[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


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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).
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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\
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    \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.
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    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\
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    \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.
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    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\
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    \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.
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    \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\
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    \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.
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     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\
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    \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'').
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     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).
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     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.
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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.
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    \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 [email protected].

 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.
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    \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.
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    \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.'').
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    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\
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    \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.
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    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.
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    \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).
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    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\
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    \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).
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                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.
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    \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\
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    \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).
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    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.'').
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    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\
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    \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.
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     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).
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     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 
[email protected].
            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.]

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