereotyping); Nichols v.
    Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) (gay employee
    was subject to sex stereotyping); Glenn v. Brumby,_F. Supp. 2d_, No.
    1:08-CV-2360-RWS, WL 1849951 (N.D. Ga. June 25, 2009) (transgender
    State employee was subjected to sex stereotyping); Schroer v.
    Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (transgender Federal
    applicant was subjected to sex stereotyping and discrimination on the
    basis of change of sex). In other words, it is significant that sexual
    orientation and gender identity discrimination are contexts in which
    sex discrimination persists with particular tenacity. The Court has
    already ruled that Congress may abrogate State sovereign immunity where
    employment discrimination based on sex is at issue. Fitzpatrick v.
    Bitzer, 427 U.S. 445 (1976). The Court has also already ruled that
    Congress may continue to enact prophylactic legislation to deter and
    remedy sex discrimination to the extent that sex discrimination
    persists. Hibbs, 538 U.S. at 730 (``[After Congress enacted title VII,]
    State gender discrimination did not cease. . . . States continue to
    rely on invalid gender stereotypes in the employment context. . . .
    [T]he persistence of such unconstitutional discrimination by the States
    justifies Congress' passage of prophylactic Sec. 5 legislation.'').
    Thus, in enacting ENDA, Congress would also abrogate sovereign immunity
    by virtue of the constitutional concern that employment discrimination
    based on sex presents.\4\
    ---------------------------------------------------------------------------
        \4\ The fact that some of the discrimination at issue might not be
    intertwined with sex discrimination does not alter the analysis. Again,
    ``Congress may enact so-called prophylactic legislation that proscribes
    facially constitutional conduct, in order to prevent and deter
    unconstitutional conduct.'' Hibbs, 538 U.S. at 727-28.
    ---------------------------------------------------------------------------
        It is also significant that, in addition to equality considerations
    under the Equal Protection Clause, ENDA would implicate liberty and
    expression considerations under the Due Process Clause. See Tennessee
    v. Lane, 541 U.S. 509 (2004) (Congress may enforce Due Process rights
    under section 5 of the Fourteenth Amendment); City of Boerne v. Flores,
    521 U.S. 507 (1997) (Congress may enforce First Amendment rights under
    section 5 of the Fourteenth Amendment). The Due Process Clause
    prohibits States and municipalities from penalizing their LGBT
    employees for exercising their constitutionally protected liberty
    interests. See, e.g., Witt v. Dep't of Air Force, 527 F.3d 806 (9th
    Cir. 2008) (holding, in the public employment context, that a penalty
    on formation of an intimate relationship with a same-sex partner is
    subject to heightened scrutiny). It also prohibits States and
    municipalities from penalizing their LGBT employees for exercising
    their constitutionally protected expression interests. See, e.g.,
    Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998)
    (recognizing, in the public employment context, that the censorship of
    pro-LGBT expression is unconstitutional). Given that State and
    municipal employers routinely penalize their LGBT employees for forming
    an intimate relationship with a same-sex partner or for expressing pro-
    LGBT viewpoints, see Sec. II.B.2. infra, ENDA would constitute an
    appropriate prophylactic measure to deter and remedy such
    unconstitutional conduct.
        For all of these reasons, the scope of ENDA would largely mirror
    the scope of section 1 of the Fourteenth Amendment and therefore
    readily satisfy the proportionality inquiry.

                           2. The Evidentiary Inquiry

        We cannot emphasize enough that our data egregiously underreport
    the magnitude of the constitutional concern. Precisely because such
    discrimination is so prevalent, many LGBT employees are understandably
    reluctant to disclose their sexual orientation or gender identity, as
    seeking redress for discriminatory acts often necessitates. See
    Kerrigan, 957 A.2d at 446 n.40 (Conn. 2008) (``Because of the immediate
    and severe opprobrium often manifested against homosexuals once so
    identified publicly, members of this group are particularly powerless
    to pursue their rights openly in the political arena.'') (quotation
    omitted). Moreover, despite some recent favorable legal developments,
    many LGBT employees have been understandably discouraged from exploring
    suit when they suffer workplace discrimination, given that many courts
    have exhibited hostility toward their claims. See, e.g., Ulane v.
    Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (adverse title
    VII ruling against transgender employee); DeSantis v. Pac. Tel. & Tel.
    Co., Inc., 608 F.2d 327 (9th Cir. 1979) (adverse title VII ruling
    against lesbian and gay employees). Furthermore, our data capture only
    a small fraction of the inquiries that we field from the small minority
    of LGBT employees who have the wherewithal to contact us, and purport
    to represent only a snapshot of our records during recent times.
    Accordingly, our catalog below is merely illustrative of the
    constitutional concern.
        Still, our data confirm that there is, in fact, a widespread
    pattern of irrational discrimination by States and municipalities
    against their LGBT employees, as reflected in the 87 examples of
    discrimination from 35 States--24 examples of State discrimination and
    63 examples of municipal discrimination--referenced below.
        First, our outreach to the LGBT community over just the past month,
    and our review of the inquiries that we have fielded from LGBT
    employees over just the past 18 months, readily yielded 16 stories of
    irrational discrimination by States and 48 stories of irrational
    discrimination by municipalities. The following stories are
    illustrative:

         Shannon P. Dietz of Baton Rouge, LA.--I was hired in 2006
    as a faculty member and coordinator of the 4-H Program at Louisiana
    State University. The program had 500 participants, 8-18 years old, and
    I built a strong youth program for at-risk and underserved youth. My
    job also involved serving as the liaison between the 4-H office and the
    University. I had never received a negative comment on any past
    evaluations and, in December 2007, I was promoted to office supervisor
    of an off-campus parish office. I had also received a Distinguished
    Service Award from the 4-H Program.
        In April 2009, I was called away from a camping event where I was
    supervising at-risk youth. The University's Human Resources manager
    said I needed to come back immediately for a meeting. At the meeting,
    she informed me that the school had received an anonymous letter saying
    that I had a personal ad on a gay dating site. After the meeting was
    over, I was not allowed to go back to camp and collect my personal
    items because I was told I could not interact with the youth in my
    program anymore.
        I was immediately put on administrative leave and told I was going
    to be fired eventually. However, I refused to quit and, despite the
    threats, they did not fire me. Instead, I was demoted from my job as
    the office supervisor and taken off all programs involving interacting
    with youth. Now, I am researching and writing curricula and my contract
    has not been renewed, so I have no job security.
        This demotion has been very stressful. Although I have been out to
    my family for a long time, I was always very careful not to give any
    indications or signs at work about my sexual orientation. My career
    with the 4-H Program is ruined because people are starting rumors about
    my sexual orientation.
         Kathleen Culhane of St. Paul, MN.--I was hired in 1998 as
    a research assistant for an orthopedic surgeon at the University of
    Iowa. In August 2001, I came out as transgendered, and the surgeon I
    worked for immediately quit coming into the lab. The department
    administrator told me, to my face and in front of witnesses, that my
    condition (transsexuality) was such that they didn't feel I could give
    sufficient effort to the department and they were firing me.
        I went to the University's affirmative action department, who found
    enough merit to my story that my termination was stopped, as long as I
    agreed to find work in another department. I had a few interviews, but
    no one gave me a second one, so, effectively, I was fired.
        I chose to relocate to Minnesota in March 2002, specifically
    because the State offers civil rights protections. At the time, it was
    overwhelming and terrible to lose my job and leave Iowa and the city I
    had lived in for 16 years.
         John Schmidt of Fort Mill, SC.--I was hired as a New
    Jersey State Trooper in 1982. I loved working in law enforcement and
    received many promotions as well as many commendations for my work in
    alcoholic beverage control.
        In January 1997, I was beaten up by other troopers while on an
    assignment. I was undercover waiting for other troopers to arrive in a
    sting operation. When they arrived, one of the troopers headed straight
    towards me (even though they knew that I was a trooper) and started
    beating me with his baton. He knocked me to the ground and kicked me,
    shouting anti-gay slurs.
        I enjoyed my job, but the incident made me feel scared, depressed,
    and very uncomfortable. I filed a lawsuit, but it was dismissed on
    procedural grounds because my lawyer missed court deadlines.
        The culture of the New Jersey State Troopers is notoriously
    intolerant, and it is well-documented in the press and in lawsuits that
    many African-American and gay and lesbian troopers have faced workplace
    hostility and harassment.
        I retired from law enforcement in 2003 on disability because of a
    cardiac condition. In all honesty, my cardiac condition is not such
    that it would prevent me from working in some capacity in law
    enforcement. However, the hostility of my work environment made me
    realize that I was lucky to be able to retire before I faced further
    harassment or violence.
         Gypsey Teague of Pendleton, SC.--In 2002, I was hired as
    the Branch Librarian for the Oklahoma City Branch of Langston
    University, Oklahoma's only historically black college or university
    (HBCU). I have both an MLS and an MBA and so, not only was I the
    library director, but I also taught classes in the business department.
        In late 2004, after I had been successfully employed at the
    University for almost 3 years, I decided to begin the process of
    transitioning from male to female. The administration was very
    accommodating, both in supportive words and in providing generous
    leave, which made my transition very easy. I spoke with the Campus
    Director, my Library Director, and the Vice President of Academic
    Affairs. All three were helpful, and promised to support me and help in
    creating a smooth transition. I was pleased, but not surprised, to find
    that this historically black university understood issues of diversity.
    With their encouragement, I took an extended vacation over the
    Christmas holiday to finalize my transition. When I returned, I
    conducted myself as a woman, professionally and properly dressed at all
    times, and afforded myself of the bathroom of my new gender. Things
    went extremely well, and I felt that success in both my professional
    life and my personal life.
        I went to a professional conference in February 2005. When I
    returned, I was stunned to learn that a student had circulated a hate-
    filled petition calling for my removal from campus, and had posted
    offensive flyers around the campus.
        Various reasons were cited, but all were related to my transgender
    identity. I never saw the actual petition but there were over 100
    copies circulated throughout the small campus building. I spoke with
    the Campus Director, and asked for his assistance in removing the
    offensive flyers. I was stunned to hear him say that the student had a
    right to freedom of speech, and that he could and would do nothing. In
    fact, when other students also complained about these hateful flyers as
    being inappropriate, he went so far as to support the right of the
    students to pass out the flyers.
        The very next day, the Campus Director issued a rule that all
    faculty and staff must use the bathrooms in the break room, at the
    other end of the building, and not the student bathrooms across the
    hall from the library. Surprised by this, I noticed that none of the
    other faculty were adhering to this policy. When I mentioned this to
    the Director, he told me that he could not control the actions of all
    faculty and staff, but that I would adhere to the policy or be
    disciplined.
        The petition-circulating student, encouraged by the
    administration's failure to support me, circulated another petition,
    this one stating that God wished me dead, and expressing the hope that
    something to this effect should happen. I spoke to several high-level
    administrators, who I was sure would see reason at this point. Instead,
    they told me my concerns were unwarranted, and to stop causing drama.
    Then, suddenly and surprisingly, my teaching schedule for the summer
    was changed to the late-night 7:30-10 p.m. time slot. This meant I
    would be the last instructor to leave the building, and I would have to
    exit into an empty parking lot in a dangerous section of the city.
        I decided to apply for a job at another college, even though it
    would require relocating. In May 2005, I left Langston University and
    accepted a position as Branch Head of the Architecture Library at
    Clemson University in South Carolina. Having to relocate was difficult
    because my mother was in a nursing home in Oklahoma and she passed away
    there before I could return to see her.
        Had the administrators who were charged with my welfare stood up
    and supported me in the face of mean-spirited prejudice, I think I
    would have been able to stay and to prosper. When they failed to take
    decisive action, I was forced to choose between my safety, both
    emotional and physical, and my job.
         Laura J. Doty of Boise, ID.--I was hired in April 1997 as
    an Adult Probation Officer in Power County, ID. I was closeted except
    for my direct supervisor, who had no problem with my sexuality. It was
    a professional environment, and my peer reviews indicated I was
    respected and did a good job. I liked being able to help people
    overcome difficulties and improve themselves. I had letters of
    recommendation from the Prosecuting Attorney, a letter of
    recommendation from my direct supervisor, and positive reviews from a
    judge and the Public Defender.
        In September 1997, I ran into a co-worker from the county building
    at a store and introduced my partner to her. Two days later, the Power
    County Commissioners called me in and told me I was unhappy at work and
    I could quit or be fired. I said they would have to fire me.
        After I was fired, I immediately called the Human Rights Commission
    in Boise, and they told me I had no basis to make a claim because
    sexual orientation is not a protected status. I was devastated because
    I considered myself a dedicated employee and hard worker. I cared about
    my probationers, and I worked very hard to help them succeed, whether
    in getting a GED or staying in a 12-step program.
        My partner at the time was in graduate school, so we struggled
    financially after I lost the job.
         Laura Elena Calvo of Portland, OR.--From 1980 to 1996, I
    worked for the Josephine County Sheriff 's Office in Grant's Pass,
    Oregon. At the end of my employment, I held the rank of Sergeant,
    although, during the course of my employment, I was promoted often and
    worked in a variety of capacities including as a S.W.A.T. team
    commander and a detective in both the Major Crimes Unit and the
    Narcotics Task Force.
        During my 16 years at the Sheriff 's Office, I received numerous
    commendations, including commendations for removing an automobile
    accident victim from a burning vehicle, delivering a baby alongside a
    roadway, disarming an armed man intent on harming himself, and for the
    expertise and diligence shown in a number of complicated criminal
    cases. I was named Deputy of the Year in 1994, and I also taught law
    enforcement classes at Rogue Community College and at the Oregon Police
    Academy.
        Apart from a distinguished employment record and career in law
    enforcement, from my earliest recollection at about age 4, I felt I was
    very different than other boys. I would have preferred to be born
    female. In my late teens, I felt the need to express my female gender
    identity, and I began to cross-dress in private. In the day, this sort
    of thing was shameful, confusing and considered counter-social. I
    compartmentalized that part of my identity, keeping it a very well-kept
    secret. I went out of my way to be sure that, when I did express my
    gender identity, it was such that it was very unlikely it would be
    discovered. I rented a storage locker in another city and another
    county where I kept my cross-dressing items.
        On Labor Day 1995, I was on duty in an extremely remote area of
    Josephine County searching for a fugitive when a police dog attacked
    me, penetrating the bones in my leg with its teeth. I suffered major
    blood and tissue loss, and my injuries required emergency surgery.
    After this incident, I was put on administrative leave until my leg
    could heal.
        Roughly a month after this attack, the storage unit I rented in
    Medford, OR, was broken into and the contents stolen. I was notified of
    the theft and requested to file a police report. Since this storage
    unit contained only my female effects and belongings, I felt I could
    not report the crime because I would need to provide a list of the
    stolen property. I also assumed the items would never be recovered
    anyways.
        However, within a week of the break-in, my immediate supervisor
    called me into the Sheriff 's Office for a meeting. Instead of an
    office, I was brought into one of our interrogation rooms where I was
    informed that the Medford Police Department had recovered my stolen
    property alongside some railroad tracks. I was told that I was
    personally identified from very personal intimate pictures contained
    within the property and that these pictures had been seen by both
    Medford County and Josephine County officers.
        I was told by my supervisor that the Sheriff felt that I would no
    longer be able to perform my duties because of the fact I had been
    discovered to dress as a woman and that it would be a big mistake to
    try to come back to work.
        In the spring of 1996 after my leg had healed, I was ordered to
    travel to Portland for a psychiatric determination for fitness of duty.
    I went before a panel of doctors, selected by the Sheriff 's Office,
    who determined I was not fit to return to work. I was informed that the
    Sheriff, in conjunction with the County's Risk Manager and Attorney,
    were in the process of putting together a settlement offer in return
    for my resignation.
        The direct impact of the discrimination I experienced has been
    devastating on so many levels. I don't have a college degree or any
    other skills except law enforcement. I tried working as a school bus
    driver and driving a senior citizen bus, but found the work
    unrewarding. I contacted attorneys, but they said I had no legal
    protections. Had employment non-discrimination laws been in effect, I
    likely would have continued serving the citizens of Josephine County to
    this day.
         Shawn Wooten of Jonesboro, GA.--In February 2001, I
    started working as school bus coordinator for the Henry County School
    District in McDonough, GA. I was always considered one of the best
    drivers during my 6 years of employment.
        In 2006, another employee found a personal ad I had posted 6 years
    previously on a gay dating site. She printed it and distributed it at
    one of the high schools. In June 2006, as soon as word got out that I
    was gay, I was fired. When I pressed for a reason, I was told that it
    was ``in the best interests of the school system'' and that I knew the
    answer.
        I complained to board of education members but got no response. I
    also contacted Atlanta Legal Aid and tried to find an attorney to take
    my case, but I was told Georgia was a right-to-work State and I had no
    legal protection.
        I applied for school bus coordinator jobs in other districts, but,
    every time, after expressing initial interest, the school district
    refused to hire me. I believe that word got around from Henry County
    that I was gay. I was unemployed for 2 years. I have Lupus, and I am
    constantly in need of medical attention, but couldn't get it because my
    insurance was canceled when I was terminated.
         Nerissa Belcher of Douglasville, GA.--In September 2005, I
    moved to Georgia and applied for a job as a Disease Investigator with
    the Fulton County Health Department in Atlanta, GA.
        I had originally applied for the job with a male name, but, by the
    time they called me back, I had legally changed my name, and so I
    started work as Nerissa.
        The first month or so with the Health Department went very well. I
    did well in the training, and I had highest testing scores of all
    disease investigators trained by my mentor. However, the supervisor of
    the Department was very uncomfortable with my transition.
        The supervisor tried to make my life miserable at work and forbid
    me from using the female restroom. I complained to Human Resources, but
    my private conversation with them was related to my supervisor without
    my consent. In February 2006, I was fired without cause.
        When I was fired, I lost my ability to be financially self-
    sufficient and to provide assistance to my children. It was also
    frustrating because I was extremely well-qualified for my job and was
    replaced by a medically untrained Parks Department employee.
         Johnny Woodnal of Concord, MA.--I was hired in the spring
    of 2002 to teach English at a public high school in Medford, MA.
    Medford appealed to me initially because it is a fairly urban district
    with a lot of diversity and a need for talented teachers (the turnover
    rate is quite high). I loved everything about teaching, and all of my
    formal observations were written up in a positive light.
        During the spring of my first school year, 1 year after my hire,
    the school became aware of my sexual orientation when my partner (now
    husband) directed the school musical with me. I was the only openly gay
    teacher on staff at the high school at the time.
        In 2005, I was told I would not be receiving tenure during the
    final month of my tenure year (year three). When no actual proof could
    be offered as validation for why my teaching was so bad they did not
    want to continue my employment, I pressed for answers. I was told by
    the superintendent that I shouldn't be known for my ``activities
    outside the classroom,'' which everyone involved took to mean that I
    should have been quiet about my sexual orientation rather than open in
    dealing with a high school community.
        I pursued action with my union, including legal action, but was
    told that discrimination could be difficult to prove. The district only
    backed down and gave me tenure after students and parents expressed
    their outrage. Even after the community forced the administration to
    back down and give me tenure, they found other ways to harass me,
    continually beating me down professionally and robbing my self-
    esteem. I am still in therapy now, nearly 5 years later, in relation in
    part to the experience.
        My husband and I now have two children, and they are our entire
    world. When our daughter came to our family, I knew that I needed to
    leave the hostile environment in order to protect my family. So, in
    2007, I got a new job with a district outside of the city, serving a
    much more heterogeneous and wealthy population. I don't feel quite as
    needed as I did by the lower socio-economic groups of Medford.
         Camille Hopkins of Portland, OR.--I was hired in 1987 as a
    planner for the city of Buffalo in upstate New York. My job offered me
    an opportunity to improve the quality of life for poor residents of
    Buffalo. I was good at and enjoyed making a difference in people's
    lives.
        In August 2001, I informed the Mayor of Buffalo that I was a
    transgender woman and was hoping he would support my transition in the
    workplace. At this time, I had been working for the city of Buffalo for
    over 15 years and had developed a method of improving a Federal program
    that assists poor HIV+ individuals and persons with AIDS from becoming
    homeless. My management method impacted more HIV+ people than ever
    before. As a result of my work and initiative, I received a county-wide
    civic award.
        However, not long after my transition, I was demoted. I was
    heartbroken to be removed from the program I had worked so hard to
    develop. For the previous 15 years (as a male), I never had difficulty
    in the workplace. However, after my transition in September 2002, I
    received unwarranted criticism of my work and hostility in the
    workplace.
        On a ``casual'' Friday in July 2007, I wore a gay pride t-shirt to
    work. Later that day, I was informed by the Director of Labor Relations
    that someone in my department was offended by my shirt. I was
    instructed to remove it or cover it. When I did not, I was charged with
    harassment and insubordination. At the informal hearing, the Legal
    Department offered to drop the charges if I signed a waiver stating I
    would never sue them for past grievances. I refused to sign. I was then
    informed they would in all likelihood terminate me after the formal
    hearing to follow. This hearing was constantly postponed but the
    workplace hostilities continued.
        This incident, as well as other workplace transphobic events, put
    pressure on me that I never had experienced before. I became anxious
    and nervous and had difficulty sleeping at night. My family doctor put
    me on medication to help. These conditions eventually affected the
    quality of my work. In August 2008, worn down by the stress, depression
    and fear of retaliation, I resigned. I filed grievances with the city
    of Buffalo Human Resource Department and the Commission on Citizen
    Rights as well as the New York State Division of Human Rights and the
    Federal EEO Commission, but all to no avail.
         Nikki Fultz of Fort Wayne, IN.--This is my 4th year
    teaching 5th grade at Adams Elementary, an inner city school in Fort
    Wayne, IN. I am out to everyone in my life but my students. All of my
    co-workers know about my sexual orientation and are very supportive, as
    is my principal.
        Last year, my partner and I had a commitment ceremony, and I
    legally had my name changed. I had discussed with my principal whether
    it would be OK for me to come out to students, and she thought it would
    be fine. I was not planning on going into depth, obviously, but
    students knew my name changed.
        However, my principal checked with our legal department, and they
    told her it would be inappropriate. I was told that, if I come out
    directly or even indirectly to students, I would be fired. After that,
    I was very nervous. Last year, some of my 5th grade students Googled my
    name and found out that I am the director of Fort Wayne's Pride
    Committee. Luckily, the principal did not find out this had occurred. I
    can't relax, though, because the same thing could happen this year. My
    partner, who now also teaches school in the same district, was actually
    fired for being out at a small high school in northern Indiana, so we
    know the threat is very real.
        It's also frustrating because, as teachers, we're encouraged to
    talk about our families at school. My partner and I are foster parents
    and are in the process of adopting a child, and so it's very strange
    not to be able to talk about the fact I have a family. I also want to
    be honest with my students so that they know I am not ashamed.
         Rachel White of Los Angeles, CA.--I was hired as the Chief
    Deputy Director of the Department of Children and Family Services for
    Los Angeles County in March 2002. I had over 100 direct and next-level
    subordinates. I liked being in service to children and families and
    thought the challenge of transforming a large government bureaucracy
    was exciting. In my time with the County, I was recognized for settling
    a large labor dispute without a strike or making ill-advised
    concessions, took a 10 percent cut in the Department's budget and still
    maintained services at pre-existing levels, and made major progress in
    reducing the number of children in out-of-home care.
        I told my Director in late May, early June 2002 that I would be
    transitioning on the job from male to female. She was supportive and
    immediately assumed responsibility for transition planning throughout
    the County. The Board of Supervisors gave their verbal approval to my
    transition plan, HR was engaged, press releases were developed, and I
    wrote an article for the Department Web site's news section.
        Three weeks after my transition plan was quietly put in place, my
    Director was fired. It is noteworthy that my Director was the only one
    who could fire me. The interim director assured me I could transition
    on the job, and the CAO assured me all was well; however, in September
    2002, 3 weeks before my transition date at work, the interim director
    fired me without cause. I was told I was an ``at will employee'' and a
    political appointee. I was deeply hurt, shocked and professionally
    devastated. I found work again, but my income suffered and so did my
    self-esteem.
        I filed an official complaint with the County and involved the
    Ombudsman, to no avail. I also sought legal advice, but ultimately
    decided that the suit wasn't worth the years of legal wrangling that it
    would entail and the damage it would cause to other employees in the
    Department.
        The callousness of the County's actions was inexcusable and clearly
    was related to changing my gender identity.
         William ``Bart'' Birdsall of Tampa, FL.--I was hired in
    1997 as a teacher and then a school librarian and medial specialist for
    the School District of Hillsborough County in Tampa, FL.
        In July 2005, I was involved in protesting the dismantling of a gay
    pride book display at the local public library. I was quoted in the
    local paper saying that I was upset that the book display was
    prematurely taken down, both as a gay man and a school librarian.
        The school superintendent was concerned that I was quoted in the
    paper and proceeded to have my behavior reviewed by the school
    district's Professional Standards Office. Professional Standards
    decided not to punish me for taking part in protests but warned me not
    to bring the issue into the workplace. I have always taken my work very
    seriously, and to have my professionalism called into question was
    hurtful and upsetting.
        I continue to work as a school librarian and have always received
    satisfactory or outstanding marks on evaluations. I have lots of anger
    about the incident and my therapist says I show signs of post-traumatic
    stress.
         Brianne Rivera of Hollywood, FL.--I was hired as a
    Technical Support Specialist for Broward College in August 2007.
    Computer repair is my passion, and I liked the job because I could use
    my technical knowledge and experience to troubleshoot computer hardware
    and software on a daily basis. I also learned to like the social
    interaction between myself and the users whose computers I was
    repairing. I was given a letter stating that I was dependable, able to
    work independently and a skilled technician.
        About 2 months prior to my firing from the college, I came out to
    my boss as a transgender lesbian. I told him that I was undergoing
    hormone therapy and that I would be transitioning on the job.
        On Friday, March 27, 2009, I was called on my day off and asked to
    come in to work for 2 hours in order to attend a technical staff
    meeting. As I was provided only four uniforms and I had worked the four
    previous days, my uniforms were in the washing machine. I informed my
    boss of this and said I would come in but that it would be in women's
    clothes (which up until this point I had not worn to work). He agreed
    that that was fine, so I left to attend the meeting.
        When I arrived on campus, I started getting multiple hostile looks
    from faculty and staff, as they only knew me as a man. This made me
    feel uncomfortable and a bit scared. I called one of the other
    technicians who I was friendly with in order to meet up with him and
    have some safety by being around someone accepting. But, as soon as I
    started to explain what was happening, he hung up. This freaked me out,
    so I dialed my friend back multiple times, but he wouldn't pick up.
        My boss was standing next to my friend when I was repeatedly
    calling, and he asked my friend who kept calling him so many times. My
    boss claimed that these calls were harassment, and so he moved me to
    another shift. Unfortunately, the new shift interfered with all of my
    support group, psychological therapy and speech therapy appointments.
    It was critical to the treatment of my gender identity disorder that I
    make these appointments; so I had to choose between my job with Broward
    College and continuing my transition.
        Since the incident occurred, my finances have suffered
    dramatically, as I still am unemployed. Over the previous 6 years, I
    had saved over $14,000 to use towards my gender reassignment surgery.
    I've had to spend a lot of my savings, and, now, I may be forced to
    give up on transitioning altogether because soon I won't be able to
    afford my medications and doctors' visits.
         Michael DiSchiavi of Brooklyn, NY.--I was hired as a sixth
    grade English teacher at Dyker Heights I.S. 201 in 1998. I wasn't out
    at work, except to a few of my colleagues, but I knew there were rumors
    about my sexual orientation. Also, during my job interview the school's
    principal asked whether I was married or had a girlfriend, so she
    probably had her suspicions that I was gay.
        I worked for a year and a half without incident. All of my work was
    fine, and my observation reports were all satisfactory. In April 2000,
    I was called into a meeting with the assistant principal. During the
    meeting, he said I was a very hard worker and very conscientious, and
    then proceeded to tell me I was not invited to return to teach the
    following year. I told him I was confused because I'd always received
    satisfactory ratings, to which he replied that I had ``classroom
    management'' issues. He said he would do me a favor and let me resign
    at the end of the school year, but, if I failed to do so, I would
    receive an unsatisfactory rating on my next report.
        I reported this threat to my union rep, but he said it would be my
    word against theirs if I tried to fight back. Then, 2 days after my
    meeting with the assistant principal, my classroom was vandalized with
    ``faggot'' written across the chalkboard. At this point, I didn't have
    tenure, and the union wasn't prepared to back me up. Feeling that I
    lacked any other option, I resigned at the end of the school year.
         Marlin Earl Bynum of Irving, TX.--I was originally hired
    in the summer of 2006 as a mathematics teacher for the Keller Learning
    Center, an alternative public high school in Keller, TX. All of my
    evaluations for the last 3 years have been ``exceeds expectations,''
    which is the highest rating one can receive. I have also been named
    teacher of the month. In 2008, I was asked to get qualified to teach
    special education, which I did, so I am now the special education
    teacher for our school.
        Two years ago, I had a student ask me directly if I was gay, and I
    said yes. I was called into the assistant principal's office and warned
    not to disclose my sexual orientation to students. She warned me that I
    endanger myself and my job by being out.
        In response to this, I wrote a letter explaining that I wouldn't
    hide being gay because I would not send the message to a student that
    it was something to be ashamed of. As a result, I had three students
    removed from my classroom because their parents were upset about my
    sexual orientation.
        Another time, I mentioned to my assistant principal that I wanted
    to learn to dance Country and Western. She offered to teach me, and I
    said I needed to learn to lead and follow, as that is what gay men do
    when dancing. In response, she said, ``Eww, Marlin,'' and immediately
    changed the subject. Also, last year, my request to have a diversity
    training was denied by the assistant principal.
        These homophobic incidents have made me feel increasingly isolated.
    The more I try to be open at work about my sexual orientation, the more
    I am persecuted. I interact with my fellow teachers on a professional
    basis, but I have learned to keep personal life and interaction to a
    minimum because I realize now that it is too problematic to try and
    educate people about LGBT discrimination.

        The remaining stories are summarized below:

         A transgender scientist was not hired by a Virginia State
    agency on account of her gender identity in 2006.
         A transgender electrician was not hired by an Ohio State
    university on account of her gender identity in 2006.
         A lesbian Michigan State corrections officer was fired on
    account of her sexual orientation in 2007.
         A transgender editor in the Georgia legislative counsel's
    office was fired on account of her gender identity in 2007.
         A transgender applicant for a position in the Montana
    State attorney general's office was not hired on account of her gender
    identity in 2008.
         A lesbian California State corrections officer was
    subjected to a hostile work environment on account of her sexual
    orientation in 2008.
         A lesbian Virginia State corrections psychologist was
    subjected to a hostile work environment on account of her sexual
    orientation in 2008.
         A gay employee at a New Mexico State university was
    constructively discharged on account of his sexual orientation in 2008.
         An athletic trainer at a Virginia State military academy
    was subjected to a hostile work environment on account of her
    association with lesbian individuals in 2008.
         A transgender applicant for an analyst position at a
    Pennsylvania State agency was not hired on account of his gender
    identity in 2008.
         A gay employee was fired by a Virginia State museum on
    account of his sexual orientation in 2009.
         A Virginia State agency retaliated against an employee for
    supporting a claim of discrimination based on sexual orientation by a
    gay employee in 2009.
         A gay North Carolina county deputy planning director was
    fired on account of his sexual orientation in 1991.
         A gay firefighter at a Washington County fire district was
    subjected to a hostile work environment on account of his sexual
    orientation in 1996.
         A gay nurse at a Pennsylvania county adult day health
    services center was subjected to a hostile work environment on account
    of his sexual orientation in 1996.
         A gay employee at a Florida county clerk's office was
    subjected to a hostile work environment on account of his sexual
    orientation in 1997.
         A gay public school principal and a gay public school
    teacher in Indiana were subjected to a hostile work environment on
    account of their sexual orientation from 1997 to 2000.
         A lesbian firefighter in Florida was subjected to a
    hostile work environment on account of her sexual orientation in 2000.
         A transgender Florida city public works supervisor was
    fired on account of her gender identity in 2001.
         A gay public school teacher in Alabama was fired on
    account of his sexual orientation in 2002.
         A transgender New Hampshire county corrections officer was
    subjected to a hostile work environment on account of her gender
    identity from 2005 to 2007.
         A gay emergency medical technician was fired by a South
    Carolina county on account of his sexual orientation in 2006.
         A transgender nurse was fired by an Arizona county
    hospital on account of his gender identity in 2006.
         A transgender Illinois city chief naturalist was fired on
    account of her gender identity in 2006.
         A gay deputy sheriff in Utah was subjected to a hostile
    work environment on account of his sexual orientation in 2007.
         A lesbian applicant was not hired by a Maryland city
    police department on account of her sexual orientation in 2007.
         A lesbian public school teacher in Minnesota was subjected
    to a hostile work environment on account of her sexual orientation in
    2007.
         A gay public school teacher in Virginia was subjected to a
    hostile work environment on account of his sexual orientation in 2007.
         Lesbian kitchen workers at a Missouri sheriff 's office
    were fired on account of their sexual orientation in 2007.
         A gay police officer in Michigan was constructively
    discharged on account of his sexual orientation in 2008.
         A lesbian police officer in New York was subjected to a
    hostile work environment on account of her sexual orientation in 2008.
         Another lesbian police officer in New York was subjected
    to a hostile work environment on account of her sexual orientation in
    2008.
         A transgender public school teacher in Nevada was fired on
    account of her gender identity in 2008.
         A perceived gay applicant for a public school teacher
    position in Missouri was not hired on account of his perceived sexual
    orientation in 2008.
         A lesbian public school teacher in Illinois was subjected
    to a hostile work environment on account of her sexual orientation in
    2008.
         A gay applicant for a position in a Missouri county
    prosecutor's office was not hired on account of his sexual orientation
    in 2008.
         A lesbian California State corrections psychiatric
    technician was denied permission to accompany her partner to the
    hospital during an emergency in 2008.
         A gay public school administrator and a bisexual public
    school administrator in Kentucky were subjected to a hostile work
    environment and denied job-related funding and travel on account of
    their sexual orientation in 2008.
         A gay public school bus driver in New Jersey was subjected
    to a hostile work environment and fired on account of his sexual
    orientation in 2008.
         Lesbian public school bus drivers in California were
    subjected to a hostile work environment on account of their sexual
    orientation in 2008.
         A gay professor at an Illinois community college was
    subjected to a hostile work environment in 2008.
         Lesbian nurses at a California county health clinic were
    subjected to a hostile work environment on account of their sexual
    orientation in 2008.
         A lesbian public school teacher in Virginia was subjected
    to a hostile work environment on account of her sexual orientation in
    2009.
         A lesbian public school teacher in Texas was subjected to
    a hostile work environment on account of her sexual orientation in
    2009.
         A public school teacher in Texas was censored for
    expressing pro-LGBT viewpoints in 2009.
         A transgender public school teacher in New Jersey was
    censored from expressing pro-LGBT viewpoints in 2009.
         A lesbian Arizona city crime scene investigator was fired
    on account of her sexual orientation in 2009.
         A lesbian public school guidance counselor in Texas was
    subjected to a hostile work environment on account of her sexual
    orientation and censored from expressing pro-LGBT viewpoints in 2009.

        Second, a partial survey of formal and informal advocacy on behalf
    of LGBT State and municipal employees reveals another 8 instances of
    irrational discrimination against LGBT State employees and another 15
    instances of irrational discrimination against LGBT municipal
    employees. See Examples of Anti-LGBT Discrimination by State and
    Municipal Employers (enclosed).

        [Editor's Note: The enclosed material referred to may be found as
    Attachment 1 at the end of this letter].

        Separate and apart from the 86 examples referenced above, 28 States
    discriminate against all of the LGBT employees in their workforce in
    the terms and conditions of their employment by refusing to extend
    dependent employment benefits to their same-sex domestic partners--
    health and pension benefits that are often critical to the well-being
    of the employee's family. See www.hrc.org/documents/
    Employment_Laws_and_Policies.pdf. Significantly, of the States that
    have come to offer same-sex domestic partner benefits, several have
    done so only in response to litigation. See, e.g., Alaska Civil
    Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005); Snetsinger v.
    Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004); Tanner v. Or. Health Scis.
    Univ., 971 P.2d 435 (Or. Ct. App. 1998); Bedford v. N.H. Cmty.
    Technical College Sys., Nos. 04-E-229, 04-E-230, 2006 WL 1217283 (N.H.
    Super. Ct. May 3, 2006); Levitt v. Bd. of N.M. Retiree Health Care
    Auth., No. CV-2007-01048 (N.M. Dist. Ct.) (settled).
        In sum, even our cursory and limited investigation yielded numerous
    examples of discrimination by States and municipalities against their
    LGBT employees. All such evidence confirms a significant pattern of
    employment discrimination based on sexual orientation or gender
    identity by States and municipalities.
        For the foregoing reasons, the ACLU submits that, in enacting ENDA,
    Congress would properly exercise its authority under section 5 of the
    Fourteenth Amendment to abrogate the rights of States under the 11th
    Amendment.
                Sincerely,
                                              Matthew A. Coles,
                                    Director, ACLU LGBT & AIDS Project.
         Attachment 1.--Examples of Anti-LGBT Discrimination By State
                            and Municipal Employers
    Sources:

         Nan D. Hunter, Courtney G. Joslin & Sharon M. McGowan,
    Government Employees, in The Rights of Lesbians, Gay Men, Bisexuals,
    and Transgender People: The Authoritative ACLU Guide to a Lesbian, Gay,
    Bisexual or Transgender Person's Rights 35 (4th Ed. 2004) [Hereinafter
    Hunter, et al., Government Employees].
         ACLU, Annual Update of the ACLU's Nationwide Work on LGBT
    Rights and HIV/AIDS (2003, 2004, 2005, 2006, 2007) [hereinafter ACLU,
    Annual Update 200x].
         Christopher E. Anders, Federally Funded Religion Will
    Trample Civil Rights, in ACLU, Annual Update 2003, at 18 [hereinafter
    Anders].
         James Esseks, How ``Sodomy'' Laws Affect You, in ACLU,
    Annual Update 2003, at 8 [hereinafter Esseks].

    Number of examples:

        State: 8
        Local: 15
        Total: 23
        Pre-1985: 7

    States represented:

         CA, DE, GA, IN, KS, MD, MI (2), MN, NM, NY (2), OH (2), SC, TX
    (3), UT (2), WA (2), WI

    Employer types:

        Law Enforcement: 6
        Education: 10
        Health/Welfare: 2
        Other: 5

    CALIFORNIA

    Debro v. San Leandro Unified School District
    (local--school district/teacher)

        ``When Karl Debro, a heterosexual high school teacher in the San
    Leandro public schools, expressed his opposition to racism and
    homophobia in a classroom discussion, the school disciplined him for
    raising `objectionable' topics in class. He sued the school district in
    Federal court, arguing that the district had violated his First
    Amendment right to free expression. After the trial court ruled against
    him, the ACLU of Northern California helped his appeal with a friend-
    of-the-court brief, arguing that Debro's speech was constitutionally
    protected. Before the Federal appeals court heard the case, the case
    settled favorably for Debro. Cooperating attorneys Thomas R. Burke and
    Eric M. Stahl, Ann Brick and Maggie Crosby of the ACLU of Northern
    California, and Romana Mancini of the Project authored the brief, which
    was joined by Lambda Legal and the California Teachers Association.''
    ACLU, Annual Update 2003, 27.

    DELAWARE

    Aumilier v. University of Delaware
    (State--university/professor)

        434 F. Supp. 1273 (D. Del. 1977) (invalidating discharge of college
    teacher who had been quoted in several newspapers about gay rights).
    Hunter, et al., Government Employees 46 n. 45.

    GEORGIA

    Shahar v. Bowers
    (State--Attorney General/attorney)

        ``In Shahar v. Bowers, Robin Shahar was denied the opportunity to
    work in the Georgia Attorney General's Office after the State attorney
    general, Michael Bowers . . . learned that she had engaged in a private
    commitment ceremony with her female partner. Bowers had insisted that
    the public would be confused if an open lesbian worked at an office
    that was charged with the mission of upholding Georgia's laws,
    including the sodomy law that was still in force at the time. The
    Eleventh Circuit Court of Appeals allowed Bowers to revoke his job
    offer. It agreed that there could be a loss of morale or cohesiveness
    from allowing an open lesbian to work in the attorney general's office,
    enforcing the State's criminal laws. In upholding Bowers' decision, the
    court stressed `the sensitive nature of the pertinent professional
    employment.' Hunter, et al., Government Employees 40 (citing Shahar v.
    Bowers, 114 F.3d 1097, 1108, 1110 (11th Cir. 1997) (en banc), reh'g
    denied, 120 F.3d 211 (1997), cert. denied, 522 U.S. 1049 (1998)). See
    Hunter, et al., Government Employees 46 n. 32-34. See also Esseks, at 9
    (``Public employers have fired or refused to hire lesbians and gay men
    based on laws against intimacy. For example, Georgia's attorney general
    fired Robin Shahar, an attorney in his office, based on his assumption
    that, as a lesbian, she must be violating the State's sodomy law.'').

    INDIANA

    Cornell v. Roberson
    (State--agency/employee)

        ``When the State of Indiana denied employee Jana Cornell's request
    for bereavement leave so she could attend the funeral of her partner's
    father, the Indiana Civil Liberties Union sued the State. The ICLU
    argued that the exclusion of same-sex partners from the bereavement
    leave policy violates the State constitution. A trial court recently
    dismissed Cornell's lawsuit, saying that the bereavement leave policy
    is lawful because it discriminates based on marriage not sexual
    orientation. An appeal is pending.'' ACLU, Annual Update 2003, at 36.

    KANSAS

    PFLAG Mom Silenced for Speaking Out
    (local--library/employee)

        ``The day of the historic Lawrence v. Texas Supreme Court decision,
    PFLAG mom Bonnie Cuevas, an employee of the Topeka and Shawnee County
    Public Library in Kansas, received a few unsolicited phone calls at
    work from friends and reporters about the decision. The following day,
    after a story about the decision featuring comments by Cuevas appeared
    on the front page of USA Today, library supervisors told Cuevas she was
    never to talk about the Lawrence decision at work again. To justify the
    censorship, the library managers told Cuevas that a co-worker had
    complained that Cuevas was creating a `hostile work environment.' When
    Cuevas asked whether her talking with the press had been a concern, the
    managers told her it was not. PFLAG contacted the Project, which sent a
    letter to the library warning that it is a violation of the First
    Amendment to censor the speech of public employees about matters of
    public concern and demanded that the library lift its restrictions on
    Cuevas's speech. The library ultimately agreed to these demands and
    agreed that Cuevas was free to discuss the Lawrence decision at work.''
    ACLU, Annual Update 2004, at 39.

    MARYLAND

    Ancanfora v. Board of Education
    (local--board of education/teacher)

        491 F.2d 498 (4th Cir. 1974) (holding that a teacher could not be
    transferred to administrative position solely because he admitted in
    press interviews that he was gay). Hunter, et al., Government Employees
    46 n. 45.

    MICHIGAN

    Mack v. City of Detroit
    (local--city/police officer)

        ``A lesbian police officer was discriminated against because of her
    sexual orientation and sued the city of Detroit under Detroit's human
    rights ordinance. Detroit argued in court that it could not be sued in
    State court under its own local law. The case was appealed all the way
    to the Michigan Supreme Court, which agreed with the city. The court
    ruled that there is no right to sue in State court under a local civil
    rights law. The ACLU of Michigan filed a friend-of-the-court brief in
    support of the lesbian police officer's right to sue. ACLU attorneys
    Jay Kaplan and Mike Steinberg worked on the case with Saura Sahu of the
    Sugar Justice Center at the University of Michigan Law School.'' ACLU,
    Annual Update 2003, at 43-44.

    Substitute Teacher `Wrongful Discharge'
    (local--school district/substitute teacher)

        ``When a gay substitute teacher was terminated after telling
    students he was gay and had a partner, the ACLU of Michigan wrote a
    letter to the school district demanding that the teacher be reinstated.
    The school district invited him back.'' Docket: Discrimination, in
    ACLU, Annual Update 2004, at 39, 43.

    MINNESOTA

    McConnell v. Anderson
    (State--university/employee)

        451 F.2d 193, 196 (8th Cir. 1971) (University of Minnesota employee
    fired for attempting to secure license to marry his same-sex partner).
    Hunter, et al., Government Employees 46 n. 48.

    NEW MEXICO

    Bernalillo County Assessor--Retaliatory Discharge
    (local--county assessor's office/employee)

        ``The ACLU of New Mexico represents an employee of the Bernalillo
    County Assessor's office who was subjected to threatening comments by
    coworkers and other discriminatory work conditions related to his
    sexual orientation. In April 2005, the employee filed an internal
    complaint; in retaliation, the Assessor's office discharged him. The
    affiliate sent a demand letter seeking reinstatement of the employee
    and back pay.'' Docket: Discrimination, in ACLU, Annual Update 2006, at
    50, 54.

    NEW YORK

    Lovell v. Comsewogue School District
    (local--school district/teacher)

        ``Finally, in 2002, a Federal district court in New York ruled that
    a lesbian high school teacher who had sued school officials for failing
    to take measures to prevent students from harassing her based on her
    sexual orientation stated a valid equal protection claim.'' Hunter, et
    al., Government Employees 40 (citing Lovell v. Comsewogue Sch. Dist.,
    214 F. Supp. 2d 319 (E.D.N.Y. 2002). But cf. Schroeder v. Hamilton Sch.
    Dist., 282 F.3d 946 (7th Cir. 2002) (rejecting comparable claim), cert.
    denied, 123 S. Ct. 435 (2002)). See Hunter, et al., Government
    Employees 45 n. 28.

    Quinn v. Nassau County Police Department
    (local--police department/police officer)

        ``[I]n Quinn v. Nassau County Police Department, a Federal district
    court in New York agreed with a gay police officer who alleged that the
    police department violated his constitutional right to equal protection
    when it looked the other way and allowed officers to harass and abuse
    him on the job. Although the police department insisted that it was
    legal to discriminate because of sexual orientation, the judge strongly
    disagreed: `[G]overnment action . . . cannot survive rational basis
    review when it is motivated by irrational fear and prejudice towards
    homosexuals.' '' Hunter, et al., Government Employees 41 (citing Quinn
    v. Nassau County Police Dep't, 53 F. Supp. 2d 347, 356, 357 (E.D.N.Y.
    1999)). See Hunter, et al., Government Employees 46 n. 36-37).

    OHIO

    Rowland v. Mad River Local School District
    (local--school district/guidance counselor)

        ``[A] Federal appeals court allowed an Ohio school system to fire a
    guidance counselor after she told a secretary and several other
    teachers that she was bisexual.'' Hunter, et al., Government Employees
    39 (citing Rowland v. Mad River Local Sch. Dist., 730 F.2d 444, 446
    (6th Cir. 1984), cert. denied 470 U.S. 1009 (1985) (``Justices Marshall
    and Brennan vigorously dissented from the decision of the Supreme Court
    not to hear Rowland's case, insisting that `discrimination against
    homosexuals or bisexuals based solely on their sexual preference raises
    significant constitutional questions under both prongs of our settled
    equal protection analysis.' 470 U.S. at 1014 (Brennan, J.,
    dissenting).''). See Hunter, et al., Government Employees 45 n. 21.

    Glover v. Williamsburg Local School District Board of Education
    (local--school district/teacher)

        ``In Glover v. Williamsburg Local School District Board of
    Education, decided in 1998, an Ohio Federal district court ordered that
    the school reinstate a gay teacher who had been fired because of
    `animus toward [the teacher] as a homosexual.' '' Hunter, et al.,
    Government Employees 39 (citing Glover v. Williamsburg Local Sch. Dist.
    Bd. of Educ., 20 F. Supp. 2d 1160 (S.D. Ohio 1998)). See Hunter, et
    al., Government Employees 45 n. 25.

    SOUTH CAROLINA

    Dawson v. State Law Enforcement Division
    (State--State law enforcement division/police officer)

        ``[I]n a 1992 case, a South Carolina police officer was fired for
    inappropriate sexual conduct with another man. The police officer had
    insisted that he was not homosexual and that the men had only been
    masturbating together in the same room. Nevertheless, the court ruled
    against him on the basis that, regardless of whether or not he was gay,
    the firing was permissible because the Supreme Court had held in Bowers
    v. Hardwick that there was no fundamental right of privacy to engage in
    homosexual sex.'' Hunter, et al., Government Employees 40-41 (citing
    Dawson v. State Law Enforcement Div., 1992 WL 208967 (D.S.C. 1992)).
    See Hunter, et al., Government Employees 46 n. 35.

    TEXAS

    Childers v. Dallas Police Department
    (local--city police department/prospective property room employee)

        ``The Dallas Police Department, in particular, has been the subject
    of repeated lawsuits. In 1981, the department refused to hire Steven
    Childers, an openly gay man, in its property room. When Childers sued,
    a Federal district court held that because many people openly despise
    and fear homosexuals, the police department could refuse to hire him.
    The court found, `There [were] also legitimate doubts about a
    homosexual's ability to gain the trust and respect of the personnel
    with whom he works.' '' Hunter, et al., Government Employees 41 (citing
    Childers v. Dallas Police Dep't, 513 F. Supp. 134, 147 (N.D. Tex.
    1981)). See Hunter, et al., Government Employees 46 n. 38-39). See also
    Esseks, at 9 (``a gay man was denied a non-officer job in a police
    department because of Texas's sodomy law'').

    City of Dallas v. England
    (local--city/police officers)

        ``The Texas Court of Appeals reversed course in 1993, however, by
    ruling that Dallas could not prevent lesbians and gay men from serving
    as police officers based solely on disapproval of their private,
    consensual sexual activities.'' Hunter, et al., Government Employees 41
    (citing City of Dallas v. England, 846 S.W.2d 957, 959 (Tex. Ct. App.
    1993)). See Hunter, et al., Government Employees 46 n. 40.

    Van Ooteghem v. Gray
    (local--county/employee)

        ``In 1980, a county employee in Texas was fired when he told his
    boss that he was gay and planned on speaking to the county commissioner
    about gay and lesbian civil rights. The Federal appeals court reviewing
    his case required that he be rehired because the county violated his
    First Amendment rights.'' Hunter, et al., Government Employees 42
    (citing Van Ooteghem v. Gray, 628 F.2d 488, 490 (5th Cir. 1980), aff'd
    en banc, 654 F.2d 304 (1981)). See Hunter, et al., Government Employees
    46 n. 45.

    UTAH

    Weaver v. Nebo School District
    (local--school district/teacher-coach)

        ``Also in 1998, a Federal court in Utah vindicated the rights of
    Wendy Weaver, a high school teacher who had lost her assignment as
    volleyball coach after the school learned that she was a lesbian. In a
    sweeping decision, the court held that the school district could not
    prevent the teacher from discussing her sexual orientation on the same
    terms that heterosexual teachers were permitted to do so. Nor could it
    prevent her from being out to students without violating her First
    Amendment rights. The court also held that bias against Weaver because
    she was a lesbian was not a rational reason to bar her from coaching
    the volleyball team.'' Hunter, et al., Government Employees 39-40
    (citing Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1979 (D. Utah 1998);
    see also Miller v. Weaver, 66 P.3d 592 (Utah 2003) (rejecting attempt
    by citizens groups to force State board of education to fire Weaver)).
    See Hunter, et al., Government Employees 45 n. 27.

    Citizens of Nebo School District v. Weaver

        ``In the latest chapter of an ongoing attempt to fire Wendy Weaver,
    a 23-year veteran teacher at Spanish Fork High School, because she is a
    lesbian, a group of parents is asking the State Supreme Court to strip
    the teacher of her teaching license. The parents claim that she should
    not be allowed to teach their children because she is a criminal for
    violating the State sodomy law. In 1998, the Nebo County School
    District barred Weaver from coaching a girls' volleyball team and
    required her to sign an order that prohibited her from discussing her
    sexual orientation in or outside of the classroom. With the ACLU's
    help, Weaver won a Federal court decision that said government
    employees cannot be singled out for disciplinary action because of
    their sexual orientation and that the prohibition on Weaver's ability
    to be out violated her free speech rights. Following the Federal court
    victory, the group of parents, Citizens of the Nebo School District for
    Morals and Legal Values, tried to get Weaver fired with a new case,
    this time in State court. In 1999, a State trial court judge threw out
    the key claims alleged by the group against Weaver, and the parents
    appealed to the Utah Supreme Court. The ACLU of Utah represents Weaver,
    claiming that the parents' lawsuit, if successful, would violate
    Weaver's free speech rights as well as her right to equal protection.
    Former ACLU of Utah Legal Director Stephen Clark will argue the case in
    October 2002. Cooperating attorney Richard Van Wagoner is assisting the
    ACLU of Utah with the case.'' ACLU, Annual Update 2003, at 59-60.
        ``After legal battle that dragged on for 5 years, the Supreme Court
    of Utah unanimously upheld the dismissal of a parents' group's claims
    that an openly lesbian teacher was unfit to be a role model and
    otherwise participate as a full citizen. The group had filed two
    lawsuits seeking to oust teacher Wendy Weaver. In 1998, Weaver was told
    by Nebo School District not to discuss her sexual orientation in or
    outside the classroom and was barred from teaching girls' volleyball. A
    Federal judge found that Weaver couldn't be singled out because of her
    sexual orientation and that the school violated her free speech rights.
    The parents then sued in State court, and the ACLU represented Weaver
    again. In Citizens of Nebo School District v. Weaver, the Supreme Court
    of Utah held that remedies already existed for rectifying any teacher
    misconduct, and that parents of students had no right to sue the school
    to enforce requirements of public employees.'' Docket: Discrimination,
    in ACLU, Annual Update 2004, at 39, 46-47.

    Etsitty v. Utah Transit Authority
    (State--transit authority/bus driver)

        ``The ACLU of Utah and the Project filed a friend-of-the-court
    brief in Federal appeals court on behalf of Krystal Etsitty, a former
    Utah Transit Authority bus driver who was fired shortly after she
    revealed to her employers that she is transgender. Her employers had
    received no complaints about her, yet they informed her that she was
    being fired because they could not determine which restroom she should
    use while on the job. Etsitty, who identifies and lives as a woman, has
    legally changed her name from Michael to Krystal, and has changed her
    Utah driver's license designation from male to female. The transit
    authority told her that she would be eligible for rehire only after
    undergoing sex reassignment surgery. Etsitty's lawyers argued in
    Federal court that she was protected by Title VII of the Civil Rights
    Act of 1964, which prohibits employment discrimination based on sex,
    including nonconformity to sex stereotypes. The trial court ruled
    against her, finding that titleVIl did not protect transgender
    individuals from discrimination. Etsitty v. Utah Transit Authority is
    still pending in the Federal appeals court.'' Transgender Docket, in
    ACLU, Annual Update 2007, at 52, 54.

    WASHINGTON

    Gaylord v. Tacoma Sch. District No. 10
    (local--school district/teacher)

        ``[T]he Supreme Court of Washington allowed a `known homosexual' to
    be fired from his teaching position at a high school in Tacoma in
    1977.'' Hunter, et al., Government Employees 39 (citing Gaylord v.
    Tacoma Sch. Dist. No. 10, 559 P.2d 1340 (Wash. 1977) (en banc). See
    Hunter, et al., Government Employees 45 n. 22. See also Esseks, at 9
    (``a teacher in Washington State was fired because the State's criminal
    intimacy law made him `immoral' and therefore unemployable'').

    Davis v. Pullman Memorial Hospital
    (State--public hospital/sonographer)

        ``Mary Jo Davis experienced constant harassment during her job as a
    sonographer at Pullman Memorial Hospital, a public institution. Her
    boss, Dr. Charles Guess, regularly referred to Davis as a ``fucking
    dyke'' and a ``fucking faggot.'' At one point, Guess told another
    doctor, ``I don't think that fucking faggot should be doing vaginal
    exams, and I'm not working with her.'' When Davis complained, the
    hospital punished her rather than discipline Guess. They reduced her
    work hours to three quarters time so Guess would not have to work with
    her. Later, Davis was fired. The ACLU got involved in the lawsuit
    against the hospital and Dr. Guess in 1996. The lower court dismissed
    the case, but a Washington State appeals court unanimously ruled that
    anti-gay discrimination against a public employee violates the U.S.
    Constitution. The homophobic doctor is appealing the case to the State
    supreme court, but the hospital has not yet said whether or not it will
    join the appeal. Project attorney Ken Choe and cooperating attorney
    Richard Reed are handling the case.'' ACLU, Annual Update 2003, at 61.
        ``The Project secured a hefty settlement for Mary Jo Davis, a
    former sonographer at Pullman Memorial Hospital in Pullman, Washington,
    who was fired because she is gay. Davis worked in the radiology
    department at the hospital for about 2 years, during which time she was
    routinely harassed by Dr. Charles Guess, the chief radiologist. Guess
    constantly referred to Davis as a ``fucking dyke'' and ``fucking
    faggot,'' and told another doctor, ``I don't think that fucking faggot
    should be doing vaginal exams, and I'm not working with her.'' When
    Davis complained, Guess told hospital administrators that he didn't
    ``agree with Mary Jo Davis's lesbian lifestyle.'' Rather than
    discipline Guess, the hospital punished Davis, reducing her work hours
    to three-quarters time so Guess wouldn't have to work with her.
    Finally, Davis was fired. After a loss in the trial court, the Project
    successfully appealed the case to the Washington Court of Appeals,
    helping to establish important law protecting lesbian and gay
    government employees from anti-gay discrimination. This was the first
    time that an appeals court interpreted the U.S. Constitution to protect
    government employees against anti-gay discrimination. Davis v. Pullman
    Memorial Hospital, which began in 1996, was finally settled this year
    with both the hospital and Dr. Guess agreeing to pay $75,000 in damages
    to Davis.'' Docket: Discrimination, in ACLU, Annual Update 2004, at 39,
    39-40.

    WISCONSIN

    Safransky v. State Personnel Board
    (State--State-run home/``houseparent'')

        ``[T]he Wisconsin Supreme Court allowed the administrators of a
    State-run home for mentally retarded boys to fire a gay man who had
    served as houseparent, on the ground that he failed to project `the
    orthodoxy of male heterosexuality.' '' Hunter, et al., Government
    Employees 39 (citing Safransky v. State Pers. Bd., 215 N.W.2d 379, 385
    (Wis. 1974)). See Hunter, et al., Government Employees 45 n. 23.
                                     ______

                                     BMC Software Inc.,
                                                 July 20, 2009.
    Hon. Edward Kennedy, Chairman,
    Senate Committee on Health, Education, Labor, and Pensions,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.
        Dear Senator Kennedy: As one of America's leading businesses, BMC
    SOFTWARE Inc. would like to express our strong support of Federal
    workplace non-discrimination legislation that would extend basic job
    protections to lesbian, gay, bisexual and transgender (LGBT) Americans.
        BMC SOFTWARE has implemented its own non-discrimination policy to
    make our workplace values of fairness clear and transparent to our
    5,800 employees. In the years since its implementation, the policy has
    been accepted broadly, and we believe it has affected our bottom line
    for the better. And it has further re-inforced for all of our employees
    that fairness and non-discrimination remain fundamental in our
    workplace.
        Enhancing our work environment to prohibit discrimination on the
    basis of sexual orientation and gender identity has not added any
    financial cost to our organization. Instead, we believe our philosophy
    and practice of valuing diversity bring financial benefits to the
    workplace by encouraging full and open participation by all employees.
        Businesses that drive away talented and capable employees are
    certain to lose their competitive edge, an outcome that we must not
    accept in this competitive global marketplace. That's why a majority of
    FORTUNE 500 companies have already addressed these issues. After a
    thorough analysis of its provisions, we are convinced that the
    Employment Non-Discrimination Act is an appropriate measure that will
    have a positive impact on our country's ability to compete by extending
    protection in the majority of U.S. States where it remains legal to
    fire employees because they are LGBT.
        In fact, the fairness and simplicity of this bill is one of its
    most compelling features. The bill does not mandate affirmative action
    or reporting requirements, and imposes no regulation. It does not
    compel employers to grant spousal benefits. The Employment Non-
    Discrimination Act merely embodies the principle of non-discrimination
    that already enjoys the wide support of the American people.
        It has been the law of the land that employment discrimination is
    unacceptable based on race, gender, religion, ethnic origin or other
    non-performance-related considerations. It is time to include sexual
    orientation and gender identity.
        BMC SOFTWARE strongly supports passage of the Employment Non-
    Discrimination Act. The principles it fosters are consistent with our
    corporate principles in treating all employees with fairness and
    respect. We encourage Congress to move quickly to enact this important
    legislation.
                Sincerely,
                                           Robert E. Beauchamp,
                                         CEO and Chairman of the Board.

              Business Coalition on Workplace Fairness,
                                              November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Senate Committee on Health, Education, Labor, and Pensions,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Hon. George Miller, Chairman,
    House Committee on Education and Labor,
    2181 Rayburn House Office Building,
    Washington, DC 20515.
        Dear Chairman Harkin and Chairman Miller: As members of the
    Business Coalition for Workplace Fairness, we represent America's
    leading businesses that have already adopted non-discrimination
    policies to protect our gay, lesbian, bisexual and transgender
    employees. We firmly believe that protecting employees from
    discrimination on the basis of sexual orientation and gender identity
    is consistent with good business practice regarding treatment of
    employees, clients, stakeholders, and the general public. For this
    reason, we wish to express our strong support for the Employment Non-
    Discrimination Act (S. 1584/H.R. 3017).
        To make our workplace values clear and transparent to our
    employees, customers and investors, each of our businesses have already
    implemented a non-discrimination policy which is inclusive of sexual
    orientation and gender identity. This policy has been accepted broadly
    and we believe it has positively affected our bottom-line. Our
    philosophy and practice of valuing diversity encourages full and open
    participation by all employees. By treating all employees with fairness
    and respect we have been able to recruit and retain the best and
    brightest workers, thereby bringing a multitude of diverse opinions and
    perspectives to our organizations.
        Federal non-discrimination protections for lesbian, gay, bisexual
    and transgender workers will benefit American business. Businesses that
    drive away talented and capable employees are certain to lose their
    competitive edge. Excluding any one of our Nation's employees from the
    basic right to work in a safe and welcoming environment will, in the
    end, impede our Nation's ability to compete in a global marketplace.
        Thank you for this opportunity to share our views with you.
                Sincerely,
     Accenture Ltd., New York, NY; Alberto-Culver Co., Melrose
    Park, IL; Ameriprise Financial Inc., Minneapolis, MN; Amgen
       Inc., Thousand Oaks, CA; AMR Corp. (American Airlines),
     Fort Worth, TX; Bank of America Corp., Charlotte, NC; The
      Bank of New York Mellon Corp., New York, NY; BASF Corp.,
     Florham Park, NJ; Bausch & Lomb Inc., Rochester, NY; Best
    Buy Co. Inc., Richfield, MN; Bingham McCutchen LLP, Boston,
      MA; BMC Software Inc., Houston, TX; Boehringer Ingelheim
        Pharmaceuticals Inc., Ridgefield, CT; BP America Inc.,
      Warrenville, IL; Bristol-Myers Squibb Co., New York, NY;
     Capital One Financial Corp., McLean, VA; Charles Schwab &
    Co., San Francisco, CA; Chevron Corp., San Ramon, CA; Chubb
          Corp., Warren, NJ; Cisco Systems Inc., San Jose, CA;
    Citigroup, New York, NY; Clear Channel Communications Inc.,
       San Antonio, TX; Clorox Co., Oakland, CA; The Coca-Cola
       Co., Atlanta, GA; Corning Inc., Corning, NY; Dell Inc.,
    Round Rock, TX; Deloitte LLP, New York, NY; Deutsche Bank,
          New York, NY; Diageo North America, Norwalk, CT; Dow
      Chemical Co., Midland, MI; Eastman Kodak Co., Rochester,
       NY; Electronic Arts Inc., Redwood City, CA; Eli Lilly &
      Co., Indianapolis, IN; EMC Corp., Hopkinton, MA; Ernst &
         Young LLP, New York, NY; Gap Inc., San Francisco, CA;
    General Mills Inc., Minneapolis, MN; General Motors Corp.,
       Detroit, MI; GlaxoSmithKline, Philadelphia, PA; Goldman
    Sachs Group Inc., New York, NY; Google Inc., Mountain View,
              CA; Hanover Direct Inc., Weehawken, NJ; Harrah's
        Entertainment Inc., Las Vegas, NV; Herman Miller Inc.,
      Zeeland, MI; Hewlett-Packard Co., Palo Alto, CA; Hospira
          Inc., Lake Forest, IL; HSBC--North America, Prospect
    Heights, IL; Integrity Staffing Solutions Inc., Wilmington,
    DE; International Business Machines Corp., Armonk, NY; J.P.
          Morgan Chase & Co., New York, NY; Kaiser Permanente,
          Oakland, CA; KeyCorp, Cleveland, OH; Kimpton Hotel &
      Restaurant Group, San Francisco, CA; KPMG LLP, New York,
           NY; Levi Strauss & Co., San Francisco, CA; Marriott
           International Inc., Bethesda, MD; Merck & Co. Inc.,
    Whitehouse Station, NJ; Merrill Lynch & Co. Inc., New York,
    NY; Microsoft Corp., Redmond, WA; MillerCoors Brewing Co.,
     Chicago, IL; Morgan Stanley, New York, NY; Motorola Inc.,
          Schaumburg, IL; Nationwide, Columbus, OH; NCR Corp.,
       Dayton, OH; The Nielsen Co., Schaumburg, IL; Nike Inc.,
                     Beaverton, OR; Pfizer Inc., New York, NY;
    PricewaterhouseCoopers LLP, NewYork, NY; QUALCOMM Inc., San
           Diego, CA; RBC Dain Rauscher Inc., Minneapolis, MN;
    Replacements Ltd., McLeansville, NC; Robins, Kaplan, Miller
    & Ciresi LLP, Minneapolis, MN; Sun Microsystems Inc., Santa
         Clara, CA; SUPERVALU Inc., Eden Prairie, MN; Teachers
         Insurance and Annuity Association--College Retirement
          Equities Fund, New York, NY; Texas Instruments Inc.,
         Dallas, TX; Time Warner Inc., New York, NY; Travelers
      Companies Inc., St. Paul, MN; Xerox Corp., Stamford, CT;
                                and Yahoo! Inc., Sunnyvale, CA.
                                     ______

              Center for American Progress Action Fund,
                                          Washington, DC 20005,
                                                      November 2, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    731 Hart Senate Office Building,
    Washington, DC 20510.

    Hon. Michael B. Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    379A Russell Senate Office Building,
    Washington, DC 20510.

    Re: Employment Non-Discrimination Act of 2009, S. 1584

        Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
    Center for American Progress Action Fund, I write to express strong
    support for S. 1584, the ``Employment Non-Discrimination Act of 2009''
    (ENDA). ENDA will provide important and needed protections against
    workplace discrimination based on a person's real or perceived sexual
    orientation or gender identity. For too long, members of our Nation's
    workforce have lived with the fear that their sexual orientation or
    gender identity, rather than their job performance, would decide their
    employment fate. ENDA will significantly ease these fears and also
    provide a strong legal remedy to any such instances of employment
    discrimination.
        A person's job is critical to his or her well-being. Most Americans
    rely on their jobs to support themselves and their families, and to
    access healthcare coverage and other benefits. Further, people make
    large psychic investments in their jobs and workplaces and many spend
    most of their days working. It is important that people not live a
    large part of their lives in constant fear of being fired or harassed
    or not being promoted or hired simply because of their real or
    perceived sexual orientation or gender identity. ENDA will put
    employers on notice that such behavior will not be tolerated and could
    come with financial costs if they do not treat all employees fairly.
        Data and experience show that ENDA is needed. For example, Lambda
    Legal reports that most calls to its Help Desk are related to
    employment discrimination, receiving about 1,000 calls each year from
    2004 to 2007 about instances of sexual orientation or gender identity
    workplace bias. The organization also found that in 2005, 39 percent of
    lesbians and gay men reported some form of workplace harassment or
    discrimination in the previous 5 years. Other research shows that
    transgender workers likely face even higher instances of
    discrimination.
        Given that people are likely to not report cases of sexual
    orientation or gender identity discrimination or harassment (for fear
    of ``outing'' themselves), we can say with confidence that this problem
    impacts many thousands of Americans and disrupts countless lives each
    year. Congress should act expeditiously to pass ENDA and help stop
    these disruptive, unfair, and detrimental practices.
        We note that State governments have made rapid progress in
    providing sexual orientation and gender identity employment protections
    to workers in their States. Currently, 21 States offer sexual
    orientation protections and 12 cover gender identity discrimination,
    respectively covering 44 percent and 29 percent of the U.S. population.
    These numbers are up drastically from just 10 years ago, when only 24
    percent of the population was covered under sexual orientation laws and
    2 percent under gender identity laws. Although we applaud this
    progress, most of the States currently lacking these laws are not
    likely to pass them anytime soon. It is up to the U.S. Congress to put
    all workers on equal footing.
        Many of the Nation's leading corporations understand the importance
    of these non-discrimination policies, not just because they are the
    right thing to do, but because they also make good business sense,
    ensuring a more stable and productive workforce. The Human Rights
    Campaign, for example, reports that 423 of Fortune 500 companies (85
    percent) have non-discrimination policies that include sexual
    orientation, while 175 (35 percent) include gender identity protection.
        Beyond the specific legal remedies that ENDA will provide workers
    who have been wrongly discriminated against, Congress's support of this
    bill will send a strong signal that in American workplaces, people are
    judged based on their skills, abilities, and accomplishments. Treating
    all workers fairly regardless of their real or perceived sexual
    orientation or gender identity is key to making sure this important
    value is upheld and put into practice.
        Given high rates of sexual orientation and gender identity
    harassment and discrimination in American workplaces, and the patchwork
    nature of existing State laws, I strongly urge you to support the
    Employment Non-Discrimination Act of 2009. Please contact me if I can
    be of assistance as you consider this legislation.
                Respectfully,
                                            Winnie Stachelberg,
                            Senior Vice President for External Affairs.
                                     ______

                     The Commonwealth Of Massachusetts,
                        Office Of The Attorney General,
                                   Boston, Massachusetts 02108,
                                                      November 9, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    428 Senate Dirksen Office Building,
    Washington, DC 20510.

    Hon. Michael B. Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    379A Senate Russell Office Building,
    Washington, DC 20510.

    Re: S. 1584, The Employment Non-Discrimination Act of 2009

        Dear Chairman Harkin and Senator Enzi: I am writing to you to state
    my strong support for Senate 1584, the Employment Non-Discrimination
    Act of 2009 (``ENDA''). This legislation expands the protections
    granted under Federal civil rights laws to ensure that workplace
    discrimination on the basis of sexual orientation and gender identity
    is expressly and uniformly prohibited nationwide. The amendments to our
    Federal antidiscrimination laws contemplated by ENDA represent great
    strides forward in our prevention of discrimination and violence faced
    by vulnerable members of our population.
        Our workforce is stronger when every person may work and contribute
    without being discriminated against, harassed, threatened or assaulted.
    The protections that are expanded under ENDA are intended to ensure
    that workplaces are safe, productive environments where all individuals
    may work and earn a living, free from fear of mistreatment on the basis
    of characteristics unique to them.
        Moreover, the expansion of employment antidiscrimination
    protections benefits not only workers who fall into the proposed
    protected classes, but also their co-workers and their employers. More
    than 150 Fortune 500 companies nationwide realize this and have adopted
    policies protecting their workers from discrimination on the basis of
    sexual orientation or gender identity. The reason: it just makes good
    business sense. Companies with expansive antidiscrimination policies
    are in a position to attract and retain the most qualified people; save
    money on retraining; and motivate their workforces to maximize
    productivity. When discrimination is taken off the table as a barrier
    to success, workers and companies are in a better position to thrive.
        As Massachusetts' Attorney General, I am committed to protecting
    the civil rights of all individuals who live in, work in and visit our
    Commonwealth. I am proud that Massachusetts is one of 13 States and the
    District of Columbia to protect individuals on the basis of sexual
    orientation. In addition, the Massachusetts Legislature is currently
    contemplating the addition of gender identity as a protected class
    within our antidiscrimination and hate crime laws. However, waiting for
    States to amend their laws means only a patchwork of protection is
    available. Individuals who face discrimination and harassment on the
    basis of sexual orientation and gender identity deserve more than
    piecemeal protections. The Employment Non-Discrimination Act of 2009
    has the potential to improve the lives of individuals in every State,
    and I hope that it is passed. Thank you for the opportunity to submit
    these comments. Please do not hesitate to contact me with any questions
    or to discuss this matter further.
                Cordially,
                                                Martha Coakley,
                                        Massachusetts Attorney General.
                                     ______

               Export-Import Bank of the United States,
                                                August 5, 2009.
    Hon. Jeff Merkley,
    107 Russell Senate Office Building,
    Washington, DC 20510.

        Dear Senator Merkley: I am pleased to inform you that during the
    month of May and June, the Export-Import Bank of the United States (Ex-
    Im Bank) supported 10 companies with total exports of $9,388,160.00 in
    your State. The attached list provides details of Ex-Im's financing.
        In these difficult economic times, our job at Ex-Irn is to help
    sustain and increase U.S. jobs--these exports do exactly that. We are
    committed to working with U.S. exporters and ensuring that they have
    the necessary financing to help our economy grow.
        At any time we can be of help please feel free to call me at (202)
    565-3500.
        Thank you for your strong work on ENDA.
                Sincerely,
                                              Fred P. Hochberg.

                                 Companies Receiving Ex-Im Bank Support in May/June 2009
    ----------------------------------------------------------------------------------------------------------------

    ----------------------------------------------------------------------------------------------------------------
    Oregro Seeds, Inc......................  Albany....................      $239,816.00  Small Business
    Stahlbush Island Farms, Inc............  Corvallis.................       $30,000.00  Small Business
    Advanced Relay Corp....................  Eugene....................       $33,870.00  Small Business
    Superior Tape & Label, Inc.............  Gresham...................       $36,284.00  Small Business
    Phoseon Technology, Inc................  Hillsboro.................    $3,000,000.00
    Meco Environmental, LLC................  Portland..................    $5,000,000.00
    Rogers Machinery Company, Inc..........  Portland..................      $190,813.00
    Turf Merchants, Inc....................  Tangent...................      $333,697.00  Small Business
    Wadeco, Inc............................  Tualatin..................       $78,409.00  Small Business
    Warm Springs Composite Product.........  Warm Springs..............      $445,271.00  Small Business
    ----------------------------------------------------------------------------------------------------------------

                                     ______

            Gay & Lesbian Advocates & Defenders (GLAD),
                                                    Boston, MA,
                                                      November 2, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    731 Hart Senate Office Building,
    Washington, DC 20510.

    Hon. Mike Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    379A Senate Russell Office Building,
    Washington, DC 20510.
        Dear Chairman Harkin and Ranking Member Enzi: I am the Executive
    Director of Gay & Lesbian Advocates & Defenders (GLAD). GLAD is New
    England's leading legal rights organization dedicated to ending
    discrimination on the basis of sexual orientation, HIV status, and
    gender identity and expression. Since 1978, GLAD has engaged in legal
    advocacy representing individuals throughout the six New England States
    who have faced discrimination in a broad range of contexts including in
    State and private employment. GLAD's geographic focus includes
    Massachusetts, Connecticut, Rhode Island, Maine, Vermont, and New
    Hampshire.
        As part of the organization's public education efforts, GLAD also
    staffs a legal information helpline to provide information and legal
    referrals to persons facing discrimination. Since 1995, GLAD has
    received nearly 16,000 inquiries reflecting some matter of lesbian,
    gay, bisexual, or transgender concern. Of those calls, between 10
    percent-11 percent focused on some employment-related matter.
        Both through our public presence as the longest established legal
    advocacy organization in our region and through the legal information
    helpline, GLAD has received scores of reports of discrimination faced
    by public employees in the workplace. The data received by GLAD through
    the legal helpline and other mechanisms demonstrates a widespread
    pattern of unconstitutional employment discrimination against lesbian,
    gay, bisexual and transgender employees.
        As the committee members are well aware, discrimination against
    State employees on the basis of their sexual orientation and gender
    identity violates guarantees of Equal Protection and Due Process and
    can also, depending on the facts, violate an employee's expressive
    rights protected by the First Amendment. Neither an employee's sexual
    orientation nor his/her gender identity or expression bears any
    relationship to a person's ability to do the job. Therefore, an
    employer's reliance on these characteristics to make any job-related
    decisions must not be based on rational decisionmaking.
        GLAD supports the passage of the Employment Non-Discrimination Act
    that would add the categories of sexual orientation and gender identity
    to our Nation's employment antidiscrimination laws. Moreover, based on
    the reported incidents of discrimination, GLAD strenuously believes
    that the law must extend to State employees and can do so
    constitutionally given the widespread and pervasive discrimination that
    has existed historically and that yet currently exists.
        Since 2000, GLAD has received over 50 reports of employment
    discrimination by State employees. This number is particularly notable
    given that the States where these reported incidents occurred already
    have statewide non-discrimination protections for sexual orientation.
    Only 3 of those States currently have protections against
    discrimination on the basis of gender identity (Vermont, Rhode Island,
    and Maine). I have attached a compilation of these reported incidents
    that provides detailed, alleged facts about the reported incidents as
    well as the State and government agency that employed the individual.
        The complaints of discrimination received by GLAD vary in type but
    range from outright adverse employment decisions because of an
    employee's sexual orientation or gender identity to harassment by
    supervisors to harassment by co-workers which many times remains
    unaddressed by superiors despite multiple incidents of reporting by the
    victim.
        The following reflects a small sample of the calls we have
    received. A caller reported that she was one of seven lesbians
    terminated by a State social service agency. Another reported that she
    was one of two lesbian public school teachers whose contract was not
    renewed because of the principal's difference with her (and the other
    teacher's) ``philosophies.'' In one case that received a fair bit of
    public attention, GLAD represented a transgender police officer in
    Vermont who was run off the force by supervisors and coworkers after
    they learned (from an intense search) that he was transgender. On
    several occasions, he was given faulty equipment, inaccurate
    directions, and denied training opportunities without explanation. The
    officer had been a highly decorated police officer in another State
    before moving to Vermont and joining a local police force. He was
    eventually told by the town's former police chief that the reason for
    the discriminatory treatment was the fact of his being transgender.
        I have no doubt that this compilation represents just a fraction of
    the incidents of discrimination that State employees face in the six
    New England States in which GLAD focuses its advocacy. This
    underreporting exists for numerous reasons including the risks that
    employees take in bringing a complaint which would necessarily disclose
    the person's sexual orientation and/or gender identity to an even
    broader range of co-workers and decisionmakers. In addition, even when
    employees are willing to expose themselves to such risk, they often
    face hostile or uninformed State agencies and courts.
        For example, an openly gay staff member at a Massachusetts State
    agency was repeatedly harassed by one of his co-workers. The co-worker
    posted and distributed anti-gay news articles and made anti-gay remarks
    in front of the gay employee. The gay staff member complained to his
    supervisor about the harassment. The supervisor took no steps to
    address the offending conduct. In a similar type of case, a gay janitor
    in a Massachusetts public school district faced severe and repeated
    harassment including a physical assault that was captured on videotape.
    Despite complaints filed by the employee, the school district took no
    steps to terminate the harassment. In yet another case, a gay public
    school teacher reported multiple incidents of harassment, including
    being called ``faggot,'' and having his e-mail address posted to lewd
    Web sites, to school administrators. Shortly after reporting the
    harassment, the school superintendent told the teacher that his
    position was being restructured and he was being terminated.
        The absence of explicit Federal protections and remedies seriously
    impacts the willingness of employees to pursue available remedies and
    results in widespread underreporting of incidents of workplace
    discrimination.
        For all of the reasons stated above, GLAD urges support and passage
    of ENDA. The need for explicit protections for lesbian, gay, bisexual,
    and transgender employees under Federal law is great, particularly in
    these challenging economic times. Based on the calls and contacts GLAD
    receives, it is apparent that employment discrimination is widespread
    and rampant and needs to be addressed by clear statutory prohibitions
    and remedies to ensure appropriate enforcement,
                Sincerely,
                                                   Lee Swislow,
                                                    Executive Director.

                            Calls to GLAD Regarding Cases of Public Employment Discrimination
    ----------------------------------------------------------------------------------------------------------------
                                      State or Local
                 State                  Government          Employer       Year      Occupation          Summary
                                        Employer?
    ----------------------------------------------------------------------------------------------------------------
    CT............................  Local............  Public School....    2009  Teacher.........  A Connecticut
                                                                                                     public school
                                                                                                     teacher with
                                                                                                     excellent
                                                                                                     evaluations was
                                                                                                     dismissed
                                                                                                     shortly after
                                                                                                     mentioning in
                                                                                                     class when
                                                                                                     Connecticut
                                                                                                     began to allow
                                                                                                     same-sex
                                                                                                     couples to
                                                                                                     marry that
                                                                                                     Spain also
                                                                                                     allowed this.
                                                                                                     Although the
                                                                                                     school said the
                                                                                                     dismissal was
                                                                                                     based on poor
                                                                                                     performance,
                                                                                                     the teacher
                                                                                                     felt it was
                                                                                                     sexual
                                                                                                     orientation
                                                                                                     discrimination.
                                                                                                     The teacher
                                                                                                     filed a
                                                                                                     complaint with
                                                                                                     the Connecticut
                                                                                                     Commission of
                                                                                                     Human Rights &
                                                                                                     Opportunities.
    CT............................  State............  State of             2008  Staff...........  The employee has
                                                        Connecticut.                                 worked for the
                                                                                                     State of
                                                                                                     Connecticut for
                                                                                                     just over 1
                                                                                                     year. During
                                                                                                     this time, the
                                                                                                     employee
                                                                                                     reports having
                                                                                                     experienced
                                                                                                     discrimination
                                                                                                     and harassment
                                                                                                     based upon
                                                                                                     sexual
                                                                                                     orientation.
                                                                                                     The employee
                                                                                                     filed a
                                                                                                     complaint, and
                                                                                                     based upon the
                                                                                                     investigation,
                                                                                                     the State of
                                                                                                     Connecticut
                                                                                                     Department of
                                                                                                     Developmental
                                                                                                     Services Equal
                                                                                                     Employment
                                                                                                     Opportunity
                                                                                                     Division has
                                                                                                     found
                                                                                                     sufficient
                                                                                                     evidence of
                                                                                                     harassment and
                                                                                                     discrimination
                                                                                                     to move
                                                                                                     forward.
    CT............................  Local............  School District..    2008  Teacher.........  A gay teacher in
                                                                                                     the Connecticut
                                                                                                     public schools
                                                                                                     was one of
                                                                                                     three gay
                                                                                                     teachers to be
                                                                                                     ``treated
                                                                                                     badly'' by her
                                                                                                     coworkers. She
                                                                                                     was singled out
                                                                                                     through
                                                                                                     selective
                                                                                                     enforcement of
                                                                                                     rules, such as
                                                                                                     taking down
                                                                                                     decorations in
                                                                                                     her classroom.
                                                                                                     The principal
                                                                                                     of the school
                                                                                                     told the
                                                                                                     teacher that
                                                                                                     she would only
                                                                                                     provide her
                                                                                                     with a letter
                                                                                                     of
                                                                                                     recommendation
                                                                                                     if she
                                                                                                     resigned.
    CT............................  Local............  Hartford Police      2003  Police Officer..  A transgender
                                                        Department.                                  woman, working
                                                                                                     as a police
                                                                                                     officer in
                                                                                                     Hartford,
                                                                                                     suffered
                                                                                                     harassment as a
                                                                                                     result of her
                                                                                                     gender
                                                                                                     identity. She
                                                                                                     was denied
                                                                                                     career
                                                                                                     advancement,
                                                                                                     despite being
                                                                                                     qualified. She
                                                                                                     approached her
                                                                                                     chief regarding
                                                                                                     the situation,
                                                                                                     but was
                                                                                                     ``brushed
                                                                                                     off.''
    CT............................  State............  Connecticut State    2008  Staff...........  A gay man,
                                                        Maintenance                                  working in the
                                                        Department.                                  Connecticut
                                                                                                     State
                                                                                                     Maintenance
                                                                                                     Department, was
                                                                                                     harassed by his
                                                                                                     coworkers for
                                                                                                     being gay. He
                                                                                                     was tied by his
                                                                                                     hands and feet
                                                                                                     and locked in a
                                                                                                     closet. He
                                                                                                     filed a
                                                                                                     complaint, and
                                                                                                     the department
                                                                                                     is looking into
                                                                                                     this incident
                                                                                                     as a hate
                                                                                                     crime. His
                                                                                                     assaulters were
                                                                                                     placed on
                                                                                                     administrative
                                                                                                     leave.
    CT............................  State............  Police Training      2008  Staff...........  A transgender
                                                        Academy.                                     woman working
                                                                                                     for a
                                                                                                     Connecticut
                                                                                                     Police Training
                                                                                                     Academy was
                                                                                                     interrogated by
                                                                                                     her supervisor.
                                                                                                     He called her
                                                                                                     into a dorm
                                                                                                     room, laid down
                                                                                                     on a bed, and
                                                                                                     then asked her
                                                                                                     personal
                                                                                                     questions about
                                                                                                     her family,
                                                                                                     their approval,
                                                                                                     and what she
                                                                                                     does in her
                                                                                                     free time. This
                                                                                                     lasted for more
                                                                                                     than 2 hours.
                                                                                                     At a later
                                                                                                     date, her
                                                                                                     supervisor
                                                                                                     cited her for
                                                                                                     taking too long
                                                                                                     to change
                                                                                                     ceiling tiles
                                                                                                     and stripping
                                                                                                     the floors,
                                                                                                     despite having
                                                                                                     accomplished
                                                                                                     the task and
                                                                                                     receiving
                                                                                                     praise from
                                                                                                     others for
                                                                                                     doing a good
                                                                                                     job. She was
                                                                                                     also instructed
                                                                                                     to use the
                                                                                                     men's restroom.
                                                                                                     She filed a
                                                                                                     complaint, in
                                                                                                     which she
                                                                                                     disclosed her
                                                                                                     status as
                                                                                                     transgender.
                                                                                                     She noted that
                                                                                                     she felt afraid
                                                                                                     to be alone
                                                                                                     with her
                                                                                                     supervisor.
                                                                                                     After
                                                                                                     submitting this
                                                                                                     complaint, she
                                                                                                     was fired.
    CT............................  State............  Connecticut State    2008  Staff...........  While working
                                                        Department of                                for 16 years in
                                                        Developmental                                the State of
                                                        Disabilities.                                Connecticut
                                                                                                     Department of
                                                                                                     Developmental
                                                                                                     Disabilities, a
                                                                                                     gay man
                                                                                                     reported
                                                                                                     several
                                                                                                     incidents of
                                                                                                     harassment and
                                                                                                     discrimination
                                                                                                     based upon his
                                                                                                     sexual
                                                                                                     orientation. In
                                                                                                     1996, he was
                                                                                                     given a
                                                                                                     promotion. Upon
                                                                                                     telling his new
                                                                                                     Program
                                                                                                     Supervisor that
                                                                                                     he was gay, he
                                                                                                     was immediately
                                                                                                     notified that
                                                                                                     the promotion
                                                                                                     was going to be
                                                                                                     given to
                                                                                                     another staff
                                                                                                     person instead.
                                                                                                     The same day as
                                                                                                     placing a
                                                                                                     rainbow sticker
                                                                                                     on his car, the
                                                                                                     employee
                                                                                                     overheard many
                                                                                                     inappropriate
                                                                                                     comments about
                                                                                                     his sexual
                                                                                                     orientation,
                                                                                                     such as ``They
                                                                                                     put those on
                                                                                                     their cars so
                                                                                                     they can spot
                                                                                                     each other to
                                                                                                     have sex.'' In
                                                                                                     2007, the
                                                                                                     employee was
                                                                                                     promoted and
                                                                                                     moved to a new
                                                                                                     group home. As
                                                                                                     part of his job
                                                                                                     responsibilitie
                                                                                                     s, the employee
                                                                                                     was asked to
                                                                                                     shave a total
                                                                                                     care client.
                                                                                                     However, he was
                                                                                                     told that it
                                                                                                     was
                                                                                                     inappropriate
                                                                                                     for him to
                                                                                                     shave another
                                                                                                     male client
                                                                                                     because he was
                                                                                                     gay, and that
                                                                                                     if he were to
                                                                                                     do that, he
                                                                                                     would be turned
                                                                                                     in for abuse.
                                                                                                     Other staff
                                                                                                     members, who
                                                                                                     are
                                                                                                     heterosexual,
                                                                                                     were not
                                                                                                     prohibited from
                                                                                                     shaving clients
                                                                                                     of a different-
                                                                                                     sex. The
                                                                                                     employee feels
                                                                                                     ``totally
                                                                                                     isolated and
                                                                                                     helpless'' and
                                                                                                     is having
                                                                                                     trouble
                                                                                                     sleeping as a
                                                                                                     result of this
                                                                                                     work
                                                                                                     environment.
                                                                                                     His attempts to
                                                                                                     work with
                                                                                                     supervisors and
                                                                                                     human resource
                                                                                                     personnel have
                                                                                                     resulted in no
                                                                                                     difference in
                                                                                                     climate, and I
                                                                                                     was told to
                                                                                                     ``keep my
                                                                                                     personal
                                                                                                     business to
                                                                                                     myself.''
    MA............................  Local............  Public School....    2007  Teacher.........  A public school
                                                                                                     teacher
                                                                                                     reported
                                                                                                     homophobic
                                                                                                     graffiti and
                                                                                                     harassment to
                                                                                                     her supervisor
                                                                                                     and then was
                                                                                                     harassed and
                                                                                                     terminated by
                                                                                                     the supervisor.
    MA............................  Local............  Public School....    2009  Teacher.........  A public school
                                                                                                     teacher has
                                                                                                     been suspended
                                                                                                     four times
                                                                                                     since 2003, and
                                                                                                     she feels that
                                                                                                     the reason is
                                                                                                     that she is the
                                                                                                     only out
                                                                                                     teacher in the
                                                                                                     district.
    MA............................  State............  State University.    2009  Staff...........  A worker who has
                                                                                                     worked at a
                                                                                                     State
                                                                                                     university for
                                                                                                     26 years has
                                                                                                     been isolated
                                                                                                     from his fellow
                                                                                                     workers and he
                                                                                                     feels that his
                                                                                                     requests to
                                                                                                     remedy this
                                                                                                     have not been
                                                                                                     addressed
                                                                                                     because he is
                                                                                                     gay.
    MA............................  State............  State University.    2008  Professor.......  A mathematics
                                                                                                     professor at a
                                                                                                     Massachusetts
                                                                                                     State
                                                                                                     university
                                                                                                     reported that
                                                                                                     he and his
                                                                                                     husband, also a
                                                                                                     mathematics
                                                                                                     professor, were
                                                                                                     discriminated
                                                                                                     against based
                                                                                                     upon their
                                                                                                     sexual
                                                                                                     orientation.
                                                                                                     Both the caller
                                                                                                     and his spouse
                                                                                                     were chosen to
                                                                                                     serve on a
                                                                                                     search
                                                                                                     committee for a
                                                                                                     new faculty
                                                                                                     member. They
                                                                                                     were notified,
                                                                                                     however, that
                                                                                                     one of them
                                                                                                     would need to
                                                                                                     step down
                                                                                                     because there
                                                                                                     was a
                                                                                                     university
                                                                                                     policy that
                                                                                                     family members
                                                                                                     could not serve
                                                                                                     together on a
                                                                                                     search
                                                                                                     committee. The
                                                                                                     caller was not
                                                                                                     able to find
                                                                                                     any such
                                                                                                     policy, and he
                                                                                                     believes that
                                                                                                     he and his
                                                                                                     husband are
                                                                                                     being
                                                                                                     discriminated
                                                                                                     against based
                                                                                                     upon their
                                                                                                     sexual
                                                                                                     orientation.
    MA............................  State............  State Trial Court    2008  Staff...........  A married
                                                                                                     lesbian working
                                                                                                     for the
                                                                                                     Massachusetts
                                                                                                     State Trial
                                                                                                     Court reported
                                                                                                     that she was
                                                                                                     demoted and her
                                                                                                     pay was cut as
                                                                                                     a result of her
                                                                                                     recent marriage
                                                                                                     to a woman. The
                                                                                                     employee took
                                                                                                     time off of
                                                                                                     work for an
                                                                                                     illness with a
                                                                                                     doctor's note,
                                                                                                     but she was
                                                                                                     called by her
                                                                                                     union steward
                                                                                                     to notify her
                                                                                                     that she had
                                                                                                     been suspended
                                                                                                     and that
                                                                                                     proceedings
                                                                                                     were under way
                                                                                                     to fire her.
    MA............................  State............  Massachusetts        2007  Staff...........  A lesbian staff
                                                        Department of                                member with the
                                                        Transitional                                 Massachusetts
                                                        Assistance.                                  Department of
                                                                                                     Transitional
                                                                                                     Assistance has
                                                                                                     four times
                                                                                                     applied for a
                                                                                                     promotion and
                                                                                                     four times been
                                                                                                     denied, despite
                                                                                                     having obtained
                                                                                                     additional
                                                                                                     training. The
                                                                                                     employee has
                                                                                                     also received
                                                                                                     good
                                                                                                     evaluations and
                                                                                                     received the
                                                                                                     Governor's
                                                                                                     Award for
                                                                                                     Outstanding
                                                                                                     Performance.
                                                                                                     She believes
                                                                                                     that she has
                                                                                                     been denied
                                                                                                     advancement due
                                                                                                     to her sexual
                                                                                                     orientation.
                                                                                                     Another
                                                                                                     employee is
                                                                                                     currently suing
                                                                                                     the department
                                                                                                     for
                                                                                                     discrimination
                                                                                                     based upon
                                                                                                     sexual
                                                                                                     orientation as
                                                                                                     well. The
                                                                                                     employee has
                                                                                                     filed paperwork
                                                                                                     to start the
                                                                                                     complaint
                                                                                                     process.
    MA............................  State............  Massachusetts        2004  Staff...........  An openly gay
                                                        Department of                                staff member at
                                                        Revenue.                                     the
                                                                                                     Massachusetts
                                                                                                     Department of
                                                                                                     Revenue was
                                                                                                     harassed by one
                                                                                                     of his co-
                                                                                                     workers. This
                                                                                                     co-worker
                                                                                                     posted and
                                                                                                     distributed
                                                                                                     anti-gay news
                                                                                                     articles and
                                                                                                     made anti-gay
                                                                                                     remarks. The
                                                                                                     gay staff
                                                                                                     member
                                                                                                     complained to
                                                                                                     his supervisor
                                                                                                     about the
                                                                                                     harassment, but
                                                                                                     his supervisor
                                                                                                     has taken no
                                                                                                     steps to stop
                                                                                                     the harassment.
    MA............................  State............  Massachusetts        2003  Direct Care       A lesbian direct
                                                        Department of              Worker.           care worker for
                                                        Social Services.                             the
                                                                                                     Massachusetts
                                                                                                     Department of
                                                                                                     Social Services
                                                                                                     reported that
                                                                                                     she was one of
                                                                                                     seven lesbians
                                                                                                     fired at the
                                                                                                     same time. The
                                                                                                     employee filed
                                                                                                     a complaint
                                                                                                     with the
                                                                                                     Massachusetts
                                                                                                     Commission
                                                                                                     Against
                                                                                                     Discrimination.
    MA............................  Local............  School District..    2003  Janitor.........  A gay janitor in
                                                                                                     a Massachusetts
                                                                                                     public school
                                                                                                     district
                                                                                                     experienced
                                                                                                     regular
                                                                                                     harassment by
                                                                                                     his coworkers.
                                                                                                     He reported
                                                                                                     that his
                                                                                                     coworkers drank
                                                                                                     on the job and
                                                                                                     then threatened
                                                                                                     him physically.
                                                                                                     One coworker
                                                                                                     pushed him.
                                                                                                     This incident
                                                                                                     was caught on
                                                                                                     video, but the
                                                                                                     school district
                                                                                                     now claims that
                                                                                                     they can't
                                                                                                     locate the
                                                                                                     tape. Another
                                                                                                     coworker called
                                                                                                     the janitor a
                                                                                                     ``faggot.'' He
                                                                                                     has started
                                                                                                     having panic
                                                                                                     attacks as a
                                                                                                     result of the
                                                                                                     harassment and
                                                                                                     is currently on
                                                                                                     leave from
                                                                                                     work. He filed
                                                                                                     a complaint
                                                                                                     with the school
                                                                                                     district and
                                                                                                     his union, but
                                                                                                     neither have
                                                                                                     taken steps to
                                                                                                     stop the
                                                                                                     harassment.
    MA............................  Local............  School District..    2003  Teacher.........  A gay teacher
                                                                                                     working in a
                                                                                                     Massachusetts
                                                                                                     public school
                                                                                                     was forced to
                                                                                                     resign because
                                                                                                     of his sexual
                                                                                                     orientation. He
                                                                                                     was the target
                                                                                                     of several anti-
                                                                                                     gay remarks and
                                                                                                     vandalism.
                                                                                                     Someone keyed
                                                                                                     ``Gay Faggot''
                                                                                                     into the paint
                                                                                                     of his car. The
                                                                                                     teacher brought
                                                                                                     these incidents
                                                                                                     to the
                                                                                                     attention of
                                                                                                     the school
                                                                                                     administration,
                                                                                                     which did
                                                                                                     nothing. The
                                                                                                     union
                                                                                                     representing
                                                                                                     the teacher was
                                                                                                     also made aware
                                                                                                     of these
                                                                                                     incidents but
                                                                                                     did nothing.
                                                                                                     Even after
                                                                                                     leaving his
                                                                                                     job, the
                                                                                                     teacher
                                                                                                     continues to
                                                                                                     receive
                                                                                                     harassing phone
                                                                                                     calls.
    MA............................  Local............  School District..    2004  Teacher.........  A lesbian
                                                                                                     teacher working
                                                                                                     in a
                                                                                                     Massachusetts
                                                                                                     public school
                                                                                                     reported that
                                                                                                     her contract
                                                                                                     was not
                                                                                                     renewed. The
                                                                                                     other lesbian
                                                                                                     teacher working
                                                                                                     at the school
                                                                                                     also did not
                                                                                                     have her
                                                                                                     contract
                                                                                                     renewed. When
                                                                                                     approached, the
                                                                                                     principal said
                                                                                                     that there were
                                                                                                     ``differences
                                                                                                     in
                                                                                                     philosophies''
                                                                                                     and
                                                                                                     ``overarching
                                                                                                     differences.''
                                                                                                     The teacher
                                                                                                     also claimed
                                                                                                     that several
                                                                                                     teachers had
                                                                                                     tried to start
                                                                                                     a gay-straight
                                                                                                     alliance at the
                                                                                                     school and had
                                                                                                     wanted to put
                                                                                                     up ``safe
                                                                                                     zone''
                                                                                                     stickers, but
                                                                                                     they were told
                                                                                                     by the
                                                                                                     administration
                                                                                                     that they could
                                                                                                     not.
    MA............................  Local............  School District..    2004  School            A gay school
                                                                                   Psychologist.     psychologist
                                                                                                     working in a
                                                                                                     Massachusetts
                                                                                                     public school
                                                                                                     reported that
                                                                                                     despite
                                                                                                     positive
                                                                                                     performance
                                                                                                     reviews, his
                                                                                                     responsibilitie
                                                                                                     s were
                                                                                                     restricted as a
                                                                                                     result of his
                                                                                                     being gay. His
                                                                                                     office was
                                                                                                     moved and he no
                                                                                                     longer has any
                                                                                                     interactions
                                                                                                     with students.
                                                                                                     Administrators
                                                                                                     at the school
                                                                                                     told the
                                                                                                     psychologist
                                                                                                     that he should
                                                                                                     not tell
                                                                                                     students he is
                                                                                                     gay nor should
                                                                                                     he say that he
                                                                                                     is married (to
                                                                                                     a man). The
                                                                                                     principal also
                                                                                                     asked everyone
                                                                                                     to disclose
                                                                                                     their sexual
                                                                                                     orientations
                                                                                                     during a staff
                                                                                                     meeting. His
                                                                                                     union
                                                                                                     representative
                                                                                                     did not take
                                                                                                     any action and
                                                                                                     advised the
                                                                                                     psychologist to
                                                                                                     not take any
                                                                                                     further steps
                                                                                                     to address
                                                                                                     these issues.
    MA............................  Local............  School District..    2005  Teacher.........  An openly gay
                                                                                                     English teacher
                                                                                                     reported that
                                                                                                     he had been
                                                                                                     harassed almost
                                                                                                     on a daily
                                                                                                     basis by a
                                                                                                     group of
                                                                                                     students at the
                                                                                                     high school
                                                                                                     where he
                                                                                                     teaches. The
                                                                                                     students have
                                                                                                     called him
                                                                                                     derogatory
                                                                                                     names, such as
                                                                                                     ``faggot,''
                                                                                                     left lewd
                                                                                                     notes,
                                                                                                     drawings, and
                                                                                                     pictures on his
                                                                                                     desk or
                                                                                                     bulletin board,
                                                                                                     and signed the
                                                                                                     teacher up for
                                                                                                     gay
                                                                                                     pornographic
                                                                                                     Web sites using
                                                                                                     his school e-
                                                                                                     mail address.
                                                                                                     The teacher
                                                                                                     complained to
                                                                                                     the principal,
                                                                                                     who indicated
                                                                                                     that she would
                                                                                                     ``handle it.''
                                                                                                     However, after
                                                                                                     she had not
                                                                                                     addressed these
                                                                                                     issues, the
                                                                                                     teacher then
                                                                                                     sent a letter
                                                                                                     to the District
                                                                                                     Superintendent.
                                                                                                     Shortly
                                                                                                     thereafter, the
                                                                                                     teacher was
                                                                                                     notified that
                                                                                                     his position
                                                                                                     had been
                                                                                                     changed and
                                                                                                     that he was
                                                                                                     being
                                                                                                     terminated. The
                                                                                                     Superintendent
                                                                                                     told the
                                                                                                     teacher that in
                                                                                                     exchange for a
                                                                                                     signed
                                                                                                     agreement to
                                                                                                     not continue
                                                                                                     with any
                                                                                                     harassment
                                                                                                     complaints, she
                                                                                                     would offer him
                                                                                                     3 weeks
                                                                                                     severance and
                                                                                                     allow him to
                                                                                                     collect
                                                                                                     unemployment
                                                                                                     benefits.
    MA............................  Local............  Boston Police        2005  Police Officer..  A Boston police
                                                        Department.                                  officer, who is
                                                                                                     a lesbian,
                                                                                                     overheard and
                                                                                                     has been the
                                                                                                     target of
                                                                                                     harassing
                                                                                                     comments and
                                                                                                     slurs. After
                                                                                                     verbally
                                                                                                     complaining to
                                                                                                     her supervisors
                                                                                                     about these
                                                                                                     comments, no
                                                                                                     action was
                                                                                                     taken.
    MA............................  Local............  County Sheriff       2005  Deputy Sheriff..  A Massachusetts
                                                        Department.                                  deputy sheriff,
                                                                                                     who is gay, has
                                                                                                     worked for more
                                                                                                     than 13 years
                                                                                                     in law
                                                                                                     enforcement.
                                                                                                     His coworkers
                                                                                                     began targeting
                                                                                                     him with
                                                                                                     ``usual locker
                                                                                                     room homo
                                                                                                     talk.'' He was
                                                                                                     then excluded
                                                                                                     from meetings
                                                                                                     and his
                                                                                                     responsibilitie
                                                                                                     s were slowly
                                                                                                     taken away
                                                                                                     until finally,
                                                                                                     he was
                                                                                                     transferred to
                                                                                                     an inferior,
                                                                                                     non-supervisory
                                                                                                     position. He
                                                                                                     was then
                                                                                                     terminated. He
                                                                                                     also reported
                                                                                                     that one other
                                                                                                     openly gay
                                                                                                     person, a
                                                                                                     lesbian, in the
                                                                                                     department was
                                                                                                     also forced out
                                                                                                     after her
                                                                                                     sexual
                                                                                                     orientation was
                                                                                                     disclosed. He
                                                                                                     reports that he
                                                                                                     was in
                                                                                                     settlement
                                                                                                     negotiations
                                                                                                     with the
                                                                                                     Sheriff
                                                                                                     Department, but
                                                                                                     those have
                                                                                                     broken down.
    MA............................  Local............  Town.............    2007  Clerk...........  A lesbian staff
                                                                                                     person working
                                                                                                     in a
                                                                                                     Massachusetts
                                                                                                     town's clerk
                                                                                                     office was
                                                                                                     fired after she
                                                                                                     and her partner
                                                                                                     filed a birth
                                                                                                     certificate,
                                                                                                     listing
                                                                                                     themselves as
                                                                                                     the parents of
                                                                                                     their child.
                                                                                                     She was made to
                                                                                                     feel
                                                                                                     incompetent and
                                                                                                     overworked,
                                                                                                     which resulted
                                                                                                     in her
                                                                                                     suffering a
                                                                                                     breakdown while
                                                                                                     at work. She
                                                                                                     was forced to
                                                                                                     sign a document
                                                                                                     indicating that
                                                                                                     she would not
                                                                                                     sue the town
                                                                                                     upon her
                                                                                                     termination.
    MA............................  Local............  County Sheriff       2007  Deputy Sheriff..  A Massachusetts
                                                        Department.                                  deputy sheriff,
                                                                                                     who is gay,
                                                                                                     experienced 2
                                                                                                     years of
                                                                                                     harassment by
                                                                                                     his chief. The
                                                                                                     chief
                                                                                                     threatened to
                                                                                                     suspend him if
                                                                                                     he continued
                                                                                                     ``to see two
                                                                                                     guys at one
                                                                                                     time'' because
                                                                                                     it looked bad
                                                                                                     for the
                                                                                                     department. The
                                                                                                     chief also
                                                                                                     outted him to
                                                                                                     his coworkers.
                                                                                                     Due to the
                                                                                                     harassment he
                                                                                                     suffered, the
                                                                                                     deputy sheriff
                                                                                                     suffered a mild
                                                                                                     heart attack,
                                                                                                     and was placed
                                                                                                     on sick leave.
                                                                                                     During this
                                                                                                     time, he was
                                                                                                     fired for
                                                                                                     abandonment of
                                                                                                     post.
    MA............................  Local............  City Government..    2000  Staff...........  A lesbian
                                                                                                     working for a
                                                                                                     city department
                                                                                                     for 16 years
                                                                                                     was harassed by
                                                                                                     one of her
                                                                                                     coworkers. He
                                                                                                     treated her
                                                                                                     differently
                                                                                                     than her
                                                                                                     coworkers and
                                                                                                     made comments,
                                                                                                     including ``You
                                                                                                     just want to
                                                                                                     give me a hard
                                                                                                     time; you want
                                                                                                     a man; you want
                                                                                                     the forbidden
                                                                                                     fruit.'' She
                                                                                                     filed a
                                                                                                     grievance with
                                                                                                     her union and
                                                                                                     with the
                                                                                                     Massachusetts
                                                                                                     Commission
                                                                                                     Against
                                                                                                     Discrimination.
    MA............................  Local............  Town.............    2008  Truck Driver....  A Massachusetts
                                                                                                     truck driver,
                                                                                                     working for a
                                                                                                     town,
                                                                                                     experienced
                                                                                                     harassment
                                                                                                     based upon her
                                                                                                     being a
                                                                                                     lesbian. People
                                                                                                     at work
                                                                                                     displayed
                                                                                                     pornographic
                                                                                                     images near her
                                                                                                     locker. She
                                                                                                     filed suit
                                                                                                     against the
                                                                                                     town for sexual
                                                                                                     orientation
                                                                                                     harassment and
                                                                                                     won at $2.1
                                                                                                     million
                                                                                                     lawsuit.
    MA............................  Local............  County Sheriff       2005  Nurse...........  A gay nurse
                                                        Department.                                  working for a
                                                                                                     Massachusetts
                                                                                                     Sheriff
                                                                                                     Department
                                                                                                     worked in a
                                                                                                     hostile work
                                                                                                     environment.
                                                                                                     His coworkers
                                                                                                     gave him a
                                                                                                     Christmas
                                                                                                     present, which
                                                                                                     included
                                                                                                     fishnet
                                                                                                     stockings and
                                                                                                     obscene gay sex
                                                                                                     cards. He was
                                                                                                     given a bag of
                                                                                                     peanuts by a
                                                                                                     coworker and
                                                                                                     told to ``Eat
                                                                                                     my nuts.'' When
                                                                                                     he complained,
                                                                                                     he was told
                                                                                                     that ``this was
                                                                                                     the way prisons
                                                                                                     work'' and that
                                                                                                     he shouldn't
                                                                                                     complain. He
                                                                                                     filed a
                                                                                                     complaint with
                                                                                                     the
                                                                                                     Massachusetts
                                                                                                     Commission
                                                                                                     Against
                                                                                                     Discrimination.
    MA............................  State............  Massachusetts        2002  Staff...........  A 16-year
                                                        Highway                                      veteran of the
                                                        Department.                                  Massachusetts
                                                                                                     Highway
                                                                                                     Department was
                                                                                                     harassed by his
                                                                                                     immediate
                                                                                                     supervisor, his
                                                                                                     boss, and
                                                                                                     several
                                                                                                     coworkers. They
                                                                                                     asked him
                                                                                                     several
                                                                                                     questions,
                                                                                                     including ``Are
                                                                                                     you gay?,''
                                                                                                     ``Do you swing
                                                                                                     both ways?,''
                                                                                                     and ``If a girl
                                                                                                     strapped on a
                                                                                                     dildo, would
                                                                                                     that get you
                                                                                                     excited?'' He
                                                                                                     was offered a
                                                                                                     lateral
                                                                                                     transfer,
                                                                                                     however the
                                                                                                     harassment
                                                                                                     continued. As a
                                                                                                     result of the
                                                                                                     harassment, he
                                                                                                     was diagnosed
                                                                                                     with high blood
                                                                                                     pressure. He
                                                                                                     feels that he
                                                                                                     can't file a
                                                                                                     complaint with
                                                                                                     the union
                                                                                                     because his
                                                                                                     steward is one
                                                                                                     of the
                                                                                                     harassers.
    MA............................  State............  Massachusetts        2005  Staff...........  While working at
                                                        Department of                                the
                                                        Social Services.                             Massachusetts
                                                                                                     Department of
                                                                                                     Social
                                                                                                     Services, a
                                                                                                     transgender man
                                                                                                     experienced
                                                                                                     discrimination
                                                                                                     in his
                                                                                                     workplace. He
                                                                                                     met with his
                                                                                                     superiors and a
                                                                                                     civil rights
                                                                                                     officer to
                                                                                                     assist in his
                                                                                                     transition
                                                                                                     (from female to
                                                                                                     male) while at
                                                                                                     work. Despite
                                                                                                     discussing a
                                                                                                     plan for his
                                                                                                     transition,
                                                                                                     such as
                                                                                                     training
                                                                                                     sessions with
                                                                                                     fellow
                                                                                                     employees and
                                                                                                     name changing--
                                                                                                     procedures, no
                                                                                                     action has been
                                                                                                     taken by his
                                                                                                     workplace. His
                                                                                                     request to
                                                                                                     formally change
                                                                                                     his name has
                                                                                                     been put on
                                                                                                     hold, and he
                                                                                                     was not invited
                                                                                                     to participate
                                                                                                     in weekly
                                                                                                     meetings.
    MA............................  State............  Massachusetts        2003  Tax Auditor.....  A gay man, who
                                                        Department of                                has worked for
                                                        Revenue.                                     the
                                                                                                     Massachusetts
                                                                                                     Department of
                                                                                                     Revenue for 19
                                                                                                     years, reported
                                                                                                     that he had
                                                                                                     been sexually
                                                                                                     harassed at
                                                                                                     work. A
                                                                                                     supervisor
                                                                                                     called him ``a
                                                                                                     loser'' and a
                                                                                                     ``f***ing
                                                                                                     faggot'' behind
                                                                                                     his back. After
                                                                                                     telling
                                                                                                     internal
                                                                                                     affairs that he
                                                                                                     did not wish to
                                                                                                     work in the
                                                                                                     same space as
                                                                                                     this particular
                                                                                                     supervisor, he
                                                                                                     was asked to
                                                                                                     move to another
                                                                                                     location. He
                                                                                                     filed a formal
                                                                                                     complaint with
                                                                                                     internal
                                                                                                     affairs.
    ME............................  State............  University of        2008  Staff...........  The employee, a
                                                        Maine, Augusta.                              black gay man,
                                                                                                     was called a
                                                                                                     ``fagball'' and
                                                                                                     ``niggerball''
                                                                                                     by his boss, as
                                                                                                     well as
                                                                                                     addressed in
                                                                                                     other demeaning
                                                                                                     ways. The
                                                                                                     employee filed
                                                                                                     a grievance
                                                                                                     with his
                                                                                                     supervisor, but
                                                                                                     is concerned
                                                                                                     that it was not
                                                                                                     followed up
                                                                                                     upon because
                                                                                                     the supervisor
                                                                                                     is friendly
                                                                                                     with his boss.
    ME............................  State............  Maine Department     2007    ..............  The employee, a
                                                        of Corrections.                              gay man, has
                                                                                                     worked for the
                                                                                                     Maine
                                                                                                     Department of
                                                                                                     Corrections for
                                                                                                     7 years. As a
                                                                                                     result of
                                                                                                     discrimination
                                                                                                     and harassment,
                                                                                                     the employee is
                                                                                                     on medical
                                                                                                     leave. The
                                                                                                     employee is
                                                                                                     currently under
                                                                                                     investigation,
                                                                                                     but his
                                                                                                     supervisors
                                                                                                     will not tell
                                                                                                     him what the
                                                                                                     cause of the
                                                                                                     investigations
                                                                                                     are. The
                                                                                                     employee
                                                                                                     reports that
                                                                                                     inmates treat
                                                                                                     him badly
                                                                                                     because of his
                                                                                                     perceived
                                                                                                     sexual
                                                                                                     orientation and
                                                                                                     that his
                                                                                                     supervisors do
                                                                                                     nothing to
                                                                                                     address this
                                                                                                     harassment. The
                                                                                                     employee filed
                                                                                                     a complaint
                                                                                                     with the Maine
                                                                                                     Human Rights
                                                                                                     Commission and
                                                                                                     was successful
                                                                                                     in his case.
    ME............................  Local............  Police Department    2002  Police Officer..  A gay man,
                                                                                                     working as a
                                                                                                     police officer
                                                                                                     in Maine, has
                                                                                                     been called a
                                                                                                     ``fudgepacker''
                                                                                                     and a
                                                                                                     ``faggot'' by
                                                                                                     his coworkers.
    ME............................  Local............  County Recycling.    2007  Staff...........  A staff member
                                                                                                     at a county
                                                                                                     recycling
                                                                                                     center was
                                                                                                     denied
                                                                                                     bereavement
                                                                                                     leave when her
                                                                                                     partner's
                                                                                                     father passed
                                                                                                     away. She knows
                                                                                                     that other
                                                                                                     coworkers,
                                                                                                     whose unmarried
                                                                                                     partner's
                                                                                                     relatives have
                                                                                                     passed away,
                                                                                                     have been able
                                                                                                     to use
                                                                                                     bereavement
                                                                                                     time. For
                                                                                                     example, a
                                                                                                     coworker was
                                                                                                     permitted to
                                                                                                     take
                                                                                                     bereavement
                                                                                                     leave for the
                                                                                                     death of his
                                                                                                     girlfriend's
                                                                                                     father. The
                                                                                                     department
                                                                                                     policy states
                                                                                                     that in the
                                                                                                     case of an
                                                                                                     immediate
                                                                                                     family member's
                                                                                                     death,
                                                                                                     including a
                                                                                                     spouse's
                                                                                                     parent, staff
                                                                                                     may take
                                                                                                     bereavement
                                                                                                     time.
    ME............................  Local............  City Government..    2008  Firefighter.....  A Maine city
                                                                                                     firefighter,
                                                                                                     who is gay, was
                                                                                                     harassed by his
                                                                                                     coworkers. He
                                                                                                     was maliciously
                                                                                                     ``outted' and
                                                                                                     then his
                                                                                                     coworkers made
                                                                                                     offensive and
                                                                                                     hostile
                                                                                                     comments. He
                                                                                                     has met with
                                                                                                     department
                                                                                                     heads and
                                                                                                     expressed his
                                                                                                     discomfort
                                                                                                     several times,
                                                                                                     but nothing has
                                                                                                     changed.
    NH............................  Local............  Public School....    2009  Teacher.........  A transgender
                                                                                                     public school
                                                                                                     teacher who
                                                                                                     began to
                                                                                                     transition was
                                                                                                     fired because
                                                                                                     the principal
                                                                                                     said that
                                                                                                     ``things were
                                                                                                     not working
                                                                                                     out.'' She had
                                                                                                     received no
                                                                                                     complaints or
                                                                                                     warnings prior
                                                                                                     to being let
                                                                                                     go.
    NH............................  Local............  Public School....    2009  Teacher.........  A teacher who
                                                                                                     had been at the
                                                                                                     school for 19
                                                                                                     years was
                                                                                                     terminated when
                                                                                                     a new
                                                                                                     superintendent
                                                                                                     and principal
                                                                                                     were hired who
                                                                                                     said
                                                                                                     disparaging
                                                                                                     things about
                                                                                                     his being gay.
    NH............................  Local............  Public School....    2008  Teacher.........  A teacher was
                                                                                                     being
                                                                                                     considered for
                                                                                                     tenure at a
                                                                                                     public school.
                                                                                                     He had
                                                                                                     favorable
                                                                                                     reviews and
                                                                                                     compliments
                                                                                                     from his co-
                                                                                                     workers. The
                                                                                                     principal said
                                                                                                     it wasn't the
                                                                                                     ``right fit''
                                                                                                     and he was
                                                                                                     denied tenure.
    NH............................  Local............  School District..    2007  School Nurse....  A lesbian school
                                                                                                     nurse at a
                                                                                                     public school
                                                                                                     in New
                                                                                                     Hampshire was
                                                                                                     harassed by the
                                                                                                     principal at
                                                                                                     her school. The
                                                                                                     principal asked
                                                                                                     several
                                                                                                     coworkers about
                                                                                                     the nurse and
                                                                                                     her partner,
                                                                                                     who is a
                                                                                                     special
                                                                                                     education
                                                                                                     teacher at the
                                                                                                     school.
                                                                                                     Specifically,
                                                                                                     the principal
                                                                                                     asked about
                                                                                                     their sexual
                                                                                                     orientation and
                                                                                                     the nature of
                                                                                                     their
                                                                                                     relationship.
                                                                                                     The principal
                                                                                                     told a coworker
                                                                                                     that if they
                                                                                                     were lesbians,
                                                                                                     they must be
                                                                                                     doing something
                                                                                                     inappropriate
                                                                                                     behind closed
                                                                                                     doors. The
                                                                                                     principal also
                                                                                                     noted that she
                                                                                                     didn't
                                                                                                     understand why
                                                                                                     they ``had to
                                                                                                     hire''
                                                                                                     lesbians. The
                                                                                                     nurse
                                                                                                     complained to
                                                                                                     her union and
                                                                                                     to the human
                                                                                                     resource staff
                                                                                                     at the school,
                                                                                                     but she was
                                                                                                     told to ``make
                                                                                                     nice.''
    NH............................  Local............  County               2007  Corrections       A transgender
                                                        Corrections                Officer.          woman worked as
                                                        Department.                                  a corrections
                                                                                                     officer in New
                                                                                                     Hampshire for 3
                                                                                                     years. Her
                                                                                                     immediate
                                                                                                     supervisor
                                                                                                     harassed her,
                                                                                                     saying ``Your
                                                                                                     tits are
                                                                                                     growing'' and
                                                                                                     ``You look gay
                                                                                                     when you
                                                                                                     walk.'' Other
                                                                                                     coworkers then
                                                                                                     began
                                                                                                     physically
                                                                                                     assaulting her
                                                                                                      kicking her,
                                                                                                     snapping her in
                                                                                                     the breasts,
                                                                                                     and threatening
                                                                                                     to handcuff her
                                                                                                     to a flagpole
                                                                                                     and take off
                                                                                                     her clothes.
                                                                                                     One officer
                                                                                                     grabbed her and
                                                                                                     slammed her
                                                                                                     into a concrete
                                                                                                     wall while her
                                                                                                     coworkers
                                                                                                     watched. No one
                                                                                                     reported this
                                                                                                     event. She was
                                                                                                     placed on a
                                                                                                     shift with this
                                                                                                     officer,
                                                                                                     however. She
                                                                                                     resigned as a
                                                                                                     result of the
                                                                                                     harassment she
                                                                                                     faced.
    NH............................  Unknown..........  Corrections          2002  Staff...........  In applying for
                                                        Department.                                  a position with
                                                                                                     a corrections
                                                                                                     department in
                                                                                                     New Hampshire,
                                                                                                     a woman was
                                                                                                     required to
                                                                                                     take a
                                                                                                     polygraph test.
                                                                                                     During the
                                                                                                     test, she was
                                                                                                     asked twice
                                                                                                     about her
                                                                                                     marital status,
                                                                                                     through which
                                                                                                     she disclosed
                                                                                                     that she was a
                                                                                                     lesbian. She
                                                                                                     was then not
                                                                                                     hired for the
                                                                                                     job.
    RI............................  Local............  Public School....    2002  Teacher.........  A science
                                                                                                     teacher came
                                                                                                     out to his
                                                                                                     colleagues and
                                                                                                     his principal
                                                                                                     began to harass
                                                                                                     him. As the
                                                                                                     harassment
                                                                                                     continued, the
                                                                                                     teacher became
                                                                                                     more depressed
                                                                                                     and anxious and
                                                                                                     began to stay
                                                                                                     out of school
                                                                                                     and then was
                                                                                                     fired.
    RI............................  State............  Rhode Island         2004  State Trooper...  A Rhode Island
                                                        State Trooper.                               State Trooper,
                                                                                                     who is a
                                                                                                     lesbian,
                                                                                                     reported that
                                                                                                     she was
                                                                                                     harassed and
                                                                                                     ultimately
                                                                                                     fired because
                                                                                                     of her sexual
                                                                                                     orientation.
                                                                                                     The trooper is
                                                                                                     concerned that
                                                                                                     if she files a
                                                                                                     complaint, she
                                                                                                     will not be
                                                                                                     able to get
                                                                                                     another job in
                                                                                                     law enforcement
                                                                                                     in the State.
    RI............................  Local............  School District..    2002  Teacher.........  A teacher, who
                                                                                                     is gay, working
                                                                                                     in the Rhode
                                                                                                     Island public
                                                                                                     school district
                                                                                                     reported that
                                                                                                     several of his
                                                                                                     coworkers made
                                                                                                     anti-gay
                                                                                                     comments to
                                                                                                     him, such as
                                                                                                     ``What, are you
                                                                                                     a homo?''
                                                                                                     ``Where are
                                                                                                     your wife and
                                                                                                     kids?'' and
                                                                                                     ``We can't deal
                                                                                                     with this gay
                                                                                                     and lesbian
                                                                                                     s**t.'' In
                                                                                                     response to his
                                                                                                     complaints, the
                                                                                                     teacher's
                                                                                                     classroom and
                                                                                                     teaching
                                                                                                     schedule was
                                                                                                     changed without
                                                                                                     notice, he has
                                                                                                     been screamed
                                                                                                     at, and he was
                                                                                                     warned to ``not
                                                                                                     get into a
                                                                                                     pi**ing match''
                                                                                                     with them. The
                                                                                                     teacher reports
                                                                                                     that he feels
                                                                                                     intimidated and
                                                                                                     that he is
                                                                                                     treated
                                                                                                     differently as
                                                                                                     well, as that
                                                                                                     he has been
                                                                                                     passed over for
                                                                                                     other work
                                                                                                     opportunities
                                                                                                     because of his
                                                                                                     sexual
                                                                                                     orientation.
                                                                                                     After filing a
                                                                                                     complaint with
                                                                                                     his union and
                                                                                                     the school
                                                                                                     district, union
                                                                                                     officials and
                                                                                                     the principal
                                                                                                     wrote the
                                                                                                     teacher up for
                                                                                                     insubordination
                                                                                                     . The teacher
                                                                                                     spoke to
                                                                                                     someone in the
                                                                                                     Rhode Island
                                                                                                     Department of
                                                                                                     Education, but
                                                                                                     he feared that
                                                                                                     if he filed an
                                                                                                     official
                                                                                                     complaint, the
                                                                                                     Department of
                                                                                                     Education would
                                                                                                     take the
                                                                                                     school's side.
    RI............................  State............  Department of        2007  Staff...........  A gay man
                                                        Corrections.                                 working for the
                                                                                                     State of Rhode
                                                                                                     Island
                                                                                                     Department of
                                                                                                     Corrections
                                                                                                     reports having
                                                                                                     problems at
                                                                                                     work because of
                                                                                                     his sexual
                                                                                                     orientation. He
                                                                                                     has been called
                                                                                                     ``gay cop,''
                                                                                                     ``c**
                                                                                                     swallowing
                                                                                                     pig,'' and
                                                                                                     other
                                                                                                     derogatory
                                                                                                     names in front
                                                                                                     of inmates by
                                                                                                     his coworkers.
    RI............................  State............  State of Rhode       2003  Staff...........  A woman working
                                                        Island.                                      for the State
                                                                                                     of Rhode Island
                                                                                                     overheard a
                                                                                                     conversation in
                                                                                                     the cafeteria
                                                                                                     at work in
                                                                                                     which an
                                                                                                     employee made
                                                                                                     derogatory
                                                                                                     comments about
                                                                                                     gay people,
                                                                                                     such as
                                                                                                     ``homosexuals
                                                                                                     are
                                                                                                     pedophiles.''
                                                                                                     She complained
                                                                                                     to her
                                                                                                     supervisor, who
                                                                                                     scheduled a
                                                                                                     mediation
                                                                                                     session.
                                                                                                     However, the
                                                                                                     person who made
                                                                                                     the comment
                                                                                                     refused to
                                                                                                     participate,
                                                                                                     and the matter
                                                                                                     was dropped.
                                                                                                     She fears
                                                                                                     retaliation if
                                                                                                     she files
                                                                                                     another
                                                                                                     complaint.
    VT............................  Local............  Public School....    2008  Teacher.........  A public school
                                                                                                     teacher who
                                                                                                     works with
                                                                                                     autistic
                                                                                                     children was
                                                                                                     harassed and
                                                                                                     ultimately
                                                                                                     terminated
                                                                                                     because he was
                                                                                                     gay. He filed a
                                                                                                     complaint with
                                                                                                     the attorney
                                                                                                     general's
                                                                                                     office
    VT............................  Local............  Public School....    2008  Teacher.........  A teacher came
                                                                                                     out to a
                                                                                                     colleague and
                                                                                                     after this
                                                                                                     perceived a
                                                                                                     hostile work
                                                                                                     environment.
                                                                                                     The teacher
                                                                                                     tried to get
                                                                                                     the union to
                                                                                                     intercede on
                                                                                                     his behalf, but
                                                                                                     the union
                                                                                                     refused to.
    VT............................  State............  Vermont State        2003    ..............  The employee, a
                                                        Department of                                lesbian, works
                                                        Corrections.                                 for the Vermont
                                                                                                     State
                                                                                                     Department of
                                                                                                     Corrections. A
                                                                                                     coworker used
                                                                                                     derogatory
                                                                                                     language about
                                                                                                     her and another
                                                                                                     coworker in
                                                                                                     regards to
                                                                                                     their sexual
                                                                                                     orientation.
                                                                                                     The employee
                                                                                                     filed a formal
                                                                                                     complaint,
                                                                                                     however there
                                                                                                     has been no
                                                                                                     investigation.
    VT............................  Local............  Police Department    2002  Police Officer..  A transgender
                                                                                                     police officer
                                                                                                     working for a
                                                                                                     Vermont police
                                                                                                     department was
                                                                                                     told that the
                                                                                                     police chief
                                                                                                     was being
                                                                                                     pressured to
                                                                                                     run him off the
                                                                                                     force because
                                                                                                     he was
                                                                                                     transgender.
    ----------------------------------------------------------------------------------------------------------------

                                     ______

                                            September 25, 2009.
    Hon. Jeff Merkley,
    U.S. Senate,
    107 Russell Senate Office Building,
    Washington, DC 20510.

        Dear Senator Merkley: Sun Microsystems would like to thank you for
    sponsoring S. 1584, the Employment Non-Discrimination Act of 2009
    (ENDA). Sun supports this legislation and the belief that all American
    workers are entitled to fair employment standards.
        At Sun, equality is central to our business philosophy. Our company
    was founded on the ideals of openness and sharing and we continue to
    promote those ideals 27 years later. As a technology company we are
    committed to increase innovation and economic progress; but we are also
    committed to furthering social progress worldwide. Our commitment to
    equality and fairness is not only reflected in our Equal Employment
    Opportunity and Anti-Discrimination and Harassment policies, but also
    in our employees. We believe that respect for fellow workers is a key
    ingredient to a productive work environment. This year Sun was awarded
    a perfect 100 percent, for the 5th year in a row, on the Human Rights
    Campaign's Corporate Equality Index, which assesses companies' policies
    regarding gay, lesbian, bisexual, and transgender employees.
        We support ENDA so that discrimination on the basis of sexual
    orientation and/or gender identity will be unacceptable, as
    discrimination based on several other non-performance related concerns
    is already considered to be.
        Thank you for sponsoring this important legislation.
                Sincerely,
                                         Christopher G. Hankin,
                                    Senior Director of Federal Affairs.
                                     ______

                           Human Rights Campaign (HRC),
                                            September 23, 2009.

        Dear Member of Congress: On behalf of the Human Rights Campaign
    (HRC) and our grassroots force of more than 750,000 members and
    supporters nationwide, I ask you to support the Employment Non-
    Discrimination Act (ENDA). It is simply unacceptable that lesbian, gay,
    bisexual and transgender people can still be fired or refused a job
    based on characteristics wholly unrelated to job performance. ENDA
    would end this injustice against our community and let these
    hardworking Americans support their families and be a part of our
    national economy without fear of arbitrary discrimination. We hope you
    will support this legislation in the 111th Congress.
        The American people believe in fairness and understand that
    employees should be judged on the merits, not on sexual orientation or
    gender identity. A January 2007 Hart Research poll found that 6 out of
    10 Americans support Federal legislation to address workplace
    discrimination against lesbian, gay, bisexual and transgender people.
    Yet today, it remains perfectly legal in 29 States to fire someone
    based simply on sexual orientation, and in 38 States to do so based on
    gender identity. ENDA would prohibit this discrimination against
    lesbian, gay, bisexual and transgender people in most workplaces.
        Corporate America supports ENDA's fair-minded approach. Eighty-
    seven percent of Fortune 500 companies have included sexual orientation
    in their workplace policies and more than 40 percent of them also
    prohibit discrimination based on gender identity. ENDA is also
    supported by a broad coalition of civil rights, labor, and religious
    organizations, including the Leadership Conference on Civil Rights.
        We hope you will join us in supporting this historic piece of
    legislation. Please feel free to contact Allison Herwitt, Legislative
    Director, at (202) 216-1515 or David Stacy, Senior Public Policy
    Advocate, at (202) 572-8959 if you have any questions.
                Sincerely,
                                                 Joe Solmonese,
                                                         HRC President.
                                     ______

                                   Interfaith Alliance,
                                              November 3, 2009.
    Senator Tom Harkin,
    731 Hart Senate Office Building,
    Washington, DC 20510.

    Senator Mike Enzi,
    379A Russell Senate Office Building,
    Washington, DC 20510.

    Cc: Senator Jeff Merkley

        Dear Senators Harkin and Enzi: I write to you as the President of
    Interfaith Alliance, a national organization that celebrates religious
    freedom by championing individual rights, promoting policies that
    protect both religion and democracy and uniting diverse voices to
    challenge extremism and build common ground. I wish to express my
    strong support of the Employment Non-Discrimination Act (ENDA) (H.R.
    3017/S. 1584) in anticipation of the hearing your committee will be
    holding this week.
        Interfaith Alliance's support of ENDA is twofold. First, we believe
    a vibrant democracy guarantees the protection of civil rights for
    everybody with no exception for sexual orientation or gender identity.
    Second, defending the religious freedom of all Americans is of our
    utmost concern. It is for these reasons Interfaith Alliance has worked
    hard to ensure that ENDA is both fully inclusive and contains a
    religious exemption provision to protect religious employers'
    constitutional rights.
        Despite what opponents may contend, the truth is that ENDA would
    not create new or special rights. Modeled after existing laws such as
    the Civil Rights Act of 1964 and the Americans with Disabilities Act,
    ENDA simply ensures that all Americans can enjoy the rights guaranteed
    to them by the Constitution. These rights are also reflected in the
    shared values of all of our Nation's diverse faith traditions--values
    of compassion, human dignity, fairness and equality. This legislation
    will ensure all employees are treated with the respect that is mandated
    by the teachings of our faiths and the American values of justice and
    equality.
        As our Nation continues to face daily challenges that divide the
    American public, there is an increasing need to work together on issues
    of mutual concern. The Employment Non-Discrimination Act ensures
    liberty and it ensures equality. It abides by the values taught by the
    diverse faith traditions in this great Nation; and, perhaps most
    importantly, it ensures justice by guaranteeing the human dignity due
    to all Americans and provided for by the Constitution of the United
    States of America. Passage of a fully inclusive ENDA with an
    appropriate religious exemption, will be a victory for democracy and
    cause for celebration among all who value religious freedom.
        Thank you for your consideration.
                Sincerely,
                                      Rev. Dr. C. Welton Gaddy,
                                                             President.
                                     ______

                                          Lambda Legal,
                                              November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate.

    Hon. Mike Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate.

    Re: The Employment Non-Discrimination Act, S. 1584

        Dear Chairman Harkin and Ranking Member Enzi: I write on behalf of
    Lambda Legal Defense and Education Fund (``Lambda Legal'') and our more
    than 32,000 active members to urge you to support S. 1584, the
    ``Employment Non-Discrimination Act'' (``ENDA''), in order to provide
    protections against workplace discrimination based on sexual
    orientation and gender identity that are critically important and long
    overdue. Lambda Legal is the Nation's oldest and largest legal
    organization dedicated to achieving recognition of the civil rights of
    lesbian, gay, bisexual and transgender (``LGBT'') individuals. We were
    counsel in Lawrence v. Texas, 539 U.S. 558 (2003), and co-counsel in
    Romer v. Evans, 517 U.S. 620 (1996), the two most important cases ever
    decided by the U.S. Supreme Court addressing sexual orientation and the
    law.
        It is difficult to overstate the importance of obtaining recourse
    for the widespread discrimination faced by LGBT workers or the extent
    to which the only realistic solution to ending such discrimination in
    the foreseeable future is for Congress to enact ENDA. By passing ENDA,
    Congress not only would provide a legal remedy for discrimination, but
    also would make a powerful statement of principle regarding fair
    treatment of all employees who work hard and perform well.

                                THE URGENT NEED

        Lambda Legal operates a legal help desk, through which we respond
    directly to members of the communities we serve who are seeking legal
    information about and assistance regarding discrimination related to
    sexual orientation and gender identity. While Lambda Legal has always
    received such requests throughout its 36-year history, we now have the
    equivalent of six full-time staff handling the thousands of calls we
    receive each year. For each year from 2004 to 2007, we received more
    calls regarding LGBT workplace discrimination than any other single
    issue. In each of those years, we received between 900 and 1,100
    employment discrimination calls. Based on our experience with our legal
    help desk, we can say with confidence that these remarkable figures
    certainly understate the prevalence of the problem. Over the years, we
    have learned many reasons why employees choose not to pursue legal
    action, including that many people know how few legal remedies exist in
    most jurisdictions, and many others are afraid to come out publicly and
    therefore refrain from even considering pursuit of legal action.
        But this issue's resonance goes far beyond numbers. People define
    themselves in large part by the work they do, spend significant
    portions of their time in the workplace, and depend on their jobs to
    support themselves and their families and to gain access to health care
    and other benefits. The emotional investment people have in their jobs
    means that it not only is devastating when one loses a job, is denied a
    promotion or otherwise subjected to adverse job actions due to
    discrimination, but it also takes a significant toll simply to know
    that one can face harassment or discrimination at any moment and have
    no redress. ENDA also would strengthen the workforce of tomorrow by
    establishing that everyone has the ability to pursue the career of
    their choosing and be judged on the basis of their performance and that
    alone.

                             WHY CONGRESS MUST ACT

        It also is clear that, for the foreseeable future, Congress alone
    can provide a national solution to the problem. Even courts that have
    agreed strongly with employees about the unfairness of discrimination
    against LGBT employees have held that only Congress can add sexual
    orientation to title VII.\1\ Given that most, if not nearly all, of the
    States that do not protect LGBT employees under State law are also
    strong employment at-will States,\2\ there generally are few, if any,
    legal avenues to remedy such harassment and discrimination, and even
    fewer lawyers willing to assume representation in such cases.
    ---------------------------------------------------------------------------
        \1\ See Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257,
    265 (3d Cir. 2001) (``Harassment on the basis of sexual orientation has
    no place in our society.''); Simonton v. Runyon, 232 F.3d 33, 35 (2d
    Cir. 2000) (describing the alleged sexual orientation discrimination
    suffered by the plaintiff to be ``morally reprehensible whenever and in
    whatever context it occurs, particularly in the modern workplace.'');
    Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cit.
    1999) (``. . . harassment because of sexual orientation . . . is a
    noxious practice, deserving of censure and opprobrium.''); (the alleged
    harassment ``reflects conduct that is socially unacceptable and
    repugnant to workplace standards of proper treatment and civility.'');
    Vickers v. Fairfield Medical Center, 453 F.3d 757, 764-65 (6th Cir.
    2006); Valencia v. Department of Interior, No. 3:08-CV-69-WKW, 2008 WL
    4495694, *14 n.8; (M.D. Ala. Oct. 7, 2008); Lankford v. Borg Warner
    Diversified Transmission Products, Inc., No. 1:02CV1876-SEB-VSS, 2004
    WL 540983, *3 (S.D. Ind. Mar. 12, 2004) (``Thus, harassment and
    discrimination based on sexual orientation, though morally
    reprehensible, are not actionable under title VII.'' [collecting
    citations]).
        \2\ This appears to be the case in every State except Montana.
    Mont. Code Ann. 39-2-904; see Robinson, Donald C., ``The First Decade
    of Judicial Interpretation of the Montana Wrongful Discharge from
    Employment Act (WDEA)'', 57 Mont. L. Rev. 375, 376 (1996); Just Cause
    in Montana: Did the Big Sky Fall? Source: Barry D. Roseman, Advance:
    The Journal of the ACS Issue Groups, Volt. 3 no. 1 (Spring 2009).
    ---------------------------------------------------------------------------
        Although great progress has been made with the passage of many
    State nondiscrimination laws, it could take years, or even decades, to
    protect all LGBT Americans without congressional action. While 21
    States now provide express statutory protection against sexual
    orientation discrimination and 12 expressly cover discrimination based
    on gender identity as well, in some of those States the remedies
    provided are limited.\3\ In others, progress has been very slow. For
    example, Delaware, which in July 2009 became the most recent State
    expressly to ban sexual orientation employment discrimination, did so
    after similar bills had been introduced every year since the late
    1990's.\4\ In many of the 29 States without nondiscrimination statutes
    expressly covering either sexual orientation or gender identity, such
    legislation has never even been introduced.
    ---------------------------------------------------------------------------
        \3\ See, e.g., Herman v. United Broth. of Carpenters and Joiners of
    America, Local, 60 F.3d 1375, 1386 (9th Cir. 1995) (``. . . we have
    construed Nevada law as precluding emotional distress claims in the
    employment context.''); Wisconsin Department of Workforce Development,
    ``Remedies at a Glance'' (neither compensatory damages for emotional
    harm nor punitive damages are available under the Wisconsin Fair
    Employment Law); available at http://dwd.wisconsin.gov/er/
    discriminationcivilrightspublicationerd11055p.htm#3.
        \4\ See Delaware Employment Law Blog, published by Young, Conaway,
    Stargatt & Taylor LLP, at http://www.delawareemploymentlawblog.com /
    2009/06/delawaresettobandiscrimina.html.
    ---------------------------------------------------------------------------
        A national solution is imperative not only because the right to
    pursue one's livelihood free from discrimination is and should be a
    shared American value, but also because the current gaps in
    discrimination protection most severely affect the most vulnerable.
    While approximately half of the overall population lives in
    jurisdictions covered by State sexual orientation nondiscrimination
    statutes, fewer than 35 percent of African-Americans do.\5\ This is
    problematic not only because of the historically high degree of
    discrimination against African-Americans, but especially because, in
    many of the title VII cases rejecting a man's claims of discrimination
    based on gender stereotypes or claims attempted to be brought based on
    actual or perceived sexual orientation, the employee was an African-
    American man.\6\ The residents of States without nondiscrimination
    statutes also have significantly lower levels of education attainment,
    reducing their employment options when discrimination occurs.
    ---------------------------------------------------------------------------
        \5\ See http://www.census.gov/compendia/statab/ranks/rank12.html.
        \6\ See Mary Anne C. Case, Disaggregating Gender from Sex and
    Sexual Orientation: The Effeminate Man in the Law and Feminist
    Jurisprudence, 105 Yale L.J. 1, 50-51 and n.166 (1995); Dillon v.
    Frank, 90-2290, 952 F.2d 403 (Table), 1992 WL 5436 (6th Cir. Jan. 15,
    1992); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000).
    ---------------------------------------------------------------------------
        The need for Congress to act goes beyond creating a remedy for
    sexual orientation and gender identity discrimination. Unfortunately,
    some courts have ruled against claims brought by LGBT workers for
    discrimination they experience based on sex or religion (both of which
    title VII already covers) by attributing the discrimination to sexual
    orientation or gender identity rather than these other grounds.
    Moreover, in denying an LGBT person the right to pursue the same theory
    of relief for sex or religious discrimination enjoyed by everyone else,
    courts have acknowledged that existing title VII principles support the
    claim, but ruled against LGBT employees because they viewed
    Congressional inaction on sexual orientation nondiscrimination bills as
    proof that Congress wanted to deny LGBT employees any recourse for sex
    or religious discrimination that might be related to the employee's
    sexual orientation or gender identity.
        The most common example of this problem are cases holding sex
    discrimination claims by LGBT employees to a different standard. For at
    least the last 20 years, it has been the law that the ``because of
    sex'' language in title VII precludes an employer from discriminating
    against an employee because he or she failed to conform to the
    employer's sex-based stereotypes. See Price-Waterhouse v. Hopkins, 490
    U.S. 228, 251 (1989) (title VII was violated where a woman was denied
    partnership ``on the basis of a belief that a woman cannot be
    aggressive, or that she must not be.''). Thus, an employer cannot fire
    or refuse to hire a woman because it believes her to be insufficiently
    feminine--or a man because he is deemed insufficiently masculine \7\
    When this claim, known as sex stereotyping,\8\ is brought by an LGBT
    employee, most courts have followed the correct approach that the
    employee's sexual orientation is irrelevant, i.e., that title VII
    protects both an effeminate heterosexual man and an effeminate gay man
    from sex discrimination.\9\ However, some courts have taken a
    dramatically different approach to sex stereotyping claims brought by
    LGBT employees. These courts incorrectly have refused to allow LGBT
    employees to proceed with their claims based on an argument that
    Congress supposedly wanted to exclude employment discrimination
    protections for LGBT people from title VII. In the process, they ignore
    the fact that an LGBT person has the same right to be free from sex
    discrimination that all other employees enjoy.
    ---------------------------------------------------------------------------
        \7\ Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1998)
    (``[A] man who is harassed because his voice is soft, his physique is
    slight, his hair is long, or because in some other respect he exhibits
    his masculinity in a way that does not meet his coworkers' idea of how
    men are to appear and behave, is harassed `because of ' his sex.''),
    judgment vacated and remanded, 523 U.S. 1001 (1999) (held still to
    constitute valid precedent on this point in Bibby v. Phila. Coca Cola
    Bottling Co., 260 F.3d 257, 263 n.5 (3rd Cir. 2001)); Higgins v. New
    Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cit. 1999)
    (``Just as a woman can ground an action on a claim that men
    discriminated against her because she did not meet stereotyped
    expectations of femininity, a man can ground a claim on evidence that
    other men discriminated against him because he did not meet stereotyped
    expectations of masculinity.''); Bibby, 260 F.3d at 262-63; Nichols v.
    Azteca Rest. Enters., 256 F.3d 864, 874-75 (9th Cit. 2001).
        \8\ Price-Waterhouse, 490 U.S. at 250-51.
        \9\ Bibby, 260 F.3d at 265 (``once it has been shown that the
    harassment was motivated by the victim's sex, it is no defense that the
    harassment may have also been partially motivated by anti-gay or anti-
    lesbian animus. For example, had the plaintiff in Price Waterhouse been
    a lesbian, that fact would have provided the employer with no excuse
    for its decision to discriminate against her because she failed to
    conform to traditional feminine stereotypes.''); Doe, 119 F.3d at 594;
    Centola v. Potter, 183 F. Supp. 2d 403, 409-10 D. Mass. 2002)
    (``Centola does not need to allege that he suffered discrimination on
    the basis of his sex alone. . . . [T]he fact that he was also
    discriminated against on the basis of his sexual orientation has no
    legal significance under title VII.'').
    ---------------------------------------------------------------------------
        For example, one court obsessed over ``sexual orientation (or other
    unprotected) allegations masquerading as gender stereotyping claims,''
    and about employees' ``crafting the [sexual orientation] claim as
    arising from discrimination based upon gender stereotypes.'' \10\
    Another court simply imagined a ``clear warning'' from a higher court
    that the gender stereotyping theory ``not bootstrap protection for
    sexual orientation into title VII.'' \11\
    ---------------------------------------------------------------------------
        \10\ Dawson v. Bumble & Bumble, 398 F.3d 211, 219 (2d Cir. 2005)
    (citations omitted). Indeed, the approach of Dawson to criticize
    lawyers who ``counsel[] gay plaintiffs bringing claims under title VII
    [to] emphasize the gender stereotyping theory and de-emphasize any
    connection the discrimination has to homosexuality'' is a self-
    fulfilling prophecy, as shown by Lambda Legal's legal help desk
    experience. Callers who have reported dealing with agencies and human
    relations departments about harassment based both on sex stereotypes
    and sexual orientation have reported that their grievances are treated
    primarily or exclusively as based on sexual orientation. Given this
    history, and the approach of Dawson, Trigg (infra), and Kay (infra), it
    is hardly surprising that employees would be counseled about how to
    avoid having their grievances summarily--and incorrectly--ignored.
        \11\ Trigg v. New York City Transit Auth., No. 99-CV-4730 (ILG),
    2001 WL 868336 (E.D.N.Y. July 26, 2001), quoting Simonton v. Runyon,
    232 F.3d 33, 38 (2d Cir. 2000). In fact, the Simonton court expressed
    support for the notion that a gay or lesbian employee can bring a title
    VII sex discrimination claim if the employee presents the theory and
    facts to the EEOC and district court. The passage misunderstood by the
    Trigg court makes the point that allowing a sex stereotyping claim by a
    gay man or lesbian is not equivalent to engrafting sexual orientation
    onto title VII; rather, the Simonton court pointed out that a sex
    stereotyping theory ``would not bootstrap protection for sexual
    orientation into title VII because not all homosexual men are
    stereotypically feminine, and not all heterosexual men are
    stereotypically masculine'' 232 F,3d at 38.
    ---------------------------------------------------------------------------
        Instead of simply evaluating whether the gender stereotyping
    allegations, in and of themselves, make out a case, these courts have
    followed the incorrect approach of weighing the gender stereotyping
    harassment suffered by the employee against facts also showing that
    sexual orientation harassment also was occurring, and have concluded
    that, if the latter was more prevalent, there is no claim.\12\ This
    approach sends the message that one can escape liability for his (or
    her) sex discrimination simply by engaging in more flagrant or frequent
    sexual orientation discrimination.
    ---------------------------------------------------------------------------
        \12\ In Kay v. Independence Blue Cross, No. CIV.A. 02-3157, 2003 WL
    21197289 (E.D. Pa. May 16, 2003), the District Court held that two
    instances of the employee's being told he was ``not a real man'' were
    not pervasive enough to sustain a title VII claim. On appeal, although
    all three judges agreed with the District Court, two of the three felt
    compelled to articulate a ``differ[ent] . . . approach'' by incorrectly
    focusing on the antigay harassment. The court held that the two
    instances, ``viewed in the broader context of the harassment alleged by
    Kay . . . demonstrates that the harassment was based on perceived
    sexual orientation, rather than gender.'' Kay v. Independence Blue
    Cross, 142 Fed. Appx. 48, 50 (3d Cir. 2005). In Trigg, supra, the court
    dismissed allegations that Trigg was called a `sissy,' told ``he would
    have to learn how to carry bags of nickels `more manly' '' told he
    ``wasn't going to make it in the job if [he were] not more manly, and
    was told that he was working like a woman,'' because ``In contrast to
    Trigg's assertion that he is a victim of gender stereotype
    discrimination, his Amended Complaint is rife with references to sexual
    orientation, homophobia, and accusations of discrimination based on
    homosexuality.'' 2001 WL 868336 at *6. The Second Circuit also ruled
    against Trigg, but corrected the District Court's approach of weighing
    the sexual orientation discrimination against the sex discrimination.
    Trigg v. New York Transit Auth., 50 Fed. Appx. 458, 459-60 (2d Cir.
    2002).
    ---------------------------------------------------------------------------
        Another example of improper exclusion of LGBT employees from title
    VII's protections is in the context of a religious discrimination
    claim. It is widely recognized that title VII covers an employee who is
    fired ``simply because he did not hold the same religious beliefs as
    his supervisors.'' Shapolia v. Los Alamos Nat. Laboratory, 992 F.2d
    1033, 1037 (10th Cir. 1993); Venters v. City of Delphi, 123 F.3d 956,
    972 (7th Cir. 1997) (``Venters need only show that her perceived
    religious shortcomings [her unwillingness to strive for salvation as
    Ives understood it, for example] played a motivating role in her
    discharge.'').\13\ Under this standard, an employee who gets a divorce,
    has an extramarital affair, or simply fails to accept or adhere
    generally to the employer's religious precepts, could invoke title VII
    if the employer fired him or her on that basis.\14\ Thus, lesbian or
    gay men fired solely for failing to comply with the employer's
    religious beliefs should be able to invoke title VII, but in August,
    the Third Circuit rejected exactly that claim,\15\ not for any logical
    reason, but based solely on Congress' supposed intent to prevent
    employment discrimination claims based on sexual orientation or gender
    identity.\16\
    ---------------------------------------------------------------------------
        \13\ Accord Noyes v. Kelly Services, 488 F.3d 1163, 1166, 1168-69
    (9th Cir. 2007); Panchoosingh v. General Labor Staffing Services, Inc.,
    No. 07-80818-CI, 2009 WL 961148, *6 (S.D. Fla. Apr. 8, 2009); Tillery
    v. Asti, Inc., 247 F. Supp. 2d 1051, 1062-63 (N.D. Ala. 2003), aff 'd
    without opinion, 97 Fed. Appx. 906 (Table) (11th Cir. 2004)
    (unpublished); Backus v. Mena Newspapers, Inc., 224 F. Supp. 2d 1228,
    1233 (W.D. Ark. 2002); Henegar v. Sears, Roebuck and Co., 965 F. Supp.
    833, 837 (N.D. W.Va. 1997); Yancey v. National Center on Institutions
    and Alternatives, 986 F. Supp. 945, 955 (D. Md. 1997); Sarenpa v.
    Express Images Inc., Civ.04-1538(JRT/JSM), 2005 WL 3299455, *3 (D. Minn
    Dec. 1, 2005); Kaminsky v. Saint Louis University School of Medicine,
    No. 4:05CV1112 CDP, 2006 WL 2376232, *5 (E.D. Mo. Aug. 16, 2006).
        \14\ See Kaminsky, 2006 WL 2376232 at *5 (getting a divorce);
    Sarenpa v. Express Images Inc., 2005 WL 3299455 at *3 (extramarital
    affair); Henegar, 965 F. Supp. at 834 (living with a man while going
    through divorce proceedings against her husband); Noyes, 488 F.3d at
    1166, 1168-69 (failure to live up generally to employer's religious
    beliefs); Venters, 123 F.3d at 972 (same).
        \15\ Prowel v. Wise Business Forms, Inc., 575 F.3d 285, 293 (3d
    Cir. 2009) (``Given Congress's repeated rejection of legislation that
    would have extended title VII to cover sexual orientation, see Bibby,
    260 F.3d at 261, we cannot accept Prowel's de facto invitation to hold
    that he was discriminated against `because of religion' merely by
    virtue of his homosexuality.'').
        \16\ Whether or not one agrees that the conduct in Prowel should be
    considered religious discrimination, ENDA provides the optimal result
    of making clear that discrimination against LGBT employees, whether
    based on religious or secular grounds, is prohibited.
    ---------------------------------------------------------------------------
        Just as it was unfair to these LGBT litigants to be treated
    differently than other employees claiming sex or religious
    discrimination, it was wrong for these courts to attribute to Congress
    an intent to exclude LGBT employees from the current scope of title
    VII. Indeed, Lambda Legal consistently has insisted to courts that
    Congress intended, in passing title VII, to `` `strike at the entire
    spectrum of disparate treatment of men and women resulting from sex
    stereotypes.' Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).''
    \17\ But fair or unfair, it is now apparent that, if Congress fails to
    pass ENDA, not only will all courts deny protection against sexual
    orientation and gender identity discrimination under title VII, but
    some courts incorrectly will refuse to entertain a title VII sex or
    religious discrimination case brought by an LGBT employee, simply
    because of inaction on ENDA.
    ---------------------------------------------------------------------------
        \17\ Brief of Amici Curiae Lambda Legal Defense and Education Fund,
    Inc. and the National Employment Lawyers Association in Support of
    Appellant and of Reversal of the Judgment Below, 2002 WL 32625900, *7,
    Trigg v. New York City Trans. Auth., 2d Cir.; Brief of Amici Curiae
    American Civil Liberties Union, American Civil Liberties Union of Utah,
    Lambda Legal Defense & Education Fund, Inc., and National Center for
    Lesbian Rights in Support of Appellant Krystal Etsitty and Reversal of
    the District Court, 2005 WL 3516739, *3, Etsitty v. Utah Transit Auth.,
    10th Cir.; see also 1997 WL 471805, *8, Oncale v. Sundower Offshore
    Servs., U.S. S. Ct., Brief of Lambda Legal Defense Fund, Inc., et al.,
    as Amici Curiae in Support of Petitioner (`` `Congress' intent' in
    enacting title VII was `to forbid employers to take gender into account
    in making employment decisions[.]' '') (quoting Price-Waterhouse, 490
    U.S. at 239).
    ---------------------------------------------------------------------------
                    LGBT DISCRIMINATION IN PUBLIC EMPLOYMENT

        As you are no doubt aware, in enacting a remedy that abrogates the
    sovereign immunity of the States, Congress should have evidence of
    discriminatory practice in the public sector. However, evidence of
    discrimination in the private sector is relevant to this inquiry where
    the congressional record reflects that the problem is similar in the
    private and public sector.\18\ Unfortunately, it is the case that the
    public employment discrimination problem is similar, or even worse,
    given that it occurs against a backdrop of clear unlawfulness
    nationwide.
    ---------------------------------------------------------------------------
        \18\ Tennessee v. Lane, 541 U.S. 509, 528 (2004); Nevada Dept. of
    Human Resources v. Hibbs, 538 U.S. 721, 728-733 (2003).
    ---------------------------------------------------------------------------
        A review of nondiscrimination policies and directives illustrates
    the ongoing problem in public employment. According to Equality Forum,
    473 of the Fortune 500 companies have policies against sexual
    orientation discrimination.\19\ Of the 473 companies, 252 are
    headquartered in States with nondiscrimination statutes, but these
    companies' policies cover all employees, including those in States with
    no protection. More impressively, 221 of the companies are
    headquartered in States that do not ban sexual orientation
    discrimination.
    ---------------------------------------------------------------------------
        \19\ http://www.equalityforum.com/fortune500/
    listing.cfm?Status=1&Order=3. Equality Forum is a national and
    international nonprofit 501(c)(3) GLBT civil rights organization with
    an educational focus. Through its Fortune 500 Project, Equality Forum
    lobbies the Nation's largest corporations for sexual orientation
    discrimination protection by making the business case to CEOs, Human
    Resources Directors, Boards of Directors and large institutional
    investors at noncompliant companies. While Equality Forum's report of
    Fortune 500 companies with sexual orientation nondiscrimination
    policies differs somewhat from that of the Human Rights Campaign, the
    HRC report that 85 percent of Fortune 500 companies had such policies
    in 2008 also places the largest private sector companies well ahead of
    the States in instructing managers not to discriminate. See http.//
    www.hrc.org/issues/workplace/equal_opportunity/about_equal_opportunity
    asp.
    ---------------------------------------------------------------------------
        By contrast, of the 29 States that do not have sexual orientation
    discrimination statutes, only 11 have issued executive orders providing
    a clear State-law directive not to discriminate in public employment
    based on sexual orientation, and thus not to potentially incur
    liability for such conduct, and only 5 of these include gender identity
    in such executive orders.\20\ This is despite the fact that it is well-
    established, according to numerous courts, that the government violates
    equal protection guarantees when it discriminates against employees
    based on sexual orientation \21\ or on gender identity and
    expression.\22\
    ---------------------------------------------------------------------------
        \20\ Alaska (Admin. Order No. 195 (2002)); Arizona (Executive Order
    2003-22); Indiana (2004 Policy Statement--see http://www.in.gov/spd/
    files/eehandbook.pdf at p.13) (includes gender identity): Kansas
    (Executive Order 07-24) (includes gender identity); Kentucky (Executive
    Order 2008-473) (includes gender identity); Louisiana (Executive Order
    No. KBB 2004-54); Michigan (Executive Directive 2003-24); Montana (EEO
    Rules, 2.21.4001 et seq.); Ohio (Executive Order 2007-10S) (includes
    gender identity); Pennsylvania (Executive Order 2003-10) (includes
    gender identity); Virginia (Executive Order No. 1).
        \21\ See, e.g., Miguel v. Guess, 112 Wash. App. 536, 554, 51 P.3d
    89, 97 (2002) (``we hold that a State actor violates a homosexual
    employee's right of equal protection when it treats that person
    differently than it treats heterosexual employees, based solely upon
    the employee's sexual orientation.''); Quinn v. Nassau County Police
    Dept., 53 F. Supp. 2d 347, 357 (E.D.N.Y. 1999) (``a hostile work
    environment directed against homosexuals [employed by the government]
    based on their sexual orientation constitute[s] an Equal Protection
    violation.''); Emblen v. Port Authority of New York/New Jersey, 2002
    No. 00 Civ. 8877(AGS), 2002 WL 498634, 7 (S.D.N.Y. Mar. 29, 2002);
    Lovell v. Comsewogue School Dist., 214 F. Supp. 2d 319, 323 (E.D.N.Y.
    2002); Snetsinger v. Montana University System, 325 Mont. 148, 157, 104
    P.3d 445, 452 (2004); Glover v. Williamsburg Local School Dist. Bd. of
    Educ., 20 F. Supp. 2d 1160, 1169 (S.D. Ohio 1998); Weaver v. Nebo
    School Dist., 29 F. Supp. 2d 1279, 1289 (D. Utah 1998); Beall v. London
    City Sch. Dist. Bd of Educ., No. 2:04-cv-290, 2006 WL 1582447, at *15
    (S.D. Ohio June 8, 2006); Marcisz v. City of New Haven, No. Civ. 3:04-
    CV-01239WW, 2005 WL 1475329, at *2 (D. Conn. June 22, 2005); O.H. v.
    Oakland Unified Sch. Dist., No. C-99-5123, 2000 WL 33376299, at *9-10
    (N.D. Cal. Apr. 17, 2000); Tester v. City of New York, No. 95 Civ.
    7972, 1997 WL 81662, at *5-*6 (S.D.N.Y. Feb. 25, 1997).
        \22\ Smith v. City of Salem, Ohio, 378 F.3d 566, 577 (6th Cir.
    2004) (allegation of discrimination against transitioning employee
    stated a claim for sex discrimination under the Equal Protection
    Clause); Glenn v. Brumby, 632 F. Supp. 2d 1308, 1316 (N.D. Ga. 2009)
    (same); Doe v. U.S. Postal Service, No. 84-3296, 1985 WL 9446 (D.D.C.
    June 12, 1985) (same).
    ---------------------------------------------------------------------------
        A government employer's discrimination may violate other
    constitutional rights of the affected employee. For example, courts
    have recognized that a public employer violates an employee's First
    Amendment rights by taking action against the employee for being openly
    gay or supportive of others who are.\23\ Additionally, in ruling that
    sodomy laws violated the Due Process Clause, the Supreme Court in
    Lawrence v. Texas specifically noted that sodomy laws ``legally
    sanction[] discrimination . . . including in the area[] of
    employment.\24\ Lawrence solved this legal problem for public
    employees.
    ---------------------------------------------------------------------------
        \23\ E.g., Weaver, supra, 29 F. Supp. 2d at 1289; Ancafora v. Board
    of Educ., 491 F.2d 498 (4th Cir. 1974); Van Ooteghem v. Gray, 654 F.2d
    304 (5th Cir. 1981) (en banc). An example of public sector
    discrimination violating both equal protection and First Amendment
    rights is Lambda Legal's case, Plymouth-Canton Education Association v.
    Plymouth-Canton Board of Education, discussed below.
        \24\ Lawrence v. Texas, 539 U.S. 558, 582 (2003) (citation
    omitted). An example of how sodomy laws violated public employees' Due
    Process rights is Shahar v. Bowers, 114 F.3d 1097, 1104-05 (11th Cir.
    1997) (en banc), discussed below.
    ---------------------------------------------------------------------------
        Given that a primary purpose of executive orders is to ensure the
    faithful execution of the law,\25\ it is notable that so many States
    have not mandated compliance with constitutionally mandated principles
    of equal protection.\26\ This is especially so, given that, in these
    States, the absence of any statutory provision, coupled with typically
    rigorous adherence to the at-will doctrine, suggests a greater risk
    that an official might neglect the government's constitutional
    obligation not to discriminate.\27\
    ---------------------------------------------------------------------------
        \25\ E.g., Morris v. Governor, 214 Mich. App. 604, 610, 543 N.W.2d
    363, 365 (1995); Communications Workers of America, AFL-CIO v. Florio,
    130 N.J. 439, 455, 617 A.2d 223, 231 (1992); Va. Op. Atty Gen. 05-094
    (Feb. 24, 2006).
        \26\ While a State government would not be ordered to pay damages
    in a section 1983 discrimination suit, see Will v. Michigan Dep't of
    State Police, 491 U.S. 58 (1989), it has many financial incentives to
    prevent such lawsuits. It well may have to defend such a suit for
    nonmonetary relief (such as re-instatement), and may have assumed
    responsibility for paying an award that could be ordered against an
    individual State official. See Luder v. Endicott, 253 F.3d 1020, 1023
    (7th Cir. 2001) (``These examples show that the Eleventh Amendment does
    not protect the States against every expense or inconvenience . . .
    especially but not only expenses and inconveniences that a State could
    largely avoid by being hardhearted about claims against its employees
    [i.e., not pay them!].''); see also id. (citing cases holding that a
    State cannot extend its own immunity to its employees by agreeing to
    indemnify them for damage awards).
        \27\ The recent examples of anti-LGBT discrimination in public
    employment set forth below and in the appendix are especially relevant,
    coming after Federal courts have made it clear that such action is
    unlawful. See Tennessee v. Lane, 541 U.S. 509, 528 (2004) (``This
    pattern of disability discrimination persisted despite several Federal
    and State legislative efforts to address it''); cf Board of Trustees of
    University of Alabama v. Garrett, 531 U.S. 356, 370 n.6 (2001) (``But
    there is no indication that any State had persisted in [such
    discrimination against the mentally disabled] as of 1990 when the ADA
    was adopted.'').
    ---------------------------------------------------------------------------
        Moreover, even some of the few orders that have been issued have
    become political footballs. In Kentucky, Governor Paul Patton issued an
    order prohibiting sexual orientation and gender identity discrimination
    in State employment in 2003. In 2006, Governor Ernie Fletcher rescinded
    that order. After Steven Beshear soundly defeated Fletcher in 2007 to
    become governor, Beshear re-instated the executive order in 2008. In
    2004, Louisiana Governor Kathleen Blanco issued an executive order
    preventing sexual orientation discrimination in State employment; the
    current governor, Bobby Jindal, let that provision lapse in 2008. In
    2005, Virginia Governor Mark Warner issued a nondiscrimination
    executive order that was re-issued by his successor, Tim Kaine, in
    2006. The Virginia Attorney General, despite acknowledging the
    governor's duty to execute the law faithfully, held that the order was
    unconstitutional because the Virginia legislature had not enacted such
    a protection. Va. Op. Atty Gen. 05-094 (Feb. 24, 2006). The opinion did
    acknowledge that previous executive orders regarding nondiscrimination
    included categories that had not been covered by Virginia law but were
    covered by Federal law, but then stated that ``I need not opine,
    however, on the impact of Federal law and reliance thereon for an
    executive order as it is not relevant to the current inquiry,''
    apparently not regarding the U.S. Constitution as part of Federal law.
    See id. In sum, due to various actions and inactions, most supervisors
    in the public sector are not provided with guidance as to their clear
    obligation not to discriminate, while supervisors in the private sector
    are given that instruction, whether or not a legal obligation exists.
        Moreover, an individual government official can be held personally
    liable for discrimination, unlike title VII.\28\ The threat of having
    to pay out of pocket is very real, because courts have found the right
    to be free from LGBT discrimination in the public workplace so well-
    established that an official cannot claim qualified immunity.\29\ Given
    that Section 1983 not only provides a clear remedy for discrimination
    in public employment, regardless of the jurisdiction's local laws, and
    given that an individual government official can be held personally
    liable, one might expect instances of discrimination and harassment in
    public employment to be rare. Sadly, that is not the case. Below are a
    few examples of Lambda Legal's work to combat LGBT discrimination at
    the State and local levels:
    ---------------------------------------------------------------------------
        \28\ See, e.g., Smith v. Lomax, 45 F.3d 402, 407 (11th Cir. 1995).
        \29\ Beall, 2006 WL 1582447 at *15 (anti-gay discrimination was
    both objectively unreasonable and clearly proscribed so as to defeat
    qualified immunity); see also Lovell, 214 F. Supp. 2d at 325 (no
    qualified immunity); Emblem, 2002 WL 498634 at *11 (same); Miguel, 51
    P.3d at 99 (same).

         Grobeson v. City of Los Angeles.--Lambda Legal client
    Mitchell Grobeson was the first openly gay officer in the Los Angeles
    Police Department. In 1993, Grobeson settled a sexual orientation
    employment discrimination lawsuit he had filed against the city of Los
    Angeles after suffering harassment and discrimination when he was a
    sergeant. A settlement reached in the case resulted in his re-
    instatement to the force, but Grobeson soon had no option but to file a
    second lawsuit, charging the city and numerous police staff with
    violating the settlement agreement, as well as his Federal and State
    constitutional and State statutory rights. Grobeson also challenged the
    LAPD's decision to suspend him for his ``unauthorized recruiting'' of
    lesbians and gay men to join the force, and for allegedly wearing his
    uniform without permission in a photo in a gay weekly, and at gay pride
    and AIDS-awareness events. This second lawsuit prompted the city to
    make widespread improvements in its sexual orientation employment
    policies.
         Plymouth-Canton Education Association v. Plymouth-Canton
    Board of Education.--Openly gay teachers Mike Chiumento and Tom
    Salbenblatt, who were Lambda Legal clients, challenged their school
    district's order that they dismantle school displays that commemorated
    the historical role of lesbians and gay men, and addressed anti-gay
    harassment. The displays were in keeping with the school's theme of
    respect and dignity for all. In contrast to when similar, prior lesbian
    and gay history month displays were created by a non-gay staff member,
    Chiumento and Salbenblatt were attacked by the interim superintendent
    and members of the Board of Education for supposedly ``promoting''
    their personal ``lifestyles.'' The arbitrator who decided the case
    found the district had violated one teacher's constitutional right of
    free speech and had wrongfully discriminated against both teachers.
         Glenn v. Brumby et al.--Vandy Beth Glenn worked for 2
    years in the General Assembly's Office of Legislative Counsel as an
    editor and proofreader of bill language. After she was diagnosed with
    Gender Identity Disorder (GID), Glenn informed her immediate supervisor
    that she planned to proceed with her transition from male to female.
    Subsequently, Sewell Brumby, who is the head of the office in which
    Glenn worked, summoned Glenn to his office. After confirming that Glenn
    intended to transition, Brumby fired her on the spot. On July 22, 2008,
    Lambda Legal brought a Federal lawsuit on behalf of Glenn, which
    included a claim that her firing violated the Constitution's equal
    protection guarantee because it treated her differently due to her
    female gender identity and her nonconformity with gender stereotypes.
    In June 2009, a Federal court denied a motion to dismiss the case,
    ruling that ``Defendants do not claim that Glenn's transition would
    have rendered her unable to do her job nor do they present any
    government purpose whatsoever for their termination of Plaintiff 's
    employment. . . . Anticipated reactions of others are not a sufficient
    basis for discrimination.''
         Shahar v. Bowers.--After graduating at the top of her
    class from Emory Law, Robin Shahar was offered a position in the
    Georgia Attorney General's Office. Before she began the job, State
    Attorney General Michael Bowers learned of her plans to hold a
    commitment ceremony with her same-sex partner and rescinded the job
    offer. Bowers claimed that Shahar's sexual orientation would prevent
    her from enforcing the sodomy law then on the State's books, and a
    Georgia district court upheld his decision. Appealing the decision,
    Shahar cited violations of her First Amendment rights to free
    association and Fourteenth Amendment rights to equal treatment. Shahar
    initially won on appeal; however, the Eleventh Circuit decided to
    rehear the case before the entire court, which then decided for
    Bowers.\30\
    ---------------------------------------------------------------------------
        \30\ Lambda Legal submitted a friend-of-the-court brief to the 11th
    Circuit on Shahar's behalf and assisted with the petition to the
    Supreme Court. Lead counsel in the case, Ruth Harlow was working for
    the ACLU during Shahar's case. She subsequently became Legal Director
    of Lambda Legal and lead counsel in Lawrence v. Texas.
    ---------------------------------------------------------------------------
         Mitchell v. Bremen Community High School District No. 228
    and Gleason, et al.--In 2004, Richard Mitchell interviewed for the
    position of superintendent of Bremen Community High School District No.
    228 in Chicago. Following his interview, school board member Evelyn
    Gleason encouraged the board not to hire him because he is gay. But the
    board chose to hire Mitchell and in 2005 extended his 3-year contract.
    Soon after, Gleason became president of the school board and was able
    to do what she'd always wanted: get rid of Mitchell. When Mitchell
    notified the board that he intended to pursue his rights under local
    laws prohibiting sexual orientation discrimination, Gleason retaliated
    by trumping up false allegations against Mitchell in the media. He was
    suspended and later fired. Lambda Legal filed a complaint charging that
    Gleason's and the school board's actions are illegal under the Cook
    County Human Rights Ordinance, which is currently pending.
         Etsitty v. Utah Transit Authority.--Utah Transit Authority
    (UTA) hired Krystal Etsitty as a bus driver in 2001. Her work record
    was spotless. After telling her supervisor that she was undergoing
    gender transition and would be appearing more feminine at work, Etsitty
    gradually began to wear makeup and jewelry. Soon after, her supervisors
    decided that Etsitty's transition created an ``image issue'' for UTA,
    and they terminated her. Although UTA acknowledged that no one had
    complained about her performance or appearance, it claimed that the
    public would see Etsitty as ``inappropriate.'' The U.S. District Court
    for the district of Utah ruled against Etsitty, holding that title VII
    does not protect transgender employees.\31\ Lambda Legal joined other
    groups in filing a friend-of-the-court brief in the Tenth Circuit Court
    of Appeals in Etsitty's support.\32\ While the court ruled against
    Etsitty, it did, as urged by our brief, reject the district court's
    approach of excluding all transgender employees from the sex
    stereotyping discrimination protections of title VII.\33\
    ---------------------------------------------------------------------------
        \31\ Etstity v. Utah Transit Auth., 2:04CV616 DS, 2005 WL, 1505610
    *4 (D. Utah, June 24, 2005).
        \32\ See n.17, supra.
        \33\ Etstio v. Utah Transit Auth., 502 F.3d 1215, 1222 n.2 (10th
    Cir. 2007).
    ---------------------------------------------------------------------------
         Kastl v. Maricopa County Community College Dist.--During
    her gender transition, Rebecca Kastl worked as an instructor for the
    Maricopa County Community College District (``MCCCD'') while attending
    classes there. MCCCD banned Kastl from using the women's restroom until
    she could prove completion of sex reassignment surgery and then later
    refused to renew her teaching contract. The trial court ruled against
    Kastl on a novel theory potentially very damaging to the transgender
    community: that Kastl had failed to state a prima facie case because
    she had not provided ``evidence that she was a biological female.''
    \34\ While the Ninth Circuit also ruled for Kastl, it did reject, as
    urged in Lambda Legal's amicus brief, the trial court's holding that
    Kastl failed to state a prima facie case of gender stereotyping
    discrimination under title VII.\35\
    ---------------------------------------------------------------------------
        \34\ Kastl v. Maricopa County Community College Dist., No. CV-02-
    1531-PHX-SRB, 2006 WL 2460636 *6 (D. Ariz. Aug. 22, 2006).
        \35\ Kastl v. Maricopa County Community College Dist., 325 Fed.
    Appx. 492, 493 (9th Cir. 2009) (``it is unlawful to discriminate
    against a transgender (or any other) person because he or she does not
    behave in accordance with an employer's expectations for men or women.
    [citing Smith v. Salem]. Thus, Kastl states a prima facie case of
    gender discrimination under Title VII on the theory that impermissible
    gender stereotypes were a motivating factor in MCCCD's actions against
    her.'').

        Additionally, attached as an appendix is a brief synopsis of
    instances of public sector discrimination described by callers to
    Lambda Legal's help desk. Confidentiality concerns preclude our
    providing names or other identifying information or discussions of
    legal strategy. However, we wanted to provide these stories of
    discrimination, so that this committee could have a fuller
    understanding of the problem of public sector discrimination against
    LGBT employees, even if any attempt to capture this problem necessarily
    understates the problem.
        Again, we strongly urge you to support ENDA and would be happy to
    answer any questions you may have or provide any other assistance you
    may request.
                Respectfully yours,
                                              Hayley Gorenberg,
                                                 Acting Legal Director.
                                    Appendix

         Examples of Public Sector Discrimination Based on Sexual Orientation  or Gender Identity and Expression
    ----------------------------------------------------------------------------------------------------------------
                 Caller                    Employer              State               Year             Description
    ----------------------------------------------------------------------------------------------------------------
    Caller A........................  Municipality......  NY................  2009..............  Adverse employment
                                                                                                   action; demotion:
                                                                                                   Caller A is a
                                                                                                   long-time
                                                                                                   seasonal employee
                                                                                                   for a local board
                                                                                                   of education.
                                                                                                   After disclosing
                                                                                                   to the director
                                                                                                   that she and her
                                                                                                   lesbian partner
                                                                                                   were going to
                                                                                                   move in together,
                                                                                                   her director
                                                                                                   replied
                                                                                                   negatively, and
                                                                                                   the contract she
                                                                                                   had had renewed
                                                                                                   for 10 years was
                                                                                                   not renewed
                                                                                                   again. Her
                                                                                                   director called
                                                                                                   her and instead
                                                                                                   offered her a job
                                                                                                   that paid $9 an
                                                                                                   hour instead of
                                                                                                   her usual $18 an
                                                                                                   hour, and
                                                                                                   employed her for
                                                                                                   only 3 hours a
                                                                                                   day instead of
                                                                                                   the full time she
                                                                                                   previously
                                                                                                   worked.
    Caller B........................  Municipality......  VA................  2009..............  Harassment;
                                                                                                   discrimination in
                                                                                                   terms and
                                                                                                   conditions of
                                                                                                   employment:
                                                                                                   Caller B is not a
                                                                                                   gay man but he is
                                                                                                   perceived as such
                                                                                                   by his coworkers
                                                                                                   and was subjected
                                                                                                   to relentless
                                                                                                   harassment. His
                                                                                                   supervisor talked
                                                                                                   incessantly about
                                                                                                   having anal sex
                                                                                                   with Caller B and
                                                                                                   would tell Caller
                                                                                                   B sexually-
                                                                                                   charged stories
                                                                                                   about the
                                                                                                   supervisor's time
                                                                                                   in jail. Caller B
                                                                                                   also has been
                                                                                                   forced by this
                                                                                                   supervisor to
                                                                                                   perform far more
                                                                                                   demanding work
                                                                                                   than his
                                                                                                   colleagues,
                                                                                                   despite his being
                                                                                                   physically
                                                                                                   smaller than they
                                                                                                   are.
    Caller C........................  County School       MO................  2008..............  Non-renewal of
                                       District.                                                   contract: Gym
                                                                                                   teacher in a
                                                                                                   public school did
                                                                                                   not have her
                                                                                                   contract renewed
                                                                                                   and believes this
                                                                                                   was due to her
                                                                                                   sexual
                                                                                                   orientation. She
                                                                                                   overheard one of
                                                                                                   the school board
                                                                                                   members say that,
                                                                                                   had he known
                                                                                                   Caller C was a
                                                                                                   ``dyke,'' he
                                                                                                   would never have
                                                                                                   hired her in the
                                                                                                   first place.
    Caller D........................  Municipal Fire      CA................  2008..............  Failure to
                                       Department.                                                 promote;
                                                                                                   harassment:
                                                                                                   Deputy fire
                                                                                                   marshal passed
                                                                                                   test for the
                                                                                                   position of
                                                                                                   battalion chief
                                                                                                   but was not
                                                                                                   promoted. He
                                                                                                   subsequently
                                                                                                   learned that the
                                                                                                   fire chief told
                                                                                                   another employee
                                                                                                   that he believed
                                                                                                   Caller D was not
                                                                                                   promotable
                                                                                                   because he is
                                                                                                   gay. After Caller
                                                                                                   D filed an
                                                                                                   internal
                                                                                                   complaint, the
                                                                                                   work environment
                                                                                                   became
                                                                                                   progressively
                                                                                                   more hostile.
    Caller E........................  Municipal Police    OK................  2008..............  Harassment;
                                       Department.                                                 discrimination in
                                                                                                   terms and
                                                                                                   conditions of
                                                                                                   employment:
                                                                                                   Police officer
                                                                                                   transitioned on
                                                                                                   the job from male
                                                                                                   to female. She
                                                                                                   thereafter
                                                                                                   experienced
                                                                                                   severe harassment
                                                                                                   based on her
                                                                                                   gender identity.
                                                                                                   After her
                                                                                                   transition, the
                                                                                                   police department
                                                                                                   also insisted
                                                                                                   that she undergo
                                                                                                   psychological
                                                                                                   evaluations and
                                                                                                   transferred her
                                                                                                   to an unfavorable
                                                                                                   position.
    Caller F........................  Public High School  IL................  2008..............  Harassment:
                                                                                                   Teacher was
                                                                                                   repeatedly
                                                                                                   harassed by
                                                                                                   students, who,
                                                                                                   among other
                                                                                                   things, wrote on
                                                                                                   the tables in his
                                                                                                   classroom that
                                                                                                   ``[Caller F] is a
                                                                                                   fag'' and
                                                                                                   included similar
                                                                                                   derogatory
                                                                                                   phrases in
                                                                                                   textbooks in his
                                                                                                   class. Caller F
                                                                                                   made complaints
                                                                                                   to the
                                                                                                   administration
                                                                                                   about this
                                                                                                   harassment but
                                                                                                   received no
                                                                                                   response. Caller
                                                                                                   F is perceived to
                                                                                                   be gay but in
                                                                                                   fact he is a
                                                                                                   married
                                                                                                   heterosexual man.
    Caller G........................  Municipality......  AL................  2007..............  Harassment;
                                                                                                   discrimination in
                                                                                                   terms and
                                                                                                   conditions of
                                                                                                   employment: City
                                                                                                   communication
                                                                                                   technician began
                                                                                                   to experience
                                                                                                   workplace
                                                                                                   harassment based
                                                                                                   on her gender
                                                                                                   identity when a
                                                                                                   new supervisor
                                                                                                   was hired. In
                                                                                                   addition, Caller
                                                                                                   M's new
                                                                                                   supervisor
                                                                                                   assigned her to
                                                                                                   work with
                                                                                                   coworkers who did
                                                                                                   not want to work
                                                                                                   with her because
                                                                                                   she is
                                                                                                   transgender and
                                                                                                   gave her
                                                                                                   unfavorable work
                                                                                                   assignments,
                                                                                                   which entailed
                                                                                                   more difficult
                                                                                                   tasks than those
                                                                                                   required of other
                                                                                                   employees.
    Caller H........................  Municipal Code      TX................  2007..............  Harassment;
                                       Enforcement                                                 failure to
                                       Office.                                                     promote: After a
                                                                                                   code compliance
                                                                                                   inspector
                                                                                                   designated her
                                                                                                   same-sex partner
                                                                                                   as a beneficiary
                                                                                                   for certain
                                                                                                   employment
                                                                                                   benefits, the
                                                                                                   officer
                                                                                                   administrator
                                                                                                   told everyone
                                                                                                   that Caller H is
                                                                                                   a lesbian.
                                                                                                   Coworkers made
                                                                                                   repeated
                                                                                                   derogatory
                                                                                                   comments about
                                                                                                   ``faggots'' and
                                                                                                   one female
                                                                                                   religious
                                                                                                   employee told
                                                                                                   Caller H that,
                                                                                                   because she did
                                                                                                   not have a
                                                                                                   boyfriend, she
                                                                                                   ``wasn't whole .
                                                                                                   . . that's your
                                                                                                   problem.'' A
                                                                                                   picture of Janet
                                                                                                   Jackson's breast
                                                                                                   was placed on
                                                                                                   Caller H's
                                                                                                   computer.
                                                                                                   Complaints to her
                                                                                                   manager were
                                                                                                   rejected. When a
                                                                                                   new supervisor
                                                                                                   was hired, he
                                                                                                   would ignore
                                                                                                   Caller H and
                                                                                                   avoid eye contact
                                                                                                   with her at
                                                                                                   meetings. He also
                                                                                                   required caller H
                                                                                                   to train three
                                                                                                   replacements for
                                                                                                   a management
                                                                                                   position that she
                                                                                                   was qualified for
                                                                                                   and that she had
                                                                                                   been told she
                                                                                                   would receive
                                                                                                   prior to his
                                                                                                   arrival.
    Caller I........................  Municipal Police    SC................  2007..............  Failure to hire:
                                       Department.                                                 Caller I had quit
                                                                                                   the State police
                                                                                                   academy in
                                                                                                   another State to
                                                                                                   move to South
                                                                                                   Carolina. She
                                                                                                   received a good
                                                                                                   reference from
                                                                                                   her former
                                                                                                   employer and,
                                                                                                   according to
                                                                                                   Caller I, she
                                                                                                   also has a ``good
                                                                                                   background and a
                                                                                                   degree.'' Caller
                                                                                                   I applied to a
                                                                                                   police department
                                                                                                   in South Carolina
                                                                                                   and, during a
                                                                                                   routine polygraph
                                                                                                   test, she was
                                                                                                   asked if she is a
                                                                                                   lesbian. She
                                                                                                   responded
                                                                                                   truthfully that
                                                                                                   the answer was
                                                                                                   ``yes.'' She
                                                                                                   thereafter was
                                                                                                   not selected for
                                                                                                   the position. She
                                                                                                   learned from
                                                                                                   references she
                                                                                                   had given that
                                                                                                   they had not been
                                                                                                   contacted.
    Caller J........................  Municipal Fire      OK................  2007..............  Harassment: Caller
                                       Department.                                                 J has been an
                                                                                                   electronic
                                                                                                   technician who
                                                                                                   repairs city
                                                                                                   traffic lights
                                                                                                   and works out of
                                                                                                   a city firehouse.
                                                                                                   After another
                                                                                                   employee learned
                                                                                                   that Caller J is
                                                                                                   gay, Caller J
                                                                                                   began to
                                                                                                   experience
                                                                                                   mounting
                                                                                                   harassment from
                                                                                                   coworkers,
                                                                                                   including being
                                                                                                   called a
                                                                                                   ``c**ks***er,''
                                                                                                   being whistled
                                                                                                   at, being told
                                                                                                   that ``Queers are
                                                                                                   just s**t; people
                                                                                                   like you float,''
                                                                                                   and being
                                                                                                   lectured that
                                                                                                   homosexuality is
                                                                                                   ``against the
                                                                                                   Bible'' and that
                                                                                                   gay people are
                                                                                                   ``an abomination
                                                                                                   to God.'' When a
                                                                                                   new employee
                                                                                                   complained about
                                                                                                   having to clean
                                                                                                   the showers at
                                                                                                   the firehouse,
                                                                                                   Caller J
                                                                                                   commented that
                                                                                                   they were so
                                                                                                   filthy that he
                                                                                                   wouldn't take a
                                                                                                   shower with his
                                                                                                   male coworkers.
                                                                                                   The new employee
                                                                                                   replied that,
                                                                                                   according to what
                                                                                                   he had heard from
                                                                                                   others, he had
                                                                                                   thought that
                                                                                                   ``you'd like
                                                                                                   that.'' Most
                                                                                                   serious is that a
                                                                                                   coworker
                                                                                                   repeatedly
                                                                                                   screamed at
                                                                                                   Caller J,
                                                                                                   physically
                                                                                                   intimidated him,
                                                                                                   and twice
                                                                                                   threatened to
                                                                                                   kill him. When
                                                                                                   Caller J
                                                                                                   complained, his
                                                                                                   shift was changed
                                                                                                   against his
                                                                                                   wishes so that he
                                                                                                   would not work
                                                                                                   the same time as
                                                                                                   that coworker.
                                                                                                   The department
                                                                                                   administrator has
                                                                                                   refused to give
                                                                                                   Caller J a copy
                                                                                                   of the employee
                                                                                                   policies on
                                                                                                   sexual harassment
                                                                                                   and
                                                                                                   nondiscrimination
                                                                                                   .
    Caller K........................  County Sheriff      IL................  2007..............  Harassment;
                                       Department.                                                 failure to
                                                                                                   promote: Caller K
                                                                                                   is a corrections
                                                                                                   officer. A fellow
                                                                                                   officer
                                                                                                   repeatedly
                                                                                                   referred to
                                                                                                   Caller K as a
                                                                                                   ``motherf****n'
                                                                                                   faggot'' in front
                                                                                                   of other officers
                                                                                                   and inmates. The
                                                                                                   officer who did
                                                                                                   this was not
                                                                                                   suspended, even
                                                                                                   though two
                                                                                                   employees who had
                                                                                                   used the ``N-
                                                                                                   word'' around the
                                                                                                   same time had
                                                                                                   been immediately
                                                                                                   terminated. After
                                                                                                   Caller K
                                                                                                   commenced a union
                                                                                                   grievance, shift
                                                                                                   commanders told
                                                                                                   Caller K to
                                                                                                   ``leave it
                                                                                                   alone'' and
                                                                                                   warned him that
                                                                                                   he was ``playing
                                                                                                   with fire.''
                                                                                                   Thereafter, even
                                                                                                   though Caller K
                                                                                                   was qualified for
                                                                                                   a promotion, the
                                                                                                   position was
                                                                                                   awarded to a
                                                                                                   heterosexual
                                                                                                   candidate from
                                                                                                   ``off the
                                                                                                   street'' with
                                                                                                   much less
                                                                                                   experience than
                                                                                                   Caller K. Caller
                                                                                                   K eventually
                                                                                                   resigned over his
                                                                                                   treatment.
    Caller L........................  State University..  CO................  2007..............  Harassment;
                                                                                                   discrimination in
                                                                                                   terms and
                                                                                                   conditions of
                                                                                                   employment:
                                                                                                   Professor at
                                                                                                   State university
                                                                                                   for more than two
                                                                                                   decades, who has
                                                                                                   long been open
                                                                                                   about his being
                                                                                                   gay, began to
                                                                                                   experience
                                                                                                   problems when the
                                                                                                   former provost of
                                                                                                   the university
                                                                                                   retired. The dean
                                                                                                   thereafter began
                                                                                                   making derogatory
                                                                                                   comments about
                                                                                                   Caller L in
                                                                                                   meetings,
                                                                                                   including
                                                                                                   referring to him
                                                                                                   as a girl. Caller
                                                                                                   L was then passed
                                                                                                   over as chair of
                                                                                                   his department in
                                                                                                   favor of a
                                                                                                   heterosexual
                                                                                                   woman with much
                                                                                                   less tenure, even
                                                                                                   though Caller L
                                                                                                   previously had
                                                                                                   been the chair of
                                                                                                   a related
                                                                                                   department.
                                                                                                   Caller L has also
                                                                                                   been stripped of
                                                                                                   graduate courses
                                                                                                   that he has
                                                                                                   taught for years
                                                                                                   and has been
                                                                                                   given only
                                                                                                   undergraduate
                                                                                                   courses to teach,
                                                                                                   based on a false
                                                                                                   claim that he did
                                                                                                   not turn in his
                                                                                                   lesson plans on
                                                                                                   time.
    ----------------------------------------------------------------------------------------------------------------

                                     ______

                 Leadership Conference on Civil Rights,
                                          Washington, DC 20006,
                                                      November 3, 2009.
        Dear Member of Congress: On behalf of the Leadership Conference on
    Civil Rights (LCCR), the Nation's oldest, largest, and most diverse
    civil and human rights coalition, we urge you to become a cosponsor of
    H.R. 3017/S. 1584, the Employment Non-Discrimination Act (ENDA). It is
    time for Congress to act on this crucial civil rights legislation.
        Our organizations are dedicated to the principle that every worker
    should be judged solely on his or her merits. Hardworking Americans
    should not be kept from supporting their families and making a positive
    contribution to the economic life of our Nation because of
    characteristics that have no bearing whatsoever on their ability to do
    a job. Yet it remains legal in 29 States to fire or refuse to hire
    someone simply because of his or her sexual orientation, and in 38
    States it is legal to do so solely based on an individual's gender
    identity. ENDA prohibits discrimination based on sexual orientation and
    gender identity in most workplaces. The time has long since come to end
    this injustice for gay, lesbian, bisexual and transgender Americans and
    pass ENDA.
        America's corporate leaders support ENDA's fair-minded approach.
    Eighty-five percent of Fortune 500 companies have included sexual
    orientation protections in their workplace policies and more than a
    third of them also prohibit discrimination based on gender identity.
    Corporate America is leading the way in workplace fairness.
        Public support for ENDA is strong. A May 2008 poll conducted by
    Gallup found that 89 percent of Americans believe gay men and lesbians
    should have equal rights in the workplace. It is clear that Americans
    know that ENDA represents a measured and pragmatic response to unjust
    prejudice and discrimination.
        We hope you will cosponsor and support this historic legislation.
    Please feel free to contact Rob Randhava, LCCR Counsel, at 202-466-6058
    if you have any questions.
                Sincerely,

         A. Philip Randolph Institute; Alliance for Retired Americans;
     American Association for Affirmative Action; American Association
       of People with Disabilities; American Association of University
    Women; American Civil Liberties Union; American Federation of Labor
            & Congress of Industrial Organizations (AFL-CIO;) American
         Federation of State, County and Municipal Employees; American
    Federation of Teachers; American Jewish Committee; American Speech-
    Language-Hearing Association; Americans for Democratic Acton, Inc.;
    Anti-Defamation League; Asian American Justice Center; Association
     of Flight Attendants--CWA; B'nai B'rith International; Center for
      Women Policy Studies; CenterLink: The Community of LGBT Centers;
           Communications Workers of America; Disciples Justice Action
    Network; Gay, Lesbian and Straight Education Network; Human Rights
       Campaign; International Union, United Automobile, Aerospace and
    Agricultural Implement Workers of America (UAW); Japanese American
     Citizens League; Jewish Council for Public Affairs; Lambda Legal;
    Leadership Conference on Civil Rights; Legal Aid Society-Employment
    Law Center; Legal Momentum; NAACP; National Asian Pacific American
        Bar Association; National Association of Human Rights Workers;
    National Association of Social Workers; National Center for Lesbian
    Rights; National Center for Transgender Equality; National Council
         of Jewish Women; National Disability Rights Network; National
      Education Association; National Employment Law Project; National
       Employment Lawyers Association; National Fair Housing Alliance;
    National Gay and Lesbian Task Force Action Fund; National Stonewall
         Democrats; Parents, Families and Friends of Lesbians and Gays
     (PFLAG) National; People For the American Way; Pride At Work, AFL-
          CIO; Sexuality Information and Education Council of the U.S.
            (SIECUS); Union for Reform Judaism; Unitarian Universalist
    Association of Congregations; United Church of Christ, Justice and
                Witness Ministries; United Food and Commercial Workers
        International Union; United Methodist Church, General Board of
            Church and Society; Woodhull Freedom Foundation; and Women
                                                              Employed.
                                     ______

                          Marriott International, Inc.,
                                           Washingon, DC 20058,
                                                      November 3, 2009.
    Hon. Michael B. Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    Washington, DC 20510.
        Dear Senator Enzi: As a lodging industry leader, Marriott
    International, Inc. would like to express our support of the Employment
    Non-discrimination Act (S. 1584) which would extend fair employment
    practices under Federal law to gay, lesbian, bisexual and transgender
    employees.
        Marriott has implemented its own non-discrimination policy to make
    our workplace values of fairness clear and transparent to our
    employees. In the years since its implementation, the policy has been
    accepted broadly, and we believe it has affected our bottom-line for
    the better. Our gay, lesbian, bisexual and transgender employees feel
    that they are equally protected and valued by the company. And it has
    further reinforced for all of our employees that fairness and non-
    discrimination remain fundamental in our workplace.
        Businesses that drive away talented and capable employees are
    certain to lose their competitive edge, an outcome that we must not
    accept in this competitive global marketplace. That is why a majority
    of FORTUNE 500 companies have already addressed these issues. We
    believe that the Employment Non-Discrimination Act is an appropriate,
    no-cost measure that will have a positive impact on our country's
    ability to compete, by extending protection in the majority of U.S.
    States where it remains legal to fire gay, lesbian, bisexual and
    transgender employees.
        Marriott strongly supports passage of the Employment Non-
    Discrimination Act. The principles it fosters are consistent with our
    company principles in treating all employees with fairness and respect.
    We encourage Congress to move quickly and enact this important
    legislation.
                Sincerely,
                                      David A. Rodriguez, Ph.D.
                      Executive Vice President, Global Human Resources.
                                     ______

             National Center for Lesbian Rights (NCLR),
                                            September 23, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate.

    Hon. Mike Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate.

    Re: Crucial Protections For State And Local Government Employees under
    ENDA

        Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
    National Center for Lesbian Rights (NCLR), we are writing to provide
    you with concrete information showing why it is critically important
    that the Senate Committee on Health, Education, Labor, and Pensions
    support the Employment Non-Discrimination Act (ENDA).
        NCLR is a national legal organization committed to advancing the
    civil and human rights of lesbian, gay, bisexual, and transgender
    (LGBT) people and their families through litigation, public policy
    advocacy, and public education. We provide assistance to LGBT and
    gender non-conforming workers through our legal information helpline
    and represent clients in employment matters at the claims and appeals
    levels. We also provide technical advice and assistance to private
    attorneys representing LGBT and gender non-conforming workers in
    employment discrimination and harassment matters. NCLR was founded in
    1977. Each year, through litigation, public policy advocacy and public
    education, NCLR helps more than 5,000 LGBT people and their families
    nationwide. Through this work, NCLR has acquired extensive knowledge of
    the widespread pattern of discrimination against American workers who
    are LGBT.
        This letter will focus on one issue that ENDA would address:
    discrimination by State and local governments against their employees
    on the basis of sexual orientation and gender identity. The protection
    that ENDA would provide is crucial to securing these employees'
    constitutional rights and their ability to work in an environment that
    is safe and respects their professional dignity as workers.

         THERE IS A WIDESPREAD PATTERN OF UNCONSTITUTIONAL EMPLOYMENT
        DISCRIMINATION AGAINST LGBT AND GENDER NON-CONFORMING EMPLOYEES

        NCLR has observed a clear and widespread pattern of
    unconstitutional employment discrimination against LGBT and gender non-
    conforming employees. This pattern is not limited to any one State or
    region, to any particular level of government, or to any type of
    government agency. Our litigation docket has included cases against the
    Utah Transport Authority, a Texas school district, and a California
    public university. In recent years, we have also received dozens of
    calls from State and local employees who were facing discrimination and
    harassment in their workplace based on their sexual orientation and/or
    gender identity and expression. We have received requests for help from
    the western United States, New England, the South, including Florida,
    and the Midwest. State and local agencies engaging in discrimination
    have included a State department of health, a State department of child
    support enforcement, county agencies, city government, and local and
    county sheriff 's and police departments.
        The discrimination and harassment faced by State and local
    government workers who have called NCLR has been severe and blatant.
    For example, one transgender woman worker in Florida was called a
    ``thing'' by her co-workers, and continuously harassed when she tried
    to use the bathroom. Her supervisor was aware of the problem, but
    refused to intervene. A lesbian worker in Georgia was humiliatingly
    interrogated for 4 hours by her employer about her sexual preferences,
    family life and personal acquaintances, then told not to speak about
    what had been asked during the interview. She was subsequently
    terminated.

     DISCRIMINATION AGAINST LGBT AND GENDER NON-CONFORMING STATE AND LOCAL
                    EMPLOYEES PERPETUATES GENDER STEREOTYPES

        Homophobic and transphobic harassment and discrimination against
    employees has the clear effect, if not the intent, of reinforcing
    gender stereotypes. In NCLR's experience, victims of discrimination and
    harassment are often targeted as much for failing to conform to gender
    stereotypes as for their actual sexual orientation or gender identity.
    This goes against the basic and long-recognized principle that the U.S.
    Constitution's guarantee of Equal Protection prohibits State
    governments from acting in such a way as to perpetuate stereotypes
    about how men and women are expected to behave. Craig v. Boren, 429
    U.S. 190 (1976).
        The relationship between gender stereotypes and discrimination
    based on sexual orientation or gender identity is also clear from the
    case law. For example, in Hamm v. Weyauwega Milk Prods., Inc., the
    plaintiff 's co-workers called him ``girl scout,'' ``faggot,'' and
    ``bisexual'' and circulated a rumor that he and a male supervisor were
    having a romantic relationship, despite the fact that he was in fact
    heterosexual. 332 F.3d 1058, 1060 (7th Cir. 2003). The non-transgender
    plaintiff in Doe by Doe v. City of Belleville, IL was harassed by co-
    workers asking him if he was a ``boy or girl'' because he failed to
    conform to gender stereotypes, in part by wearing an earring. 119 F.3d
    563 (7th Cir. 1997).

     DISCRIMINATION AGAINST LGBT AND GENDER NON-CONFORMING STATE AND LOCAL
                          EMPLOYEES IS UNDER-REPORTED

        In NCLR's experience, LGBT and gender non-conforming State and
    local employees face numerous barriers to reporting discrimination and
    harassment in the workplace.
        First, without explicit Federal protections, State and local
    employees are not only vulnerable to discrimination, but are also less
    likely to speak out about it or make complaints, out of fear of
    retaliation by the employer and a lack of administrative or legal
    recourse for such discrimination or retaliation. For example, a lesbian
    worker in Arizona was repeatedly called a ``dyke'' and told she smelled
    of ``s*** and p***'' by co-workers, with no intervention by her
    supervisor. When she made a complaint to the EEOC, she was told this
    was not considered sexual harassment and therefore that she had no
    basis for a complaint. A gay male employee in Florida faced virulent
    anti-gay comments from a colleague. When he complained to a supervisor,
    he was reprimanded for making the complaint and subsequently
    terminated.
        In addition, the nature of the discrimination and harassment
    against LGBT employees frequently includes an aspect of malicious
    ``outing'' or making public of their sexual orientation or transgender
    status, and other private information. For such employees, making a
    legal or administrative claim may lead to further unwanted publicity.
    Many rightly fear that it would expose them to more, rather than less,
    discrimination based on their sexual orientation or gender identity in
    their community or at a subsequent employer. In one situation that NCLR
    was contacted about, a police captain intentionally told a lesbian
    worker's potential employer about her sexual orientation in an attempt
    to prevent the worker from finding alternative employment, relying on
    homophobic discrimination in the community generally.

      PROTECTIONS AGAINST DISCRIMINATION BASED ON SEXUAL ORIENTATION AND
               GENDER IDENTITY ARE ESPECIALLY IMPORTANT RIGHT NOW

        In these difficult economic times, protecting LGBT and gender non-
    conforming workers at State and local agencies from unfair treatment on
    the job is more crucial than ever. Even in economically prosperous
    times, transgender people in particular find it difficult to find
    dignified work in a safe environment. In 2003, we conducted a joint
    study with the Transgender Law Center and found that 79 percent of San
    Francisco's transgender community made less than $50,000 a year, and
    over 40 percent lacked health insurance. Trans Realities: A Legal Needs
    Assessment of San Francisco's Transgender Communities, available at
    http://transgenderlaw
    center.org/trans/pdfs/Trans%20Realities%20Final%20Final.pdf. Under the
    American Recovery And Reinvestment Act, an estimated $49 billion in
    funds has been provided to State and local governments. It is critical
    that LGBT and gender non-conforming workers have an equal shot at
    getting and retaining the new jobs created by this funding.
        For all of these reasons and others, we urge approval and passage
    of ENDA. LGBT and gender non-conforming State and local employees must
    have explicit and clear Federal statutory protections from and remedies
    for workplace discrimination. Thank you for your time and for your
    attention to the serious discrimination facing tens of thousands of
    workers in the United States that passage of ENDA would address.
                Sincerely,
                                         Kathryn Kendell, Esq.,
                Executive Director, National Center for Lesbian Rights.

                                          Shannon Minter, Esq.,
                    Legal Director, National Center for Lesbian Rights.

             Attachment 1.--Examples of Anti-LGBT Discrimination:
                            State & Local Employers

                                   CALIFORNIA

    Sulpizio and Bass v. San Diego Mesa College (local--community college
            district/coach)
        ``Lorri Sulpizio was the Head Women's Basketball Coach at San Diego
    Mesa College (Mesa), and her domestic partner, Cathy Bass, assisted the
    team and served as the team's Director of Basketball Operations for
    over 8 years. Despite Sulpizio's and Bass's dedication and demonstrated
    track record of success leading the women's basketball program at the
    community college, Mesa officials unlawfully fired both coaches at the
    end of the 2007 academic year after Coach Sulpizio repeatedly advocated
    for equal treatment of female student-athletes and women coaches, and
    following publication in a local paper of an article identifying
    Sulpizio and Bass as domestic partners.'' See NCLR, Employment Case
    Docket: Sulpizio and Bass v. San Diego Mesa College, http://
    www.nclrights.org/site/PageServer?pagename=issue
    _caseDocket_sulpizio.
    Bay Area School District (local--school district/teacher)
        ``One woman in particular stands out. She is a teacher who
    transitioned in the Bay Area in the late 1990s. Since transitioning,
    she has not been able to secure a full-time teaching contract in any of
    the several school districts to which she has applied. Needing work,
    she recently applied to an entry-level Federal job. After two days and
    multiple hours of interviews and screening, she was turned down for the
    position immediately after she disclosed her transgender status on a
    comprehensive medical questionnaire.'' Shannon Minter & Christopher
    Daley, Trans Realities: A Legal Needs Assessment of San Francisco's
    Transgender Communities at 15 (National Center for Lesbian Rights &
    Transgender Law Center, 2003), available at http://
    transgenderlawcenter.org/trans/pdfs/Trans%20Realities%20Final%20Final
    .pdf. [hereinafter Trans Realities].

                                  CONNECTICUT

    Conway v. City of Hartford (local--city/employee)
        The plaintiff, a transgender man, was terminated by his city
    employer after transitioning from female to male, and was not rehired
    for another position although other city employees who had been
    terminated around the same time were all rehired. Conway v. City of
    Hartford, 1997 WL 78585 (Conn. Super. Ct.), 19 Conn. L. Rptr. 109 (Feb.
    4, 1997), cited in Shannon Minter, Legal Dir., National Center for
    Lesbian Rights, Representing Transsexual Clients: Selected Legal Issues
    at 4 n.22 (2003), available at http://www.hawaii.edu/hivandaids/
    Representing_Trans
    sexual_Clients_Selected_Legal_Issues.pdf [hereinafter Minter,
    Representing].

                                    FLORIDA

    Smith v. City of Jacksonville Correctional Inst., (local--city jail/
            sergeant)
        A transgender corrections officer with a stellar employment record
    was terminated after the fact that she was transgender was made public
    and a report mentioning her transgender status was circulated
    throughout the city jail where she worked. Smith v. City of
    Jacksonville Corr. Inst., 1991 WL 833882 (Fla. Div. Admin. Hrgs. 1991),
    cited in Minter, Representing at 3 n.11.
    Fishbaugh v. Brevard County Sheriff 's Dep't (local--country sheriff 's
            dep't/employee)
        A transgender deputy sheriff was forced to leave her job due to
    unlawful employment practices by the sheriff 's department. Fishbaugh
    v. Brevard County Sheriff 's Dep't, Order No. 04-103 (Fla. Comm'n on
    Human Relations 2004), available at http://fchr.state.fl.us/fchr/
    layout/set/print/content/view/full/2263), cited in NCLR, Cases
    Recognizing Protection for Transgender People Under State Sex and
    Disability Discrimination Laws (2008), available at http://
    www.nclrights.org/site/DocServer/state_cases091004.pdf?docID=1203
    [hereinafter NCLR, State Sex & Disability].
    Mowery v. Escambia County Utilities Authority (local--county utilities
            authority/utility service technician)
        Employee suffered harassment based on the perception that he was
    gay due to sex stereotyping (i.e. that Mowery ``was 40 years old, owned
    a house, had a truck paid for, did not have a woman, and never
    publicized his sexual escapades with women to his coworkers'') and his
    supervisor retaliated against him when he complained. Mowery v.
    Escambia County Utilities Authority, 2006 FL 327965, at *6 (N.D. Fla.
    2006), cited in NCLR, Federal Cases Recognizing That Discrimination on
    the Basis of Gender Non-Conformity and/or Transgender Status Is a Form
    of Discrimination on the Basis of Sex at 3 (2006), available at http://
    www.nclrights.org/site/DocServer/
    fed_gender_nonconformity.pdf?docID=1202 [hereinafter NCLR, Federal Sex
    Discrimination].

                                   NEW JERSEY
    DePiano v. Atlantic County (local--county/corrections officer)
        A prison guard who cross-dressed in his private life was subject to
    severe and pervasive harassment at work after the fact that he
    sometimes cross-dressed was publicized, possibly by his supervisor, to
    his coworkers as well as the inmates of the prison where he worked.
    DePiano v. Atlantic County, 2005 WL 2143972 (D.N.J. 2005), cited in
    NCLR, State Sex & Disability at 2.

                                    NEW YORK

    Martin v. New York State Dep't of Corr. Servs., (State--State
            department of corrections/corrections officer)
        Co-workers of gay corrections officer constantly directed offensive
    and degrading sexual comments toward him, such as ``pervert,'' ``f
    ***ing faggot,'' ``c***-sucker,'' ``fudge-packer,'' and ``you gay
    bastard,'' and left sexually explicit pictures in his work area and
    written statements and pictures on the restroom walls, yard booths, his
    time card and his interoffice mail. The officer was retaliated against
    for filing complaints. Martin v. New York State Dep't of Corr. Servs.,
    224 F. Supp. 2d 434 (N.D.N.Y. 2002) (noting that discrimination based
    on a failure to conform to gender norms might be cognizable under title
    VII), cited in NCLR, Federal Sex Discrimination at 4.

                                      OHIO

    Barnes v. City of Cincinnati (local--city/police officer)
        Officer who had passed the examination required to be promoted to
    sergeant and who was transitioning from male to female was singled out
    and ``targeted for failure'' during probationary period for promotion
    to sergeant because the officer was not masculine enough in behavior or
    appearance. Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir.
    2005), cited in NCLR, Federal Sex Discrimination at 2.
    Smith v. City of Salem, (local--city/firefighter)
        After firefighter was criticized for appearing too feminine, he
    informed his direct supervisor that he had gender identity disorder and
    would be transitioning from male to female. Upper-level city management
    devised a plan to terminate him for pre-textual reasons. After the
    firefighter learned of the plan to terminate him, he retained counsel
    and was retaliated against through selective enforcement of fire
    department policies. Smith v. City of Salem, 378 F.3d 566, 573 (6th
    Cir. 2004), cited in NCLR, Federal Sex Discrimination at 2.

                                  PENNSYLVANIA

    Bianchi v. City of Philadelphia (local--city/firefighter)
        Lieutenant firefighter experienced severe harassment from co-
    workers based on the perception that he was gay, including having feces
    smeared on his belongings and receiving anonymous letters that
    threatened him as well as his twin brother. After he complained, the
    firefighter was placed in a desk job, told that he could not return to
    firehouse duties until he had passed mental and physical exams, and was
    never re-instated even after he was cleared to return to work. Bianchi
    v. City of Philadelphia, 183 F. Supp. 2d 726, 735 (E.D. Pa. 2002),
    cited in NCLR, Federal Sex Discrimination at 5.

                                     TEXAS

    Stephens v. Bloomburg School District (local--school district/teacher)
        ``NCLR and attorney Michael Shirk from the National Education
    Association/Texas State Teacher's Association negotiated a settlement
    on behalf of Merry Stephens, an award-winning teacher and basketball
    coach with Bloomburg Independent School District in the small rural
    community of Bloomburg, TX. Coach Stephens was honored as a ``Teacher
    of the Year'' in 2004 and named ``Coach of the Year'' in 3 of her 5
    years as head coach of the Lady Wildcats basketball team. During her
    award-winning tenure, Coach Stephens led the team to district,
    regional, and semi-State championships, breaking several school
    district coaching records in the process. Stephens also received
    excellent teaching evaluations throughout her tenure with the Bloomburg
    Independent School District. In December 2004, the School Board
    initiated proceedings to terminate Coach Stephens. The school board
    president testified under oath that the board's decision to terminate
    Coach Stephens was based on the personal anti-gay animosity of several
    school board members. In exchange for Coach Stephens' agreement not to
    pursue further legal action, the district agreed to pay Coach Stephens
    a monetary settlement.'' NCLR, Employment Case Docket: Stephens v.
    Bloomburg School District, http://www.nclrights.org/site/
    PageServer?pagename=issue_caseDocket_stephens.

                                      UTAH

    Etsitty v. Utah Transit Authority (State--transit authority/bus driver)
        ``Despite her spotless employment record, Krystal Etsitty, a
    transgender woman, was fired from her job as a public bus driver by the
    Utah Transit Authority (UTA), solely because the UTA feared that
    members of the public might be offended by Etsitty's transgender
    identity. A Federal district court in Utah dismissed Etsitty's case,
    holding that Federal laws prohibiting sex discrimination do not protect
    transgender people. Etsitty appealed this decision to the Tenth Circuit
    Court of Appeals, which ruled against her. NCLR, Lambda Legal, and the
    ACLU filed an amicus brief supporting Etsitty's claim.'' NCLR,
    Employment Case Docket: Etsitty v. Utah Transit Authority, http://
    www.nclrights.org/site/PageServer?pagename=
    issue_caseDocket_etsitty_v_utah_transit.

      Attachment 2.--NCLR Litigation Involving Employment Discrimination
                    Against State/Local Government Employees

                  SULPIZIO AND BASS V. SAN DIEGO MESA COLLEGE

        Lorri Sulpizio was the Head Women's Basketball Coach at San Diego
    Mesa College (Mesa), and her domestic partner, Cathy Bass, assisted the
    team and served as the team's Director of Basketball Operations for
    over 8 years. Despite Sulpizio's and Bass's dedication and demonstrated
    track record of success leading the women's basketball program at the
    community college, Mesa officials unlawfully fired both coaches at the
    end of the 2007 academic year after Coach Sulpizio repeatedly advocated
    for equal treatment of female student-athletes and women coaches, and
    following publication in a local paper of an article identifying
    Sulpizio and Bass as domestic partners. NCLR and the law firms of Boxer
    & Gerson, LLP and Stock Stephens, LLP are representing Coach Sulpizio
    and Coach Bass in their lawsuit against San Diego Mesa College, and the
    San Diego Community College District. Recent high profile title IX jury
    verdicts and settlements at Penn State, California State University,
    Fresno, and University of California, Berkeley have raised awareness
    about systemic gender inequities and homophobia at major colleges and
    universities. This case is a powerful illustration that similar
    problems pervade the athletic departments of community colleges as
    well.

                       ETSITTY V. UTAH TRANSIT AUTHORITY

        Despite her spotless employment record, Krystal Etsitty, a
    transgender woman, was fired from her job as a public bus driver by the
    Utah Transit Authority (UTA), solely because the UTA feared that
    members of the public might be offended by Etsitty's transgender
    identity. A Federal district court in Utah dismissed Etsitty's case,
    holding that Federal laws prohibiting sex discrimination do not protect
    transgender people. Etsitty appealed this decision to the Tenth Circuit
    Court of Appeals, which ruled against her. NCLR, Lambda Legal, and the
    ACLU filed an amicus brief supporting Etsitty's claim.

                     STEPHENS V. BLOOMBURG SCHOOL DISTRICT

        NCLR and attorney Michael Shirk from the National Education
    Association/Texas State Teacher's Association negotiated a settlement
    on behalf of Merry Stephens, an award-winning teacher and basketball
    coach with Bloomburg Independent School District in the small rural
    community of Bloomburg, TX. Coach Stephens was honored as a ``Teacher
    of the Year'' in 2004 and named ``Coach of the Year'' in 3 of her 5
    years as head coach of the Lady Wildcats basketball team. During her
    award-winning tenure, Coach Stephens led the team to district,
    regional, and semi-State championships, breaking several school
    district coaching records in the process. Stephens also received
    excellent teaching evaluations throughout her tenure with the Bloomburg
    Independent School District. In December 2004, the School Board
    initiated proceedings to terminate Coach Stephens. The school board
    president testified under oath that the board's decision to terminate
    Coach Stephens was based on the personal anti-gay animosity of several
    school board members.

          Attachment 3.--NCLR Helpline Contacts Involving Employment
        Discrimination Against State/Local Government Employees, 2001-9

    ----------------------------------------------------------------------------------------------------------------
                     Year                           State                   Employer               Description
    ----------------------------------------------------------------------------------------------------------------
    2007.................................  California.............  School District........  School District fired
                                                                                              two openly gay women
                                                                                              claiming they violated
                                                                                              the dress code, but
                                                                                              they believe it was
                                                                                              because they were
                                                                                              openly gay.
    2006.................................  Georgia................  DFCS...................  After other employees
                                                                                              complained about
                                                                                              working with her
                                                                                              because she was a
                                                                                              lesbian, caller was
                                                                                              subjected to a
                                                                                              humiliating and
                                                                                              invasive 4-hour
                                                                                              interrogation during
                                                                                              which she was asked if
                                                                                              she was a lesbian, who
                                                                                              looked after her
                                                                                              children, who she
                                                                                              lived with and who her
                                                                                              friends were. She was
                                                                                              then told not to tell
                                                                                              anybody else about
                                                                                              what happened during
                                                                                              the interview. Two
                                                                                              weeks later they
                                                                                              suspended her for
                                                                                              ``alleged
                                                                                              misconduct''.
    2001.................................  Florida................  City government........  City government
                                                                                              employee told to
                                                                                              resign or he would be
                                                                                              outted as a cross-
                                                                                              dresser (he cross-
                                                                                              dressed in his own
                                                                                              time, outside of work
                                                                                              hours).
    2004.................................  California.............  Unknown State Agency...  Employee tried to
                                                                                              persuade agency to
                                                                                              provide DP benefits in
                                                                                              2002 (before
                                                                                              comprehensive
                                                                                              statewide RDP). This
                                                                                              caused conflict with
                                                                                              his boss and he was
                                                                                              put on administrative
                                                                                              leave and eventually
                                                                                              terminated.
    2007.................................  Tennessee..............  Women and Children's     Caller came out to
                                                                     Center.                  colleagues as lesbian
                                                                                              after she witnessed
                                                                                              them ridiculing a
                                                                                              lesbian client. They
                                                                                              then started harassing
                                                                                              her, including
                                                                                              questioning her
                                                                                              religious beliefs. She
                                                                                              was later terminated.
    2004.................................  Florida................  Police Department......  Police officer faced
                                                                                              harassment and was
                                                                                              terminated when he
                                                                                              came out as gay. He
                                                                                              was also arrested for
                                                                                              lewd and lascivious
                                                                                              conduct for telling a
                                                                                              street youth about
                                                                                              safer sex.
    2001.................................  Florida................  State Dept of            Caller faced repeated
                                                                     Agriculture.             virulently anti-gay
                                                                                              comments from a
                                                                                              colleague. When he
                                                                                              complained, he was
                                                                                              told off for
                                                                                              complaining, and a
                                                                                              superior told him to
                                                                                              drop the complaint. He
                                                                                              refused and was
                                                                                              terminated shortly
                                                                                              after.
    2001.................................  Florida................  Florida Dept. of Health  Caller's supervisor
                                                                                              said he would try to
                                                                                              rid the department of
                                                                                              gays. When caller
                                                                                              complained, he was
                                                                                              reprimanded for
                                                                                              complaining, and
                                                                                              eventually terminated
                                                                                              after a long period of
                                                                                              harassment at work.
    2004.................................  Florida................  Department of            Caller cross-dressed
                                                                     Corrections.             outside of work. When
                                                                                              supervisors found out
                                                                                              they confronted him
                                                                                              about it and forced
                                                                                              him to resign.
    2005.................................  Florida................  Pinellas County Water    Neighbor ousted him to
                                                                     Quality.                 his supervisor. He was
                                                                                              eventually fired.
    2001.................................  Florida................  School District........  Teacher got good
                                                                                              evaluations until
                                                                                              school found out his
                                                                                              partner was a man,
                                                                                              then evaluations took
                                                                                              a downturn and his
                                                                                              contract was not
                                                                                              renewed.
    2002.................................  Florida................  Fire Department........  Openly lesbian
                                                                                              firefighter was
                                                                                              repeatedly passed over
                                                                                              for promotion while
                                                                                              less qualified
                                                                                              employees were
                                                                                              promoted. She was
                                                                                              eventually fired for
                                                                                              low test scores, even
                                                                                              though her scores were
                                                                                              in fact consistently
                                                                                              high.
    2004.................................  California.............  County Employee........  Gay man faced
                                                                                              harassment and
                                                                                              isolation at work
                                                                                              causing him stress-
                                                                                              related health
                                                                                              problems. Although
                                                                                              California law had
                                                                                              sexual orientation
                                                                                              protections, he was
                                                                                              afraid that the county
                                                                                              and union would not
                                                                                              enforce the law.
    2005.................................  California.............  University of            Supervisor drew up
                                                                     California at Davis.     dress code
                                                                                              specifically targeting
                                                                                              one gay male employee,
                                                                                              prohibiting him from
                                                                                              wearing mid-length
                                                                                              pants. Supervisor also
                                                                                              forbade him from
                                                                                              bringing gay and
                                                                                              lesbian yellow pages
                                                                                              into the office.
    2003.................................  Florida................  Sheriff's Office.......  Caller is MTF. Co-
                                                                                              workers kept using the
                                                                                              wrong pronoun when she
                                                                                              was out on patrol
                                                                                              (hence outing her to
                                                                                              anyone who could
                                                                                              hear). She complained,
                                                                                              but nothing changed.
                                                                                              When co-workers
                                                                                              started a rumor that
                                                                                              she was posing topless
                                                                                              on the Internet, she
                                                                                              resigned.
    2008.................................  Virginia...............  Police Department......  Caller was harassed by
                                                                                              her captain and made
                                                                                              to work long shifts
                                                                                              without breaks. When
                                                                                              she applied to another
                                                                                              job, captain accosted
                                                                                              her future employer in
                                                                                              a restaurant and
                                                                                              announced that caller
                                                                                              was a lesbian.
    2002.................................  Florida................  School District........  Caller is MTF, was
                                                                                              called a ``thing'' by
                                                                                              co-worker, harassed
                                                                                              about which bathroom
                                                                                              she should use.
                                                                                              Supervisor did not
                                                                                              respect her either.
    2008.................................  Rhode Island...........  Unknown State Agency...  Caller faced
                                                                                              discrimination at
                                                                                              work, wanted attorney
                                                                                              information from us.
                                                                                              Not many details.
    2002.................................  Florida................  Fire Department........  Caller is gay.
                                                                                              Colleagues found his
                                                                                              personal on the
                                                                                              Internet and
                                                                                              circulated in the
                                                                                              office. His supervisor
                                                                                              wrote him up for
                                                                                              various frivolous
                                                                                              things and when
                                                                                              confronted admitted
                                                                                              they were made up.
    2008.................................  Ohio...................  State of Ohio..........  Faced daily harassment
                                                                                              including threats and
                                                                                              intimidation because
                                                                                              of her sexual
                                                                                              orientation.
    2007.................................  Florida................  Unknown Agency.........  Social worker had
                                                                                              worked there for about
                                                                                              10 years. When she
                                                                                              came out, supervisor
                                                                                              started giving her bad
                                                                                              reviews, and also
                                                                                              stood in the bathroom
                                                                                              with her while she
                                                                                              urinated for a drug
                                                                                              test (not standard
                                                                                              procedure).
    2004.................................  Florida................  School District........  Teacher who agreed to
                                                                                              let students use her
                                                                                              room for GSA meetings
                                                                                              was harassed by other
                                                                                              teachers to the point
                                                                                              where she felt she had
                                                                                              to leave. School then
                                                                                              refused to give her a
                                                                                              good recommendation.
    2004.................................  Louisiana..............  School District........  Bus Driver faced
                                                                                              harassment for gender
                                                                                              non-conformity and
                                                                                              sexual orientation.
                                                                                              Her grievance was
                                                                                              deemed invalid.
    2007.................................  Arizona................  Department of Child      When she came out as a
                                                                     Support Enforcement.     lesbian, co-workers
                                                                                              started calling her a
                                                                                              ``faggot'' and
                                                                                              ``dyke'' and saying
                                                                                              she smelled of ``sh**
                                                                                              and pi**'' and saying
                                                                                              that she had STDs and
                                                                                              was mentally ill.
                                                                                              Supervisor did
                                                                                              nothing. Harassing co-
                                                                                              workers were
                                                                                              transferred to another
                                                                                              department, but no
                                                                                              other disciplinary
                                                                                              action was taken.
                                                                                              Harassment continues.
                                                                                              She filed with EEOC,
                                                                                              but was told that this
                                                                                              was not sexual
                                                                                              harassment.
    2004.................................  California.............  School District........  Lesbian who did not fit
                                                                                              traditional gender
                                                                                              norms was repeatedly
                                                                                              transferred from site
                                                                                              to site and once
                                                                                              thrown against the
                                                                                              wall by a principal.
                                                                                              School district and
                                                                                              union refuse to
                                                                                              intervene.
    2007.................................  California.............  Police Department......  Chief decided not to
                                                                                              promote caller to a
                                                                                              position she was
                                                                                              qualified for, and for
                                                                                              which no other
                                                                                              qualified person was
                                                                                              found, and instead
                                                                                              eliminated the
                                                                                              position, because
                                                                                              caller was MTF.
    2002.................................  Florida................  Board of Nursing (not    Denied a nursing
                                                                     employer).               license because he was
                                                                                              gay, though they gave
                                                                                              other reasons (which
                                                                                              had not precluded
                                                                                              others from getting a
                                                                                              license). He had
                                                                                              already gotten
                                                                                              licensed in Indiana.
    2007.................................  Florida................  Sheriff's Office.......  Caller was offered
                                                                                              positions at two
                                                                                              Sheriff 's offices
                                                                                              which were then
                                                                                              rescinded because they
                                                                                              found out he was
                                                                                              living with a man whom
                                                                                              they assumed was his
                                                                                              partner.
    2006.................................  Florida................  Police Department......  When police department
                                                                                              found out she was MTF,
                                                                                              they decided not to
                                                                                              hire her, claiming she
                                                                                              had been dishonest.
    2002.................................  Florida................  Fire Department........  Before coming out, got
                                                                                              excellent assessments
                                                                                              and was promoted.
                                                                                              After he came out, he
                                                                                              was told to either
                                                                                              resign or accept a
                                                                                              demotion. He took the
                                                                                              demotion to keep his
                                                                                              retirement benefits.
    2006.................................  New Jersey.............  State of NJ............  She was demoted and
                                                                                              made to do menial
                                                                                              tasks below her skill
                                                                                              level because she was
                                                                                              a lesbian.
    2005.................................  North Carolina.........  Medical Board (not an    Transgender woman faced
                                                                     employer).               uncertainty about
                                                                                              whether she had to
                                                                                              declare that she was
                                                                                              trans in order to
                                                                                              proceed with
                                                                                              application.
    2004.................................  New York...............  New York State           Employee won at the
                                                                     Department of Law.       trial level, sought
                                                                                              help from us for an
                                                                                              appeal.
    ----------------------------------------------------------------------------------------------------------------

                   Nationwide Mutual Insurance Company,
                                            Columbus, OH 43215,
                                                      November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Senate Health, Education, Labor, and Pensions Committee,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Hon. George Miller, Chairman,
    House Education and Labor Committee,
    2181 Rayburn House Office Building,
    Washington, DC 20515.
        Dear Chairman Harkin and Chairman Miller: I am writing on behalf of
    Nationwide Mutual Insurance Company and our 36,000 associates to
    express our proud support of Federal workplace non-discrimination
    legislation, H.R. 3017/S. 1584, the ``Employment Non-Discrimination
    Act.''
        Nationwide is committed to fostering a workplace environment of
    inclusiveness, respect, and non-discrimination. The Employment Non-
    Discrimination Act (ENDA) would extend Federal protections against job
    discrimination to gay, lesbian, bisexual, and transgender Americans.
    This legislation would simply and fairly extend the fundamental right
    to be judged on one's own merits, and without placing excessive burdens
    on employers.
        To help create a welcoming work environment for our associates,
    Nationwide has implemented our own non-discrimination and harassment
    policies that specifically state that we will not tolerate
    discrimination or harassment of any associate based on sexual
    orientation or gender identity. These policies are an important part of
    our business objectives, including having a culture that embraces
    diversity, recruiting the best talent, and competing in the global
    marketplace.
        The principles of ENDA are consistent with Nationwide's corporate
    values of treating all of our associates with fairness and respect, and
    we believe our policies of valuing diversity also bring financial
    benefits to the workplace by encouraging full and open participation by
    all of our associates.
        On behalf of Nationwide and our associates, we thank you for your
    leadership on the Employment Non-Discrimination Act. If we can answer
    any questions or be of any help on this issue, please do not hesitate
    to contact us or Meredith Mull of our Washington office at (202) 347-
    5915.
                Sincerely,
                                                 Stephen Keyes,
          Vice President, Associate Relations & Human Resources Policy.

                                             Candice Barnhardt,
                               Vice President, Diversity and Inclusion.
                                     ______

                       Parents, Families and Friends of
                    Lesbians and Gays (PFLAG) National,
                                          Washington, DC 20036,
                                                      November 5, 2009.

        Mr. Chairman and members of the committee: On behalf of Parents,
    Families and Friends of Lesbians and Gays (PFLAG) National's more than
    200,000 members and supporters, I am pleased to submit written
    testimony expressing our support for the Employment Non-Discrimination
    Act of 2009 and urge the Congress to support workplace fairness for all
    Americans by addressing the issue of widespread employment
    discrimination. I would like to especially thank Chairman Harkin along
    with Ranking Member Enzi for convening the hearing, Employment Non-
    Discrimination Act: Ensuring Opportunity for All Americans, before the
    U.S. Senate Committee on Health, Education, Labor, and Pensions. It is
    imperative that the committee explore employment discrimination as a
    critical barrier to workplace fairness, and support the passage of ENDA
    in an effort to guarantee workplace fairness for all Americans.

                  PROBLEM STATEMENT AND BACKGROUND INFORMATION

        Every year, qualified, hard-working Americans are denied job
    opportunities, terminated, or experience on-the-job discrimination just
    because they are lesbian, gay, bisexual or transgender (LGBT). This
    occurs in both public and private sector workplaces, both large and
    small. Although all arbitrary discrimination is reprehensible,
    workplace discrimination is especially egregious because it threatens
    the well-being and economic survival of American workers and their
    families. Often, LGBT employees attempt to protect themselves against
    discrimination by hiding their sexual orientation or gender identity.
    This requires carefully self-policing of even the most casual
    conversations, and banishes almost all acknowledgment of family and
    friends from the workplace. In addition to being difficult to do,
    hiding one's sexual orientation or gender identity takes a terrible
    psychological toll, and often results in co-workers building walls
    between each other. In addition to the emotional stress inflicted on
    LGBT employees, the necessary subterfuge and dishonesty works to
    distance co-workers from one another, harming the workplace environment
    and overall work products.
        The threat of discrimination based on sexual orientation and gender
    identity has a very real presence in American workplaces. I have met
    countless parents, families and friends of LGBT people and have heard
    too many tragic stories of LGBT employees being harassed, fired, not
    hired, and passed over for advancement without regard to their merit.
    That treatment would not be permissible if ENDA were law. A 2007 report
    of more than 50 studies compiled by the Williams Institute indicates
    that 16 to 68 percent of LGBT people reported experiencing employment
    discrimination. In a separate survey, 15 to 57 percent of transgender
    individuals reported experiencing employment discrimination. In
    addition, many heterosexual coworkers reported witnessing sexual
    orientation discrimination in the workplace. In another 2007 nationwide
    survey, 28 percent of LGBT workers reported that they have experienced
    discrimination or unfair treatment in the workplace; one-in-four said
    they experience it on a weekly basis.
        Studies also show that discrimination robs LGBT employees of the
    ability to earn incomes equal to those of their heterosexual
    counterparts. The 2007 Williams Institute report documented that gay
    men earn 10 to 32 percent less than similarly-qualified heterosexual
    men. A 2002 study showed that gay men earn from 11 to 27 percent less
    and lesbians earn 5 to 14 percent less than the national average. And,
    while no detailed wage and income analyses of transgender employees
    have been conducted to date, the Williams study documented that
    transgender people report high rates of unemployment and very low
    earnings.
        These wage studies confirm that LGBT discrimination is not benign.
    Lower incomes and difficulty in getting and keeping a job create direct
    and immediate financial disadvantages for LGBT employees, just as they
    do for other American workers who are lucky enough to be protected by
    Federal law. The National Commission on Employment Policies calculated
    that discrimination against LGBT employees translated into a $47
    million loss in profits attributable to training expenditures and
    unemployment benefits alone. Not including outright terminations, it
    has been proposed that hostile work environments cost companies $1.4
    billion in lost output each year because of a reduction in LGBT
    workers' productivity.

          EMPLOYMENT PROTECTIONS SUPPORTING WORKPLACE FAIRNESS FOR ALL

        ENDA is a Federal bill that would prohibit discrimination in the
    workplace based on a person's sexual orientation or gender identity. It
    would address discrimination in the workplace by making it illegal to
    fire, refuse to hire, or refuse to promote an employee based solely on
    that person's sexual orientation or gender identity. ENDA would make it
    illegal for employers to discriminate on those bases, including, for
    example, refusing to hire an applicant or firing an employee who is
    lesbian, gay, bisexual, transgender, or heterosexual.
        This legislation closely follows the model of existing Federal
    civil rights laws, including Title VII of the Civil Rights Act of 1964,
    and, therefore, would affect private employers with 15 or more
    employees, as well as Federal, State, and local governments, unions,
    and employment agencies. The U.S. military and certain religious
    organizations would be exempt, as would employment issues such as
    quotas, disparate impact claims and domestic partner benefits. The bill
    defines sexual orientation as ``homosexuality, heterosexuality, or
    bisexuality'' and gender identity 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.''

    Why Is ENDA Needed?
        In 29 States it is legal to discriminate based on sexual
    orientation, and in 38 States discrimination based on gender identity
    is legal. The lack of State and local protections exacerbate the
    widespread discrimination that LGBT workers experience by all types of
    employers, including private employers, local governments, State
    governments, and companies large and small. These affected employees
    have no adequate remedy in Federal law. ENDA would provide critically
    needed job protections for the entire community--including those most
    vulnerable to discrimination.
        Only 12 States and the District of Columbia currently have laws
    that specifically ban workplace discrimination based on sexual
    orientation and gender identity. Another nine States have laws that ban
    discrimination based on sexual orientation, but don't include gender
    identity. This patchwork of laws is inadequate to prevent and remedy
    the serious discrimination against LGBT employees that takes place
    across the country.
        ENDA is a comprehensive remedy to address the lack of protection
    afforded to American LGBT workers. This legislation does not create
    special rights; rather, it reflects a bedrock American principle that
    working men and women should be judged solely on the basis of their job
    performance. Specifically, ENDA:

         Prohibits Employment Discrimination. Prohibits public and
    private sector employers from making decisions about hiring, firing,
    promotion or compensation based on sexual orientation or gender
    identity. It applies only to discrimination in employment and only to
    employers with 15 or more employees.
         Prohibits Preferential Treatment. Strictly prohibits
    preferential treatment based on quotas, and mandates that no claims
    will be permitted based on statistics.
         Includes Broad Exemptions. Exempts members of the Armed
    Forces and veteran preference organizations, as well as religious
    organizations or religious schools.
         Excludes Domestic Partnership Benefits. Does not require
    employers to provide benefits to domestic partners.

    Who Supports ENDA?
        In addition to significant bipartisan support in both the House and
    Senate, most of America's leading businesses have adopted anti-
    discrimination policies similar to ENDA. Business leaders understand
    that a person's sexual orientation or gender identity has nothing to do
    with their job performance. That is why 423 (85 percent) of Fortune 500
    firms have extended protections based on sexual orientation and 176
    (more than one-third) extended protections based on gender identity,
    according to the Human Rights Campaign Foundation's 2009 Corporate
    Equality Index (CEI). Moreover, 98 percent of the Fortune 50 prohibits
    discrimination based on sexual orientation, and nearly 50 percent
    prohibit discrimination based on gender identity.
        The Business Coalition for Workplace Fairness, made up of some of
    the largest corporations in America, has endorsed ENDA. Some of those
    coalition members include: The Coca-Cola Company, General Motors
    Corporation, Dow Chemicals, General Mills Inc., J.P. Morgan Chase &
    Co., Marriott International, Microsoft Corporation, Morgan Stanley, and
    Nike Inc. More than 30 major U.S. businesses joined this coalition
    during the first 5 months of 2007.
        Federal law has also been outpaced by the actions of State and
    local leaders. Thirty-seven percent of the country--21 States and the
    District of Columbia--have laws protecting lesbian, gay and bisexual
    people from employment discrimination; 12 States and the District of
    Columbia, along with more than 100 localities, have laws that also
    protect transgender people. Without ENDA, employers are able to
    discriminate against a segment of their workforce with impunity, unless
    those workers are lucky enough to live in one of the few States or
    localities that make such behavior illegal.
        Not only does the Federal Government lag behind corporate America
    and State and local policies, but it is also lags behind public support
    for ENDA. A 2007 Gallup poll found that 89 percent of Americans believe
    that lesbian and gay employees should have equal rights in the
    workplace, and a 2007 Peter D. Hart Research Associates survey
    indicated that 58 percent of respondents believe workplace protections
    should also extend to transgender employees.

                              PFLAG'S UNIQUE ROLE

        PFLAG promotes the health and well-being of lesbian, gay, bisexual
    and transgender persons, their families and friends through: support,
    to cope with an adverse society; education, to enlighten an ill-
    informed public; and advocacy, to end discrimination and to secure
    equal civil rights. PFLAG provides opportunities for dialogue about
    sexual orientation and gender identity, and acts to create a society
    that is healthy and respectful of human diversity.
        As part of PFLAG's commitment to the health and well-being of LGBT
    individuals, PFLAG supports efforts to eliminate barriers to workplace
    equality, such as those that create employment discrimination. PFLAG
    parents, families and friends, whose own loved ones endure workplace
    discrimination, are striving to secure support for LGBT equality in
    their local communities and workplaces through workplace trainings and
    panel presentations. Working with corporate and community leaders,
    volunteers, and diversity groups, PFLAG connects straight allies with
    the mission and vision of LGBT equality by encouraging them to speak
    up, educate other allies, and engage in the pursuit of equality. ENDA
    represents a significant opportunity for the Congress to participate as
    allies of all workers in ensuring an end to workplace discrimination.
        In the past, Congress has had the vision and courage to enact laws
    that ban employment discrimination based on other protected classes. We
    now have a historic opportunity to expand the law to ensure that
    everyone can enter and succeed in the workplace without regard to
    sexual orientation or gender identity. We would again like to thank
    Chairman Harkin and Ranking Member Enzi again for bringing much-needed
    visibility to the problems of employment discrimination and the
    terrible consequences that often result when left unchecked. We
    encourage and welcome the committee to meet with PFLAG members and
    supporters and staff in our national office who are committed to
    supporting LGBT Americans who experience employment discrimination. I
    believe their personal stories will be enormously helpful in your
    efforts to make a difference in the lives of those who experience
    employment discrimination.
        Again, I thank you for holding this important and historic hearing
    for the Employment Non-Discrimination Act of 2009. On behalf of all of
    our members and supporters, I am grateful for your dedicated work in
    helping foster workplace fairness for all Americans, including efforts
    to address employment discrimination for LGBT employees. I urge the
    Senate to take action and pass a fully inclusive ENDA, opposing any
    motion to weaken this legislation. Should you have any questions
    related to our support for this legislation, please be sure to contact
    our Policy Manager, Rhodes Perry at (202) 467-8180 x 221 or
    rperry@pflag.org.
                Sincerely,
                                               Jody M. Huckaby,
                                    Executive Director, PFLAG National.

                                     ______

                                      Raytheon Company,
                                             Waltham, MA 02451,
                                                      November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Senate Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    Washington, DC 20510.

    cc: Hon. Michael Enzi, Ranking Member; Hon. Jeff Merkley

        Dear Mr. Chairman: Thank you for the opportunity to contribute to
    the dialogue regarding nondiscrimination policy related to
    transgendered people. It is important to first understand the context
    for this specific policy issue within Raytheon Company business.
    Raytheon's fundamental and deeply held values are that of human
    respect, diversity and inclusion. The company has strong and purposeful
    senior leadership support for these issues. While Raytheon has indeed
    received public recognition for its policies related to GLBT issues,
    the underlying beliefs and resulting operating practices cover the
    spectrum of human differences because this is driven by company values
    and business mandate.

                  DIVERSITY AND INCLUSION JOURNEY AT RAYTHEON

        With over 73,000 employees, Raytheon represents nearly every
    demographic. Over the last decade the company has continued to grow the
    business and increase its understanding of its people. During this
    period, Raytheon has supported a number of employees who have
    transitioned both their gender identity and sex. These valued and
    highly contributing employees faced many challenges and we have found
    that providing consistent support has led to increasingly dedicated
    employees. We have also seen a genuine spirit of caring from fellow
    employees resulting in increased company pride. In 2005, senior
    management approved changes to enhance Raytheon's nondiscrimination
    policy (namely gender identity and expression) to codify and prescribe
    in writing what had hereto been practiced for a number of years prior.
    Raytheon became the first major defense supplier to be awarded a 100
    percent score by the Human Rights Campaign (HRC) on their Corporate
    Equality Index (CEI). That recognition marked another milestone on
    Raytheon's continuing journey of inclusion and strengthened our resolve
    to nurture an environment where every employee can contribute to their
    maximum for our customers.

                          THE BUSINESS CASE FOR ACTION

        The most clear, relevant, and compelling business driver for
    Raytheon's diversity and inclusion efforts, including GLBT issues,
    relates to the impeding crisis of diminished talent availability,
    especially in the Science, Technology, Engineering, and Math (STEM)
    professions. Raytheon's business is highly technical and requires a
    steady, significant supply of talented engineers to both sustain
    existing business and to exploit the many available growth
    opportunities. Hence, it is a competitive imperative that Raytheon have
    unlimited access to every talent pool in order to survive as an
    organization. Our business strategy requires us to retain our talented
    workforce and enjoy disproportional success in attracting new talent.
    Policies and practices that support the life realities of our people
    are not only the ``right thing to do,'' but create an environment that
    allows people to thrive. Ultimately, Raytheon's inclusive practices
    result in employees that passionately work to ensure our customers'
    success and support our country's war fighters.
        Again, Raytheon's policy of inclusion for transgendered employees
    is but a part of a larger picture. For example, Raytheon has recently
    been named one of the ``Top 25 Best Places to Start a Career'' by
    Business Week magazine. In 2007, Raytheon was awarded the Secretary of
    Labor award for our compliance to fair and equitable treatment
    practices. These and a number of other unsolicited accolades strengthen
    Raytheon's brand image and, in conjunction with our innovative
    technology and quality products and services, give our customers and
    other stakeholders confidence and reassurance in our enterprise. This
    is indeed a key element of Raytheon's sustainability.

                          PUTTING POLICY INTO PRACTICE

        With senior management direction in place, the challenge became
    operationalizing the policy direction and establishing consistent
    practices across the large and complex Raytheon organization. To
    facilitate this process we provided a set of broad guidelines and
    frequently asked questions and answers to our managers and supervisors.
    We leveraged the actual experiences of a number of our HR managers and
    diversity leaders who had previously handled transitioning employees to
    provide coaching to managers and employees facing these issues. Again,
    Raytheon views this process as a journey of continuous learning and
    improvement. We encourage our people to deal with each situation based
    on the facts and circumstances at hand using the guidelines as a
    starting point. Equally important, we encourage open dialogue with the
    departments of employees who are in transition.
        I trust this information is helpful to your deliberations.
                Sincerely,
                                               Hayward L. Bell,
                                               Chief Diversity Officer.
                                     ______

                                      November 5, 2009.

    Re:  Religious Organizations Letter in Support of the Employment Non-
    Discrimination Act (S. 1584)

        Dear Senator: On behalf of our organizations, representing a
    diverse group of faith traditions and religious beliefs, we urge you to
    support S. 1584, the Employment Non-Discrimination Act (ENDA). As a
    nation, we cannot tolerate arbitrary discrimination against millions of
    Americans just because of who they are. Lesbian, gay, bisexual and
    transgender (LGBT) people should be able to earn a living, provide for
    their families and contribute to our society without fear. ENDA is a
    measured, common sense solution that will ensure workers are judged on
    their merits, not sexual orientation or gender identity. We call on you
    to pass this important legislation without delay.
        Many of our sacred texts speak to the importance and sacred nature
    of work--an opportunity to be co-creators with God--and demand in the
    strongest possible terms the protection of all workers as a matter of
    justice. Our faith leaders and congregations grapple with the
    difficulties of lost jobs every day, particularly in these difficult
    economic times. It is indefensible that, while sharing every American's
    concerns about the health of our economy, LGBT workers must also fear
    job security because of prejudice.
        At the same time, as religious denominations and faith groups, we
    deeply value our guarantee to the freedoms of faith and conscience
    under the First Amendment. ENDA broadly exempts from its scope any
    religious organization, thereby ensuring that religious institutions
    will not be compelled to violate the religious precepts on which they
    are founded, whether or not we may agree with those precepts. In so
    doing, ENDA respects the protections for religious institutions
    afforded by the First Amendment and Title VII of the Civil Rights Act
    of 1964 while ensuring that lesbian, gay, bisexual and transgender
    people are protected from baseless discrimination in the workplace.
        We urge the Senate to pass the Employment Non-Discrimination Act
    (S. 1584) and ensure that lesbian, gay, bisexual and transgender
    Americans have an equal opportunity to earn a living and provide for
    themselves and their families.
                Sincerely,

           African-American Ministers in Action, Alliance of Baptists,
        American Friends Service Committee, American Jewish Committee,
      Anti-Defamation League, B'nai B'rith International, Catholics in
    Alliance for the Common Good, Clergy and Laity United for Economic
       Justice (CLUE-LA), DignityUSA, Disciples Justice Action Network
     (Disciples of Christ), Friends Committee on National Legislation,
     Fortunate Families, Interfaith Alliance, Islamic Shura Council of
        Southern California, Jewish Council for Public Affairs, Jewish
             Reconstructionist Federation, Jewish Women International,
        Metropolitan Community Churches, Muslim Advocates, Muslims for
        Progressive Values, National Council of Jewish Women, National
    Council of the Churches of Christ in the U.S.A, Presbyterian Church
    (U.S.A.) Washington Office, Sikh Council on Religion and Education,
      SCORE, Sisters of Mercy of the Americas, Institute Justice Team,
      The Central Conference of American Rabbis, The Episcopal Church,
         The Rabbinical Assembly, The United Synagogue of Conservative
             Judaism, Union for Reform Judaism, Unitarian Universalist
      Association, United Church of Christ Coalition for Lesbian, Gay,
    Bisexual and Transgender Concerns, United Church of Christ, Justice
         and Witness Ministries, United Church of Christ, Wider Church
      Ministries, United Methodist Church, General Board of Church and
                                      Society, Women of Reform Judaism.

                                     ______

                 Unitarian Universalist Association of
                                         Congregations,
                                          Washington, DC 20005.

        Dear Senator: On behalf of the 1,050 member congregations in the
    Unitarian Universalist Association, I urge you to support S. 1584, the
    Employment Non-
    Discrimination Act (ENDA) of 2009. ENDA is a necessary and important
    step towards protecting people from unfair job discrimination and will,
    if passed, make a profound difference in the lives of many individuals
    and families. No one should have to endure discrimination in the
    workplace because of their real or perceived sexual orientation or
    gender identity.
        In June 2007, our General Assembly--the highest policymaking body
    in our Association--issued a statement calling us to support
    legislation that prohibits employment discrimination based on sexual
    orientation or gender identity. Our history of ministry to and with
    bisexual, gay, lesbian and transgender persons has brought many
    blessings to our community, but it has also brought a painful awareness
    of how the unfair loss of jobs and benefits hurts individuals, families
    and communities. Respect for the inherent worth and dignity of every
    person is a core tenet of our faith, and we believe, as do most
    Americans, that all people have the basic human right to perform their
    chosen work and to be evaluated based on what they do, not based on who
    they are or who they love.
        Over 350 organizations from the civil rights, religious, and most
    importantly the bisexual, gay, lesbian, and transgender communities
    support S. 1584. An overwhelming majority of the most successful
    American businesses also support ENDA by recognizing that even where
    anti-discrimination policies exist, a strong Federal standard that
    protects bisexual, gay, lesbian and transgender workers is absolutely
    critical. Workplace security is particularly important for people who
    do not conform to gender norms due to the widespread levels of under
    and unemployment stemming from prejudice in hiring and retaining
    transgender workers.
        Please support S. 1584, the gender-identity inclusive Employment
    Non-Discrimination Act and show your constituents that you stand for
    fairness and equality for all.
        Thank you.
                In Faith,
                                                Rob C. Keithan,
                                                              Director.

                                     ______

          University of California, Los Angeles (UCLA),
                                    Los Angeles, CA 90095-1476,
                                                      November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, & Pensions,
    U.S. Senate.

    Hon. Mike Enzi, Ranking Member,
    Committee on Health, Education, Labor, & Pensions,
    U.S. Senate.

        Dear Chairman Harkin and Ranking Member Enzi: I write to you as a
    longtime member of the faculty at both the UCLA Graduate School of
    Education & Information Studies and the UCLA School of Law,
    specializing primarily in Education Law and Policy. I am speaking only
    on my own behalf, and nothing that I say should be viewed as
    representing the university's position on these issues.
        Throughout my years at UCLA, I have maintained ongoing contact with
    the K-12 public schools. I served as Director of Teacher Education
    (1993-1995), Special Counsel for the California Department of Education
    (1988-1996), and the on-site Federal court monitor for the San
    Francisco public schools (1997-2005). I also train future principals in
    UCLA's Principal Leadership Institute (since 2000).
        On the academic front, I am the author of the West casebook
    Education and the Law, Second Edition (2009), and Beyond Our Control?
    Confronting the Limits of Our Legal System in the Age of Cyberspace,
    MIT Press (2001). I developed and taught the first and only course in
    UCLA's education school devoted entirely to lesbian, gay, bisexual, and
    transgender (LGBT) issues, and I have recently completed The Right to
    Be Out in the K-12 Public Schools [hereinafter The Right to Be Out], a
    book focusing entirely on LGBT-related legal and public policy issues
    in education. It is scheduled to be published by the University of
    Minnesota Press in 2010.

       A WIDESPREAD PATTERN OF UNCONSTITUTIONAL EMPLOYMENT DISCRIMINATION

        Although great progress is evident across a wide variety of fronts,
    LGBT persons continue to face complex circumstances and significant
    impediments, particularly in the legal and public policy arenas.
    Nowhere is the situation more complex and more challenging than in the
    K-12 public schools.
        Indeed, disclosure of a person's sexual orientation or gender
    identity in many K-12 institutions can still lead to the loss of
    employment opportunities and the discrediting of one's professional and
    personal standing in the same way that it did for most people in the
    1950s and 1960s. All too often, LGBT educators today are confronted
    with the message that they had better remain as closeted as possible.
    If they do not heed this message, they can be made to feel so
    uncomfortable by administrators, parents, or other members of the
    school community that they choose to leave K-12 education.
        Such mistreatment of employees by State and local governments
    clearly violates the rights of LGBT educators under the U.S.
    Constitution. As discussed further below, and as documented in the
    attached excerpt from my forthcoming book, there continues to be a
    widespread pattern of unconstitutional employment discrimination in
    this context.
        For example, a principled reading of current legal doctrine reveals
    that--in our pluralistic society--all persons have a right to be open
    regarding fundamental aspects of identity, personhood, and group
    affiliation. Contextualizing this right to be ``out'' and reviewing its
    development in the public sector today, it is evident that it reflects
    a classic combination of First Amendment and Fourteenth Amendment
    principles. It is both a right to express an identity and a right to be
    treated equally as a result of expressing this identity. Stuart Biegel,
    ``Conceptualizing the Parameters of the Right to Be Out,'' Education
    and the Law, Second Edition, American Casebook Series (St. Paul, Minn.:
    West, 2009), 169-186.
        Yet in research conducted for The Right to Be Out over the past 7
    years, I have found that K-12 educators still face ``a combination of
    subtle pressure and express admonition that together limit their
    ability to be open about who they are. And too often such limitations
    continue to be reflected in job placement and promotion decisions that
    favor educators whose sexual orientations and gender identities appear
    to conform to mainstream norms. Public school educators may have the
    right to be out under the law, but in day-to-day educational practice--
    and particularly in certain communities--that right may be severely
    curtailed.''
        Since there is overwhelming consensus today in both the research
    literature and in reported judicial decisions that sexual orientation
    and gender identity are not related in any way to job performance in K-
    12 schools, adverse employment action based on actual or perceived LGBT
    status is nothing less than irrational under Fourteenth Amendment
    jurisprudence.
        In addition, it must be noted that there is much more employment
    discrimination against LGBT education employees than the reported cases
    and administrative complaints would indicate, because so many still
    fear the consequences of disclosing their identities, seek to cover
    their identities, and/or have faced administrative agencies and courts
    that have been hostile to their claims.

          MULTIPLE AND INTERRELATED LEVELS OF DISCRIMINATION OVER TIME

        Discrimination against LGBT education employees continues to occur
    at every level of government, local, State, and Federal. It is linked
    inextricably to a history of purges of actual and perceived LGBT public
    employees, a history of State laws specifically prohibiting LGBT
    persons from teaching, State licensing requirements that included
    morality fitness tests that were interpreted to exclude LGBT employees,
    State laws criminalizing consensual same-sex relations, and judicial
    decisions contemptuous of LGBT persons and cruelly dismissive of their
    core human characteristics.
        The public record over the past 50-75 years is filled with examples
    of local discriminatory treatment of gay and gender non-conforming
    teachers that is grounded not only in a history of State discrimination
    but in individual State laws themselves. See generally E. Edmund
    Reutter, Jr., The Law of Public Education, Fourth Edition (New York:
    Foundation Press, 1994) at Page 657.
        These realities are documented in three widely reported and highly
    publicized decisions focusing on teacher licensing at the State level:
    the Acanfora  case out of Maryland, the Morrison case out of
    California, and the National Gay Task Force case out of Oklahoma.

         Acanfora v. Bd. of Educ. of Montgomery County, 491 F. 2d
    498 (1974). In Acanfora, State law impacted the plaintiff teacher's
    career on three interrelated levels, his ability to complete his
    education in the teacher training program after it was learned that he
    was the treasurer of a gay student organization at Penn State, his
    ability to get a license to teach because of his openness regarding his
    sexual orientation, and his ability to retain his job once Montgomery
    County school officials learned of his gay identity.
        Acanfora was removed from his classroom and assigned to an
    administrative job after the District discovered his former membership
    in the Penn State student organization. He sued for re-instatement, but
    in the subsequent trial, the judge accepted the school board's argument
    that Acanfora was terminated not because of his homosexuality but
    because he had not included his membership in the gay organization on
    his employment application. Moreover, while the Court found the school
    board's policy of not knowingly employing LGBTs objectionable, it
    determined that the publicity about Acanfora's homosexuality, including
    his vigorous self-defense, was ``likely to produce imminent effects
    deleterious to the educational process'' and thus justified the school
    board's dismissal. The Fourth Circuit Court of Appeals affirmed the
    lower court decision on behalf of the District.
         Morrison v. State Bd. of Educ., 461 P.2d 375 (Cal. 1969).
    As discussed in more detail below in the attached chapter, Marc
    Morrison was a fully credentialed educator in southern California with
    an unblemished record. During one week in early 1963, he and a fellow
    male colleague ``engaged in a limited, non-criminal physical
    relationship.'' After this fact was discovered, Morrison was apparently
    pressured to resign from the District, and the State Board of Education
    followed by revoking his teaching credential, a revocation that
    Morrison chose to contest openly. He lost in the lower court, but
    finally prevailed in the California Supreme Court, 5 years after his
    life had been completely torn apart by the loss of his job and the
    stigma accompanying the resulting series of events.
        Morrison never claimed to be gay, never asserted any rights under
    either the 1st or Fourteenth Amendments, and never argued that he was
    being discriminated against in any way. His entire argument, which
    ultimately carried the day, was that what he had done did not warrant
    revocation of his teaching credential because it had nothing to do with
    his fitness to teach.
         Nat'l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th
    Cir. 1984). Immediately after Proposition 6--the 1978 Briggs Initiative
    documented in the recent film Milk--failed to pass in California.
    Oklahoma State Senator Mary Helm introduced a bill with similar wording
    that passed overwhelmingly. The Oklahoma law provided that K-12 public
    school teachers could be fired or suspended for ``public homosexual
    activity,'' broadly defined as including ``advocating . . . homosexual
    activity in a manner that creates a substantial risk that such conduct
    will come to the attention of school children or school employers.''
    The law remained on the books for years, disrupting the lives of LGBT
    educators in dramatic and draconian ways. In 1982, in fact, it was
    upheld in its entirety by the lower court in the Western District of
    Oklahoma.

        Finally, in 1984, the Tenth Circuit Court of Appeals struck down
    portions of the law relating to ``advocacy'' as overbroad and violative
    of the First Amendment. But by that time, for many people in a variety
    of troubling circumstances, lives had been transformed, outstanding
    teachers had left the State, and things would never be the same.
        It should be noted that even as the Oklahoma case was reaching the
    Tenth Circuit in 1983, the West Virginia Attorney General issued an
    opinion for his State holding that gay and lesbian teachers could be
    fired by their districts under a State law that authorized school
    officials to fire teachers for ``immorality.'' 60 W. Va. Op. Atty. Gen.
    46, 1983 WL 180826 (W.Va.A.G.), Office of the Attorney General State of
    West Virginia, *1, February 24, 1983. He stated that homosexuality was
    immoral in West Virginia even though the State had decriminalized
    consensual same-sex relations in 1976, and while he wrote that
    homosexuality must be shown to affect the person's fitness to teach, he
    concluded that this could be shown if the teacher was ``publicly known
    to be homosexual''. Ibid.

                            HOSTILITY OF THE COURTS

        The pervasive level of discrimination and indeed contempt
    documented in the previous pages is reflected not only in the statutory
    schemes of the past five decades and in the attendant statements by
    public officials but also in the writings of judges at every level of
    the judicial system. See, e.g., Jack M. Balkin, ``The Constitution of
    Status,'' 106 Yale Law Journal 2313, 2316-2320 (1997) (seeking to
    provide both an historical and a cultural context for the various
    opinions in Romer v. Evans, 517 U.S. 620 (1996)). See also Robert G.
    Bagnall, ``Burdens on Gay Litigants and Bias in the Court System:
    Homosexual Panic, Child Custody, and Anonymous Parties,'' 19 Harvard
    Civil Rights--Civil Liberties Law Review 497, 515-46 (1984) (focusing
    primarily on State court rulings in its analysis of the challenges
    faced by gay and lesbian parents who wished to maintain custody of
    their children during the decades following World War II); Barbara
    Ponse, Identities in the Lesbian World: The Social Construction of Self
    (Westport, Conn.: Greenwood Press, 1978) (analyzing the extent to which
    a lesbian identity during this era could be seen as shaped by the
    widely prevalent stigma that so many faced).
        An opinion written by former Chief Justice Warren Burger, while
    serving on the U.S. Court of Appeals for the D.C. Circuit in 1965,
    exemplifies the legal and public policy terrain of the era.
        Rejecting the argument of a gay plaintiff that his sexual
    orientation should not disqualify him for employment, Burger dismissed
    ``homosexuals'' as ``sex deviates'' who suffer from infirmities
    analogous to those of chronic alcoholics and former felons. Scott v.
    Macy, 349 F.2d 182, 190 (D.C. Cir. 1965) (Burger, J., dissenting).
        See also Laura S. Fitzgerald, ``Towards A Modern Art of Law,'' 96
    Yale Law Journal 2051 (1987), written in the aftermath of Bowers v.
    Hardwick, 478 U.S. 1039, the 1986 U.S. Supreme Court decision that
    upheld the constitutionality of a Georgia statute criminalizing
    consensual sodomy between adults. In the article, Fitzgerald documents
    the legal terrain faced by LGBT persons in the post-World War II era,
    and highlights decisions that exemplified the State of the law during
    that 40-year period.
        In addition to the decisions referenced above, examples of
    consistent and ongoing hostility toward LGBT litigants--and
    particularly toward gay and gender non-
    conforming teachers at the State court level--include the following
    cases out of Washington and New Jersey.

         Gaylord v. Tacoma School Dist. No. 10, 88 Wash.2d 286, 559
    P.2d 1340 (en banc) (1977). Among the State court opinions cited by
    Professor Fitzgerald was the Washington State Supreme Court decision in
    Gaylord, which upheld the dismissal of a veteran public school teacher
    from his position when his openly gay identity became known in 1972. 96
    Yale Law Journal at 2055, n. 19. The lower court had concluded that
    despite an impeccable 12-year teaching record, James Gaylord was
    ``properly discharged for immorality because he was homosexual, and as
    a known homosexual, his ability and fitness to teach was impaired with
    resulting injury to the school.'' The State supreme court, in a lengthy
    discussion of immorality, found that homosexuality was indeed immoral,
    relying in part on a definition from the 1967 edition of the New
    Catholic Encyclopedia. The Court concluded that for this reason alone,
    public knowledge of his gay identity impaired his ability to teach and
    thus he could indeed be discharged.
        Over 30 years later, this case is still on the books, and although
    it may come to be viewed as having been repealed by the State's 2006
    law prohibiting discrimination on the basis of LGBT status, it has not
    been expressly overruled. Indeed, it is still included in a major
    textbook written by legal experts that has been used by education
    schools and future school site administrators across the country. See
    Kern Alexander & M. David Alexander, American Public School Law, Sixth
    Edition (2005) at Pages 703-706 (identifying the Gaylord decision as an
    example of the assertion that ``[the] homosexuality of [a] teacher is
    immorality justifying dismissal'').
         Gish v. Bd. Of Educ., 145 N.J. Super. 96 (1976). A
    similarly notorious case from the same era involved the horrific
    treatment of New Jersey high school English teacher John Gish, who was
    ordered by the school board to undergo a psychiatric examination when
    they learned about his activism on behalf of gay and lesbian
    communities. Gish had played a key role in organizing the Gay Teachers
    Caucus of the National Education Association (NEA) in 1972, and he was
    also active in the Gay Activists Alliance, staging public events to
    increase awareness of discrimination.
        When Gish refused, the board removed him from his teaching duties
    and prohibited him from having any contact with students or graduates.
    In 1976, the Superior Court of New Jersey upheld the school district's
    order that Gish undergo a psychiatric examination, ruling that the
    teacher's ``actions in support of `gay' rights displayed evidence of
    deviation from normal mental health.''

                       RECENT DEVELOPMENTS AND PROGNOSIS

        Over the past 15-20 years, LGBT persons have won major victories
    both in the courtroom and in State legislatures. Yet it is still the
    case that employment discrimination directed against them is widely
    prevalent.
        With regard to litigation, it is important to recognize that while
    the courtroom victories have increased, not every LGBT educator has
    been victorious in this context. See, e.g., Schroeder v. Hamilton
    School District, 282 F.3d 946 (7th Cir. 2002) (a devastating defeat for
    a veteran Ohio teacher with an impeccable record who was badly
    mistreated by students, parents, and school officials after he came out
    as gay); Milligan-Hitt v. Board of Trustees of Sheridan County School
    Dist. No. 2, 523 F.3d 1219 (10th Cir. 2008) (concluding that a rural
    Wyoming school district's demotion of two principals who were living
    together as a lesbian couple was not discriminatory under the law that
    existed at the time, even in light of the acknowledged anti-gay animus
    presented into evidence). And it cannot be emphasized strongly enough
    that even when plaintiffs do prevail in the courtroom, the process is
    inevitably accompanied by massive disruptions in people's lives, loss
    of jobs, loss of stature in the community, the development of physical
    and/or psychological maladies, and changes in circumstance that cannot
    simply or easily be rectified by the legal victories.
        With regard to legislation, it certainly must be acknowledged that
    a growing number of States and municipalities have begun the process of
    expressly prohibiting LGBT-related employment discrimination. As of
    July 2009, 12 States plus the District of Columbia explicitly prohibit
    workplace discrimination on the basis of both sexual orientation and
    gender identity. They include California (1992, 2003), Colorado (2007),
    District of Columbia (1977, 2006), Illinois (2006), Iowa (2007), Maine
    (2005), Minnesota (1993), New Jersey (1992, 2007), New Mexico (2003),
    Oregon (Jan. 2008), Rhode Island (1995, 2001), Vermont (1991, 2007),
    and Washington (2006). In addition, 9 other States prohibit workplace
    discrimination on the basis of sexual orientation alone: Connecticut
    (1991), Delaware (2009), Hawaii (1991), Maryland (2001), Massachusetts
    (1989), Nevada (1999), New Hampshire (1998), New York (2003), and
    Wisconsin (1982).
        These anti-discrimination laws have made a significant difference,
    but after all this time, they have been introduced and passed in less
    than half the States. And even in States that have them, precise
    prohibitions are inconsistent, cultural norms are difficult to change,
    and local enforcement of the laws may be lax. Discrimination may be
    subtle and difficult to pinpoint, such as when people are passed over
    for promotion but never told why. Also, the hesitancy of many
    individuals to come out because of the persistence of discriminatory
    attitudes and practices enables State and local government officials to
    continue the discrimination because no one may ever complain.
        In sum, for all the aforementioned reasons, a strong and
    overarching Federal Employment Non-Discrimination Act--with powerful
    and effective enforcement mechanisms--is vitally necessary to make it
    clear that such discrimination is abhorrent and is no longer acceptable
    in this country.
                Sincerely,
                                                 Stuart Biegel.
                                   Attachment

       Chapter 3.--Ongoing Complexities Facing LGBT Educators: Rights on
     Paper, but Persistent Challenges in the Legal and Public Policy Arenas

        For LGBT teachers and school site administrators, the realities are
    perhaps even more complex than those that exist for gay and gender non-
    conforming youth. The history of public education in this country is
    filled with examples of K-12 educators who were excluded from
    employment initially or in fact lost their jobs when it was discovered
    that they were lesbian, gay, bisexual, and/or transgender.\1\ And as
    recently as 1978, California Proposition 6 (The Briggs Initiative)
    sought to completely bar ``homosexuals'' from teaching in the State's
    public schools.\2\
        Indeed, the Briggs Initiative campaign was not that far removed in
    time from the post-World War II era of pervasive government-sanctioned
    harassment, vilification, and brutalization of gays. In his extensive
    documentation of the cultural and historical forces that accompanied
    the anti-gay activity on the part of law enforcement officials, David
    Sklansky explained that related policies and practices ``lasted well
    into the 1960s:''

              Along with the Red Scare, the Lavender Scare quickly spread
            outward from investigations of government officials to embrace
            many other sectors of American life. Private businesses,
            particularly those hoping to sell goods or services to the
            government, began widespread screening and surveillance of
            their employees to ferret out homosexuals. School teachers,
            local government employees, and university professors came
            under scrutiny for their sexual practices and inclinations.\3\

        Sklansky emphasized that ``[g]ay men and lesbians remained objects
    of fear, ridicule, and contempt'' throughout the decade that has come
    to be associated with an entire panoply of ``rights'' movements. He
    told of a 1966 Time Magazine essay on The Homosexual in America, for
    example, in which the editors concluded that homosexuality was ``a
    pernicious sickness'' and ``a pathetic little second-rate substitute
    for reality'' that deserved ``no encouragement, no glamorization, no
    rationalization, [and] no fake status as minority martyrdom.'' The
    essay, Sklansky wrote, ``warned that mainstream values were under
    `vengeful, derisive' attack from `[h]omosexual ethics and esthetics';
    in some areas of the arts, `deviates' were `so widespread' they
    sometimes appeared `to be running a kind of closed shop.' '' \4\
        In 1978, only 12 years after the Time Magazine essay, many
    Americans still shared a similar mind set, and the Briggs Initiative
    was seen by large numbers of registered voters as a logical response to
    the emergence of the gay rights movement and the attendant coming out
    of gays and lesbians across the country.
        Supreme Court Justice Antonin Scalia, dissenting in Lawrence v.
    Texas (2003), aligned himself unapologetically with the thinking behind
    the 1978 Initiative when he insisted that ``[m]any Americans do not
    want persons who openly engage in homosexual conduct as partners in
    their business, as scoutmasters for their children, as teachers in
    their children's schools . . .'' Two other members of the Court at the
    time, Chief Justice Rehnquist and Justice Thomas, joined in Scalia's
    opinion. And while the L.A. Times reported in 2004 that ``[a]lmost 7 in
    10 Americans know someone who is gay or lesbian and say they would not
    be troubled if their elementary school-age child had a homosexual
    teacher,'' and while 61 percent in the same poll said that ``a
    homosexual would make a good role model for a child,'' \5\ the Pew
    Research Center found in 2007 that 28 percent of Americans still agree
    with the goals of the Briggs Initiative and believe that school boards
    ``should be able to fire'' teachers who are known to be gay.\6\
        The complex and highly nuanced nature of this area is reflected in
    additional noteworthy findings from the Pew Survey. For example, in the
    20 years that Pew had been tracking this issue, the percentages of
    people who would support firing gay and lesbian teachers for no reason
    other than their sexual orientation dropped from 51 percent in 1987 to
    under 30 percent for the first time in 2007. And while such firing
    gains support from 38 percent of those who do not have ``close friends
    or family members who are gay,'' the support level drops to 15 percent
    for those who do have such a level of contact with LGBTs. In addition,
    geography is clearly a factor in this context. Pew found that
    ``[p]eople living in the south (37 percent) are less likely to know gay
    people well than are people living in the Northeast or West, and people
    living in rural areas (34 percent) are less likely to say so than those
    in urban or suburban areas.'' \7\
        In sum, recent poll data and national survey results continue to
    support the conclusion that there has been a significant positive
    change in the attitudes of Americans toward LGBT educators. However, it
    remains the case that substantial percentages of people--particularly
    in certain regions and in rural areas--continue to oppose the idea that
    LGBT educators would even be hired to teach their children. After all
    the progress that has been made, the number of people who oppose
    allowing gays and lesbians to teach even at the college and university
    level is as high as 20-25 percent in certain parts of the country.\8\
    And despite the positive correlation between knowing gay people well
    and support for them in this context, a full 15 percent of those ``who
    have a close friend or family member who is gay'' would still support
    firing them from teaching jobs for no reason other than their sexual
    orientation. With regard to transgender teachers, all evidence points
    toward the fact that opposition to their being brought in to teach at
    any level is even higher yet.
        In light of these realities, K-12 educators are still confronted
    with a combination of subtle pressure and express admonition that
    together limit their ability to be open about who they are. And too
    often such limitations continue to be reflected in job placement and
    promotion decisions that favor educators whose sexual orientations and
    gender identities appear to conform to mainstream norms. Public school
    educators may have the right to be out under the law, but in day-to-day
    educational practice--and particularly in certain communities--that
    right may be severely curtailed.\9\
        A key distinction between K-12 educators and K-12 students in this
    regard is the difference in their respective roles. Teachers and school
    site administrators are expected to build academic skills and impart
    knowledge, subject to relevant State standards and curricular
    frameworks. They may be delegated with the responsibility of imparting
    certain values that are contained in statutory or policy guidelines,
    but beyond these guidelines they are generally prohibited from seeking
    to persuade students to adopt particular political, religious, or
    social points of view. Yet while public school educators cannot feel as
    free as their students might feel to speak about their own lives,
    identities, and personal perspectives, neither must they feel that they
    have to keep their identities to themselves. Within the parameters of
    their designated roles, they have the same right to be out regarding
    fundamental aspects of identity, personhood, and group affiliation as
    their straight counterparts.
        This openness, however, is not without its limits. Most courts
    recognize that teachers are not automatons and have a right to be open
    about who they are, but at the same time it is generally agreed that
    under First Amendment principles
    K-12 teachers should not be indoctrinating their students. While the
    courts have not provided a precise test for indoctrination, the First
    Circuit Court of Appeals recently set forth the contours of relevant
    guidelines in this area. The Court concluded, under applicable
    precedent, that if it is assumed ``that there is a continuum along
    which an intent to influence could become an attempt to indoctrinate,''
    factors to consider would include whether the alleged indoctrination
    was ``systemic,'' whether students were ``required . . . to agree with
    or affirm'' a particular idea, and whether they were ``subject to a
    constant stream'' of similar content.\10\
        The chapter begins by examining the range of First Amendment
    guidelines that govern freedom of expression for public employees in an
    education setting, documenting the types of settings and interactions
    that may present themselves and how rights may vary depending on such
    circumstances. It then turns to the Fourteenth Amendment, which
    provides the central foundation for prohibitions against employment
    discrimination in the public sector. After exploring the results of
    noteworthy litigation in this context, the chapter analyzes the impact
    of other legal developments that have further bolstered the right to be
    out for K-12 public school educators. Finally, the chapter turns to a
    case study of LGBT educator mistreatment that demonstrates how much
    work still needs to be done before day-to-day realities unfold in a
    manner consistent with these legal developments.

                      FIRST AMENDMENT RIGHTS OF EDUCATORS

        As the U.S. Supreme Court explains in the Tinker decision, neither
    students nor teachers shed their constitutional rights to freedom of
    expression at the schoolhouse gate. First Amendment rights are
    explicitly made available to public school teachers and school site
    administrators, subject to specific limitations that arise out of the
    ``special characteristics of the school environment.'' \11\
    Basic Rules From Case Decisions: Pickering, Connick, and Ceballos
        In the 1968 case of Pickering v. Board of Education of Township
    High School District No. 205, the U.S. Supreme Court directly addressed
    the free speech rights of public school educators. Teacher Marvin
    Pickering brought a lawsuit challenging the school board's decision to
    dismiss him for sending a letter to a local newspaper expressing
    concern over a proposed tax increase and criticizing the way in which
    the board and the superintendent had addressed budget issues in the
    past. In its defense, the school board contended that the dismissal was
    justified because Pickering's letter was ``sufficiently critical in
    tone'' to result in interference with ``orderly school
    administration,'' and because some of the statements in the letter were
    actually false.\12\
        The Court ruled in favor of the teacher, finding that the
    statements were ``in no way directed towards any person with whom
    [Pickering] would normally be in contact in the course of his daily
    work as a teacher,'' and that there were therefore no issues regarding
    either the maintaining of discipline or interfering with ``harmony
    among coworkers.'' As to the apparent falsehood of some of the remarks,
    the Court found that ``absent proof of false statements knowingly or
    recklessly made,'' a teacher may not be dismissed for exercising his
    ``right to speak on issues of public importance.'' Indeed, the Court
    concluded that on matters of ``legitimate public concern'':

              [F]ree and open debate is vital to informed decisionmaking by
            the electorate. . . . [I]t is essential that [teachers] be able
            to speak out freely . . . without fear of retaliatory
            dismissal.\13\

        Thirteen years later, in 1983, the Supreme Court revisited its
    decision in Pickering when it considered the scope of a public
    employee's free speech rights outside of an education setting. In the
    case, Connick v. Myers, an assistant district attorney in New Orleans
    was terminated from her position after distributing a questionnaire
    soliciting the views of her fellow staff members on such matters as
    transfer policy, office morale, and level of confidence in supervisors.
    Ruling for the employer, the Court found this situation to be different
    from that in Pickering because the distribution of the questionnaire
    was the equivalent of speaking ``not as a citizen upon matters of
    public concern, but instead as an employee upon matters only of
    personal interest.'' \14\
        The Court examined the First Amendment rights of public employees
    again in the 2006 case of Garcetti v. Ceballos, ruling by a vote of 5-4
    against a deputy district attorney who claimed he had been reassigned
    and denied promotion as a result of internal memos he had written to
    his supervisor.\15\ In the memos, he complained that a search warrant,
    central to a case he was prosecuting, contained numerous inaccuracies
    and reflected shoddy work by law enforcement officials. The Court
    looked primarily to Pickering and Connick, and distinguished the fact
    pattern from that in Pickering by noting that in this case ``the
    controlling factor . . . is that his expressions were made pursuant to
    his duties as a calendar attorney'' and concluding that in such a
    context he did not have First Amendment protection. ``We hold,''
    Justice Kennedy wrote, ``that when public employees make statements
    pursuant to their official duties, the employees are not speaking as
    citizens for First Amendment purposes, and the Constitution does not
    insulate their communications from employer discipline.'' \16\
        While the Ceballos decision was controversial and the subject of
    much criticism, basic principles derived from Pickering and Connick
    appear to have been affirmed. And to the extent that this decision can
    be construed as applying to K-12 teachers who ``make statements
    pursuant to their official duties,'' it must be noted that teachers
    have always been faced with the fact that their freedom of expression
    rights are most limited when they are speaking in a formal classroom
    setting. In addition, the Ceballos opinion explicitly identifies a
    distinction between teacher speech and that of a Deputy District
    Attorney writing an internal memo, expressly mentioning teaching as an
    area where ``some expressions related to [the] job'' are in fact
    granted First Amendment protection.\17\
        Under Pickering, Connick, and Ceballos, then, educators appear to
    have the greatest freedom of expression when they seek to communicate
    their views outside of the formal ``work'' environment and on matters
    of public concern. Such expression would likely merit the highest level
    of First Amendment protection. But the case decisions should not be
    construed as limiting K-12 educators' free speech rights to such
    situations alone. Pickering, read together with the aforementioned
    language in Tinker, stands for the unequivocal recognition of broad
    First Amendment rights for educators.\18\
    Discerning Rules for Different Types of K-12 Educator Expression
        While Federal courts in different parts of the country have not
    always applied the Pickering and Connick rulings in a consistent
    fashion, a consensus appears to have emerged in most places regarding
    allowable restrictions on the ``speech'' of K-12 educators.\19\
        In a formal classroom setting, the fundamental guiding principle is
    that educators are expected to keep to the curriculum and confine their
    comments to the facilitation of goals and objectives linked to State-
    adopted content standards and reflected in approved instructional
    materials. However, most courts have recognized that educators cannot
    realistically be expected to keep to a script in the classroom.\20\
    They must necessarily have the freedom to adjust their presentations
    according to the needs of their students, the circumstances of the
    class environment, and how a given lesson might be unfolding. In
    particular, teacher comments during learning activities and class
    discussions are inevitably shaped by student comments. The best
    teachers at the K-12 level rarely follow a lesson plan so rigid that
    they will be saying the same thing no matter what the students say or
    no matter how the activity is unfolding.
        Outside of a formal classroom setting, of course, circumstances can
    be very different. While some courts, even during this era, appear to
    convey the impression that teacher comments to students must be limited
    to curriculum matters or to basic supervisory instruction, most have
    recognized that limitations of this type are neither realistic nor
    practical. Nor would such a restrictive approach reflect what actually
    transpires in schools and communities on a day-to-day level. Even apart
    from the counseling role that teachers are expected to play in most
    jurisdictions, teachers and students do chat and do communicate about
    things other than the curriculum as a matter of course, on the yard, in
    the hallways, on field trips, during extracurricular activities, and
    inevitably outside of the education setting if they run into each other
    in the community.\21\
        In sum, educators are expected to act professionally when
    interacting with their students. Viewed traditionally as important role
    models, they are indeed often held to a higher standard. In a formal
    education setting, they are expected to keep to the education process.
    They may not engage in the political, religious, or social
    indoctrination of their students, and they may not act counter to
    official school district policies. But outside of the classroom--within
    the parameters of the above guidelines--they need not feel that they
    must severely curtail lawful expression . . . so long as they do not
    engage in activities that would disrupt their work environment or
    interfere with the collaborative nature of faculty and staff
    interaction.

    `Out' Speech Scenarios in a Public School Setting
        There is no one way to be out, and there are an infinite number of
    ways for persons to identify as LGBT. In a K-12 setting, ``out'' speech
    can vary tremendously. Students can learn of their teacher's identity,
    for example, through a letter to the editor in a local newspaper where
    the teacher identifies as gay while commenting on an LGBT-related
    issue. They may learn that a teacher is LGBT if the teacher attends a
    school function with a partner of the same or similar gender. They may
    find out that a teacher is gay or transgender through a friend or
    family member who may already know. In these types of situations, the
    educator's First Amendment rights are very strong. Being gay is legal
    in all 50 States, and--absent additional facts--none of the rules
    discussed above are violated under such circumstances. All persons are
    entitled to be open about fundamental aspects of identity and
    personhood in their communities.
        On school grounds, interaction tends to be more structured, and gay
    or gender non-conforming educators who are out to their students
    typically communicate their identity during one of three relatively
    predictable scenarios. They may do so while conversing with students
    informally regarding such casual topics as pop culture, fashion,
    sports, family, and related matters; while engaging in non-curricular
    related communication--often before or after class--regarding current
    issues and events; or while teaching a formal lesson or conducting a
    classroom activity. Assuming that the self-identification is
    communicated in a professional manner that parallels the way that any
    straight colleague might reveal an ethnic or religious identity, allude
    to her marital status, or reference family-related circumstances and
    events, the only scenario where an LGBT person should arguably exercise
    additional discretion is the formal classroom setting.\22\
        Even apart from any of the legal constraints referenced above, it
    is generally agreed that as a matter of best practices, K-12 teachers
    should strive to keep to the curriculum and avoid references to their
    own lives. However, given the fluid and often-unpredictable nature of
    classroom interaction, there may be instances even in such formal
    settings that either warrant reference to a teacher's individual
    circumstances or may naturally include such references without
    violating any standards of professionalism.
        For example, there are school districts (and private schools)
    across the country that mandate LGBT-related discussions and
    activities--sometimes at a particular time of year and generally linked
    to the teaching of tolerance and the celebration of differences. The
    Los Angeles Unified School District has done this by officially
    recognizing June as ``Gay and Lesbian Awareness Month.'' As reported in
    a 2000 Ninth Circuit opinion, an official District memo designated the
    month as ``a time to focus on gay and lesbian issues,'' and noted that
    the Board of Education's resolution setting this in motion was passed
    to support ``Educating for Diversity.'' \23\ The memo also informed
    schools that ``posters and materials in support of Gay and Lesbian
    Awareness Month'' would be provided to them, and that these ``were
    designed to aid in ``the elimination of hate and the creation of a safe
    school environment for all students.'' \24\ In circumstances such as
    these, LGBT-related lessons consistent with District policy and
    delivered pursuant to a State's academic and curricular standards might
    appropriately include references by teachers to actual gay individuals
    and their work. Heterosexual teachers conducting such lessons might
    decide to mention gay friends or family members of their own. In a
    similar fashion, LGBT teachers might choose to reference their own
    identities in this context . . . especially if they are already out on
    campus and in the larger community.
        Another instance of ``out'' speech that could fit naturally during
    formal classroom interaction might be a lesson on another country,
    where a teacher shares her experiences traveling through that country.
    A unit on Brazil, for example, is greatly enhanced if a teacher has
    been there and can bring in pictures and objects from the trip. In
    these circumstances, if a heterosexual teacher has traveled with a
    spouse or even with a boyfriend or girlfriend, the teacher often
    references that fact or may even show pictures or videos that include
    these others. In the same manner, LGBT educators who desire to do so
    should conceivably feel equally comfortable indicating that they have
    visited particular places in Brazil with a partner, boyfriend, or
    girlfriend of the same or similar gender.
        However, every situation and every school community is different,
    and just as heterosexual teachers might choose to exercise discretion
    in these types of lessons, so too should LGBT educators exercise
    similar discretion. In addition, although again there is no hard and
    fast rule here, gay and gender non-conforming teachers who are not
    already out at school would probably be advised not to plan to come out
    for the first time in front of their classes in a formal setting.
        Of course, teachers cannot plan for every possible interaction that
    may occur. And a classic example of unpredictability in the classroom
    is when a student asks the teacher a question of a personal nature.
    Indeed, it is rare for a school year to go by anywhere in the country
    without teachers being asked such questions as ``who did you vote for?
    '' or ``what's your opinion on this? '' or ``are you married? '' It was
    just this sort of unpredictability that led to a highly publicized
    controversy in 2004 regarding Ron Fanelle's ``out'' speech to his
    seventh and eighth grade students.

    The Fanelle Controversy and Its Implications: A Case Study
        A popular social studies teacher at Monte Vista Middle School in
    Ventura County, California, Ron Fanelle agreed to marry longtime
    partner Randy Serak when San Francisco Mayor Gavin Newsom opened City
    Hall ceremonies to same-sex couples in early 2004. Fanelle, who was out
    to his colleagues and his principal but not to his students, was
    congratulated on the marriage at a staff meeting, after which several
    teachers apparently spread the news.
        According to reports in the L.A. Times, the Ventura County Star,
    the San Jose Mercury-News, and CNN, Fanelle was asked by one of his
    students in front of his entire seventh and eighth grade class whether
    it was true that he had recently gotten married. He chose to answer
    ``yes.'' He was then asked whether it was true that he had married
    another man, and he answered ``yes'' to that as well. It is not clear
    from the news reports exactly what transpired, whether a formal lesson
    had already been under way, and precisely what interaction followed. It
    appears, however, that students gave him a standing ovation, and that
    several follow-up questions were asked . . . such as how long the two
    had been together and why he did not wear a wedding ring or have a
    picture of Serak on his desk. It also appears that a boy in the class
    ``began muttering negative comments under his breath,'' and that
    Fanelle then chose to conduct an unplanned discussion regarding
    suffrage, bigotry, harassment law, and the Magna Carta.
        As a result of these events, one parent apparently requested that
    his child be removed from the class, and another--whose child was not
    in the class at all--chose to raise the issue publicly at the next
    school board meeting. The parent was quoted as saying that he came to
    the meeting ``. . . with a heavy heart. A seventh-grade history teacher
    announced to his students he's gay. I'm very upset and disappointed
    that this person was bringing his homosexual platform to the
    classroom.'' The story was picked up by the local media, a District
    ``investigator'' showed up unannounced at Fanelle's home to ask him
    questions, and there were intimations that Fanelle might be disciplined
    or even fired. The California Teachers Association provided him with an
    attorney, and Fanelle also contacted the highly regarded legal director
    of the National Center for Lesbian Rights--Shannon Minter--who spoke on
    his behalf to the press.\25\
        Several weeks later, after an outpouring of support for Fanelle
    among parents and students in the community, the school board announced
    that the ``investigation'' had ended, and insisted that there was never
    any consideration of discipline or job-
    related action. Yet the emotional and very public nature of the
    controversy that had ensued left Fanelle and many other LGBT educators
    concerned about the still-
    prevailing double standard that apparently exists in so many places.
        Application of Basic First Amendment Principles. The Fanelle matter
    was a widely reported incident that did not result in any legal action.
    But had a case gone forward, and had Fanelle chosen to contest any
    efforts by the District to reprimand, censor, or discipline him in any
    way, the First Amendment principles outlined above would have been
    central to his case. He would have been able to argue that not only did
    he have the right to reveal his same-sex marriage under basic freedom
    of expression doctrine, but that he had the right to be treated the
    same as any straight teacher who had revealed his or her different-sex
    marriage.
        A married teacher, when asked if he or she is in fact married, is
    entitled under U.S. law to answer the question affirmatively. Whether
    the marriage is a gay marriage or a straight marriage is irrelevant in
    these circumstances. Fanelle did not break any laws, and unless all
    teachers are prohibited from responding to questions about their
    marital status, he must be allowed to respond as he did. Indeed, these
    assertions would be at the heart of his case at the intersection of the
    1st and Fourteenth Amendments and would likely result in a victory for
    him.
        It is conceivable, however, that had this case gone to trial, the
    District would have acknowledged the above points but would have sought
    to focus on the discussion that ensued in his class after his response
    to the questions, and on the age-appropriateness of Fanelle's comments
    and actions. They might have argued that he was within his rights to
    answer the initial questions, but that he should have then returned to
    the lesson of the day, consistent with the principle that in a formal
    classroom setting a teacher is supposed to be delivering the
    curriculum.
        Debriefing, Responding to Student Questions, and ``The Teachable
    Moment.'' While it is unclear from the reports exactly what took place
    during the discussion, the activity apparently addressed the topic of
    marriage equality within the larger context of the history of our legal
    system. Fanelle appeared to have focused on highlights of how the legal
    system had grown and developed by acknowledging basic rights of human
    beings and addressing discriminatory practices of both monarchies and
    elected governments. Among these highlights were the Magna Carta and
    the right to vote.\26\
        Building on the principle that teachers cannot be expected to be
    automatons, and that the direction a lesson takes is inevitably shaped
    by student questions and comments, there is no evidence from the
    reports that Fanelle engaged in any sort of one-sided diatribe or
    exhibited any attempt to indoctrinate his students. Under the continuum
    analysis referenced above, for example, an attempt to indoctrinate only
    arises in circumstances such as when the alleged indoctrination is
    ``systemic,'' when the students are ``required . . . to agree with or
    affirm'' a particular idea, and/or when they are ``subject to a
    constant stream'' of similar content. Nothing of this sort happened
    here. In fact, there were no allegations of any efforts at
    indoctrination. The parent who complained to the school board did not
    have a student in Fanelle's class and did not focus on the discussion
    that ensued, but merely on the fact that Fanelle acknowledged his
    homosexuality.\27\
        Neither is there any evidence that the teacher even strayed from
    the content of his curriculum. This was a seventh and eighth grade
    social studies class. Seventh grade curriculum in California includes
    world history, and eighth grade curriculum includes U.S. history.
    Fanelle appeared to be conducting a focused discussion that brought
    together highlights from both.
        As a matter of best practices, Fanelle was also following two
    research-based guidelines that every K-12 teacher preparation program
    recommends: seek to debrief highly unusual occurrences and take
    advantage of the teachable moment. Something very different had just
    happened in this classroom. Students could not and should not be
    expected to simply return to the matters at hand without having had a
    chance to process the event. And this was also a classic example of a
    teachable moment, particularly in light of the fact that in the Spring
    of 2004, the media was filled with pictures of gay and lesbian couples
    getting married in Massachusetts and San Francisco, Canada was in the
    process of legalizing same-sex marriage, and a debate over these
    matters was raging across the Nation. The best social studies teachers
    are always expected to integrate current events into the curriculum,
    helping students see the relationship between present and past events
    as well as the larger scope of history across the board. What better
    opportunity to do this than the revelation that the students' own
    teacher had participated in the very events that were at the top of the
    news during that time.
        Age Appropriateness and the ``Teaching'' of Gay Marriage. As to the
    age-appropriateness question, there was no evidence that Fanelle's
    discussion was not age appropriate.\28\ Traditionally, marriage has not
    been a topic that is off limits in a
    K-12 classroom, and students at every age know that people form
    relationships, pair up, and often eventually get married. Middle school
    students in the earlier stages of adolescence are particularly
    cognizant of these facts, as they begin to experiment with friendships
    and relationships of their own.
        Yet while marriage as a topic has come up as a matter of course in
    K-12 classrooms throughout history, and indeed elementary school
    students in the United States have traditionally been taught a unit on
    ``the family'' in the primary grades, it must be acknowledged that the
    question of how to approach it in public schools today has emerged in
    the aftermath of unprecedented developments over the past decade.
    Internationally, during this time, seven countries (Belgium, Canada,
    the Netherlands, Norway, Spain, South Africa, and Sweden) legalized
    same-sex marriage. In the U.S., same-sex marriage was legalized in six
    States (Connecticut, Iowa, Maine, Massachusetts, New Hampshire, and
    Vermont), and gay marriages in other jurisdictions were recognized in
    New York, Rhode Island, and DC. Six other States plus DC had in place
    some form of civil union or domestic partnership for same-sex couples.
    And approximately 18,000 same-sex couples remained legally married in
    California. In addition, by the end of 2009, 18 States now offered
    benefits for same-sex partners of State employees.\29\
        The tension regarding the dramatic developments that led to the
    legal recognition of same-sex relationships in so many contexts and on
    so many fronts since the year 2000 came to a head during and after the
    2008 California Proposition 8 campaign. Advocates of Proposition 8,
    which sought to take away the newly won right of gay and lesbian
    persons to marry the person they loved, had great success turning the
    debate away from marriage equality and directly toward the public
    schools. In the eyes of many, a widely distributed campaign ad
    featuring Pepperdine University Law School Professor Richard Peterson
    was seen as helping to turn the tide in favor of proponents of the
    proposition, which was approved by the voters, 52 percent to 48
    percent.
        The Transcript of the `Yes on 8' ad with Prof. Richard Peterson
    reads as follows:

              Mom, guess what I learned in school today?
              What, sweetie?
              I learned how a prince married a prince, and I can marry a
            princess.
              Prof. Richard Peterson (Pepperdine)--``Think it can't happen?
            It's already happened. When MA legalized gay marriage, schools
            began teaching second graders that boys can marry boys. The
            courts ruled parents had no right to object.'' (Video shows
            ``No Legal Right to Object,'' and then the name of the case
            ``Parker v. Hurley'' and its cite (2008).) \30\
              Under CA law, public schools instruct kids about marriage.
            (Video shows Ed Code Section 51933 (7) ``Instruction and
            materials shall teach respect for marriage . . . '')
              Teaching children about gay marriage will happen here unless
            *we* pass Proposition 8. Yes on 8.\31\

        While the ad clearly tapped into the fear of the inevitable--i.e.
    that to the extent that same-sex relationships would now be completely
    acceptable under the law, any reference to gays and lesbians in the
    schools would ultimately be no more unusual or unacceptable than a
    reference to a man dating or marrying a woman--it must be noted that
    whether and to what extent the California public schools ``taught'' gay
    marriage was not dependent on the passage of Proposition 8. Many
    teachers were already addressing these issues within the context of the
    State curricular standards, and students were bringing in front-page
    newspaper articles reporting on developments in this context across the
    country and around the world. Fanelle's class discussion was just one
    of many examples. These practices did not stop when Proposition 8 was
    approved. Indeed, if anything, the volatile aftermath of the ballot
    initiative campaign led to much more ``teaching'' of gay marriage in
    public school classrooms than had ever been the case before. And absent
    additional facts, such discussions are completely legal.\32\
        The events surrounding Ron Fanelle's ``out'' speech reflect what
    can and does happen in some areas of this country when a K-12 educator
    reveals an identity that may vary from the expected norm. Such events
    can be particularly difficult during times when emotions are running
    high regarding gay and lesbian issues, as they were in March 2004 and
    in the Fall of 2008, both locally and nationally.
        The Fanelle controversy also reflects the continuing prevalence of
    ``conspiracy theories,'' as indicated by the one parent's allegation at
    the school board meeting that the teacher was ``bringing his homosexual
    platform to the classroom.'' \33\ Even so, in spite of all that
    occurred and all the emotions that were stirred up within this
    community, the District acknowledged in the end that Fanelle did
    nothing wrong, and no case was ever brought against him. Such an
    acknowledgment is clearly rooted in the conclusion that both under the
    law and as a matter of policy Fanelle was well within his rights and
    conducted himself both appropriately and professionally.

                    FOURTEENTH AMENDMENT RIGHTS OF EDUCATORS

        The Fourteenth Amendment Equal Protection Clause is the central
    guiding principle governing employment discrimination law in the public
    sector. Under this venerable constitutional provision, people similarly
    situated must be treated equally. When intentional discrimination is
    shown, the Fourteenth Amendment alone often serves as the primary basis
    for a plaintiff 's victory. In addition, the mandate of the Equal
    Protection Clause can be strengthened by specific Federal and State
    laws prohibiting discrimination on the basis of categories such as
    race, gender, religion, age, and disability.\34\
        Gay and gender non-conforming educators in a growing number of
    States can benefit from such specific laws, which grant explicit
    protection against discrimination on the basis of LGBT status. But the
    Fourteenth Amendment remains the primary vehicle that aggrieved
    educators can employ in this context. While no education cases
    addressing alleged discrimination on the basis of LGBT status have
    reached the U.S. Supreme Court, the Court did prohibit LGBT-related
    discrimination in Romer v. Evans and Lawrence v. Texas.
        Indeed, even in the years immediately preceding the 2003 decision
    in Lawrence, the tide had begun to turn in favor of out educators who
    were dismissed from their positions simply because of who they were.
    Under employment discrimination law, as reflected primarily in
    Fourteenth Amendment Equal Protection Clause principles, such
    dismissals are not holding up in court.

    Glover v. Williamsburg Local School District
        A noteworthy example of this trend is the 1998 Federal court
    victory by Ohio teacher Bruce Glover. A 46-year-old openly gay white
    man in a relationship with an African-American man, Glover left the
    insurance industry to pursue a career in education. After successfully
    completing student teaching and receiving an Ohio Teaching Certificate,
    he took a position as an upper elementary teacher in Williamsburg.\35\
        Things started to deteriorate when a false rumor began circulating
    that Glover and his partner had been holding hands at the sixth grade
    holiday party. In January, even after it had become clear that the
    rumor was false and that Glover had done nothing other than be out as a
    gay person, District officials began warning him, lecturing him,
    monitoring his classroom excessively, and creating an increasingly
    hostile and humiliating environment. Administrators admonished him ``to
    be careful not to do anything which might fuel rumors and upset the
    community,'' and warned him ``that people in the community might be
    concerned if Glover had to stay after school alone with a male
    student.'' In addition, he was told ``that he had better be careful
    because there was a small group of parents that was out to get him.''
    \36\
        At the end of the year, despite a solid overall record of teacher
    evaluations, he was not rehired.
        Glover challenged the decision not to rehire him under the Equal
    Protection Clause of the Fourteenth Amendment. He alleged that the
    Board's decision was discriminatory ``based on his sexual orientation,
    his gender, and the race of his partner.'' The Court determined that
    ``[h]omosexuals . . . are entitled to at least the same protection as
    any other identifiable group which is subject to disparate treatment by
    the State.'' The Court also explained that the principle would be the
    same if Glover had been arrested discriminatorily based on his hair
    color, his college bumper sticker, or his affiliation with a disfavored
    company. Furthermore, the Court declared:

              [A] State action which discriminates against homosexuals and
            is motivated solely by animus towards that group necessarily
            violates the Equal Protection Clause, because a ``desire to
            effectuate one's animus against homosexuals can never be a
            legitimate governmental purpose.'' \37\

        The Court found that the evidence, taken together, ``demonstrates
    that the . . . purported reason for Glover's nonrenewal was pretextual,
    and in fact the Board discriminated against Glover on the basis of his
    sexual orientation'' \38\
        The Court went on to find that the Board's ``wrongful decision''
    denied him the opportunity to teach at Williamsburg Elementary School
    in both 1996-1997 and 1997-1998, and that he had been unable to secure
    a permanent teaching job since the nonrenewal of his contract.
    Therefore, the Court ordered the Board to re-instate him as a full-time
    teacher at Williamsburg Elementary School with a 2-year contract,
    beginning with the 1998-1999 school year. Glover was also awarded money
    for back pay as well as emotional distress. The Court emphasized that
    as a result of the Board's wrongful actions, ``he suffered considerable
    anguish as well as humiliation in the community. Glover's psychological
    injuries also had physical effects, including anxiety, sleeplessness,
    and digestive problems'' for which Glover had been receiving treatment
    since the Fall of 1996.

    Weaver v. Nebo School District
        The ruling in the Weaver case is consistent with the trend
    recognizing strong Fourteenth Amendment rights for openly LGBT
    educators in an employment discrimination context. In this 1999
    lawsuit, a Utah Federal court considered the case of 19-year veteran
    teacher and volleyball coach Wendy Weaver--a person with an
    ``unblemished'' record and a reputation as ``an effective and capable
    teacher''--who answered affirmatively when asked by a senior team
    member if she was gay. She was subsequently admonished ``not to make
    any comments, announcements or statements to students, staff members,
    or parents of students regarding . . . [her] . . . homosexual
    orientation or lifestyle.'' In addition, she was removed from her
    position as volleyball coach.\39\
        Ms. Weaver brought a lawsuit challenging the school district's
    decisions under both the First Amendment and the Fourteenth Amendment.
    The Court found that ``to the extent [that the letters of admonishment]
    limit her speech in this area, they violate the First Amendment.''
        Turning to the Equal Protection Clause claim, the Court also found
    in favor of the plaintiff. ``[T]he Fourteenth Amendment of the U.S.
    Constitution entitles all persons to equal protection under the law,''
    the Court explained. ``It appears that the plain language of the
    Fourteenth Amendment's Equal Protection Clause prohibits a State
    government or agency from engaging in intentional discrimination--even
    on the basis of sexual orientation--absent some rational basis for so
    doing. [And] the Supreme Court has recognized that an `irrational
    prejudice' cannot provide the rational basis to support a State action
    against an equal protection challenge.'' \40\
        The Court then found that the ``negative reaction'' some members of
    the community may have towards gays and lesbians ``is not a proper
    basis for discriminating against them'':

              If the community's perception is based on nothing more than
            unsupported assumptions, outdated stereotypes, and animosity,
            it is necessarily irrational and under Romer and other Supreme
            Court precedent, it provides no legitimate support for the
            School District's decisions.
              Although the Constitution cannot control prejudices, neither
            this court nor any other court should, directly or indirectly,
            legitimize them.\41\

        The District was ordered to re-instate Weaver as the volleyball
    coach, and to remove the offending letters of admonishment from her
    personnel file.\42\

    The Dana Rivers Settlement
        The former David Warfield had already built an impressive resume
    when he was hired by a suburban Sacramento school district to teach
    history and journalism at Center High. He had been a Navy electronics
    expert, a political consultant and school board member in Huntington
    Beach, CA, a baseball coach, and a whitewater rafting instructor.
        Warfield proved to be a highly successful teacher at Center High
    throughout the 1990's. Over a 9-year period, students often called him
    one of the best teachers they ever had, and many remembered him as a
    major influence on their lives. According to the New York Times, he
    developed a program for unmotivated students that became the award-
    winning Media Communications Academy. He was the recipient of a $80,000
    grant for the program, won the school's Stand and Deliver award for the
    teacher who most inspires students, and received a standing ovation
    from the district's staff at its annual meeting in late 1998.\43\
        Yet when Warfield revealed in a Spring 1999 letter to his
    colleagues that he was transitioning from male to female, would be
    undergoing gender-reassignment surgery, and planned to return to school
    as an MTF (male-to-female) transgender person named Dana Rivers, it was
    not long before he was removed from his teaching position.\44\
        While the exact parameters of what transpired during those months
    may never come to light, it is well established that--upon learning the
    news of the teacher's transition--the school board sent a letter
    disclosing it to all 1,500 families in the district. Only a handful of
    parents protested the teacher's actions, but board members who were
    uncomfortable with Rivers' gender identity expressed their disapproval
    openly and triggered an increasingly rancorous debate.
        Rumors abounded during that spring and summer, including
    allegations by a handful of parents that Rivers had shared
    inappropriate personal details regarding the decision with her
    students.\45\ According to school board member Ray Bender, the majority
    of the board did not want a transgender teacher in the District, and
    these allegations enabled them to justify their 3-2 decision never to
    allow Rivers back. She was put on administrative leave in late summer,
    and eventually dismissed.
        Bender, who voted against dismissal, was quoted as saying that the
    Dana Rivers controversy had become ``a cause for religious
    conservatives assisted by the Pacific Justice Institute, a local
    conservative legal organization that demanded that the school board
    fire the teacher or face a lawsuit.'' Indeed, one board member was
    heard telling a parent that this was ``a holy issue.'' \46\
        The parental allegations were disputed by Rivers and several of her
    former colleagues. The colleagues stated that students learned the news
    of the transition when teachers read the original coming out letter to
    their classes. And Rivers reported that as rumors began circulating
    throughout the school and students began asking about them, she agreed
    to an interview with the school newspaper, which published a 2,600-word
    profile during the final week of the semester.\47\
        Represented by private counsel but also in consultation with the
    ACLU, Rivers challenged her termination as discriminatory and as a
    violation of her First Amendment rights. Very quickly, she won a
    $150,000 settlement with the school district. Although she reportedly
    vowed that she would never teach again, she was offered a job 18 months
    later in a suburban San Jose high school and returned to the classroom
    in the Fall of 2001.\48\
        In addition to her ongoing contributions as an educator, Rivers
    became a prominent public interest activist, and has continued working
    to achieve equal rights for transgender persons.\49\

            OTHER LEGAL DEVELOPMENTS BOLSTERING THE RIGHT TO BE OUT
                               FOR LGBT EDUCATORS

        While the Equal Protection Clause of the Fourteenth Amendment
    remains the country's most basic prohibition against discrimination by
    the government and other public officials, a range of other legal
    developments provide additional protection in both the public and the
    private sectors.
        For LGBT educators, one of the most significant developments in
    this context was the California Supreme Court's 1969 decision in
    Morrison v. State Board of Education. Most State education codes
    include the provision that a teacher may be dismissed for ``immoral or
    unprofessional conduct.'' Yet these words are typically not defined,
    and it was not until this case that a major U.S. court interpreted
    their meaning and determined how they should be applied.
    Coincidentally, the dispute at issue in this case was LGBT-related,
    arising over an attempt to revoke the credential of a male teacher who
    had engaged in a brief consensual affair with another male teacher in
    his school district.\50\
        Marc Morrison was a fully credentialed educator employed by the
    Lowell Joint School District in the Whittier-La Habra area of southern
    California during the early 1960's. His record was unblemished, with no
    one ever complaining about or criticizing his classroom performance,
    and no suggestion that even his ``conduct outside the classroom . . .
    was other than beyond reproach.''
        By early 1963, Morrison had become friends with fellow teacher Fred
    Schneringer, and apparently served as a trusted adviser for him and his
    wife. In the spring of that year, a time when the Schneringers were
    ``involved in grave marital and financial difficulties,'' Morrison
    spent much time with the two of them, frequently visiting their
    apartment and providing them with ongoing ``counsel and advice.'' When
    Schneringer later obtained a separation from his wife, Morrison
    suggested a number of women whom Schneringer might consider dating.\51\
        A year after these events, for reasons that remain unclear,
    Schneringer chose to reveal that during a 1-week period in April 1963,
    he and Morrison ``engaged in a limited, non-criminal physical
    relationship.'' At the time, most common homosexual acts were
    considered crimes in almost every State, and the fact that the conduct
    between the two was described as ``non-criminal'' indicates just how
    limited the physical contact must have been.\52\ Yet as a result of
    these events Morrison was apparently pressured to resign from the
    District, and the State Board of Education followed by revoking his
    teaching credential, a revocation that Morrison chose to contest in
    Court.\53\
        While Morrison acknowledged that the contact had been ``of a
    homosexual nature,'' this was not a ``gay rights'' case in the
    traditional sense of the term. Morrison never claimed to be gay,\54\
    never asserted any rights under either the First or Fourteenth
    Amendments, and never argued that he was being discriminated against in
    any way. His entire argument, which ultimately carried the day, was
    that what he had done did not warrant revocation of his teaching
    credential because it had nothing to do with his fitness to teach.
        Justice Matthew Tobriner, writing on behalf of the California
    Supreme Court majority, proceeded to conduct a thorough review of other
    decisions addressing dismissal of employees--both within and outside of
    education--for alleged ``immoral or unprofessional conduct'' or ``moral
    turpitude.'' Tobriner found that by using these terms in the Education
    Code ``the Legislature surely did not mean to endow the employing
    agency with the power to dismiss any employee whose personal, private
    conduct incurred its disapproval:''

              In the instant case the terms denote . . . conduct . . .
            which indicates unfitness to teach. Without such a reasonable
            interpretation the terms would be susceptible to so broad an
            application as possibly to subject to discipline virtually
            every teacher in the State.\55\ . . . We cannot believe that
            the Legislature intended to compel disciplinary measures
            against teachers . . . [for conduct that] . . . did not affect
            students or fellow teachers. Surely incidents of extramarital
            heterosexual conduct against a background of years of
            satisfactory teaching would not constitute ``immoral conduct''
            sufficient to justify revocation of a life diploma without any
            showing of an adverse effect on fitness to teach.\56\

        The Court examined the circumstances surrounding Morrison's brief
    affair and found ``no evidence'' whatsoever that his conduct
    ``indicated his unfitness to teach.'' \57\ In conclusion, Justice
    Tobriner emphasized that ``[t]he right to practice one's profession is
    sufficiently precious to surround it with a panoply of legal
    protection,'' and that ``[t]he power of the State to regulate
    professions and conditions of government employment must not
    arbitrarily impair the right of the individual to live his private
    life, apart from his job, as he deems fit.''
        The Morrison decision proved to have wide-ranging impact over the
    entire area of public employment law, and it soon took on the trappings
    of a national decision as one court after another followed its
    reasoning and adopted its conclusions.\58\ For gays and lesbians, the
    decision was particularly important. The fact that private homosexual
    conduct between consenting adults would not result in the loss of
    employment absent additional facts was a giant step forward for LGBT
    educators. Only a decade earlier, it was the gays who suffered the most
    under the arbitrary dismissal policies of the McCarthy era, when
    President Eisenhower issued an executive order requiring that all
    ``known homosexuals'' be dismissed from government jobs.\59\ More
    people lost their jobs under this edict than under any other category
    of alleged security threat during the McCarthy ``witch hunts.'' \60\
        In the decades that followed, Federal and State laws have been
    adopted that seek to provide additional protection above and beyond the
    Equal Protection Clause. Some of these laws focus specifically on the
    workplace, while others are more general. Most typically, the laws
    delineate exactly which groups are protected.
        Title VII of the Civil Rights Act of 1964, for example, prohibits
    discrimination in the workplace on the basis of ``race, color,
    religion, sex, or national origin.'' To the extent that LGBT educators
    alleging employment discrimination also fall into one or more of these
    categories, and should they be able to prove discriminatory conduct on
    the basis of such characteristics, their legal position might certainly
    be strengthened. But as a general rule, apart from the Equal Protection
    Clause and the Morrison decision, the most important guarantee of equal
    treatment for LGBT educators in this area is the passage of a Federal
    or State law specifically prohibiting discrimination on the basis of
    sexual orientation or gender identity.\61\
        Over the past decade, there has been significant movement in this
    area, with the number of States explicitly prohibiting employment
    discrimination on the basis of sexual orientation increasing by almost
    50 percent, from 11 to 21. The State statutes typically add sexual
    orientation status to a list of other categories--such as race, gender,
    age, and disability--that are already protected.
        Increased protection against gender identity discrimination in the
    workplace has also been forthcoming in recent years. According to the
    Human Rights Campaign (HRC), as of July 2009, 12 States plus the
    District of Columbia explicitly prohibit workplace discrimination on
    the basis of both sexual orientation and gender identity. They include
    California (1992, 2003), Colorado (2007), District of Columbia (1977,
    2006), Illinois (2006), Iowa (2007), Maine (2005), Minnesota (1993),
    New Jersey (1992, 2007), New Mexico (2003), Oregon (Jan. 2008), Rhode
    Island (1995, 2001), Vermont (1991, 2007), and Washington (2006).\62\
        In addition, 9 other States prohibit workplace discrimination on
    the basis of sexual orientation alone: Connecticut (1991), Delaware
    (2009), Hawaii (1991), Maryland (2001), Massachusetts (1989), Nevada
    (1999), New Hampshire (1998), New York (2003), and Wisconsin
    (1982).\63\
        Several other States also provide a level of statutory protection
    for LGBTs. Indiana and Pennsylvania, for example, have personnel rules
    prohibiting discrimination based on sexual orientation or gender
    identity for public employees, while Alaska, Louisiana, and Montana
    protect public employees against sexual orientation discrimination but
    do not address gender identity.\64\
        Finally, an often over-looked area in this context is the
    opportunity to build protections against discrimination into collective
    bargaining agreements. Models exemplifying such an approach are in
    existence nationwide, and indeed the prospects of forging alliances
    between LGBTs and labor movements should not be discounted.\65\
        All told, this is an area that has seen much progress, and the
    right to be out for LGBT educators under our legal system continues to
    be strengthened as a result.

          SCHROEDER V. HAMILTON SCHOOL DISTRICT: A CASE STUDY OF LGBT
                             EDUCATOR MISTREATMENT

        The Schroeder case is perhaps the most egregious example in recent
    memory of an educator who was abused and vilified for no reason other
    than his LGBT status. Not only was the 20-year District veteran
    mistreated by school officials, but he was also mercilessly harassed
    over an extended period of time by members of the suburban Milwaukee
    school community, including colleagues, parents, and students. Yet,
    unlike all the other cases identified in this chapter, and despite the
    fact that the mistreatment led to both a nervous breakdown and the loss
    of employment, the Schroeder case is the only one to have been decided
    against the teacher.\66\
        The facts of the case document, at great length, a pattern of
    indifference by school officials to the persistent and pervasive
    mistreatment of an openly gay teacher who had come out after being with
    the District for over 15 years. In the years immediately after he came
    out, Schroeder experienced harassment primarily from students at
    Templeton Middle School. This included ``a student calling him a faggot
    and remarking `How sad there are any gays in the world'; another
    student physically confront[ing] Schroeder after shouting obscenities
    at him; catcalls in the hallways that he was a `queer' or a `faggot';
    obscenities shouted at him during bus duty; harassing phone calls with
    students chanting `faggot, faggot, faggot' and other calls where he was
    asked whether he was a `faggot'; and bathroom graffiti identifying
    Schroeder as a `faggot,' and describing, in the most explicit and
    vulgar terms, the type of sexual acts they presumed he engaged in with
    other men.'' Schroeder reported this harassment on several occasions,
    and the defendants apparently ``consequenced'' students who could be
    identified. Yet much of the harassment was allegedly anonymous, and the
    District made little or no apparent effort to discover who might have
    been behind it.
        After repeatedly requesting a transfer, Schroeder was finally re-
    assigned to Lannon Elementary School in the Fall of 1996. At Lannon,
    the harassment came primarily from parents in the school community. An
    anonymous memo, for example, was circulated by a parent, stating that
    ``Mr. Schroeder openly admitted at a District meeting that he was
    homosexual. Is that a good role model for our 5-, 6- and 7-year-old
    children? '' People began calling him a pedophile and suggesting that
    he was sexually abusing small boys. The tires on Schroeder's car were
    slashed, and he began receiving anonymous, harassing phone calls at
    home, which included comments such as ``Faggot, stay away from our
    kids'' and ``We just want you to know you . . . queer that when we pull
    out all our kids, you will have no job.''
        Not only did District colleagues consistently fail to intervene,
    but they often made things worse through their own comments and the
    messages they conveyed to others. Fellow teachers at both schools
    reportedly made numerous insulting and homophobic comments about
    Schroeder behind his back over time. The Assistant Principal refused to
    relieve Schroeder of bus duty, even after repeated requests and
    extensive evidence that some of the most egregious harassment occurred
    when students shouted anti-gay epithets at him from bus windows. Little
    or no apparent effort was expended on the part of either the bus driver
    or the administration to limit this student behavior. Instead,
    Schroeder was told that ``you can't stop middle school kids from saying
    things. Guess you'll just have to ignore it.'' \67\
        After repeated complaints by Schroeder over time, the
    administration at Templeton finally sent a memo to faculty and staff.
    However, the memo only stated ``that students were continuing to use
    `inappropriate and offensive racial and/or gender-related words or
    phrases,' and that `if you observe or overhear students using
    inappropriate language or gestures, please consequence them as you feel
    appropriate.' '' Indeed, perhaps the most egregious behavior on the
    part of school officials was the refusal by Templeton administrators to
    even mention the word ``gay'' or the words ``sexual orientation'' in
    their communication with the school community. People reading such a
    memo, for example, could reasonably conclude that it had absolutely
    nothing at all to do with LGBT issues.
        Others, however, might find the comments of the Lannon principal a
    few years later to be even more egregious than the decision of these
    administrators to treat terms such as sexual orientation as
    ``unmentionable'' in a school setting. At Lannon, as a result of
    completely unsupported allegations on the part of certain parents that
    Schroeder was a pedophile, the principal told Schroeder that they might
    need to implement ``proximity supervision,'' meaning that Schroeder
    would not be allowed to be alone with male students.\68\
        At trial, and during the appeal, the District asserted that its
    officials did ``all that could be done.'' While the Seventh Circuit's
    majority ultimately disagreed with the District and acknowledged that
    more could indeed have been done, both Judge Daniel A. Manion and Judge
    Richard A. Posner found no violation of the Equal Protection Clause
    because they concluded that school officials did ``all that [was]
    required.'' The panel majority held that the evidence presented by
    Schroeder did not amount to proof that he had been ``treated
    differently from his non-homosexual colleagues.''
        Yet the judges also held that even if there had been differential
    treatment in particular instances, that treatment was justified. Judge
    Manion, writing for the majority, focused extensively on the refusal of
    District administrators to use the word gay or the term sexual
    orientation in the memo to the school community. The Court acknowledged
    the differential treatment between an earlier response to racial
    harassment and the response to the harassment of the openly gay
    teacher, but found this differential treatment to be justified. Manion
    concluded that the school was right to not mention the words in a
    middle school environment. ``Unfortunately,'' he stated, ``there is no
    simple way of explaining to young students why it is wrong to mock
    homosexuals without discussing the underlying lifestyle or sexual
    behavior associated with such a designation.'' \69\
        In his concurrence, Judge Posner went even further than Judge
    Manion, explicitly concluding that some teachers deserve greater
    protection than others, and that schools are justified in protecting
    gay teachers less. ``I write separately,'' Posner declared, ``to
    emphasize that our decision would be the same even if Schroeder were
    right [and had demonstrated that he had been discriminated against on
    the basis of his sexual orientation]. ``Homosexuals have not been
    accorded the constitutional status of blacks or women, . . . [and] as
    for whether the defendants would have been irrational in failing to
    protect a homosexual teacher as assiduously as they would have
    protected a black or female teacher subjected to the same amount of
    abuse, a number of considerations show that they would not have been.''
    \70\
        A principled reassessment of the Manion and Posner opinions leads
    to the conclusion that not only was the Schroeder case wrongly decided
    under the law and as a matter of public policy in 2002, but that today
    such a case may very well be decided differently.
        First and perhaps foremost, the majority failed to acknowledge key
    facts. In the words of dissenting Judge Diane P. Wood:

              Never, in the course of these events, did the administration
            ever attempt to dissuade either students, parents, or anyone
            else in the broader community of the school district, to
            refrain from discrimination or harassment based upon sexual
            orientation. Indeed, . . . school officials never even told the
            students that the words being used to describe Schroeder
            transgressed the general code of civility the majority is
            recommending to schools. Schroeder was just told to tough it
            out.
              The only thing Schroeder wants is the same treatment that
            everyone else is receiving.\71\

        Schroeder argued, essentially, that the District violated his
    rights by treating him differently than others because of his openly
    gay identity. The District replied that--practically speaking--it could
    only do so much, and that in any case its legal obligations do not
    extend to ``protecting'' its employees from the type of mistreatment
    Schroeder experienced, especially when at least some of the
    mistreatment took place outside of the work environment and when at
    least some of the perpetrators were persons outside of the District's
    control.
        It must be acknowledged that society often asks more from school
    officials than they are reasonably able to do. Indeed, the duty to
    supervise on school grounds under tort law is generally viewed as a
    duty to protect students, not as a duty to protect teachers. Yet as a
    matter of policy it is unfathomable to imagine school district
    officials telling faculty that they should not expect their personal
    safety to be addressed on campus. Indeed, laws mandating safe
    environments for employees in the workplace generally are widespread
    and extensive at both the Federal and the State levels.
        Perhaps the strongest argument set forth by the defendants in the
    Schroeder case is that they should not be held accountable for the
    portion of the harassment that took place outside of school grounds.
    Even so, the law recognizes that the obligations of school officials do
    not stop at the boundaries of District property, online or offline.
    Relevant legislation and recent court decisions often include explicit
    obligations in this regard.\72\ In addition, bonds between schools,
    families, and communities are recognized in both the scholarly
    literature and the policy mandates of school districts as an integral
    component of the work that takes place in K-12 public education. On a
    day-to-day level, such mandates are reflected in parental advisory
    groups, school site councils, joint ventures with local businesses, and
    a wide range of school-family-community partnerships. Education leaders
    are not generally expected to limit their work to what takes place
    within schoolhouse gates, and the most effective District officials
    always see their responsibilities as extending out into the larger
    school community, including but not limited to building bridges and
    maximizing communication. Such responsibilities are informed by the
    recognition that what takes place outside the schoolhouse gates often
    impacts what goes on within those gates, and vice versa. In the end,
    therefore, there is much that these officials can in fact do if a
    teacher is being mistreated off campus for reasons that relate directly
    to and flow from what is taking place on campus.
        Schroeder demonstrated that he was in fact treated differently in
    this context than others were and others might have been.\73\ Yet the
    panel majority did not acknowledge the differential treatment, even as
    it attempted, in almost the next breath, to justify the very same
    differential treatment it would not acknowledge. In retrospect, the
    Court was wrong on both counts. Compelling evidence was presented of
    disparate and differential treatment by school officials of the openly
    gay veteran teacher. And Judge Manion's attempts to justify the
    school's treatment of LGBT harassment as different from other forms of
    harassment demonstrates a disappointing lack of familiarity with the
    scholarly research regarding age-appropriate methods of addressing peer
    mistreatment in the schools. Manion suggested that the only way to
    address anti-gay harassment among middle schoolers is to discuss
    homosexual activity in explicit detail, a suggestion that flies in the
    face of consistent findings by both scholars and practitioners today.
    Upper elementary and middle school students know what being gay means.
    They do not need to be given any details; they simply need to be taught
    that every person--gay or straight--deserves to be treated with equal
    dignity and equal respect. These are lessons that can and should be
    imparted at any age level.
        In the same context, Judge Posner asserted that ``the school
    authorities' options are limited by an understandable reticence about
    flagging issues of sex for children . . . [which will make them]
    prematurely preoccupied with issues of sexuality.'' \74\ This
    assertion, however, completely ignores the fact that the question of
    whether it was appropriate to even mention the word gay in a memo
    occurred at a middle school, and students at that level are already
    preoccupied with these very issues. In addition, one might ask how it
    can be considered inappropriate to talk openly about homosexuality in
    an educational environment for purposes of improving school climate
    when this very educational environment is already filled with so many
    ongoing references to homosexuality, as reflected in the pervasive
    anti-gay comments, the homophobic rhetoric, and the unusually explicit
    and demeaning graffiti.
        As to Judge Posner's conclusion that openly gay teachers can be
    treated differently and can be given less protection than their
    colleagues, it is certainly the case under current Equal Protection
    Clause jurisprudence that some types of discrimination merit a higher
    level of scrutiny than others. Racial discrimination, for example,
    triggers strict scrutiny, gender discrimination triggers an
    intermediate level of review, and discrimination on the basis of sexual
    orientation in 2002 merited no more than rational basis review.\75\ Yet
    this construct only addresses how courts are to act when faced with
    allegations of discrimination in civil lawsuits. It is not intended as
    a policy directive for school officials regarding how to treat faculty
    and staff. Effective school site administrators must--in principle and
    in practice--treat all their faculty members with equal dignity and
    equal respect. The implications of doing otherwise--for school climate
    and for the ability of a school to conduct an effective educational
    program--are highly troubling even to imagine. Levels of scrutiny under
    the Equal Protection Clause are simply irrelevant for these purposes.
        Moreover, Judge Posner's attempt to negate the existence of any
    actual injury is particularly disingenuous. Posner suggested that there
    was no actual injury because the harassment was not physical but simply
    constituted words. In any harassment inquiry, however, the Court is
    expected to look at the totality of circumstances, and in this fact
    pattern it is undeniable that the aggregate result of the mistreatment
    led to devastating injuries: a complete nervous breakdown and the loss
    of employment. As Judge Wood described it, ``there is no dispute that
    Schroeder was a very good teacher; he taught successfully for the
    District for 22 years . . . [Yet] he left the school . . . [on February
    11, 1998] . . . a ruined man.'' \76\
        With so much discrimination still evident within the law in 2002,
    the Schroeder panel majority was not a complete outlier when it
    concluded that differential treatment could be justified under a
    principled reading of Federal anti-discrimination law. The decision
    bucked the emerging trend, but cases such as Glover and Weaver were
    decided by the lower courts, and the LGBT student cases could
    conceivably be distinguished as inapplicable precedents because they
    also included ongoing physical abuse. Perhaps most importantly, a good
    number of States--both at the time that the events unfolded, and even
    in 2002--still criminalized private consensual relations between gay
    adults.\77\
        After the 2003 decision in Lawrence v. Texas, however, an attempt
    to justify the type of differential treatment that was evident in
    Schroeder is likely to be more difficult. Blanket assertions such as
    the one by Judge Manion that ``[a] student cannot . . . be disciplined
    for expressing a home-taught religious belief that homosexual acts are
    immoral'' would likely be deemed incorrect as a matter of law today.
    Students do indeed have the right to express home-taught religious
    beliefs, but a student's religious beliefs cannot be invoked to justify
    or explain away the brutal mistreatment of an openly gay employee when
    similar mistreatment of other employees would not be tolerated.
    Manion's reasoning not only runs counter to Lawrence, but also ignores
    central principles identified by the courts under the Establishment
    Clause of the First Amendment.
        Absent additional facts, a school district's persistent refusal to
    intervene on behalf of a beleaguered employee and a Federal court's
    attempts to justify such actions in this context fly in the face of the
    broad liberty and equality principles articulated in Lawrence.\78\ And
    Lawrence is re-inforced in a growing number of States by local laws
    explicitly prohibiting discrimination on the basis of LGBT status.\79\
        Eight years after the decision by a divided appellate panel, and at
    least 12 years after most of the events took place, a reassessment of
    this case leads to the conclusion that were the lawsuit to be filed
    today, Tommy Schroeder would likely emerge victorious. Indeed, such a
    principled reassessment serves as an example of just how significant
    the gains by LGBTs have been and just how strong the aggregate power of
    both case law and statutory law has become in this area.
        LGBT educators choosing to be out can still expect a certain level
    of controversy in certain circumstances, but their First Amendment
    rights in combination with their Fourteenth Amendment rights are
    generally so strong that if they keep to the guidelines set forth in
    this chapter, their actions will be protected under the law. Educators
    have the right to identify openly as LGBT should they wish to do so.
    Moreover, in circumstances where it may be viewed as appropriate for
    heterosexual colleagues to reference their relationships, display
    pictures of loved ones, or even introduce boyfriends, girlfriends,
    spouses, or children, it is equally appropriate under the law for gay
    persons to do the same. LGBTs also have the same right as their
    colleagues to play supportive roles as advisers for students with
    similar interests and identities. For example, just as an openly
    Christian teacher can serve as a faculty adviser for an after-school
    student Bible club, so too can an openly gay or transgender teacher
    serve as a faculty adviser for a gay-straight alliance. Just as a
    teacher with a strong ethnic identity can serve as an advisor for
    students who seek a safe place to discuss their own identity-related
    issues, so too can an openly LGBT educator volunteer to serve as an
    advisor for queer or questioning students pursuant to District-approved
    ``safe zone'' programs.
        Both school districts and courts of law have acknowledged the
    implications of these changing realities in a wide variety of contexts.
    Even defamation law is in the process of transformation as a result.
    Before 2003, it was often relatively easy for a straight person who was
    alleged to be gay to actually win a defamation lawsuit against the
    person making that claim. After 2003, however, it is going to be much
    harder to show that such an allegation alone--absent additional facts--
    constitutes defamation. A Federal court indicated as much only 2 months
    after the Fanelle controversy when it declared that it could not find a
    statement that an individual is gay ``capable of a defamatory
    meaning'':

              [I]n this day and age, I cannot conclude that identifying
            someone as a homosexual discredits him. . . . First, the large
            majority of the courts that have found an accusation of
            homosexuality to be defamatory per se . . . emphasized the fact
            that such a statement imputed criminal conduct. This rationale
            is extinguished by the Supreme Court's recent ruling in
            Lawrence v. Texas. . . . Second, I reject the offensive
            implication of plaintiffs' argument that, even without the
            implicit accusation of a crime, portions of the community feel
            homosexuals ``are less reputable than heterosexuals . . .''
              While [recent Federal and State court decisions acknowledge]
            that a segment of the community views homosexuals as immoral,
            [they also conclude] that courts should not, directly or
            indirectly, give effect to these prejudices. If this Court were
            to agree that calling someone a homosexual is defamatory per
            se--it would, in effect, validate that sentiment and legitimize
            relegating homosexuals to second-class status.\80\

                                   References

        1. See, e.g., E. Edmund Reutter, Jr., The Law of Public Education
    (New York: Foundation Press, 1994), 657. See also Acanfora v. Bd. of
    Educ. of Montgomery County, 491 F. 2d 498 (4th Cir. 1974); Gish v. Bd.
    Of Educ., 145 N.J. Super. 96 (1976); Gaylord v. Tacoma School Dist. No.
    10, 88 Wash.2d 286, 559 P.2d 1340 (en banc) (1977) (all examples of
    cases where courts upheld the removal of openly gay teachers from
    public school teaching positions).
        2. The initiative, while favored overwhelmingly in the early polls,
    was defeated by the voters, 59 percent-41 percent. Many credit the
    unequivocal opposition of Governor Jerry Brown, President Carter, and
    then former Governor Ronald Reagan for the defeat of this initiative.
    See, e.g., The Times of Harvey Milk (1984), the Academy Award-winning
    documentary film that addresses these and related issues.
        3. David Alan Sklansky, ``Privacy, Policing Homosexuality, and
    Enforcing Social Norms--`One Train May Hide Another': Katz, Stonewall,
    and the Secret Subtext of Criminal Procedure,'' 41 UC Davis Law Review
    875, 906-907 (2008). In this context, Sklansky added that ``[t]he
    terror and cruelty of a charge of homosexuality, the way such a charge
    could destroy, in a blow, a man's reputation and livelihood, his family
    life and his place in the community--all of this was well known to
    Americans regardless of their own sexual practices, and witnessed
    repeatedly, often close at hand.'' Ibid. at 911.
        4. Ibid. at 913, quoting from ``The Homosexual in America, Time,
    Jan. 21, 1966. See also Hendrik Hertzberg, ``Stonewall Plus Forty,''
    The New Yorker, July 6 & 13, 2009.
        5. See Elizabeth Mehren, ``The Times Poll: Acceptance of Gays Rises
    Among New Generation,'' Los Angeles Times, April 11, 2004. See also
    Gregory Lewis & Howard E. Taylor, ``Public Opinion Toward Gay and
    Lesbian Teachers: Insights for all Public Employees,'' Review of Public
    Personnel Administration 21 (2001): 133-51.
        6. See Pew Research Center for the People and the Press, May 2007
    Survey, http://pewresearch.org/pubs/485/friends-who-are-gay (accessed
    9-18-09).
        7. See ibid.
        8. 2008 data from the General Social Survey reveals similar
    differences regarding geography when the focus turns to higher
    education. While the number of Americans who believe that gays and
    lesbians should not be allowed to teach at colleges and universities is
    noticeably lower than at the K-12 level, the percentages of those who
    would bar LGBTs from academic positions at post-secondary institutions
    still range from a low of 14.6 percent in the Pacific region to a high
    of 26.9 percent in the ``West South Central'' portion of the country.
    See GSS: The General Social Survey, http://www.norc.org/GSS+Website/
    (accessed 7-24-09).
        9. In higher education, circumstances are generally better for LGBT
    educators, but many of these same pressures exist, especially at less
    gay-friendly institutions. See, e.g., Shane Windmeyer, The Advocate
    College Guide for LGBT Students (New York: Alyson Books, 2006), listing
    both the top 20 and top 100 colleges and universities for LGBT students
    in the United States.
        In recent years, the organization known as Soulforce has conducted
    ``equality rides'' across the United States to call attention to issues
    that still remain unresolved in this regard. Comprised primarily of
    LGBTs in their twenties who themselves identify as Christian, Soulforce
    teams have visited universities that expressly limit LGBT expression
    and in many cases expel students and dismiss faculty who are openly gay
    or lesbian. The visits met with varying responses from college
    administrators. See, e.g., Lou Chibbaro, Jr., ``30 Arrests Made at
    `Equality Ride' protests in Virginia,'' Washington Blade, March 17,
    2006. See generally www.soulforce.org (accessed 8/1/09).
        10. See Parker v. Hurley, 514 F.3d 87, 105-107 (1st Cir. 2008). In
    Hurley, the Court addressed claims that the reading aloud of King and
    King--a gay-positive book--by a teacher in an elementary school
    classroom constituted indoctrination in violation of the Free Exercise
    Clause. Determining that the U.S. Supreme Court ``has never utilized an
    indoctrination test under the Free Exercise Clause, much less in the
    public school context,'' the First Circuit did not address ``whether or
    not an indoctrination theory under the Free Exercise Clause [was]
    sound.'' It did find an ``intent to influence'' the students' point of
    view. But ``even assuming there is a continuum along which an intent to
    influence could become an attempt to indoctrinate,'' Judge Lynch wrote,

              ``This case is firmly on the influence-toward-tolerance end.
            There is no evidence of systemic indoctrination. There is no
            allegation that Joey was asked to affirm gay marriage.
            Requiring a student to read a particular book is generally not
            coercive of free exercise rights.''

    Ibid.
        11. See Tinker v. Des Moines Indep. Commun. Sch. Dist., 393 U.S.
    503, 506 (1969): ``First Amendment rights, applied in light of the
    special characteristics of the school environment, are available to
    teachers and students. It can hardly be argued that either students or
    teachers shed their constitutional rights to freedom of speech or
    expression at the schoolhouse gate. This has been the unmistakable
    holding of this Court for almost 50 years.''
        12. Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The school
    board sought to justify its decision by insisting that the publication
    of the letter was ``detrimental to the efficient operation and
    administration of the schools'' and that, under relevant Illinois law,
    the ``interests of the schools'' required his dismissal.
        13. Ibid. at 572.
        14. Connick v. Myers, 461 U.S. 138 (1983).
        15. 547 U.S. 410 (2006).
        16. Ibid. at 421.
        17. See generally ibid.
        18. And indeed the Connick Court emphasized that it was not in any
    way suggesting that speech outside matters of public concern would not
    also be protected:

              We do not suggest . . . that Myers' speech, even if not
            touching upon a matter of public concern, is totally beyond the
            protection of the First Amendment. ``The First Amendment does
            not protect speech and assembly only to the extent it can be
            characterized as political. `Great secular causes, with smaller
            ones, are guarded.' '' We, in no sense, suggest that speech on
            private matters falls into one of the narrow and well-defined
            classes of expression which carries so little social value,
            such as obscenity, that the State can prohibit and punish such
            expression by all persons in its jurisdiction.''

    Ibid. at 147.
        19. For some time, now, Federal appeals courts have differed
    regarding which Supreme Court decisions may be most directly applicable
    to educator speech at the K-12 level. Many have applied Pickering and
    Connick directly, noting that Pickering in particular directly
    implicates educator speech. Others apply principles from the K-12
    student freedom of the press case, Hazelwood v. Kuhlmeier (discussed
    supra, in Chapter 2). Some apply principles from both. Pickering is
    often viewed as applying to a greater extent to speech outside of the
    classroom, focusing more directly on teacher as citizen. Hazelwood, on
    the other hand, with its focus on ``legitimate pedagogical concerns''
    and the extent to which the speech may ``bear the imprimatur of the
    school,'' is often seen as more directly applicable to teacher
    expression in a formal classroom setting. Increasingly, however, it has
    become possible to reconcile the approaches of the various appeals
    court decisions and come up with a broad range of guidelines that
    educators would be wise to follow anywhere in the country. See, e.g,
    Karen C. Daly, ``Balancing Act: Teachers' Classroom Speech and the
    First Amendment,'' 30 Journal of Law & Education 1 (2001). See
    generally, R. Weston Donehower, ``Boring Lessons: Defining the Limits
    of a Teacher's First Amendment Right to Speak Through the Curriculum,''
    102 Michigan Law Review 517 (2003); Ailsa W. Chang, ``Resuscitating the
    Constitutional ``Theory'' of Academic Freedom: A Search for a Standard
    Beyond Pickering and Connick,'' 53 Stanford Law Review 915 (2001).
        20. See, e.g., Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036
    (6th Cir. 2001).
        21. See ibid. at 1051-1052: ``We believe that the Fourth and Fifth
    Circuits . . . [in Boring and Kirkland] . . . have extended the holding
    of Connick beyond what the Supreme Court intended . . .''
        Even the 2007 decision against an educator in the case of Mayer v.
    Monroe County Community School Corp., which some have suggested should
    be viewed as an outlier, is not inconsistent with these general
    guidelines. In Mayer, 474 F.3d 477 (7th Cir. 2007), a non-tenured
    probationary teacher argued that her First Amendment rights had been
    violated when she was let go at the end of the 2002-2003 school year
    because of comments she had made in a formal classroom session during a
    lesson on current events. According to Ms. Mayer, she answered a
    pupil's question ``about whether she participated in political
    demonstrations by saying that, when she passed a demonstration against
    this Nation's military operations in Iraq and saw a placard saying
    `Honk for Peace', she honked her car's horn to show support for the
    demonstrators.'' The Court found for the school district, and in so
    doing stated that ``the school system does not ``regulate'' teachers'
    speech as much as it hires that speech. Expression is a teacher's stock
    in trade, the commodity she sells to her employer in exchange for a
    salary.''
        While this decision has been criticized for its characterization of
    K-12 teachers as little more than functionaries charged with the
    figurative equivalent of playing back recorded messages to their
    students, see, e.g., Bob Egelko, `` `Honk for Peace' Case Tests Limits
    on Free Speech,'' San Francisco Chronicle, May 14, 2007, the basic rule
    articulated by the Court--the teachers must keep to the curriculum in a
    formal classroom setting--is not a departure from a guiding principle
    that has been in existence for some time now.
        In addition, it should be noted that the lower court ruling in the
    same case explicitly recognized that teachers interact with students in
    a variety of settings and need not limit their conversations in the
    same manner that they might be required to do in a formal classroom
    setting. Indeed, the Court states that it would be appropriate for the
    district to provide ``teachers and students the opportunity to engage
    in discussions about the war [in this manner] elsewhere on school
    property.'' See 2006 WL 693555 (S.D. Ind.) at *12.
        22. As referenced earlier, curricular related speech is sometimes
    analyzed under Hazelwood, sometimes under Pickering, and sometimes
    under both. It can be argued that non-curricular-related speech
    regarding controversial or other political issues falls under Pickering
    every time, since Pickering addressed exactly this sort of expression.
    And it may very well be the case that day-to-day conversation falls
    under neither.
        23. The memo goes on to State that the District's multicultural and
    human relations education policy includes the expectations that
    ``[e]ach student has equal access to a quality education and an
    opportunity to participate fully in the academic and social activities
    of the school,'' and ``School policies and practices act to foster a
    climate that reduces fears related to difference and deters name-
    calling and acts of violence or threats motivated by hate and
    bigotry.'' Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 at
    1005-06 (9th Cir. 2000).
        24. ``In recognition that some of the materials can be
    controversial in nature,'' the memo further states that ``the
    representations on the posters'' were reviewed by, among other groups,
    the ``Parent Community Services Branch.'' The Memorandum also
    ``recognizes that schools are part of a community and must respect the
    sentiments held by the local community.'' Ibid. at 1006.
        25. See generally Amanda Covarrubias, ``Not So Happily Ever
    After,'' Los Angeles Times, March 24, 2004.
        26. Ibid.
        27. See ibid.
        28. The current definition of ``age appropriate'' from the
    California Education Code reads as follows: `` `Age appropriate' refers
    to topics, messages, and teaching methods suitable to particular ages
    or age groups of children and adolescents, based on developing
    cognitive, emotional, and behavorial capacity typical for the age or
    age group.'' Cal. Ed. Code Section 51931 (2009).
        29. See National Conference of State Legislatures, Issues &
    Research: Human Services, http://www.ncsl.org/IssuesResearch/
    HumanServices/SameSexMarriage/tabid/16430/Default.aspx (accessed 7/19/
    09).
        30. See infra, Chapter 4, for a detailed analysis of Parker v.
    Hurley and its implications.
        It must be emphasized, however, that contrary to the assertion in
    the `Yes on 8' ad, the First Circuit Court of Appeals never ruled that
    the parent plaintiffs ``had no legal right to object.'' Not only is
    this language nowhere to be found in the decision, but in fact the
    Court made it clear that parents are not powerless, that they can
    indeed object by bringing their case to the school board, and that they
    can vote out of office any official whose job performance is found to
    be lacking. The appellate panel even identified the parameters of an
    ``indoctrination'' analysis that might be employed by future litigants.
    However, the panel concluded that under the facts of this case, no
    constitutional violation occurred.
        31. See http://www.youtube.com/watch?v=0PgjcgqFYP4 (accessed 7/28/
    09).
        32. For a detailed examination of K-12 curriculum and pedagogy
    issues within the context of conflicting values in the aftermath of
    Proposition 8, see generally Douglas NeJaime, ``Inclusion,
    Accommodation, and Recognition: Accounting for Differences Based on
    Religion and Sexual Orientation,'' 32 Harvard Journal of Law & Gender
    303 (2009).
        33. Allegations of the existence of a so-called ``homosexual
    agenda'' include the aforementioned statements of Justice Scalia in his
    Lawrence v. Texas dissent. See also Alan Sears and Craig Osten, The
    Homosexual Agenda: Exposing the Principal Threat to Religious Freedom
    Today (Nashville, TN: B&H Publishing Group, 2003), a book co-written by
    the heads of the Alliance Defense Fund and featured on the Web site of
    James Dobson's Focus on the Family. Goals that are allegedly embodied
    in this conspiratorial agenda include talking about ``gays and
    gayness'' as loudly and as often as possible; portraying gays as
    victims, not as aggressive challengers; giving ``homosexual
    protectors'' a just cause; making gays look good; making victimizers
    look bad; and getting funds from corporate America. See generally ibid.
        34. See, e.g., Title VII of the Civil Rights Act of 1964, and the
    Americans with Disabilities Act of 1990 (ADA). See also the Age
    Discrimination in Employment Act (ADEA).
        35.. Glover v. Williamsburg Local School District, 20 F. Supp. 2d
    1160 (S.D. Ohio 1998).
        36. Ibid. at 1165.
        37. Ibid. at 1169, 1174-75. The Court quoted here from Romer v.
    Evans:

              ``If the constitutional conception of `equal protection of
            the laws' means anything, it must at the very least mean that a
            bare . . . desire to harm a politically unpopular group cannot
            constitute a legitimate governmental interest.''

        38. See ibid. . . . at 1174:

              Perhaps the Board feared that a gay teacher would act
            inappropriately or somehow be a troublemaker. Or perhaps the
            Board was responding to perceived disapproval in the community
            of having a gay teacher at Williamsburg. Regardless of the
            Board's reasoning, Glover had established that he was an above
            average first-year teacher who was more qualified than the
            woman chosen by the Board to replace him. . . . [And
            additional] evidence introduced at trial supports a finding
            that the Board's decision was motivated by animus towards him
            as a homosexual.

        39. Weaver v. Nebo School District, 29 F. Supp. 2d 1279, 1280-1281
    (D. Utah 1998).
        40. Ibid. at 1285, 1287.
        41. Ibid. at 1287-89. The Court added the following:

              The record now before the court contains no job-related
            justification for not assigning Ms. Weaver as volleyball coach.
            Nor have the defendants demonstrated how Ms. Weaver's sexual
            orientation bears any rational relationship to her competency
            as teacher or coach, or her job performance as coach--a
            position she has held for many years with distinction.

        42. In fact, a later State suit on this matter brought by a
    citizens group was dismissed by the Supreme Court of Utah, with Weaver
    winning all court costs. Miller v. Weaver, 2003 UT 12.
        43. See Evelyn Nieves, ``After Sex Change, Teacher Is Barred From
    School,'' New York Times, Sept. 27, 1999.
        44. See ibid. See also Marvin Dunson III, ``Sex, Gender, and
    Transgender: The Present and Future of Employment Discrimination Law,''
    22 Berkeley Journal of Employment & Labor Law 465 (2001).
        45. ``One parent stood up at a board meeting and said that her
    daughter was traumatized,'' Mr. Bender said. ``But right after that,
    her daughter stood up and told the board that her mother was wrong.''
    Nieves, Teacher Is Barred.
        46. Ibid.
        47. On an annual District staff day in September 1999, 200 District
    teachers--along with 40 students--held a lunchtime rally for Ms. Rivers
    across the street from the District offices. But the school board
    majority ignored this show of support and voted for dismissal.
        ``I didn't have to send a letter to everyone telling them what I
    was doing,'' Ms. Rivers said. ``I could have just walked into school.
    But what confusion would that have led to? '' See ibid.
        48. See Cynthia Hubert, ``Being Herself: Dana Rivers Has a New
    Home, a New Campus--and a New Life as a Woman,'' Sacramento Bee,
    November 14, 2001.
        49. See ibid. See also Helen Y. Chang, ``My Father Is a Woman, Oh
    No!: The Failure of the Courts to Uphold Individual Substantive Due
    Process Rights for Transgender Parents under the Guise of the Best
    Interests of the Child,'' 43 Santa Clara Law Review 649 (2003).
        50. Morrison v. State Bd. of Educ., 1 Cal. 3d 214 (1969).
        51. Ibid. at 218-19.
        52. ``Neither sodomy (Pen. Code Sec. 286), oral copulation (Pen.
    Code Sec. 288a), public solicitation of lewd acts (Pen. Code Sec. 647,
    subd. (a)), loitering near public toilets (Pen. Code Sec. 647, subd.
    (d)), nor exhibitionism (Pen. Code Sec. 314) were involved. Conviction
    of such offenses would have resulted in the mandatory revocation of all
    diplomas and life certificates issued by the State Board of
    Education.'' Ibid. at 218, n.4.
        53. After the affair had been disclosed, Morrison resigned his
    position with the District. The record does not indicate what
    transpired between him and his employers, but at the time a common
    practice involving acts appearing to fall under the category of
    ``immoral or unprofessional'' was that employees would be suspended
    without pay pending the results of an investigation, and if the
    allegations were true they would ultimately be presented with the
    choice of either resigning or being dismissed.
        54. It is important to note that these events happened before the
    Stonewall riots and long before specific statutory protections for LGBT
    individuals were in place, even in California. Admitting one's
    homosexuality would have been a radical step in the early 1960s,
    especially for a person seeking to retain a public position such as
    teaching.
        55. In a particularly poignant footnote, Justice Tobriner stated:

              The problem of ascertaining the appropriate standard of
            ``morality'' was aptly put in Robert N. Harris, Jr., Private
            Consensual Adult Behavior: The Requirement of Harm to Others in
            the Enforcement of Morality, 14 UCLA L. Rev. 581, 582 & n.4.
            ``[I]n a secular society--America today--there may be a
            plurality of moralities. Whose morals shall be enforced? . . .
            There is a tendency to say that public morals should be
            enforced. But that just begs the question. Whose morals are the
            public morals? '' Ibid. at 227, n.19.

        56. The Court concluded that the terms themselves are capable of
    multiple interpretations even within the same community, and noted that
    ``[i]n the opinion of many people laziness, gluttony, vanity,
    selfishness, avarice, and cowardice constitute immoral conduct.'' Ibid.
    at 225-26.
        57. The Court explained that in determining whether particular
    conduct indicated unfitness to teach, a board may consider such matters
    as ``the likelihood that the conduct may have adversely affected
    students or fellow teachers,'' the degree of such adverse effect, the
    ``remoteness in time'' of the conduct, any extenuating or aggravating
    circumstances, the praiseworthiness or blameworthiness of the teacher's
    motives, and the likelihood of the conduct's recurrence. Examining the
    circumstances surrounding Morrison's brief affair under this framework,
    the Court found ``no evidence'' whatsoever that his conduct ``indicated
    his unfitness to teach.'' Ibid. at 229, 236.
        58. For example, in 1976, the Colorado Supreme Court explicitly
    cited the language in Morrison when discussing the definition of
    ``immorality'' in that State's teaching regulations. The court held
    that any immorality that would force a teacher from his position be
    directly related to his unfitness to teach. Weissman v. Board of
    Education, 190 Colo. 414, 420-21 (1976).
        59. Exec. Order No. 10,450, Sec. 8, 18 Fed. Reg. 2489 (1953).
        60. See, e.g., David K. Johnson, The Lavender Scare: The Cold War
    Persecution of Gays and Lesbians in the Federal Government (Chicago:
    University of Chicago Press, 2004).
        61. It should be noted that at the Federal level--as of late 2009--
    there was still no explicit statutory protection against discrimination
    on the basis of LGBT status. The Employment Non-Discrimination Act
    (ENDA) was first introduced in Congress in 1994 as an important step
    toward addressing this issue, but it has not yet received sufficient
    support to pass. See, e.g., Arthur S. Leonard, ``Sexual Minority Rights
    in the Workplace,'' 43 Brandeis Law Journal 145 (2004-2005).
        President Obama promised, during the 2008 campaign, to support the
    passage of ENDA, and committed to including protections against both
    discrimination on the basis of sexual orientation and discrimination on
    the basis of gender identity. This commitment was reaffirmed during the
    first year of his presidency. See generally ``The White House: Issues--
    Civil Rights,'' http://www.whitehouse.gov/issues/civil_rights/
    (accessed 7/29/09):

              President Obama also continues to support the Employment Non-
            Discrimination Act and believes that our anti-discrimination
            employment laws should be expanded to include sexual
            orientation and gender identity. He supports full civil unions
            and Federal rights for LGBT couples and opposes a
            constitutional ban on same-sex marriage. He supports repealing
            Don't Ask Don't Tell in a sensible way that strengthens our
            armed forces and our national security, and also believes that
            we must ensure adoption rights for all couples and individuals,
            regardless of their sexual orientation.

        Although the Gallup Poll, consistent with other surveys, still
    shows that a substantial number of Americans are conflicted regarding
    whether LGBTs should be hired as public school teachers, fully 89
    percent agreed in 2008 with the statement that ``homosexuals should
    have equal rights in terms of job opportunities.'' Only
    8 percent disagreed. http://www.gallup.com/poll/1651/Gay-Lesbian-
    Rights.aspx (accessed 7-23-09).
        62. See Statewide Employment Laws and Policies, Human Rights
    Campaign, July 7, 2009, http://www.hrc.org/documents/
    Employment_Laws_and_Policies.pdf (accessed 7/14/09). The numbers in
    parentheses indicate the most recent year(s) when relevant statutory
    changes were made.
        63. See ibid.
        64. See Human Rights Campaign, State Laws Listing, State by State,
    http://www.hrc.org/laws_and_elections/state.asp (accessed 7/15/09).
        65 See generally Kitty Krupat & Patrick McCreery, eds., Out at
    Work: Building a Gay-Labor Alliance (Minneapolis: University of
    Minnesota Press, 2000).
        66. Schroeder v. Hamilton School District, 282 F.3d 946 (7th Cir.
    2002).
        67. Ibid. at 948-949. In another incident consistent with these
    actions by District officials, the Superintendent herself failed to
    intervene when--during a meeting with Schroeder--a student directed an
    anti-gay slur at him right in front of her eyes. Ibid.
        68. See ibid.
        69. Ibid. at 952, 954-955.
        70. The questionable reasoning set forth by Judge Posner to justify
    protecting gay teachers ``less assiduously'' than others included the
    following contentions (in his own words): (1) ``it is not irrational to
    prioritize protective activities''; thus, ``if race relations are a
    particularly sensitive area in a particular school, the school
    authorities are not irrational in deciding to devote more time to
    defusing racial tensions than to preventing harassment of a homosexual
    (or overweight, or undersized, or nerdish, or homely) teacher''; (2)
    ``when most of the abuse is anonymous, the school authorities may be
    unable to prevent it without a disproportionate commitment of resources
    . . . or a disproportionate curtailment of student rights''; ``a public
    school's primary commitment is to its students, not to its teachers,
    and this limits the extent to which it must use police tactics to deal
    with nonviolent . . . harassment of a teacher''; and (3) ``the school
    authorities' options are limited by an understandable reticence about
    flagging issues of sex for children . . . [which will make them]
    prematurely preoccupied with issues of sexuality.'' Ibid. at 957-958.
        71. Ibid. at 961 (Wood, J., dissenting).
        72. California Education Code Section 44807, for example, states
    that ``[e]very teacher in the public schools shall hold pupils to a
    strict account for their conduct on the way to and from school.''
        In the Federal courts, recent cases have found that school
    officials have increasingly broad power to hold students accountable
    for their expression outside of the school setting, online or offline,
    that may have an impact on day-to-day affairs within a school
    community. See, e.g., Wisniewski v. Bd. of Educ. of the Weedsport Cent.
    Sch. Dist., 494 F.3d 34 (2nd Cir. 2007); Doninger v. Niehoff, 527 F.3d
    41 (2nd Cir. 2008).
        73. The Assistant Principal herself conceded to Schroeder that she
    would have handled allegations of sexual harassment by a female teacher
    differently than she had handled his complaints.
        74. Ibid. at 958.
        75. Under the Equal Protection Clause of the Fourteenth Amendment,
    intentional discrimination on the basis of race or the infringement of
    a fundamental right are subject to strict scrutiny. Intentional
    discrimination on the basis of gender or ``illegitimacy'' typically
    merits an intermediate level of scrutiny, while all other
    discrimination between and among groups similarly situated generally
    merits no more than rational basis review. Discrimination on the basis
    of sexual orientation has traditionally fallen into the rational basis
    category, with great deference given to lawmakers, policymakers, and
    practitioners on a day-to-day level. Yet LGBT plaintiffs have begun to
    prevail even under rational basis review.
        Over the past several years, there has been significant movement on
    this front, with both Federal and State courts considering whether a
    heightened level of judicial review is warranted for sexual orientation
    discrimination.
        In Witt v. Dept. of Air Force, 527 F.3d 806 (9th Cir. 2008), for
    example, the Ninth Circuit determined that not only was the Lawrence
    ruling applicable to a former Air Force major's challenge to ``Don't
    Ask, Don't Tell,'' but that ``Lawrence requires something more than
    traditional rational basis review.'' Ibid. at 819. In Perry v.
    Schwarzenegger, No. 09-CV-2292 VRW (2009), the Federal lawsuit
    challenging the constitutionality of California Proposition 8 under the
    Fourteenth Amendment, plaintiffs argue that the ballot initiative must
    be reviewed with strict scrutiny because it both impairs a fundamental
    right and discriminates on the basis of sexual orientation. At the same
    time, plaintiffs also assert that Proposition 8 does not even withstand
    rational basis review, let alone strict scrutiny. Plaintiffs' Notice of
    Motion and Motion for a Preliminary Injunction, and Memorandum of
    Points and Authorities in Support of Motion for a Preliminary
    Injunction, Perry v. Schwarzenegger (May 27, 2009). A trial on this
    matter was pending as of late summer 2009 in the U.S. District Court,
    Northern District of California, in front of Chief Judge Vaughn Walker.
        At the State court level, in May 2008, the California Supreme Court
    became the first court in the land to recognize strict scrutiny for
    discrimination against gays and lesbians. In Re Marriage Cases, 43
    Cal.4th 757, 840-841; 76 Cal.Rptr.3d 683, 751 (2008). A year later,
    upholding the constitutionality of Proposition 8 under California State
    law, Chief Justice Ronald George reaffirmed that in California,

              ``Statutes according differential treatment on the basis of
            sexual orientation are subject to the strict scrutiny standard
            of review. . . . [W]ith respect to the . . . designation of the
            word `marriage,' Proposition 8 does change the rule, [but it] .
            . . must be understood as creating a limited exception . . .
            [that] does not alter the general equal protection principles .
            . . Those principles continue to apply in all other contexts.''

    Strauss v. Horton, 46 Cal.4th 364, 411-412; 93 Cal.Rptr.3d 591, 627
    (2009).
        In 2009, the Iowa Supreme Court ruled unanimously that prohibiting
    same-sex marriage violated the Iowa Constitution, and in so doing it
    agreed with a 2008 Connecticut Supreme Court decision holding that
    discrimination on the basis of sexual orientation warranted a
    heightened level of judicial review. Varnum v. Brien, 763 N.W.2d 862,
    889-896 (2009).
        Of particular interest within the larger context of this book is
    the Iowa Court's analysis of immutability as a factor that would
    support a finding of heightened scrutiny. The Court concluded that it:

              ``need not definitively resolve the nature-versus-nurture
            debate currently raging over the origin of sexual orientation
            in order to decide plaintiffs' equal protection claims. . . .
            [W]e agree with those courts that have held the immutability
            ``prong of the . . . inquiry surely is satisfied when . . . the
            identifying trait is `so central to a person's identity that it
            would be abhorrent for government to penalize a person for
            refusing to change [it].' '':

                      In this case, the County acknowledges sexual
                    orientation is highly resistant to change.
                    Additionally, ``sexual orientation `forms a significant
                    part of a person's identity.' '' Sexual orientation
                    influences the formation of personal relationships
                    between all people--heterosexual, gay, or lesbian--to
                    fulfill each person's fundamental needs for love and
                    attachment. Accordingly, because sexual orientation is
                    central to personal identity and ``may be altered [if
                    at all] only at the expense of significant damage to
                    the individual's sense of self,'' classifications based
                    on sexual orientation ``are no less entitled [to be
                    reviewed under heightened scrutiny] . . . than any
                    other group that has been deemed to exhibit an
                    immutable characteristic.''

    Ibid. at 893.
        76. Schroeder, 282 F.3d at 961. Not only did the panel majority
    understate the case by refusing to acknowledge either the existence or
    the impact of the outright hostility toward gays in this setting, but
    at times it appeared to be justifying the very hostility that it would
    not acknowledge. Judge Posner, for example, stated that the District's
    tepid response to Schroeder's complaints ``may have been influenced by
    the hostility of some parents to the idea of their kids' being taught
    by a homosexual,'' a statement that implicitly lends credence to such a
    parental view. And Judge Manion actually suggested that religious views
    could justify such hostility.
        77. Twenty-five of our fifty States (but not Wisconsin) had anti-
    sodomy laws at the time Schroeder began teaching in 1990. In 2002, when
    the Court decided against Schroeder, such activity was ostensibly legal
    in the Seventh Circuit States of Wisconsin and Illinois, but still
    illegal right next door in Michigan, Missouri, the neighboring States
    of Kansas, Oklahoma, and Texas, and in eight other States across the
    land. American Civil Liberties Union, ``Getting Rid of Sodomy Laws:
    History and Strategy that Led to the Lawrence Decision,'' (2003),
    www.aclu.org (accessed 3/12/07).
        78. See, e.g., Milligan-Hitt v. Board of Trustees of Sheridan
    County School Dist. No. 2, 2008 WL 1795068 (10th Cir. 2008), upholding
    a rural Wyoming school district's ostensible demotion in 02-03 of two
    principals who were living together as a lesbian couple, even in light
    of acknowledged anti-gay animus presented into evidence, but at the
    same time expressly situating the facts implicating the qualified
    immunity analysis in the pre-Lawrence era:

              Although the district court found that there were genuine
            issues of material fact as to whether Mr. Dougherty's actions
            had been unconstitutional, it held that the law governing
            discrimination on the basis of sexual orientation had not been
            clearly established in 2002 and early 2003, before the Supreme
            Court's decision in Lawrence v. Texas, which arguably clarified
            the issue. Ibid. at *3.

        79. See generally Nan D. Hunter, ``Living with Lawrence,'' 88
    Minnesota Law Review 1103 (2004); Pamela S. Karlan, ``Loving
    Lawrence,'' 102 Michigan Law Review 1447 (2004); Laurence H. Tribe,
    ``Lawrence v. Texas: The `Fundamental Right' That Dare Not Speak Its
    Name,'' 117 Harvard Law Review 1893 (2004).
        80. Albright v. Morton, 321 F. Supp. 2d 130, 136-38 (D. Mass.
    2004).
                                     ______

                                   Women's Law Project,
                                        Philadelphia, PA 19107,
                                                      November 5, 2009.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    731 Hart Senate Office Building,
    Washington, DC 20510.

    Hon. Mike Enzi, Ranking Member,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    379A Russell Senate Office Building,
    Washington, DC 20510.

        Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
    eleven undersigned organizations, we write to express our support for
    S. 1584, the Employment Non-Discrimination Act (ENDA). The passage of
    ENDA would provide lesbian, gay, bisexual, and transgender (LGBT)
    individuals with long overdue protection against discrimination in the
    workplace. Additionally, ENDA would preclude defendants from using the
    presence of sexual orientation- or gender identity-based claims to
    shield otherwise actionable title VII sex stereotype discrimination
    claims.
        LGBT employees often face discrimination based on their failure to
    conform to sex stereotypes, discrimination that is rooted in
    stereotypes about how men and women ``should'' look, sound, or behave
    and about how their bodies ``should'' appear. But there is no question
    that discrimination based on sex stereotypes is unlawful. It is well
    settled that title VII's prohibition on sex discrimination proscribes
    discrimination based on gender stereotypes. The U.S. Supreme Court held
    long ago in Price Waterhouse v. Hopkins that the failure to promote a
    female employee based on her variation from prevalent stereotypes about
    women was an actionable sex discrimination claim under title VII. 490
    U.S. 228, 250 (1989). A similar prohibition on sex stereotype
    discrimination by government actors exists under the Federal Equal
    Protection Clause. In United States v. Virginia, the Supreme Court held
    that gender-based government action must pass heightened scrutiny and
    cannot be based on ``overbroad generalizations about the different
    talents, capacities, or preferences of males and females.'' 518 U.S.
    515, 533 (1996).
        Yet defendant employers continue to argue to courts that sex
    stereotype discrimination claims under title VII do not apply where
    there is also discrimination based on sexual orientation or gender
    identity. Many courts have correctly rejected those arguments and
    recognized actionable sex stereotype discrimination regardless of an
    employee's sexual orientation or gender identity. For example, just 2
    months ago, the U.S. Court of Appeals for the Third Circuit reversed a
    district court's finding that a self-described ``effeminate'' gay man
    could not proceed with his title VII claim because he was merely
    asserting a sexual orientation discrimination claim ``repackaged as a
    gender stereotyping claim.'' Prowel v. Wise Business Forms, Inc. . . .
    F.3d . . ., 2009 WL 2634646, at *6 (3d Cir. Aug. 28, 2009). Instead,
    the court found that the plaintiff ``was harassed because he did not
    conform to [his employer's] vision of how a man should look, speak, and
    act--rather than harassment based solely on his sexual orientation.''
    Id. And a district court in Georgia recently denied a motion to dismiss
    a title VII claim brought by a transgender State Government employee,
    finding that ``it is now well-established in Federal law that
    discrimination based on the failure of an individual to conform to
    sexual stereotypes is a form of sex discrimination.'' Glenn v. Brumby,
    . . . F. Supp. 2d . . ., 2009 WL 1849951, at *6 (N.D. Ga. June 25,
    2009).
        Some courts, however, have been misguided by defendants' arguments
    and dismissed valid claims of discrimination against LGBT employees
    based on sex stereotypes by construing them as claims of discrimination
    based solely on sexual orientation or gender identity. In a number of
    cases, for example, courts have discounted valid evidence of sex
    stereotyping because the language used in the harassment also referred
    to the plaintiffs sexual orientation. See, e.g, Trigg v. New York City
    Transit Authority, C.A. No. 99-CV-4730, 2001 WL 868336 (E.D.N.Y., July
    26, 2001). Other courts have incorrectly dismissed title VII sex
    stereotype claims because of a plaintiff 's transgender status. See,
    e.g., Oiler v. Winn-Dixie Louisiana, Inc., No. Civ. A. 0093114, 2002 WL
    31098541 (E.D. La. Sept. 16, 2002). Enacting ENDA's explicit protection
    against discrimination based on sexual orientation and gender identity
    would curtail defendants' ability to confuse the issues in this way and
    to persuade courts that valid title VII sex stereotype claims should be
    dismissed merely because the plaintiff is (or is perceived to be) an
    LGBT individual.
        Ensuring that American workplaces are free of sex discrimination,
    including discrimination based on gender stereotypes, is vital to
    achieving true gender equity in the workplace. We urge Congress to pass
    ENDA, to give LGBT employees the workplace equality they need and
    deserve, and to preclude defendants from misguiding courts to dismiss
    actionable claims of impermissible sex stereotyping because of the
    concurrent existence of sexual orientation- or gender identity-based
    discrimination.
                Sincerely,
                                               Susan Frietsche,
                                                   Women's Law Project,
                                          425 Sixth Avenue, Suite 1860,
                                                  Pittsburgh, PA 15219.

                                               Rachael N. Pine,
               Executive Vice President and Director, Legal Department,
                                                        Legal Momentum,
                                            395 Hudson Street, 5th Fl.,
                                                    New York, NY 10014.

                                            Fatima Goss Graves,
                           Vice President for Education and Employment,

                                                      Lara S. Kaufmann,
                                                        Senior Counsel,
                                           National Women's Law Center,
                                            11 Dupont Circle, Suite 800
                                                  Washington, DC 20036.

                                                Jayne Vellinga,
                                                  Director of Programs,
                                           Chicago Women in the Trades,
                                                 4425 S. Western, Rear,
                                                     Chicago, IL 60609.

                                             Barbara J. Ratner,
                                                             President,
                                       Clearinghouse on Women's Issues,
                                            10401 Grosvenor Place #917,
                                                   Rockville, MD 20852.

                                              Janet Kopenhaver,
                                             Washington Representative,
                                              Federally Employed Women,
                                            700 N. Fairfax Street #510,
                                                   Alexandria, VA 2314.
                                            Shelley A. Gregory,
                                                 Senior Staff Attorney,
                          The Legal Aid Society--Employment Law Center,
                                        600 Harrison Street, Suite 120,
                                               San Francisco, CA 94107.

                                                    David Ward,
                             Legal and Legislative Counsel Legal Voice,
                                                       907 Pine Street,
                                                    Seattle, WA, 98101.
                                                  Aleli Samson,
                                                       Policy Director,
                       National Asian Pacific American Bar Association,
                                             1612 K St. NW, Suite 1400,
                                                  Washington, DC 20006.

                                                  Jane Wishner,
                                                    Executive Director,
                                          Southwest Women's Law Center,
                                                   1410 Coal Avenue SW,
                                                 Albuquerque, NM 87104.

                                                    Susan Rees,
                              Director of National Policy and Projects,
                                         Wider Opportunities for Women,
                                           1001 Connecticut Avenue, NW,
                                                             Suite 930,
                                                  Washington, DC 20036.
                              Letter of Opposition
                                 Americans United (AU),
                                              November 4, 2009.
    Hon. Tom Harkin, Chairman,
    U.S. Senate,
    Committee on Health, Education, Labor, and Pensions,
    428 Dirksen Senate Office Building,
    Washington, DC 20510.

    Re:  Do Not Expand the Religious Exemption in S. 1584, the Employment
    Non-
    Discrimination Act of 2009

        Dear Chairman Harkin: We are writing on behalf of Americans United
    for Separation of Church and State to urge you to resist any effort to
    further expand the religious exemption contained in S. 1584, the
    Employment Non-Discrimination Act of 2009 (ENDA). Although we would
    prefer a more narrow exemption than the one currently in S. 1584--one
    that would require a religious organization to profess a religious
    justification for engaging in discrimination based on sexual
    orientation or gender identity for a particular job position in order
    to obtain the exemption--we are willing to accept the current exemption
    so long as it is not further expanded. Below, we seek to explain the
    breadth of the current religious exemption and to set out why use of
    the title VII exemption in ENDA is understandable and would provide for
    legal consistency to employers and employees.
        Founded in 1947, Americans United is a non-partisan, non-profit
    membership organization dedicated to preserving the constitutional
    principle of church-state separation in order to ensure religious
    freedom for all Americans. Americans United recognizes the importance
    of providing certain religious exemptions, such as the one that applies
    to privately-funded jobs under Title VII of the Civil Rights Act of
    1964, as amended. When drafting such exemptions, however, Congress must
    find the proper and delicate balance between the interests of religious
    organizations and the civil rights of individuals. In extending the
    religious exemption to those organizations that already receive an
    exemption under title VII, Congress is close to the proper balance. But
    expanding it to include a broader array of organizations--even
    religious business owners engaged in commerce--not only disturbs that
    delicate balance, but could nearly swallow the bill's protections
    against sexual orientation and gender identity discrimination entirely.

                          THE BREADTH OF THE EXEMPTION

        Section 6 of S. 1584 grants religious organizations a blanket
    exemption from ENDA. It states simply and clearly that ``[t]his Act
    shall not apply'' to certain religious organizations. It also clearly
    defines those exempt religious organizations as all of those
    organizations that are permitted to discriminate on the basis of
    religion under sections 702(a) and 703(e)(2) of title VII. Simply put,
    if the religious organization may discriminate on the basis of religion
    under Title VII of the Civil Rights Act, the organization may also
    discriminate on the basis of sexual orientation and gender identity
    under ENDA. There is no ambiguity or lack of clarity.
        Whether a religious organization meets the definition provided
    under section 702 of the Civil Rights Act is usually clear. EEOC v.
    Townley Eng'g & Mfg. Co., 859 F. 2d 610, 618 (9th Cir. 1988). In cases
    where the determination is less clear cut, the court engages in a fact-
    specific inquiry to determine whether the organization's purpose and
    character are primarily religious. Id.; Killinger v. Samford Univ., 113
    F. 3d 196, 200 (9th Cir. 1988). The outcomes of these inquiries have
    been consistent and reasonably predictable. For example, the courts
    have drawn a distinction between religious individuals who own for-
    profit business and institutions that designates their chief purpose as
    providing religious instruction.\1\
    ---------------------------------------------------------------------------
        \1\ Compare Townley, 859 F. 2d at 619 (``[T]he beliefs of the
    owners and operators or corporations are simply not enough in
    themselves to make the corporation `religious' within the meaning of
    section 702.'') with Killinger, 113 F. 3d at 200 (applying Section
    702(a) to determine that ``a teaching job in a divinity school of a
    religious educational institution is at the core of the section 702
    exemption: the inherent purpose of such schools is the stuff of God and
    God's attributes.'')
    ---------------------------------------------------------------------------
        The exemption for religious educational institutions under 703(e)
    (2) of title VII is similarly employed. EEOC v. Kamehameha Schools/
    Bishop Estate, 990 F.2d 458 (9th Cir. 1993) (examining six factors in
    its fact-based inquiry). The courts engage in a fact-based analysis to
    determine whether the exemption applies.

     EXPANDING THE TITLE VII EXEMPTION FOR ENDA WOULD CREATE CIVIL RIGHTS
                      HARM AND LEAD TO NONSENSICAL RESULTS

        Using the title VII exemption to define which religious
    organizations receive the exemption is understandable, as the case law
    defining the meaning of sections 702(a) and 703(e)(2) is vast, well
    understood, and has served religious organizations' institutional
    interests well for the last several decades.
        Some contend that an even broader definition of ``religious
    organization'' should be used in ENDA. But defining the organizations
    provided the exemption in a broader way under ENDA than in title VII
    would create inconsistencies across civil rights statutes, resulting in
    confusion for both employers and employees. Under such a scenario, a
    religious organization would have to comport to one legal standard to
    determine whether it is exempt from the prohibition against religious
    discrimination and an even broader legal standard to determine whether
    it is exempt from ENDA. The end result could be that the organization
    could be permitted to discriminate for particular job positions on the
    basis of sexual orientation and gender identity, but not on the basis
    of religion. Such a result is nonsensical--if the religious identity of
    the organization is not strong enough to justify religious
    discrimination, how could it then justify discrimination on the basis
    of sexual orientation or gender identity?
        Applying a unitary legal standard--no broader than what has existed
    for decades under title VII--reduces confusion and inconsistency and
    eliminates nonsensical results.

                                   CONCLUSION

        The religious exemption as currently drafted in ENDA--a blanket
    exemption--is sufficiently broad and sufficiently defined using title
    VII's definition and decades of case law. There is no legitimate reason
    to expand the exemption further, unless the goal is to erode the reach
    of ENDA itself. The scope of title VII's religious exemptions have
    served the interests of religious organizations well and they should be
    sufficiently clear to provide consistency to employers and employees in
    delineating which religious organizations will be exempt from ENDA's
    important protections.
                Sincerely,
                                              Aaron D. Schuham,
                                                  Legislative Director.

                                                Maggie Garrett,
                                        Assistant Legislative Director.
                                     ______

                            U.S. Department of Justice,
                                          Washington, DC 20539,
                                                      January 15, 2010.
    Hon. Tom Harkin, Chairman,
    Committee on Health, Education, Labor, and Pensions,
    U.S. Senate,
    Washington, DC 20510.
        Dear Mr. Chairman: Please find enclosed responses to questions
    arising from the appearance of Assistant Attorney General Thomas E.
    Perez before the committee on November 5, 2009, at a hearing entitled
    ``Employment Non-Discrimination Act: Ensuring Opportunity for All
    Americans.'' We hope that information is of assistance to the
    committee. Please do not hesitate to call upon us if we may be of
    additional assistance. The Office of Management and Budget has advised
    us that there is no objection to submission of this letter from the
    perspective of the Administration's program.
                Sincerely,
                                                  Ronald Weich,
                                            Assistant Attorney General.
                                     ______

            Response to Questions of Senator Enzi by Thomas E. Perez

        Question 1. In the absence of a specific employment protection for
    sexual orientation, some courts have interpreted title VII to provide
    such protection. If ENDA is enacted, is it your view that the existing
    bill would allow a successful plaintiff filing claims under both title
    VII and ENDA for the same alleged wrongful conduct could obtain a dual
    recovery? If not, why does it contain a provision specifically
    providing that it does not invalidate or limit the rights, remedies, or
    procedures available under any other law or regulation? Why would such
    a result be warranted? What changes could be made to the bill to
    eliminate the possibility of such a dual recovery?
        Answer 1. As the Supreme Court has recognized, taking adverse
    action against an employee based on sex-stereotyping is prohibited as
    part of title VII's prohibition on sex discrimination. This specific
    type of claim arises when an employer discriminates against an
    individual who does not conform to the gender stereotypes associated
    with his or her sex (e.g., when a female dresses or acts in a perceived
    masculine manner), as in PriceWaterhouse v. Hopkins, 490 U.S. 228
    (1989). ENDA prohibits discrimination based on actual or perceived
    sexual orientation or gender identity--'' gender-related identity,
    appearance, or mannerisms or other gender-related characteristics of an
    individual's designated sex at birth.'' Thus, a claim of sexual
    orientation and/or gender identity discrimination under ENDA may
    overlap with a sex-stereotyping claim under title VII to the extent
    that the discrimination against an individual is based on the
    individual's failure to conform to the gender-related appearance,
    mannerisms or stereotypes associated with his or her sex. However,
    Federal courts have refused to extend the sex-stereotyping theory to
    title VII cases of discrimination based strictly on sexual orientation.
    As a result, ENDA is necessary to provide protection against
    discrimination based specificaIIy on sexual orientation, irrespective
    of whether individuals conform with their designated gender
    stereotypes.
        Like title VII, ENDA seeks to provide for make-whole relief for
    victims of employment discrimination. If supported by the facts, a
    plaintiff hypothetically could bring a title VII claim under a sex-
    stereotyping theory and an ENDA claim, but if enacted, ENDA would not
    allow this plaintiff, if successful, to obtain a double recovery for
    the same alleged wrongful conduct. First, any back pay award is limited
    by the amount that would have been paid to the plaintiff in the absence
    of discrimination; an individual may not recover multiple awards of
    back pay regardless of the number or type of violations plead. In
    addition, the Supreme Court has long held that Federal courts ``can and
    should preclude double recovery by an individual'' in Federal
    employment discrimination suits. General Telephone Co. of Northwest v.
    EEOC, 446 U.S. 318,333 (1980); see also EEOC v. Wafffle House, Inc.,
    534 U.S. 279, 297 (2002). Accordingly, Federal courts use their wide
    discretion to limit equitable relief and, where appropriate, to
    instruct juries to avoid providing double recovery when awarding
    compensatory and punitive damages. See, e.g., Reynolds v. Octel
    Communications Corp., 924 F. Supp. 743,747 (N.D. Tex. 1995) (plaintiff
    not entitled to receive both punitive damages under title VII and
    liquidated damages under the ADEA). Thus, in the above example, a court
    following these principles would limit the specific remedial relief
    (e.g., reinstatement, back pay, compensatory damages) awarded by a
    Federal court to a successful plaintiff alleging both title VII and
    ENDA claims to the amount necessary to make that individual whole and
    avoid duplication of remedies.
        Also, like title VII, ENDA has a provision describing the act's
    relationship to other laws. Section 15 of ENDA expressly states that:

              ``The Act shall not invalidate or limit the rights, remedies,
            or procedures available to an individual claiming
            discrimination under any other Federal law or regulation or any
            law or regulation of a State or political subdivision of a
            State.''

        This provision does not suggest that dual recovery is permitted
    under ENDA. Rather, it serves as a clear statement that ENDA neither
    restricts nor supplants existing Federal or State protections against
    discrimination. This amplification is important for several reasons.
    For example, the provision acts to preserve the limited, but well-
    established, case law regarding sex-stereotyping as a form of
    discrimination under title VII. It also affirms that a gay, lesbian,
    bisexual or transgender plaintiff may bring separate viable claims
    under both title VII and ENDA, e.g., a lesbian plaintiff may be
    harassed because she is a woman and denied a promotion because she is a
    lesbian. This approach, of course, mirrors those that apply under other
    anti-discrimination laws; an individual who is subjected to
    discrimination based both on race and on age may file separate claims
    under title VII and the ADEA. In addition, while ENDA does not permit
    disparate impact claims, individuals may bring such claims based on
    sexual orientation under some State laws.
        In sum, well-established law eliminates the possibility of double
    recovery under both title VII and ENDA and nothing in ENDA suggests
    otherwise. As such, I recommend no changes to the legislation in this
    respect.

        Question 2. It has been stated that individuals protected under
    ENDA would actually have access to greater remedies than those
    protected under title VII by way of their race, color, religion, sex or
    national origin, or under the ADA by way of disability. Namely, ENDA
    claimants could recover attorney and other fees from administrative
    proceedings, including an EEOC determination. EEOC decisions are not
    considered ``final orders'' and so are not subject to appeal.
    Therefore, an employer would not be able to contest any such award and,
    in fact, the EEOC is not even required to provide documented reasons
    for its decisions. Do you believe that plaintiffs alleging
    discrimination based on sexual orientation and sexual identity should
    be entitled to greater remedies than other title VII and ADA
    plaintiffs? Why would it be appropriate to deprive employers of their
    due process rights to contest attorney's fees awards solely for
    plaintiff 's alleging discrimination based on sexual orientation and
    sexual identity? What changes could be made to the bill to ensure that
    ENDA claimants are treated the same as all other discrimination
    claimants in terms of potential recovery?
        Answer 2. The Supreme Court has long held that Federal courts may
    award reasonable attorneys' fees to prevailing plaintiffs for work done
    in connection with certain administrative proceedings specified under
    title VII. See New York Gus Light Club, Inc. v. Carey, 447 U.S. 54
    (1980). In this respect, permitting an award of reasonable attorneys'
    fees for work done in connection with certain administrative
    proceedings under ENDA is fully consistent with well-established law
    under both title VII and the ADA, and thus would not provide plaintiffs
    alleging discrimination based on sexual orientation or gender identity
    with any greater remedies than plaintiffs alleging discrimination under
    title VII or the ADA.
        Section 12 of ENDA basically tracks the language in section 706(k)
    of title VII, except that title VII provides that a Federal court, in
    its discretion, may award reasonable attorneys' fees to a prevailing
    party, while ENDA vests that authority and discretion in specific
    entities described in section 10(a) of the act. These entities include
    the EEOC, the Library of Congress, the Board of Directors of the Office
    of Compliance, the Merit System's Protection Board, the President, and
    the Federal courts. It is our understanding that the above-enumerated
    entities (excluding the Federal courts) currently have authority and
    discretion to award reasonable attorneys' fees in their respective
    administrative proceedings (e.g., title VII authorizes the EEOC to
    award reasonable attorneys' fees in the Federal sector process), where
    employers may exercise their due process rights to contest such awards.
    To the extent that Section 12 of ENDA could be read to suggest that the
    EEOC has authority to award reasonable attorneys' fees outside of the
    Federal sector process (i.e., in the private sector and State and local
    government processes), the language could be clarified to be consistent
    with title VII and the ADA--that is, to make clear that each of the
    above-enumerated entities has the same power to award reasonable
    attorneys' fees as each entity already has under the statutes
    identified in Section 10(a) of ENDA (e.g., title VII and GERA for the
    EEOC, the Congressional Accountability Act for the Board of Directors
    of the Office of Compliance).

        Question 3. In addition to prohibiting discrimination in employment
    on the basis of gender identity, ENDA places affirmative obligations on
    employers with regard to shared shower or dressing facilities in which
    being seen unclothed is unavoidable for individuals who have either
    ``undergone'' or who are ``undergoing'' transition to a different
    gender. The bill text leaves employers with a great deal of questions
    about how this requirement would work. Specifically, employers wonder
    what would constitute ``notification'' that private dressing and shower
    facilities will be required? Would the requirement also extend to
    bathroom facilities? The bill states that no new facilities would be
    required, but would employers be required to renovate existing
    facilities?
        Answer 3. Section 8(a)(3) of ENDA states that it is not unlawful to
    deny

            ``access to shared shower or dressing facilities in which being
            seen unclothed 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.''

        The notification required by ENDA relates to the individual
    advising the employer that the individual has undergone or is
    undergoing gender transition. The notification may be oral or in
    writing. The bill does not require any new construction of private
    dressing or shower facilities. Rather, the employer's obligation is to
    provide reasonable access to adequate shower or dressing facilities
    that are consistent with the employee's gender identity, once notice is
    given. The language in this section does not mention bathroom
    facilities.
        Section 8(a)(4) states that ``[n]othing in this Act shall be
    construed to require the construction of new or additional
    facilities.'' As stated above, the requirement is for an employer who
    is on notice to provide an employee with reasonable access to shower or
    dressing facilities consistent with the employee's gender identity.
    Providing ``reasonable access'' does not amount to or equate with an
    obligation to renovate shower or dressing facilities.

             Response to Questions of Senator Enzi by Helen Norton

        Question 1. In the absence of a specific employment protection for
    sexual orientation, some courts have interpreted title VII to provide
    such protection. If ENDA is enacted, is it your view that the existing
    bill would allow a successful plaintiff filing claims under both title
    VII and ENDA for the same alleged wrongful conduct could obtain a dual
    recovery? If not, why does it contain a provision specifically
    providing that it does not invalidate or limit the rights, remedies, or
    procedures available under any other law or regulation? Why would such
    a result be warranted? What changes could be made to the bill to
    eliminate the possibility of such a dual recovery?
        Answer 1. Current law permits plaintiffs to plead alternative
    claims that challenge the same conduct under different legal theories--
    but does not permit double recovery by a plaintiff who succeeds on more
    than one claim that challenges the same conduct. ENDA is fully
    consistent with such law.
        A wide range of unlawful conduct violates more than one statute.
    Plaintiffs' ability under current law to plead alternative theories is
    particularly helpful when different causes of action provide for
    different statutes of limitations, different procedural mechanisms,
    etc. For example, an employer's intentional race discrimination may
    violate 42 U.S.C. 1981 (which prohibits race discrimination in the
    making and enforcement of contracts, including employment contracts) as
    well as title VII's prohibition on discrimination in the terms and
    conditions of employment. Similarly, an employer that engages in pay
    discrimination on the basis of sex may violate both title VII and the
    Equal Pay Act. Outside of the antidiscrimination context, to identify
    just one of countless examples, a merchant who engages in false
    advertising may commit common law fraud as well as violate Federal and/
    or State consumer protection statutes.
        So, too, if ENDA is enacted, an employer that takes an adverse
    employment action against an employee or applicant because that person
    departs from stereotypes associated with being male or female might be
    found to violate both title VII's ban on employment discrimination
    based on sex and ENDA's ban on employment discrimination based on
    gender identity. ENDA simply preserves a plaintiff 's ability to plead
    such alternative theories by providing that it does not invalidate or
    limit the rights, remedies, or procedures available under any other law
    or regulation.
        Longstanding remedies law, moreover, makes clear that a plaintiff
    who successfully establishes that a defendant's conduct satisfies the
    elements of more than one legal claim is not entitled to double
    recovery. As the Supreme Court has repeatedly emphasized, ``It goes
    without saying that the courts can and should preclude double recovery
    by an individual.'' E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297
    (2002) (quoting Gen. Tel. Co. of the Northwest v. E.E.O.C., 446 U.S.
    318, 333 (1980)). Courts uniformly apply this basic principle of law.
    See, e.g., Starrett v. Wadley, 876 F.2d 808, 822 n.19 (10th Cir. 1989)
    (``As to plaintiff 's damages, we note that plaintiff should not be
    allowed `double recovery' under section 1983 and title VII. For
    example, if plaintiff is awarded damages under section 1983 for lost
    back pay, she cannot recover back pay damages under title VII.'');
    Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 473 (D.C. Cir.
    1987) (compensatory damages awarded under both 42 U.S.C.  1981 and
    title VII for same time period would constitute impermissible double
    recovery); Williams v. Trans World Airlines, 660 F.2d 1267, 1274 (8th
    Cir. 1981) (``The district court found that the plaintiff succeeded
    under both title VII and [42 U.S.C.] section 1981, and apparently
    doubled the damages award. This is clearly erroneous, as damages are
    only recoverable once for a transaction involving two violations of
    law.'').
        No language change is thus needed to prevent the possibility of
    double recovery by a plaintiff who prevails on more than one claim that
    challenges the same conduct, because clear and longstanding precedent
    makes clear that he or she can recover only once.

        Question 2. It has been stated that individuals protected under
    ENDA would actually have access to greater remedies than those
    protected under title VII by way of their race, color, religion, sex or
    national origin, or under the ADA by way of disability. Namely, ENDA
    claimants could recover attorney and other fees from administrative
    proceedings, including an EEOC determination. EEOC decisions are not
    considered ``final orders'' and so are not subject to appeal.
    Therefore, an employer would not be able to contest any such award and,
    in fact, the EEOC is not even required to provide documented reasons
    for its decisions. Do you believe that plaintiffs alleging
    discrimination based on sexual orientation and sexual identity should
    be entitled to greater remedies than other title VII and ADA
    plaintiffs? Why would it be appropriate to deprive employers of their
    due process rights to contest attorney's fees awards solely for
    plaintiff 's alleging discrimination based on sexual orientation and
    sexual identity? What changes could be made to the bill to ensure that
    ENDA claimants are treated the same as all other discrimination
    claimants in terms of potential recovery?
        Answer 2. I agree that the remedies available under ENDA should
    track those available under the other Federal antidiscrimination
    statutes. I believe, however, that ENDA's language does in fact
    parallel that of other Federal law and in no way deprives employers of
    their due process rights.
        Section 12 of ENDA provides that:

              ``[I]n an action or administrative proceeding for a violation
            of this Act, an entity described in section 10(a) (other than
            paragraph (4) of such section), in the discretion of the
            entity, may allow the prevailing party, other than the
            Commission or the United States, a reasonable attorney's fee
            (including expert witness fees) as part of the costs.''
            (emphasis added).

        This language parallels the attorney's fees provision of the
    Americans with Disabilities Act of 1990, which provides:

              ``In any action or administrative proceeding commenced
            pursuant to this chapter, the court or agency, in its
            discretion, may allow the prevailing party, other than the
            United States, a reasonable attorney's fee, including
            litigation expenses, and costs, and the United States shall be
            liable for foregoing the same as a private individual.'' 42
            U.S.C.  12205 (emphasis added).

        I know of no instance in the ADA's nearly 20-year history in which
    this language has been misinterpreted to assess attorney's fees against
    an employer based on the EEOC's investigative determination that there
    is reasonable cause to believe that an employer has engaged in unlawful
    discrimination. No doubt this is because the Federal antidiscrimination
    statutes do not provide the EEOC with the authority to adjudicate
    discrimination charges with respect to private, State, or local
    government employers and thus there is no ``prevailing party'' at this
    administrative stage as required to trigger a fee award. Instead,
    Federal law confers the Commission only with the authority to
    investigate such charges and, if it finds reasonable cause, to seek to
    conciliate the dispute. If conciliation is unsuccessful, the Commission
    may choose to bring a civil action against the employer itself (or, in
    the case of a State or local government employer, to refer the charge
    to the Department of Justice for possible litigation). Alternatively,
    the Commission may decline to litigate; in that case, the charging
    party retains the right to pursue a civil action himself or herself.
    See 42 U.S.C. 2000e-5. But not until a court decides that civil action
    is there a ``prevailing party'' that triggers the possibility of
    attorney's fee awards.
        Instead, I believe that the reference to ``administrative
    proceedings'' addresses those limited circumstances in which Federal
    law creates special processes for the administrative adjudication of
    discrimination charges--including the assessment of remedies--by
    entities ``described in section 10(a) (other than paragraph (4) of such
    section).'' For example, title VII creates a separate process for the
    resolution of discrimination charges by Federal executive branch
    employees and provides the EEOC with the authority to enforce such
    protections through appropriate remedies. 42 U.S.C.  2000e-16(a) and
    (b). Similarly, the Congressional Accountability Act protects Federal
    legislative branch employees from job discrimination, 2 U.S.C.  1311,
    and permits the award of attorney's fees after administrative
    proceedings before a hearing officer or the Board of Directors of the
    Office of Compliance. See 2 U.S.C.  1361.

        Question 3. In addition to prohibiting discrimination in employment
    on the basis of gender identity, ENDA places affirmative obligations on
    employers with regard to shared shower or dressing facilities in which
    being seen unclothed is unavoidable for individuals who have either
    ``undergone'' or who are ``undergoing'' transition to a different
    gender. The bill text leaves employers with a great deal of questions
    about how this requirement would work. Specifically, employers wonder
    what would constitute ``notification'' that private dressing and shower
    facilities will be required? Would the requirement also extend to
    bathroom facilities? The bill states that no new facilities would be
    required, but would employers be required to renovate existing
    facilities?
        Answer 3. If an employee has undergone a gender transition before
    starting work with a particular employer, the duty of nondiscrimination
    under these sections applies based on the employee's gender as
    established at the time of employment (e.g., through the employee's
    name, clothing, mannerisms, or employment references). In this case,
    the employer need not inquire, and the employee need not disclose,
    information regarding the employee's transition. The employer's
    obligation is simply not to discriminate in the event that the past
    transition comes to the employer's attention.
        If, on the other hand, an employee undergoes gender transition
    after starting work with a particular employer, I understand the terms
    ``notification'' in ENDA section 8(a)(3) and ``notified'' in section
    8(a)(5) to mean that that employee must take some affirmative step to
    communicate the matter to the employer. See, e.g., Detroit Coil Co. v.
    Int'l Ass'n of Machinists & Aerospace Workers, 594 F.2d 575, 580 (6th
    Cir. 1979) (``The word `notified', in its ordinary usage, means the
    completed act of bringing information to the attention of another'').
    Courts have consistently interpreted the term ``notification'' under
    Federal employment law to include any communication that is sufficient
    to express the matter to the employer in an understandable way, without
    requiring any special form or any ``magic words.'' See, e.g., Smith v.
    Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (en banc)
    (concluding that the ADA does not require an employee to use any
    ``magic words'' when notifying an employer of his or her disability and
    request for reasonable accommodation); Sarnowski v. Air Brooke
    Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007) (concluding that the
    FMLA does not require an employee to use any ``magic words'' when
    notifying an employer of his or her request to take leave for a serious
    health condition).
        Section 8(a)(3) of ENDA provides a defense to employers who meet
    certain conditions with respect ``to the denial of access to shared
    shower or dressing facilities in which being seen unclothed is
    unavoidable.'' It thus applies only to the denial of access to those
    shared workplace facilities in which, unlike nearly all restrooms,
    being seen unclothed is unavoidable. Longstanding OSHA regulations
    already require employers to ensure employee privacy in restrooms
    through the provision of stalls or single-user restrooms. Indeed, these
    regulations, which apply to all permanent places of employment, require
    that ``[e]ach water closet shall occupy a separate compartment with a
    door and walls or partitions between fixtures sufficiently high to
    assure privacy.'' 29 CFR  1910.141(c).
        Section 8(a)(4) provides that employers are not required to
    construct new physical facilities in order to comply with the act. It
    does not speak to any duty to renovate or modify existing facilities.

        [Whereupon, at 12:26 p.m., the hearing was adjourned.]