[Senate Hearing 112-915]
[From the U.S. Government Publishing Office]
S. Hrg. 112-915
EQUALITY AT WORK: THE EMPLOYMENT
NON-DISCRIMINATION ACT
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
EXAMINING EQUALITY AT WORK, INCLUDING S. 811, TO PROHIBIT EMPLOYMENT
DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION OR GENDER IDENTITY
__________
JUNE 12, 2012
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland MICHAEL B. ENZI, Wyoming
JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington RICHARD BURR, North Carolina
BERNARD SANDERS (I), Vermont JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, JR., Pennsylvania RAND PAUL, Kentucky
KAY R. HAGAN, North Carolina ORRIN G. HATCH, Utah
JEFF MERKLEY, Oregon JOHN McCAIN, Arizona
AL FRANKEN, Minnesota PAT ROBERTS, Kansas
MICHAEL F. BENNET, Colorado LISA MURKOWSKI, Alaska
SHELDON WHITEHOUSE, Rhode Island MARK KIRK, Illinois
RICHARD BLUMENTHAL, Connecticut
Pamela J. Smith, Staff Director, Chief Counsel
Lauren McFerran, Deputy Staff Director
Frank Macchiarola, Republican Staff Director and Chief Counsel
(ii)
C O N T E N T S
----------
STATEMENTS
TUESDAY, JUNE 12, 2012
Page
Committee Members
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...... 2
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 37
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 39
Witnesses
Badgett, M.V. Lee, Research Director of the Williams Institute
for Sexual Orientation Law and Public Policy at UCLA, and
Director of the Center for Public Policy and Administration at
the University of Massachusetts Amherst, Amherst, MA........... 6
Prepared statement........................................... 8
Broadus, Kylar W., Founder, Trans People of Color Coalition,
Columbia, MO................................................... 11
Prepared statement........................................... 13
Bagenstos, Samuel R., Professor of Law, University of Michigan
Law School, Ann Arbor, MI...................................... 15
Prepared statement........................................... 17
Charles, Kenneth, Vice President of Diversity and Inclusion,
General Mills, Inc., Minneapolis, MN........................... 20
Prepared statement........................................... 23
Parshall, Craig L., Senior Vice President and General Counsel,
National Religious Broadcasters Association, Manassas, VA...... 25
Prepared statement........................................... 27
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Senator Collins.............................................. 4
Senator Casey................................................ 48
Senator Kirk................................................. 48
Camille A. Olson, Seyfarth Shaw LLP.......................... 49
Human Rights Campaign, Chad Griffin, President.............. 58
Log Cabin Republicans........................................ 60
National Gay and Lesbian Task Force Action Fund, Rea Carey,
Executive Director......................................... 61
Transgender Law Center, Masen Davis, Executive Director...... 73
Letters of support:
Human Rights Campaign................................... 76
Interfaith Alliance...................................... 77
The Leadership Conference on Civil and Human Rights...... 78
Religious Organizations in Support of the Employment Non-
Discrimination Act (ENDA) (S. 811)..................... 79
(iii)
Statements, articles, publications, letters, etc.--Continued
--Continued
Response to questions of Senator Casey by:
Kylar W. Broadus......................................... 80
Kenneth Charles.......................................... 80
Response to questions of Senator Franken by Craig L. Parshall 80
EQUALITY AT WORK: THE EMPLOYMENT
NON-DISCRIMINATION ACT
----------
TUESDAY, JUNE 12, 2012
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m. in
room SD-106, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Murray, Casey, Merkley, Franken,
and Bennet.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will come to order.
I want to welcome everyone today. In our committee today,
we will hear testimony on a very important civil rights
legislation, the Employment Non-Discrimination Act, also known
as ENDA.
The issue here could not be simpler or more
straightforward. It is long past time to eliminate bigotry in
the workplace, and to ensure equal opportunity for all
Americans. It is 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.
The fact is, over the last 45 years, we have made great
strides in America toward eliminating discrimination in the
workplace. Our country is a far better place because of laws
against discrimination in the workplace based on race, sex,
national origin, religion, age, and disability, among others.
It is time, at long last, for us to also prohibit
discrimination on the basis of sexual orientation and gender
identity. Such discrimination is wrong and should not be
tolerated.
As we will hear today, many States and businesses are
already leading the way by demonstrating that full equality is
not only the right thing to do, but it benefits all. However,
the harsh reality is that employers in most States 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.
Too many hardworking Americans, whether employed by private
companies or by public entities, are being judged not by their
talent, their ability, and their qualifications, but by their
sexual orientation or gender identity. Too many of our fellow
citizens are being judged not by what they can contribute to a
company, but by who they are or whom they choose to love.
Unfortunately, we can cite countless cases of bigotry and
blatant job discrimination based on sexual orientation or
gender identity. Decent, hardworking Americans are being hurt
by discrimination every day.
Qualified workers should not be turned away or have to fear
losing their livelihood for reasons that have nothing to do
with their qualifications, their skills, or their performance.
Such practices are un-American and they should not be permitted
in our workplaces.
I want to publicly thank Senator Merkley, Senator Kirk, and
many others for introducing a fully inclusive Employment
Non-Discrimination Act.
This bill is not complex. 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 exemptions for
small businesses and religious organizations, and current rules
applicable to the armed forces are not affected. The bill
expressly prohibits disparate impact claims.
As we will hear today, this legislation follows in the
footsteps of our existing civil rights laws. Just as debates
leading to passage of 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 or
businesses. I think these claims are baseless. Indeed, we are
pleased to have broad bipartisan support for this bill, as well
as the endorsement of civil rights organizations, countless
businesses, and religious leaders.
We are talking about a fundamental American value, equal
treatment for all, the principle that no citizen in our country
should be discriminated against.
I am proud that in the last congress, this committee held a
hearing on this important bill. We are doing so again today,
and I look forward to working with all of my colleagues to
advance this long overdue legislation.
I will leave the record open for a statement by Senator
Enzi.
The Chairman. I want to recognize Senator Merkley, who is
the lead sponsor of this bill. He has requested an opportunity
for an opening statement, and since he is the lead sponsor, I
will, thus, recognize him for that.
Senator Merkley.
Statement of Senator Merkley
Senator Merkley. Thank you. Thank you, Chairman Harkin.
I really appreciate your holding a hearing on this issue,
which is so critical for LGBT Americans.
A big thanks, also, goes to my chief co-sponsor, Senator
Kirk who, unfortunately, cannot be here with us today. I think
we are all together in wishing him a speedy recovery. In his
absence, I want to take a moment to note the tremendous
leadership he has shown on these issues, both in the House of
Representatives and now as a member of the U.S. Senate.
I also want to recognize the indispensable role that the
late Senator Ted Kennedy played on this issue. It was an honor
when he asked me to step-in to continue to lead this fight. I
have been pleased to do so over the last 4 years, and I hope
that soon, in the future, we will be talking about this battle
in a historical context having brought equality of opportunity
to all Americans.
At its core, employment discrimination is a matter of
fundamental fairness. Being able to make a living and do so
without fear of discrimination goes right to the heart of life,
liberty, and the pursuit of happiness. Unfortunately, the
majority of our States have no protections against
discrimination on the basis of sexual orientation or gender
identity. At the same time, a very large percentage of LGBT
Americans are discriminated against in the workplace, as you
will hear from one of our witnesses today.
It is time to expand fundamental fairness to all Americans,
and that is exactly what this bill does. Quite simply, ENDA
extends the exact, same Federal protections that already exist
for race, religion, sex, national origin, age, and disability.
It is the fair thing to do. It is the right thing to do, and it
is good for business as well.
Many employers have already endorsed this change. You will
hear from one long time leader in the business community today,
General Mills, about its support for these nondiscrimination
policies. I look forward to that testimony.
In addition to the businesses represented here today, one
of the largest employers in my home State of Oregon, Nike, has
been a vocal proponent of this bill, and I would like to enter
a few of their comments into the record. In their words, ``ENDA
is good for business, good for our employees, and our
communities.'' They continue that inclusive, nondiscrimination
policies,
``Enable us to attract and retain the best and
brightest people around the world. Why would we not
want to do everything we can to help our businesses
compete, especially when it also results in fair
treatment, in equality, and in opportunity for our
workers? It is a win-win.''
This is not, nor should it be, a democratic or republican
issue. I am thrilled to be joined by Senator Kirk on this bill,
in addition to Senator Collins and Senator Snowe as sponsors,
co-sponsors.
In Oregon, in 2007, I led the effort to put these
protections into State law, and there are a lot of things that
our red counties and our blue counties do not always agree on.
But this is one issue where, from border to border, I hear the
same thing: it is a matter of fundamental fairness. It is who
we are as Americans.
And I can tell you that in over 140 town halls that I have
held since becoming a Senator, I have never had a business
member or a member of the religious community come to a town
hall and say we did the wrong thing in expanding fairness and
equality of opportunity in employment to all Oregonians. I
think this same response will be true when we get this done for
the United States of America as a whole.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Merkley.
Also, Senator Collins, who is not a member of the
committee, asked if she could put a statement, in support of
the bill. She is a lead sponsor, along with Senator Merkley and
Senator Kirk. And so, I would ask that her statement be
inserted at this point in the record.
[The information referred to follows:]
Prepared Statement of Senator Collins
Mr. Chairman, I would like to thank you and Ranking Member
Enzi for holding this hearing today on S. 811: the Employment
Non-Discrimination Act. I am pleased to be an original
cosponsor of this important legislation which will affirm the
principle that individuals should be judged on their skills and
abilities, and not by who they are.
All Americans deserve a fair opportunity to pursue the
American dream. Over the years, we have rightly taken a stand
against workplace discrimination based on race, sex, national
origin, religion, age and disability. Today it is time for us
to ensure that all workers are judged on their talents,
abilities and capabilities free from prejudice by closing an
important gap in Federal law.
The right to work is a fundamental one. How can we in good
conscience deny that right to someone for no other reason than
their sexual orientation or gender identity? Especially in
today's economy, job security has taken on a renewed importance
to all Americans. How can we tell one segment of Americans that
they are not entitled to that security because of whom they
love?
The concept is neither novel nor revolutionary. Much of
corporate America has already embraced LGBT protections in
order to take full advantage of the most talented employees.
Some 86 percent of the Fortune 500 companies extend protections
based on sexual orientation, and 50 percent extend protections
based on gender identity.
In addition, our bill is similar to the current law in
several States, including Maine.
But despite these advances, it still remains legal in 29
States to fire or refuse to hire someone for being lesbian, gay
or bisexual. At too many companies, high-performing LGBT
employees can be and are still openly discriminated against.
Mr. Chairman, I am proud to have been a champion of the
Employment Non-Discrimination Act since 2002. It is a
commonsense solution, consistent with existing Federal civil
rights laws, that would not create an undue burden on American
businesses. Moreover, it's the moral thing to do, the right
thing to do, and the equitable thing to do.
Thank you for moving forward with this important
legislation.
The Chairman. And now, we will go to our panel. We have a
distinguished panel today. I will run through the
introductions, and then we will go from left to right.
First is Dr. Lee Badgett, a research director at the
Williams Institute for Sexual Orientation Law and Public Policy
at UCLA, also the director of the Center for Public Policy and
Administration at the University of Massachusetts Amherst,
where she is a professor of economics.
Next, Mr. Kylar Broadus. Did I pronounce that right,
Broadus? Broadus. Kylar Broadus is an attorney and associate
professor of law at Lincoln University in Missouri. He is the
founder of Trans People of Color Coalition.
Next, Mr. Sam Bagenstos, I think I have that right now, a
professor of law at the University of Michigan Law School. He
has served as a law clerk to Justice Ruth Bader Ginsburg and
was on the faculty at Harvard Law School. Most recently served
as the Principal Deputy Attorney General for Civil Rights in
the Justice Department, the No. 2 official in the Civil Rights
Division of the Justice Department.
Next, I am going to yield to my colleague from Minnesota
for purposes of introduction.
Senator Franken. Thank you, Mr. Chairman.
I am honored to have the opportunity to welcome Ken
Charles. Mr. Charles is the vice president of Global Diversity
and Inclusion for General Mills, where he has been employed
since 2000. I am proud to say that General Mills has its roots
in Minnesota that go back 150 years, and currently employs
35,000 Minnesotans.
Those workers, along with the other 2\1/2\ million people
that show up to work every day in Minnesota, already have the
legal protections that ENDA would extend to workers across the
country, and everything seems to be fine.
Ken, I am so happy you could be here today to share with
the committee how General Mills' policy of inclusion has
contributed to your company's innovation and growth. An
impressive 94 percent of your employees say that General Mills
provides a working environment that is accepting of differences
in background and lifestyle. I grew up a couple of miles from
the campus, from your headquarters and the beautiful campus. I
always admired it and enjoy, as you know, Cheerios and
Wheaties.
I have had the opportunity to visit many of your workers in
Minnesota, and it is apparent that General Mills makes their
well-being a top priority. General Mills can serve as a model
for every company. It is days like today that I am particularly
proud to be a Minnesotan.
Thank you, again, for your testimony at today's hearing.
Mr. Chairman.
The Chairman. Thank you very much, Senator Franken.
Then we have Mr. Craig Parshall. Mr. Parshall is senior
vice president and general counsel of the National Religious
Broadcasters Association. He is an attorney and has practiced
First Amendment law and employment law, representing clients
in, among other courts, the Supreme Court. I just recognized,
Mr. Parshall, this is your second appearance here. He was at
our last hearing 2 years ago, and we welcome you back.
With that, I will just say that all of your statements,
which I read last night, are very good, and I will ask
permission that they all be inserted in the record in their
entirety.
We will go from left to right. If you could sum up in 5 to
7 minutes, then we can get into a discussion, I would
appreciate it.
Ms. Badgett, we will start with you. Welcome, and please
proceed.
STATEMENT OF M.V. LEE BADGETT, RESEARCH DIRECTOR OF THE
WILLIAMS INSTITUTE FOR SEXUAL ORIENTATION LAW AND PUBLIC POLICY
AT UCLA, AND DIRECTOR OF THE CENTER FOR PUBLIC POLICY AND
ADMINISTRATION AT THE UNIVERSITY OF MASSACHUSETTS AMHERST,
AMHERST, MA
Ms. Badgett. Good morning, Senator Harkin and members of
the committee.
Today I will just summarize three basic points in my
written testimony that will document the need for the
Employment
Non-Discrimination Act.
My first point is that employment discrimination against
lesbian, gay, bisexual, and transgender Americans, whom I'll
just call LGBT Americans, occurs in workplaces all across the
country.
Jacqueline Gill was a temporary instructor at a community
college in Texas. She is also a lesbian. When permanent jobs
opened up in 2010, she was not allowed to interview for those
positions even though she had received praise from students,
from her colleagues, and from parents of her students.
Several of her colleagues, who were equally qualified, or
actually less qualified, were allowed to interview and were
hired whereas Ms. Gill was not. She was also harassed because
of her sexual orientation. Her supervisor told her at one point
that Texas and Tarrant County do not like homosexuals.
Vandy Beth Glenn was fired in 2007 from her job with the
Georgia General Assembly because she is transgender. Before he
fired her, Glenn's direct supervisor told her that her gender
expression was unnatural and unsettling, and he later fired her
on the grounds that her gender transition was inappropriate and
would make other workers there feel uncomfortable.
Ronald Crump is a gay man who was a Los Angeles police
department sergeant. His supervisor verbally harassed him on a
number of occasions because Crump is gay, comparing him to one
of the women in the department, ``Minus the heels,'' and other
derogatory comments. When Crump filed an internal complaint, he
was transferred from a very prestigious position to a much less
favorable one.
We now have decades of social science research that tell us
that those stories, which are just a sample of many, are
repeated in workplaces all across America. In 2008, the General
Social Survey found that 42 percent of lesbian, gay, and
bisexual people had experienced employment discrimination
because of their sexual orientation at some point in their
lives, and 27 percent of those had actually experienced that
just in the last 5 years. So it is common and it is recent.
In the largest survey of transgender people to date, 47
percent of respondents had experienced discrimination in hiring
and promotion or in job retention.
In 2008, my colleagues and I studied the complaints filed
by LGB people in the States that outlaw sexual orientation
discrimination. I will just say the numbers of those complaints
were actually relatively small compared to the overall numbers
of complaints filed at those State agencies each year. But when
we adjusted those counts to take into account the different
population sizes of the protected groups, what we found was
that lesbian, gay, and bisexual people file complaints at
roughly the same rate that women and people of color do
suggesting that discrimination is roughly similar in terms of
its frequency.
Two recent studies actually provide a very vivid picture of
discrimination. Sociologist Andras Tilcsik sent out pairs of
resumees of recent college graduates for job openings for white
collar entry level positions in seven different States. He
coded one of the resumes as gay by saying that this person had
been the treasurer of the campus gay organization, and the
other one he left as just a volunteer position at some other
non-gay organization. He sent them both out to the employers,
and the differential treatment of the gay applicants was very
clear. To just give you a perspective on that, to get an
interview for a job a gay applicant had to apply for 14 jobs,
whereas the heterosexual applicant only had to apply for 9 jobs
to get an interview.
Another study sent actual applicants, one transgender and
one non-transgender, to apply for 24 jobs in the retail sector
in New York City. In half of those jobs, 12 out of 24, half of
those employers, the non-transgender applicant actually got a
job offer, and only 2 of those 24 employers did the transgender
applicant receive a job offer, and that is a very high degree
of discrimination.
Two decades of research also suggested this kind of
discrimination has important economic harms, in particular, for
gay and bisexual men. Depending on the study, gay and bisexual
men earn from 10 percent to 33 percent less than similarly
qualified heterosexual men, most likely because of
discrimination. Transgender people also have very low incomes.
The National Transgender Survey found that 15 percent of their
respondents had incomes under $10,000 per year, and that is a
very low income; 15 percent of the transgender respondents,
whereas in the population as a whole, it is only about 4
percent with such low incomes.
The last thing I will say about the evidence of
discrimination is that it includes both private sector
employees and employees of State and local governments. My
Williams Institute colleagues have found exactly the same
widespread and persistent pattern of discrimination against
LGBT people who work for State governments as we see for
private sector employers.
My next two points I will make much more briefly. The
second one is that non-discrimination laws like ENDA are likely
to reduce discrimination. Some of this recent research suggests
that both a pay grab shrink and the differential treatment of
gay applicants is less in States that have such laws, so that
makes me think that ENDA could play a very important role in
reducing that discrimination as well.
My third and last point, that I know you will hear more
about, is that the evidence shows the employers would also
benefit if ENDA were passed. It is not just the LGBT employees.
We have long known that businesses are most successful when
they recruit, hire, and retain employees based on what they can
do, not who they are, as Senator Harkin mentioned. That is one
reason why 86 percent of Fortune 500 companies have bans on
sexual orientation discrimination and half of the Fortune 500
now have a policy of nondiscrimination based on gender
identity.
And studies also suggest that ENDA will lead to healthier
and more productive workers if they have legal protection from
discrimination.
So just to sum up very briefly, the research overwhelmingly
demonstrates both the Employment Non-Discrimination Act is
necessary in order to fight discrimination, and would benefit
both employees and employers.
Thank you.
[The prepared statement of Ms. Badgett follows:]
Prepared Statement of M.V. Lee Badgett
summary
S. 811, the Employment Non-Discrimination Act, would outlaw
discrimination in hiring and other employment decisions based on sexual
orientation and gender identity. I will use recent and ongoing research
to document the clear need for this legislation.
First, several decades of social science research have demonstrated
that employment discrimination against lesbian, gay, bisexual, and
transgender (LGBT) Americans occurs in workplaces all across the
country. This evidence comes from many different methods of studying
discrimination, including self-reported experiences, official
complaints of discrimination in States that already ban it, experiments
to measure the treatment of LGBT job applicants, and comparisons of
wages earned by LGBT people and heterosexual people. The evidence
includes discrimination in both private sector employment and public
employment in State and local governments.
Second, nondiscrimination laws like ENDA are likely to reduce
discrimination. Some recent evidence suggests that State laws banning
discrimination have been effective in reducing wage gaps and employment
discrimination against LGB people, in particular.
Third, evidence suggests that employers would also benefit if ENDA
were passed, since LGBT workers will be healthier and more productive
workers if they have legal protection from discrimination.
______
Good morning, Senator Harkin and members of the committee. I am an
economist and director of the Center for Public Policy and
Administration at the University of Massachusetts Amherst, and I'm also
the research director of the Williams Institute on Sexual Orientation
Law and Public Policy at UCLA. I have studied employment discrimination
based on sexual orientation, race, and gender for more than 20 years
and have published two books and numerous studies on this topic.
Today I am here to speak to you about S. 811, the Employment Non-
Discrimination Act of 2011. As you know, this bill would outlaw
discrimination in hiring and other employment decisions based on sexual
orientation and gender identity. I will use recent and ongoing research
to make three main points to document the clear need for this
legislation.
First, several decades of social science research have demonstrated
that employment discrimination against lesbian, gay, bisexual, and
transgender (LGBT) Americans occurs in workplaces all across the
country. This evidence comes from many different methods of studying
discrimination, including self-reported experiences on surveys,
official complaints of discrimination in States that already ban it,
experiments to measure the treatment of LGBT job applicants, and
comparisons of wages earned by LGBT people and heterosexual people.
Together these sources provide ample evidence that employment
discrimination based on sexual orientation and gender identity is a
serious problem in the United States.
For several decades, academic researchers have surveyed LGBT people
about their workplace experiences. Those surveys reveal numerous
experiences of being fired, being denied a job, or some other form of
unequal treatment in the workforce that stemmed from these individuals'
sexual orientation or gender identity. Most recently, the 2008 General
Social Survey found that 42 percent of a national random sample of
lesbian, gay, and bisexual people had experienced at least one form of
employment discrimination because of their sexual orientation at some
point in their lives. In addition 27 percent had experienced employment
discrimination during the 5 years prior to the survey. That figure
includes both employees who have disclosed their sexual orientation in
the workplace and those who have not.
Findings from recent surveys of transgender employees confirm
similar and even more common experiences of discrimination. For
example, in the largest survey of transgender people to date, 78
percent of respondents reported experiencing at least one form of
harassment or mistreatment at work because of their gender identity.
More specifically, 47 percent had been discriminated against in hiring,
promotion, or job retention.
A different source of data supports the finding that discrimination
based on sexual orientation is common, and perhaps as common as other
kinds of discrimination, relative to population size. My colleagues and
I collected the numbers of sexual orientation discrimination complaints
in States that outlawed such treatment from 1999-2007. The number of
complaints in each State is relatively small compared with the overall
level of complaints filed at State agencies. But once we adjust for the
population size of the different protected groups, we see that LGB
people are as likely to file complaints as women and people of color.
The annual rate of complaints was 4.7 per 10,000 LGB people on average
in these States (assuming that LGB people are 4.1 percent of the U.S.
population). That figure is quite similar to the number of sex
discrimination complaints per woman (5.4 per 10,000 women) and race-
related complaints per person of color (6.5 per 10,000). In other
words, LGB people are about as likely to file discrimination complaints
as are people in groups that are currently protected against
discrimination under Federal law.
We see particularly compelling evidence of discrimination in two
recent studies that tested employers' responses to a pair of
identically qualified applicants differing only by sexual orientation
or gender identity. Sociologist Andras Tilcsik sent out pairs of
fictional resumees in response to ads for entry-level positions in
seven States, with one resumee indicating volunteer work as treasurer
of a gay campus organization and the other including volunteer work at
a non-gay organization. The differential treatment of gay applicants
was clear. Of the gay-coded applicants, only 7.2 percent were offered
an interview, while 11.5 percent of the non-gay-coded applicants were
invited to an interview. To get a job interview, a gay applicant had to
apply to 14 jobs, while the average heterosexual applicant only had to
apply for 9 jobs to get an interview.
Another study sent pairs of actual applicants, one transgender and
one not, to apply for jobs in the retail sector in New York City. In 11
out of 24 applications (46 percent), the non-transgender applicant but
not the transgender applicant received a job offer. Only 1 out of 24 (4
percent) resulted in the transgender applicant being offered the job
while the non-transgender applicant was not--a 42 percent net rate of
discrimination.
An additional way that economists and sociologists look for
evidence of discrimination is to compare the earnings of people who
have different personal characteristics, such as sexual orientation,
but the same productive characteristics. If there is a wage difference
after controlling for all of the factors that we reasonably expect to
influence wages, such as education and experience, then most of us
would conclude that discrimination is likely the reason for the wage
gap for the disadvantaged group.
Across two decades of research, studies show a significant pay gap
for gay or bisexual men when compared to heterosexual men who have the
same productive characteristics. Depending on the study, gay and
bisexual men earn from 10 percent to 32 percent less than similarly
qualified heterosexual men. Lesbians generally earn the same as or more
than heterosexual women, but lesbians earn less than either
heterosexual or gay men. We have no comparable studies for gender
identity, but the National Transgender Discrimination Survey found that
15 percent of respondents had incomes under $10,000 per year, while the
general population figure for that income level was 4 percent at the
time of the survey.
Also, it's important to note that the evidence of discrimination
discussed here includes both private sector employees and employees of
State and local governments. When my Williams Institute colleagues
compared reports of discrimination, complaints of discrimination, and
the wage impact of discrimination between the public and private
sector, they found the same patterns of employment discrimination
against LGBT people who work for State governments and for private
sector employers. Based on this research, they concluded that there has
been a widespread and persistent pattern of discrimination by State
governments as well as in the private sector.
Overall, there is extensive evidence of discrimination against LGBT
people, as well as evidence that sexual orientation discrimination
results in economic harm to LGBT people, reducing their earnings by
thousands of dollars.
The studies showing wage gaps also lead to my second major point:
Discrimination hurts, but nondiscrimination laws like ENDA are likely
to reduce discrimination. Some recent evidence suggests that State laws
banning discrimination have been effective in reducing wage gaps and
employment discrimination against LGB people, in particular. Two recent
studies using Census 2000 data found that State-level sexual
orientation nondiscrimination laws reduced the gap in annual earnings
for gay men. In the study referred to earlier that found differential
treatment of gay male job applicants, the gap in treatment was
significantly smaller in States or local areas with nondiscrimination
laws that included sexual orientation--8.7 percent received invitations
compared with 5.3 percent in States without such protections--although
the non-gay applicants were still favored in both sets of States.
My third and final point is that America's businesses are also
likely hurt by the direct and indirect effects of discrimination in the
workplace. Economists and businesses have long argued that businesses
will be most successful when they recruit, hire, and retain employees
on the basis of talent, not personal characteristics that have no
impact on an employee's ability to perform a job well. Beyond that most
basic reason to forbid discrimination, the evidence suggests that
employers would also gain in other ways if ENDA were passed. Numerous
studies from various academic disciplines suggest that LGBT workers
will be healthier and more productive workers if they have legal
protection from discrimination.
A key link between policies and productivity is disclosure of one's
sexual orientation. Many studies have demonstrated that fear of
discrimination keeps LGB workers, in particular from revealing their
sexual orientation in the workplace. Although having experienced
discrimination directly is a powerful reason for some to ``stay in the
closet,'' many studies show that LGB people who fear discrimination are
also less likely to reveal their sexual orientation to co-workers and
supervisors.
Employers have a stake in these individual decisions, since
disclosure has potentially positive benefits to LGB workers' well-being
and job performance. Studies find that people who have come out report
lower levels of anxiety, less conflict between work and personal life,
greater job satisfaction, more sharing of employers' goals, higher
levels of satisfaction with their co-workers, more self-esteem, and
better physical health. So when fear of discrimination causes LGB
employees to conceal their sexual orientation or gender identity,
employers experience negative costs along with LGB people themselves.
The time as well as social and psychological energy that is required to
maintain a hidden identity would, from an employer's perspective, be
better used on the job.
As in the case of wage gaps, nondiscrimination policies can improve
the workplace climate and influence choices about disclosure and
concealment. Several studies have found higher levels of disclosure in
workplaces when employers have their own non-discrimination policies
that include sexual orientation. And one study found that LGB people
who live in places covered by a nondiscrimination law had higher levels
of disclosure than those in unprotected locations.
Perhaps the best evidence that nondiscrimination policies are good
for business comes from the fact that many companies have voluntarily
adopted policies and point to the business value of those policies.
According to the Human Rights Campaign, 86 percent of the Fortune 500
companies include sexual orientation in their nondiscrimination
policies, and 50 percent include gender identity. A Williams Institute
study shows that large companies report that they adopt these policies
to improve employee retention, recruitment, and productivity, as well
as to generate the best ideas and a stronger customer base.
To sum up, several decades of research demonstrate that
discrimination based on sexual orientation and gender identity exists
in our Nation's workplaces. This discrimination hurts LGBT people
financially and in other harmful ways. Our Nation's employers and
employees would be better off with an LGBT workforce that no longer
fears discrimination. The research overwhelmingly demonstrates that
passing the Employment Non-Discrimination Act would benefit both
employees and employers.
References
Badgett, M.V. Lee. 2007. ``Discrimination Based on Sexual Orientation:
A Review of the Economics Literature and Beyond,'' in Sexual
Orientation Discrimination: An International Perspective, co-edited
by M.V. Lee Badgett and Jeff Frank, Routledge, 2007.
M.V. Lee Badgett, Christopher Ramos, and Brad Sears. 2008. ``Evidence
of Employment Discrimination on the Basis of Sexual Orientation and
Gender Identity: Complaints Filed With State Enforcement Agencies
1999-2007,'' Williams Institute.
Grant, Jaime M., Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L.
Herman, and Mara Keisling. 2011. ``Injustice At Every Turn: A
Report of the National Trans-
gender Discrimination Survey,''National Center For Transgender
Equality & The Gay And Lesbian Task Force, http://
www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.
Klawitter, Marieka. 2011. ``Multilevel Analysis of the Effects of
Antidiscrimination Policies on Earnings by Sexual Orientation,''
Journal of Policy Analysis and Management, Volt. 30, No. 2, 334-58.
Make the Road New York. 2010. Transgender Need Not Apply: A Report on
Gender Identity Job Discrimination. http://www.maketheroad.org/
pix_reports/Trans
NeedNotApplyReport_05.10.pdf, 2010.
Sears, Brad, and Christy Mallory. 2011. ``Economic Motives for Adopting
LGBT-Related Workplace Policies,'' Williams Institute, http://
williamsinstitute.law.ucla
.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdf.
Sears, Brad, Nan D. Hunter, Christy Mallory. 2009. ``Documenting
Discrimination on the Basis of Sexual Orientation and Gender
Identity in State Employment,'' Williams Institute, http://
williamsinstitute.law.ucla.edu/research/workplace/documenting-
discrimination-on-the-basis-of-sexual-orientation-and-gender-
identity-in-state-employment/.
Tilcsik, Andraas, 2011. ``Pride and Prejudice: Employment
Discrimination against Openly Gay Men in the United States,''
American Journal of Sociology, Volt. 117, No. 2 (September), PP.
586-626.
The Chairman. Thank you very much, Dr. Badgett.
Now we turn to Mr. Kylar Broadus. I will get it right one
of these times.
Mr. Broadus. Thank you, Senator.
The Chairman. Thank you for being here. Please proceed.
STATEMENT OF KYLAR W. BROADUS, FOUNDER, TRANS PEOPLE OF COLOR
COALITION, COLUMBIA, MO
Mr. Broadus. Mr. Chairman and members of the committee, I
am very honored to be here today.
As mentioned, I am the executive director of Trans People
of Color Coalition, and I do various things. I reside in
Columbia, MO and I am a native of mid-Missouri. I also teach at
an historically Black college, and I am here to obviously speak
in support of inclusion of ENDA. And I am here to paint a
little bit different picture than just the statistics, although
the statistics are very important, but as a person that has
suffered job discrimination himself.
I am a transgender American. I am a female to male
transsexual person that transitioned approximately 20 years
ago. The terminology is explained in my testimony. Basically,
there is an umbrella term called ``transgendered,'' that is
used to define people whose internal identification is
different from their external appearance at birth, and that
would be me.
For me, the physical transition was more about letting the
outer world know who I really was. My internal sense of self
has never changed and I knew who I was internally. People have
always related to me as male. That is my essence and my soul.
The transition was a matter of actually living the truth and
sharing the truth with the world rather than living a lie every
day and pretending to be somebody that I was not.
Prior to any actual medical transition, just to give you a
sort of picture of my life. When I navigated the world, even
though my driver's license had ``female'' on it, nobody ever
saw that. When I would go in to do anything, they would always
relate to me as male, and never understood why I had a female
gender marker. So obviously, it was tough to navigate security.
It was tough to navigate employment where you have to have
matching documentation for your employer.
And then, also the fact that some people were uncomfortable
because I did not choose one box or the other, or fit in one
box very clearly; again, not my choice, but just who I was and
am.
When I used female restrooms, police would accost me. I
would have to strip and then they would still tell me, ``Sir,
get out of the bathroom,'' when I would use a ladies' room. It
is just humiliating and dehumanizing, to say the least.
So after years of having to navigate these issues, I just
chose to go with what was natural for me, and again, bring my
full self to the table, and to the world to show the world who
I am and the real me.
At work, when I decided to actually transition, I had been
there for a number of years and I am a workaholic, and it was
disheartening to me that all this could be pulled out from
under me because people were uncomfortable with the person that
I am.
While studying business in college, I assumed like most
students, that I would not encounter any of these difficulties.
I was a good person. I was a mid-Missourian raised with a
strong work ethic, both parents who put us first as their
children, and who worked multiple jobs to maintain a livelihood
for their family. I recall my first job at 5-years-old, which I
got spending money and that is how we earned our allowance by
working with our parents at their evening jobs, and was so
proud, and am a proud person to have that so strong work ethic.
Prior also to the physical transition, I was working in the
financial industry, which is actually a high paying industry.
But again, when I shifted or transitioned, that is when all the
trouble began. It was and still is emotional to me because it
impacted me emotionally. I suffer from posttraumatic stress as
a result of the harassment that I encountered in the workplace
from my employer, from not being allowed to change my name or
use the name I used, not being allowed to wear my hair a
certain way, not being allowed to dress as me. All these things
physically impacted me and I had, and still suffer from
posttraumatic stress and several other things as a result of
this.
Not only that, but I was then unemployed, and to be
unemployed is very devastating, also demeaning and
demoralizing. And then the recovery time, there is no limit on
it. I still have not financially recovered.
I am underemployed. When I do talks, I tell people I am not
employable. I was lucky to be where I am, and I am happy to be
where I am, but I am one of the fortunate people that is
employed. There are many more people like me that are not
employed as a result of just being who they are. Being good
workers, but being a transgender or transsexual.
So I think it is extremely important that this bill be
passed to protect workers like me. There are many cases that I
hear every day, people call me every day with these cases
around the country because I am also an attorney that practices
and deals with people that suffer employment discrimination.
The last thing I will say, wrapping up, because I do think
I am out of time is that it is, again, I cannot emphasize this
enough as I still sit here today with almost tears in my eyes,
it is devastating, it is demoralizing, and dehumanizing to be
put in that position.
So I urge this committee particularly to always include
transgender people because I know that had been an issue in
this bill at some point as we suffer grave discrimination as
some of the statistics show. Most of us, again, make less than
$10,000 a year who are able to be employed. And if we are not,
then we have to resort to other means to survive and live,
which then make our lives even worse.
So I thank this committee for allowing me this time to
speak. I thank you for considering this, and again, I strongly
urge the U.S. Congress to take this bill up and pass the ENDA,
the Employment Non-Discrimination Act.
[The prepared statement of Mr. Broadus follows:]
Prepared Statement of Kylar W. Broadus
Mr. Chairman and members of the committee, my name is Kylar William
Broadus and I'm the executive director of the Trans People of Color
Coalition, a 2-year-old national organization formed to focus on the
concerns of transgender people of color in America. I reside in
Columbia, MO and am a native mid-Missourian. I teach at a historically
Black college, Lincoln University, and practice law. Today, I'm here to
talk to you about S. 811, the Employment Nondiscrimination Act (ENDA)
and the need for inclusion of employment protections for transgender
Americans. I am thankful to you for the opportunity to be here to speak
in favor of this legislation.
I am a transgender American, a female to male transsexual that
transitioned approximately 20 years ago. For those not familiar with
the term ``transgender,'' it is used to define people whose internal
identification as female or male does not match their assigned sex at
birth, which includes many that undertake the medical process of
changing their physical gender. The terms ``trans'' and ``transgender''
are used interchangeably. For me, the physical transition was about
letting the outer world know my internal sense of self, of who really
was inside this body. People always related to me as male from an early
age and this continued, of course, into transition. My transition was a
matter of living the truth and sharing that truth for the first time in
my life.
Prior to actual medical intervention, as I indicated, I was mostly
viewed as male. My gender assigned at birth was female, so my driver's
license and other documents carried the gender marker of ``female''
even though my appearance was masculine. In some cases, I couldn't use
female restrooms or locker rooms. When I used female restrooms security
or police were called to escort me from the restrooms even after
stripping to ``prove'' that I was female. That was humiliating and
dehumanizing. After years of not being able to use the public restroom,
I began to just use the men's room, where I never had any problems. I
had the same problem with the women's locker room at the gym. One of my
favorite memories is my girlfriend first going in to tell everyone that
I wasn't a ``man.'' Then I would walk in and all the women would run
out of the locker room screaming ``it's'' a ``man!'' I would just
change before going to the gym and remove my sweats in the gym area to
avoid any problems.
I'm mainly here today to talk about my experience with workplace
discrimination. First, I'll share my personal story and then talk about
the plight of thousands of transgender Americans that are just getting
their stories told.
While studying business in college, I assumed, like most students,
that I would not encounter any special difficulties. I was raised in a
working class family with a hard work ethic. I had my first job at the
age of five working for my father at his evening job. He would take me
and my sister to work with him and this was how we earned our spending
money. I recall very vividly cleaning the water fountains in the
offices. It was during this time that I learned to take pride in my
work. My father showed me how to make the water fountains clean and
shiny. I then graduated to the trash cans. From that point on, I have
always worked a job and since college, two jobs at a time in some form
or fashion. My employers have always praised my work.
Prior to my physical transition, I began working at a major
financial institution. I wore the traditional female attire at the
time, which was a skirt and pantyhose. It was required and expected in
the late 1980s and early 1990s. As I began to find myself, my attire
gradually shifted from feminine to more masculine styles. Then I
actually moved to a division of the company where the dress code was
less stringent and began to wear men's suits and ties most of the time.
My hair got shorter and more masculine. My demeanor had always been
masculine. Many clients already confused me for male even though my
name was female. My coworkers didn't seem to mind. It was management
that seemed to have issues with it. I was called in to discuss my hair
cut, and I was told that I was not allowed to go by my initials,
``K.B.,'' which many males did but females didn't.
After I announced my gender transition, it only took 6 months
before I was ``constructively discharged'' from my employer. While my
supervisors could tolerate a somewhat masculine-appearing black woman,
they were not prepared to deal with my transition to being a black man.
With growing despair, I watched my professional connections, support,
and goodwill evaporate, along with my prospects of remaining employed.
I was harassed until I was forced to leave. I received harassing
telephone calls hourly from my supervisor some days. I received
assignments after hours that were due by 9 a.m. the next morning. The
stress was overwhelming. I ended up taking a stress leave for several
weeks. I thought upon my return perhaps things would settle down. I was
back less than a week from stress leave and knew that it wasn't going
to settle down. I was forbidden from talking to certain people and my
activities were heavily monitored. I was forced out and unemployed for
about a year before finally obtaining full-time employment.
Before fully accepting that new reality, however, I tried
everything possible to save the career I had worked so many years to
build. Once I lost my job, I thought that there MUST be laws that
protect individuals when they are discriminated against. After filing a
lawsuit in Federal court, though, I learned quickly that transgender
people weren't covered under any discrimination laws. Like the vast
majority of plaintiffs during my era, I lost. My lawsuit was summarily
dismissed.
After my COBRA ran out, I had no health insurance and wasn't able
to earn a living wage. I did what I could to juggle things including
using my 401K. Even once I obtained employment I wasn't able to catch
back up on everything that I had gotten behind on. I was working in
positions that paid substantially less than I made. I went from
financial services to part-time academia and a law practice in a region
not very welcoming for a black transgender man in mid-Missouri. It has
been well over 15 years since I lost employment and I still haven't
recovered financially. My student loans were the most impacted and more
than quadrupled since I left law school. My father is deceased but I
care for my infirm mother and my underemployment makes it extremely
difficult to do. Emotionally, I still suffer from post-traumatic stress
syndrome from the discrimination I experienced.
Many transgender Americans suffer without protection and are
subject to discriminatory practices. This is why it is extremely
imperative that ENDA be passed. There are only 16 States and the
District of Columbia that provide us protection from being
discriminated against on the job just because of who we are. In the
recent report ``Injustice at Every Turn: A Report of the National
Transgender Discrimination Survey,'' there were 6,450 transgender study
participants from across the United States. The results were staggering
across the board but particularly in the area of employment.
The report showed the following:
Transgender respondents experienced unemployment at twice
the rate of the general population with rates for transgender people of
color up to four times the national unemployment rate.
Ninety percent (90 percent) of those surveyed reported
experiencing harassment or discrimination on the job or took actions
like hiding who they are to avoid it.
Forty-seven percent (47 percent) had experienced an
adverse job outcome, such as being fired, not hired or denied a
promotion because of being transgender or gender non-conforming.
Over one-quarter (26 percent) had lost a job due to being
transgender or gender non-conforming and 50 percent were harassed.
Large majorities attempted to avoid discrimination by
hiding their gender or gender transition (71 percent) or delaying their
gender transition (57 percent).
The vast majority (78 percent) of those who transitioned
from one gender to the other reported that they felt more comfortable
at work and their job performance improved, despite high levels of
mistreatment.
Overall, 16 percent said they had been compelled to work
in the underground economy for income (such as doing sex work or
selling drugs).
Respondents who were unemployed or had lost a job due to
bias also experienced ruinous consequences such as four times the rate
of homelessness, 70 percent more current drinking or misuse of drugs to
cope with mistreatment, 85 percent more incarceration, more than double
the rate working in the underground economy, and more than double the
HIV infection rate.
These results are staggering and make the case that there needs to
be clear protection for transgender Americans who deserve the same
chance at earning a living and providing for themselves and the people
they love. It is imperative that Congress pass the Employment Non-
Discrimination Act so that transgender people like me are able to live
our lives and provide for our families without fear of discrimination.
I truly appreciate the opportunity to testify before you here
today.
Thank you.
The Chairman. Mr. Broadus, thank you very much.
I am told by my staff that you are, indeed, the first
transgendered individual to ever testify before the U.S.
Senate. I am proud of this committee. I am proud of the people
in this committee that would invite you here, and as chairman,
I thank you for being here. And I want to commend you for your
courage in being here and for being who you are because you are
going to give courage to a lot of other people. So I commend
you for that. Thank you very much for being here.
Mr. Broadus. Thank you, sir.
The Chairman. Now, let us turn to Mr. Bagenstos, and
welcome, and please proceed.
STATEMENT OF SAMUEL R. BAGENSTOS, PROFESSOR OF LAW, UNIVERSITY
OF MICHIGAN LAW SCHOOL, ANN ARBOR, MI
Mr. Bagenstos. Thank you, Chairman Harkin and members of
the committee. I appreciate the invitation to testify today in
support of this important bill.
My testimony today is based on my experience writing about,
teaching about, litigating civil rights employment
discrimination cases for most of the past 2 decades, including
two stints in the U.S. Department of Justice, most recently
from 2009 to 2011 where I did serve as the Principal Deputy
Assistant Attorney General for Civil Rights.
The Employment Non-Discrimination Act is an exceptionally
important bill. It is very much needed. It will be the logical
next step in our Nation's commitment to eradicating workplace
discrimination.
I want to talk about three things.
First, very briefly, the discrimination against lesbian,
gay, bisexual, and transgender individuals is a serious
problem, and we have heard that. Second, that the current legal
regime in the States and the Federal Government is inadequate
to deal with that problem. And third, that the Employment Non-
Discrimination Act is an appropriately tailored remedy for that
problem. And I am, of course, happy to answer any of the
committee's questions.
As to the first point, I think everything that needs to be
said, almost, about the harm, and impact, and extent of
discrimination against lesbian, gay, transgender, and bisexual
individuals has been said by the two witnesses who preceded me
on this committee, and it is very difficult to add to that. All
I will say is that at the most fundamental level, as Senator
Merkley and Chairman Harkin, you suggested, workplace
discrimination against people who are gay or lesbian, who are
bisexual or transgender violate basic American values of
equality, opportunity, and fair play. If a person can do the
job and can do it as well as, or better, than anyone else, then
an employer has no business firing that person or refusing to
hire that person simply because he or she is gay, lesbian,
bisexual, or transgender. I think that is a basic principle.
When employers discriminate against LGBT individuals, they
face a really tragic choice as we have just heard. But the cost
is not just LGBT individuals, it is to our economy. It is to
our society as a whole. That is why, I think, you are going to
hear that 87 percent of Fortune 500 companies include sexual
orientation in their antidiscrimination policies, and 41
percent, a number that has been growing steadily, include
gender identity. That is because these companies recognize that
their businesses will be more competitive when they hire all
talented individuals.
But unfortunately, despite the policies of these forward-
looking employers, discrimination against lesbian, gay,
bisexual, and transgender individuals is widespread and these
widespread harms demand a response, but the current law is
inadequate to the task. There is a patchwork of State laws that
address discrimination against lesbian, gay, and bisexual, and
sometimes transgender individuals, but those laws cover only 16
States for all LGBT individuals and 21 States for lesbian, gay,
and bisexual individuals. The gaps in their coverage are very
significant, as I talk about in my written testimony.
Although some Federal courts and the EEOC have interpreted
over the past 10 years Title VII of the Civil Rights Act as
addressing parts of this problem, the law under that statute
remains uncertain and developing. What we need is a clear
Federal prohibition of discrimination against LGBT individuals,
and that is what the Employment Non-Discrimination Act would
accomplish.
ENDA would respond to these problems by doing nothing more
than extending the sexual orientation and gender identity
discrimination, the same basic legal structure that this
country has applied for nearly 50 years, to other forms of
employment discrimination. The bill takes its operative
provisions directly from the operative revisions of title VII
and the experience that employers have developed over the past
5 decades in complying with those provisions, the case law the
courts have developed. The guidance the EEOC has provided will
inform, and guide, and ease compliance with ENDA.
One of the title VII provisions that ENDA incorporates is
one that, I know, has garnered a great deal of discussion in
the past on this committee and elsewhere, and that is the
statute's religious exemption. Section 6 of ENDA plainly states
that the statute shall not apply to an organization that is
exempt from the religious discrimination provisions of title
VII. And section 6 specifically refers to the two provisions of
title VII that create religious exemptions, section 702(a) and
703(e)(2).
Section 702(a)--these are very broad--section 702(a)
exempts any, ``Religious corporation, association, educational
institution, or society,'' in anything relating to its
activities. And section 703(e)(2) exempts any school, college,
university or other educational institution or institution of
learning that,
``Is in whole or in substantial part owned,
supported, controlled, or managed by a particular
religion, or by a particular religious corporation, et
cetera, or if the curriculum of that school is directed
toward the propagation of a particular religion.''
These exemptions have been well-settled for decades and
they have been upheld as constitutional by the Supreme Court.
This bill would incorporate those exemptions in exactly a very
clear and broad form.
The bill before this committee, as Chairman Harkin pointed
out, also contains a number of limitations that sharply
restrict the burdens it would impose on employers making it
even narrower than title VII, notably, not having any disparate
impact claims. And the bill bars quotas and other preferential
treatment which, again, narrows the burden that it will place
on employers.
I want to thank you, Chairman Harkin, and the committee,
again, for the opportunity to testify in support of this very
important bill. I very much look forward to answering the
committee's question.
[The prepared statement of Mr. Bagenstos follows:]
Prepared Statement of Samuel R. Bagenstos
Chairman Harkin, Ranking Member Enzi, and members of the committee,
thank you for inviting me to testify today in support of the Employment
Non-Discrimination Act. My name is Samuel Bagenstos. I hold an
appointment as Professor of Law at the University of Michigan Law
School. For most of the past two decades, I have taught, written about,
and litigated cases in civil rights and employment discrimination law.
From 1994 to 1997, and again from 2009 to 2011, I served in the U.S.
Department of Justice, where I most recently was the Principal Deputy
Assistant Attorney General for Civil Rights.
ENDA is an exceptionally important bill and one that is much
needed. It will be the logical next step in our Nation's commitment to
eradicating workplace discrimination. In this testimony, I will make
three essential points: first, that discrimination against lesbian,
gay, bisexual, and transgender individuals is a serious problem;
second, that the current legal regime is inadequate to respond to that
problem; and, third, that ENDA is an appropriately tailored remedy for
that problem.
discrimination against lgbt individuals is a serious problem
LGBT individuals who have experienced discrimination have testified
before this committee in the past, and the committee will hear more of
their stories today. Their testimony stands on its own and provides the
most compelling reason Congress should adopt this bill. Let me offer a
wider scale view on why discrimination against LGBT individuals is
wrong and why Congress should do something about it.
At the most fundamental level, workplace discrimination against
people who are gay or lesbian or bisexual or transgender violates the
basic American values of equal opportunity and fair play. If a person
can do the job--and can do it as well as, or better than, anyone else--
an employer has no business firing or refusing to hire that person
simply because he or she is gay, lesbian, bisexual, or transgender.
When employers discriminate against LGBT individuals, those individuals
confront a choice that can be tragic: give up job opportunities in
their chosen field--opportunities to perform jobs that they can do as
well as or better than anyone else--or try to hide who they are, at
great psychological cost and fear of discovery. An array of medical,
psychological, and social scientific evidence demonstrates that the
experience of workplace discrimination and stigma harms the mental and
even physical health of lesbian, gay, bisexual, and transgender
persons.\1\ And the testimony this committee has heard from individuals
who have experienced discrimination because of their sexual orientation
or gender identity highlights the very substantial costs that
discrimination imposes on those individuals.
---------------------------------------------------------------------------
\1\ See Jennifer C. Pizer, Brad Sears, Christy Mallory & Nan D.
Hunter, Evidence of Persistent and Pervasive Workplace Discrimination
Against LGBT People: The Need for Federal Legislation Prohibiting
Discrimination and Providing for Equal Employment Benefits, 45 Loy.
L.A. L. Rev. 715, 738-42 (2012).
---------------------------------------------------------------------------
But the cost is not just to LGBT individuals. When productive
workers are denied the opportunity to perform their jobs, all of
society loses out. In our current economic crisis, we don't have a
person to lose. This is why 87 percent of Fortune 500 companies include
sexual orientation in their nondiscrimination policies, and 41 percent
include gender identity. They recognize that their businesses will be
more competitive when they hire all talented individuals--and that, in
the words of an official at one major company, ``our people can serve
our clients best when they can be authentic in the workplace.'' \2\
---------------------------------------------------------------------------
\2\ See Williams Inst., Economic Motives For Adopting LGBT-Related
Workplace Policies, Oct. 2011, available at http://
williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-
Statements-Oct2011.pdf.
---------------------------------------------------------------------------
Unfortunately, despite the policies of forward-thinking employers
like these, discrimination against lesbian, gay, bisexual, and
transgender individuals is widespread. A review of the evidence,
published just this Spring, found, among other things, that:
1. ``LGBT people and their heterosexual coworkers consistently
report having experienced or witnessed discrimination based on sexual
orientation or gender identity in the workplace'';
2. A national survey of gays and lesbians in 2008 found that ``37
percent had experienced workplace harassment in the last 5 years, and
12 percent had lost a job because of their sexual orientation'';
3. A 2011 survey of transgender people found that 90 percent had
``experienced harassment or mistreatment at work, or had taken actions
to avoid it, and 47 percent [had] been discriminated against in hiring,
promotion, or job retention because of their gender identity'';
4. ``Numerous reports of employment discrimination against LGBT
people [appear] in court cases, State and local administrative
complaints, complaints to community-based organizations, academic
journals, newspapers and other media, and books''; and
5. ``State and local governments and courts have acknowledged that
LGBT people have faced widespread discrimination in employment.'' \3\
---------------------------------------------------------------------------
\3\ Pizer et al., supra note 1, at 721.
---------------------------------------------------------------------------
current laws are inadequate
These widespread harms demand a response. Unfortunately, current
law is inadequate to the task. Although a patchwork of State statutes
address discrimination against lesbian, gay, and bisexual--and
sometimes transgender--individuals, the gaps in their coverage are
significant. And although some Federal courts and the Equal Employment
Opportunity Commission have interpreted Title VII of the Civil Rights
Act of 1964 as addressing aspects of the problem, the law under that
statute remains uncertain and developing. A clear Federal prohibition
of workplace discrimination against LGBT individuals is needed.
Sixteen States \4\ plus the District of Columbia currently prohibit
workplace discrimination based on sexual orientation or gender
identity. Another five States \5\ prohibit workplace discrimination
based on sexual orientation but do not include any prohibition on
gender identity discrimination. But the enforcement procedures and
remedies for those statutes vary. They do not provide the clear and
strong set of remedies--crucially including access to Federal courts--
that Congress has developed for workplace discrimination over the past
five decades. And LGBT workers outside of those States enjoy no clear
State statutory protection against discrimination at all.
---------------------------------------------------------------------------
\4\ California, Colorado, Connecticut, Hawaii, Illinois, Iowa,
Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico,
Oregon, Rhode Island, Vermont, and Washington.
\5\ Delaware, Maryland, New Hampshire, New York, and Wisconsin.
---------------------------------------------------------------------------
As for title VII, a growing body of cases holds that discrimination
against LGBT individuals can, at least in some circumstances, violate
the statute's prohibitions on sex discrimination. Relying on the well-
established principle that title VII prohibits discrimination motivated
by an individual's failure to conform to sex stereotypes at work,\6\
the Sixth, Ninth, and Eleventh Circuits have allowed claims brought by
transgender individuals under the statute to proceed.\7\ In discharging
its responsibilities to adjudicate title VII claims brought by Federal
employees, the Equal Employment Opportunity Commission has recently
held that discrimination against an individual because she is
transgender violates the statute. The Commission reached that
conclusion both under a sex stereotyping theory and because
discrimination against someone because she changed her sex is a quite
direct form of discrimination because of sex (just as discrimination
against someone because she changed her religion is discrimination
because of religion).\8\ And the EEOC's Office of Federal Operations
has, on two recent occasions, concluded that a lesbian or gay
individual can challenge workplace harassment where the harassment is
motivated by the individual's failure to conform to gender
stereotypes.\9\
---------------------------------------------------------------------------
\6\ See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)
(plurality opinion) (``As for the legal relevance of sex stereotyping,
we are beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype associated with
their group, for `[i]n forbidding employers to discriminate against
individuals because of their sex, Congress intended to strike at the
entire spectrum of disparate treatment of men and women resulting from
sex stereotypes.' '') (internal quotation marks omitted; quoting Los
Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13
(1978)).
\7\ See, e.g., Glenn v. Burmby, 663 F.3d 1312 (11th Cir. 2011);
Kastl v. Maricopa County Community Coll. Dist., 325 Fed. Appx. 492 (9th
Cir. 2009); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
\8\ See Macy v. Holder, 2012 WL 1435995 (E.E.O.C., Apr. 20, 2012).
\9\ See Castello v. Donahoe, 2011 WL 6960810 (E.E.O.C. Off. of Fed.
Operations, Dec. 20, 2011); Veretto v. Donahoe, 2011 WL 2663401
(E.E.O.C. Off. of Fed. Operations, July 1, 2011).
---------------------------------------------------------------------------
But these developments are not grounds for complacency, and they do
not detract from the compelling need for Congress to enact ENDA. A
number of courts--even those that have permitted claims by some LGBT
plaintiffs to proceed--have gone to great pains to separate out those
cases that ``really'' involve sex stereotyping (and thus may proceed
under title VII) from those that ``really'' involve sexual orientation
discrimination (and thus, according to these courts, may not).\10\ The
result is uncertainty--for lesbian, gay, bisexual, and transgender
workers and for employers alike. The only way to provide clear and
certain protection for LGBT workers is to write that protection
explicitly into Federal law. That is precisely what ENDA would
accomplish.
---------------------------------------------------------------------------
\10\ See, e.g., Kalich v. AT&T Mobility, Inc.,_F.3d_, 2012 WL
1623193 at *4 (6th Cir., May 10, 2012); Vickers v. Fairfield Medical
Center, 453 F.3d 757, 762-65 (6th Cir. 2006).
---------------------------------------------------------------------------
enda is an appropriately tailored response
In responding to these problems, ENDA would do nothing more than
extend to sexual orientation and gender identity discrimination the
same basic legal structure that has applied to other forms of
employment discrimination for nearly 50 years. The bill takes its
operative provisions directly from the operative provisions of title
VII.\11\ The experience that employers have developed in complying with
those provisions over the past five decades, and the law developed
under those provisions, will necessarily inform, guide, and ease
employer compliance with ENDA.
---------------------------------------------------------------------------
\11\ Compare S. 811, 112th Cong., 1st Sess. Sec. 4(a)-(d) (2011),
with 42 U.S.C. Sec. 2000e-2(a)-(d).
---------------------------------------------------------------------------
One of the title VII provisions that ENDA incorporates deserves
more extended discussion. That is the statute's religious exemption.
Section 6 of ENDA plainly states that the statute ``shall not apply''
to an organization ``that is exempt from the religious discrimination
provisions of title VII.'' \12\ Section 6 specifically refers to the
two provisions of title VII that create religious exemptions: Section
702(a) and Section 703(e)(2).\13\ Section 702(a) exempts any
``religious corporation, association, educational institution, or
society,'' \14\ and Section 703(e)(2) exempts any ``school, college,
university, or other educational institution or institution of
learning'' that ``is, 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.'' \15\ These exemptions have been
well settled for decades, and they have been upheld as constitutional
by the Supreme Court.\16\
---------------------------------------------------------------------------
\12\ S. 811 Sec. 6.
\13\ Id.
\14\ 42 U.S.C. Sec. 2000e-1(a).
\15\ 42 U.S.C. Sec. 2000e-2(e)(2).
\16\ See Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).
---------------------------------------------------------------------------
At its 2009 hearing on ENDA, this committee heard testimony from
Mr. Craig Parshall--who is also scheduled to appear as a witness before
this committee today--that asserted that the bill's religious exemption
would not be effective.\17\ But Mr. Parshall's assertion is based on a
clear misreading of ENDA's text. Mr. Parshall testified that because
title VII exempts religious organizations only from the statute's
prohibition of religious discrimination, and not from its prohibition
of race or sex discrimination, the incorporation of title VII's
exemption in ENDA will protect religious organizations only if the
courts conclude that sexual orientation discrimination is more like
religious discrimination than like race or sex discrimination.\18\
---------------------------------------------------------------------------
\17\ See Testimony of Craig L. Parshall before the Senate Comm. on
Health, Education, Labor, and Pensions (Nov. 5, 2009).
\18\ See Id. at 4-5.
---------------------------------------------------------------------------
That is simply incorrect. Section 6 of the bill under consideration
states clearly that ``[t]his Act''--i.e., ENDA-``shall not apply'' to
an entity ``that is exempt from the religious discrimination provisions
of title VII.'' \19\ In other words, if an entity cannot be sued for
religious discrimination under title VII, it cannot be sued for sexual
orientation or gender identity discrimination under ENDA. It does not
matter whether courts conclude that sexual orientation discrimination
is more like religious discrimination or race or sex discrimination.
That question is irrelevant, because ENDA exempts any entity that is
exempt from the religious discrimination provisions of title VII. The
bill could hardly be clearer on the point.
---------------------------------------------------------------------------
\19\ S. 811 Sec. 6.
---------------------------------------------------------------------------
The bill before this committee also contains a number of
limitations that sharply restrict the burdens it would impose on
employers. Most notably, the bill provides that ``[o]nly disparate
treatment claims may be brought under this Act.'' \20\ In other words,
the statute does not provide a cause of action to challenge neutral
employer practices that merely have a disparate impact on LGBT
individuals. And the bill bars quotas and other preferential
treatment.\21\
---------------------------------------------------------------------------
\20\ Id. Sec. 4(g).
\21\ Id. Sec. 4(f).
---------------------------------------------------------------------------
Finally, I would like to add a word about ENDA's protection of
State employees. The bill would guarantee that employees of State
governments have the same protections, and are generally entitled to
the same remedies, as the employees of private employers. It would do
so in two respects. First, it would require that States waive their
sovereign immunity against ENDA suits brought by employees or
applicants for employment in their programs or activities that receive
Federal financial assistance.\22\ Second, it would abrogate all States'
sovereign immunity against suits brought for violation of the
statute.\23\
---------------------------------------------------------------------------
\22\ Id. Sec. 11(b).
\23\ Id. Sec. 11(a).
---------------------------------------------------------------------------
Both of these provisions fit well within the constitutional
requirements set by the Supreme Court. The Court has made clear that
Congress can condition Federal funds on a State's waiver of sovereign
immunity.\24\ And ENDA's abrogation of State sovereign immunity
responds to a significant history and pattern of employment
discrimination against lesbian, gay, bisexual, and transgender State
employees--discrimination that generally lacks even the ``rational
basis'' that the lowest equal protection standard of review
demands.\25\ It thus satisfies the standards the Court has set for
abrogation of State sovereign immunity.\26\
---------------------------------------------------------------------------
\24\ See College Savings Bank v. Florida Prepaid Post-Secondary Ed.
Expense Bd., 527 U.S. 666, 686-87 (1999).
\25\ For discussions of the evidence of a widespread pattern of
unconstitutional discrimination against LGBT State employees, see
Williams Inst., Evidence of Employment Discrimination on the Basis of
Sexual Orientation in State and Local Govt.: Complaints Filed With
State Enforcement Agencies 2003-2007 (July 2001), available at http://
williamsinstitute.law.ucla.edu/research/workplace/evidence-of-
employment-discrimination-on-the-basis-of-sexual-orientation-in-state-
and-local-government-complaints-filed-with-state-enforcement-agencies-
2003-2007/; Letter from Matthew A. Coles to Hons. George Miller & John
Kline (Sept. 23, 2009), available at http://www.aclu.org/lgbt/discrim/
41193leg20090923.html.
\26\ See, e.g., Tennessee v. Lane, 541 U.S. 509, 523-29 (2004);
Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 728-35 (2003).
---------------------------------------------------------------------------
conclusion
Thank you again for the opportunity to testify in support of this
important legislation. I look forward to answering the committee's
questions.
The Chairman. Thank you very much, Mr. Bagenstos.
And now, we will turn to Mr. Ken Charles from General
Mills.
STATEMENT OF KENNETH CHARLES, VICE PRESIDENT OF DIVERSITY AND
INCLUSION, GENERAL MILLS, INC., MINNEAPOLIS, MN
Mr. Charles. Good morning.
Thank you, Chairman Harkin for the opportunity to speak
today in support of the Employment Non-Discrimination Act of
2011. And thank you to the distinguished members of the
Committee on Health, Education, Labor, and Pensions.
My name is Ken Charles and I am vice president of Global
Diversity and Inclusion for General Mills. We are among the
world's largest food companies, and market some of the world's
best-loved brands including Cheerios, Green Giant, Nature
Valley, Progresso and Yoplait to name a few. We have 35,000
employees worldwide with about half of them in the United
States. We are headquartered in Minneapolis, MN where we trace
our roots back over 150 years. Last fiscal year, we had sales
approximately of $15 billion.
Our business case for diversity and inclusion is a simple
equation: diversity plus inclusion equals business value. When
you combine diversity, which we simply define as difference,
with a culture that acknowledges, respects, and values all of
our differences and similarities good things happen. We find
ourselves able to connect with our consumers, customers, and
communities. We reap new ideas and innovation, and we recruit
and retain the talent we need to win now and in the future.
We are honored to represent corporate America's support for
the passage of the Employment Non-Discrimination Act. Hundreds
of companies, including 87 percent of the Fortune 500, have
enacted protections for employees based on sexual orientation.
General Mills believes this legislation is good for
business and good for America because it will help businesses
attract and retain top talent, help provide a safe,
comfortable, and productive work environment free of any form
of discrimination or harassment, enabling our employees to
bring their full selves to work and be fully engaged as
productive employees, and help create a culture that fosters
creativity and innovation that is vital to the success of all
businesses.
We market our products to everyone. On average, U.S.
consumers are placing one of our products in their baskets
every 10 seconds, so it makes good business sense to value all
of our consumers, which we do. But it also makes good business
sense to create a workforce that represents all of the varied
consumers and their unique perspectives. We cannot win if we
only access a portion of the strong, rich, American talent
pool. It is critical that we eliminate barriers that allow an
individual's sexual orientation or gender identity to be a
consideration for employment, promotion, or compensation.
Employees who are members of the GLBT community are
incredible contributors to our enterprise. Absent their unique
perspectives, talents, and gifts, we would be less competitive
and successful; simply said, talent matters.
Now more than ever, American business needs to leverage the
ingenuity of all sectors of our Nation. Discriminatory barriers
to top talent just do not make business sense.
Respected employees are productive and engaged employees.
We strive to be an environment where every employee is
respected, valued, challenged, and rewarded for their
individual contribution and performance. Our work environment
is built on the foundation of our equal employment opportunity
policy which prohibits discrimination based on age, race,
color, religion, sex, national origin, marital status,
disability, citizenship, sexual orientation, gender identity,
military service, or other characteristic protected by law.
Sexual orientation has been part of our policy since the
early 1990s, and we added gender identity in 2004. We know our
policy, and more importantly, our company culture exemplifies
the spirit of the proposed Employee Non-Discrimination Act. In
fact, a record setting 94 percent of our employees say General
Mills provides a working environment accepting of differences
in background and lifestyle.
It is important that we speak to the impact when that is
not the case, particularly for GLBT employees. Could you be
engaged, productive, effective if you lived in fear: fear of
losing your job, being denied a promotion, being harassed or
bullied on the job? For many qualified, hardworking Americans
this is their experience because they lack the basic protection
of a consistent Federal law. Their lack of engagement is a tax
on American productivity that can be eliminated with the
passage of ENDA.
I think of a manager who reported to me. He was a recruiter
for our company and proudly displayed a picture of himself with
his partner on his desk no different from any other family
picture except that it had two gay men. Being able to share his
family portrait allowed him to bring his full self to work.
Freed from being in the closet, he could focus his full
attention on finding the best and brightest talent for our
company. I am even prouder when I see this diversity
prominently represented by all kinds of families within the
people's offices in General Mills.
Our culture of inclusion has been regularly recognized by a
variety of external groups. Just this April, General Mills was
recognized as the most reputable company in America. For many
years, we have achieved a 100 percent perfect score on the
Human Rights Campaign Corporate Equality Index which recognizes
the policies and practices that we are supportive of for GLBT
employees.
We know that providing an environment where people of
different backgrounds and lifestyles can grow and thrive is
essential to our long-term success. In our business, innovation
is the key to survival. People with diverse experiences and
backgrounds bring different and uniquely valued perspectives
and solutions. This diversity drives innovation. That
innovation fuels our growth and allows us to win in the global
marketplace. That is why we support any practice or public
policy that encourages bringing diversity to the table.
Internally, we have done several things to encourage
diversity. In the mid-1990s, we created our GLBT network,
Betty's Family named after one of our most familiar icons:
Betty Crocker. This network's mission is to create a safe,
open, and productive environment for General Mills GLBT
employees and allies. Our employees comment frequently on the
powerful impact this network has had on our ability to recruit
and retain top talent. We know this network, in addition to our
many other affinity groups, is a tangible demonstration of our
commitment to attracting, developing, and advancing every
unique employee.
We also understand that establishing a culture of respect
is a baseline for our employment standards. Beyond that, we
strive to be an employer of choice, a place where we
demonstrate support for the personal needs of our employees, to
allow them to be fully committed to their work.
In 1999, we introduced domestic partner benefits, another
demonstration that we are committed to providing equality to
all our GLBT employees in all of our employment benefits. And
we recently affirmed that we provide equal health coverage to
transgender individuals without exclusion for medically
necessary care.
In addition to promoting diversity because of the benefits
of our business, we support the ENDA legislation because we
believe it is a fundamental right of all American citizens to
be treated fairly, with respect and dignity in the workplace
regardless of their sexual orientation or gender identity.
Our support mirrors the States in which we are
headquartered, Minnesota, which is 1 of the 21 States with law
preventing discrimination on the basis of sexual orientation
and 1 of the 16 that also includes gender identity. Our company
values clearly state, ``We do the right thing all of the
time.'' We believe the Federal protection afforded to citizens
by ENDA will be both a symbolic and effective means to deliver
civil rights to all.
Mr. Chairman, thank you for the opportunity to speak to you
this morning. It is an honor to be here.
[The prepared statement of Mr. Charles follows:]
Prepared Statement of Kenneth Charles
summary
General Mills is proud to support the Employment Non-Discrimination
Act (ENDA). As one of the world's largest food companies, our success
is built on valuing our customers and our employers. The bottom line is
that respected employees are productive employees. Our work environment
is built on the foundation of our Equal Employment Opportunity policy,
which prohibits discrimination based on a variety of factors including
sexual orientation and gender identity. We support the ENDA legislation
because we believe it is a fundamental right of all American citizens
to be treated fairly, with respect and dignity in the workplace,
regardless of their sexual orientation or gender identity. We believe
Federal protection of our citizens will be a symbolic and effective
means to deliver civil rights to all. We know that providing an
environment where people of different backgrounds and lifestyles can
grow and thrive is essential to our long-term success. ENDA will be
good for business and good for America by helping businesses attract
and retain top talent, helping provide a safe, comfortable and
productive work environment, free from any form of discrimination, and
helping create a culture that fosters creativity and innovation that is
vital to the success of all businesses.
______
Thank you Chairman Harkin and Ranking Member Enzi for the
opportunity to speak today in support of the Employment Non-
Discrimination Act of 2007 (S. 811). And thank you distinguished
members of the Committee on Health, Education, Labor, and Pensions. My
name is Ken Charles and I am vice president of Global Diversity and
Inclusion at General Mills. We are among the world's largest food
companies and market some of the world's best-loved brands, including
Cheerios, Green Giant, Nature Valley, Progresso, and Yoplait, to name a
few. We have 35,000 employees worldwide with about half working in the
United States. We are headquartered in Minneapolis, MN--where we trace
our roots back over 150 years--and last fiscal year had annual sales of
close to $15 billion.
Our business case for Diversity & Inclusion is a simple equation.
Diversity plus inclusion equals business value. When you combine
diversity, which we define simply as difference, with a culture that
acknowledges, respects, and values all of our differences and
similarities, good things happen. We find ourselves able to connect
with our consumers, customers and communities. We reap new ideas and
innovation. And we recruit and retain the talent to win now and in the
future.
We are honored to represent Corporate America's support for passage
of the Employment Non-Discrimination Act (ENDA). Hundreds of companies,
including 87 percent of the Fortune 500, have enacted protections for
employees based on sexual orientation. General Mills believes this
legislation is good for business and good for America because it will:
Help businesses attract and retain top talent.
Help provide a safe, comfortable and productive work
environment, free from any form of discrimination or harassment,
enabling our employees to bring their full selves to work and be fully
engaged as productive employees.
Help create a culture that fosters the creativity and
innovation that is vital to the success of all businesses.
We market our products to everyone. On average, U.S. consumers are
placing one of our products in their baskets every 10 seconds. So it
just makes good business sense to value all of our consumers, which we
do. But it also makes good business sense to create a workforce that
represents all of the varied consumers and their unique perspectives.
We can't win if we only access a portion of the strong American talent
pool. It's critical that we eliminate barriers that allow an
individual's sexual orientation or gender identity to be a
consideration for employment, promotion or compensation.
Employees who are members of the GLBT community are incredible
contributors to our enterprise. Absent their unique perspectives,
talents, and gifts, we would be less competitive and successful. Simply
said, talent matters. Now more than ever, American business needs to
leverage the ingenuity of all sectors for our Nation. Discriminatory
barriers to top talent just don't make business sense.
Respected employees are productive and engaged employees. We strive
to be an environment where every employee is respected, valued,
challenged and rewarded for their individual contribution and
performance. Our work environment is built on the foundation of our
Equal Employment Opportunity policy, which prohibits discrimination
based on age, race, color, religion, sex, national origin, marital
status, disability, citizenship, sexual orientation, gender identity,
military service, or other characteristic protected by law. Sexual
orientation has been a part of our policy since the early 1990s and we
added gender identity in 2004.
We know our policy and, more importantly, our company culture
exemplifies the spirit of the proposed Employment Non-Discrimination
Act. In fact, a record-setting 94 percent of our employees say General
Mills provides a working environment accepting of differences in
background and lifestyle.
It's important that we speak to the impact when that's not the
case, particularly for GLBT employees. Could you be engaged,
productive, effective if you lived in fear--fear of losing your job,
being denied a promotion, being harassed or bullied on the job? For
many qualified, hardworking Americans this is their experience because
they lack the basic protection a consistent Federal law would provide.
Their lack of engagement is a tax on American productivity that can be
eliminated with the passage of ENDA.
I think of a manager that reported to me. He was a recruiter for
our company and proudly displayed a picture of himself with his partner
on his desk. No different from any other family picture except that it
had two gay men. Being able to share his family portrait allowed him to
bring his full self to work. Freed of being in the closet on the job,
he could focus his full attention on finding the best and brightest for
our company. I'm even prouder when I see this diversity prominently
represented by all kinds of family pictures displayed in peoples'
offices at General Mills.
Our culture of inclusion has been regularly recognized by a variety
of external groups. Just this April, General Mills was recognized as
the Most Reputable Company in America. For many years we have achieved
a 100 percent score on the Human Rights Campaign's Corporate Equality
Index, which recognizes the policies and practices we have that are
supportive of our GLBT employees. We have also been honored as one of
the:
100 Best Companies to Work For by Fortune magazine;
100 Best Corporate citizens by Corporate Responsibility
magazine;
10 Best Companies for Working Mothers in Working Mother
magazine; and
Top 50 Companies for Diversity by DiversityInc.
We know that providing an environment where people of different
backgrounds and lifestyles can grow and thrive is essential to our
long-term success. In our business, innovation is the key to survival.
People with diverse experiences and backgrounds bring different and
uniquely valuable perspectives and solutions. This diversity drives
innovation. That innovation fuels our growth and allows us to win in
the global marketplace. That's why we support any practice or public
policy that encourages bringing diversity to the table.
Internally, we've done several things to encourage diversity. In
the mid-1990s, we created our GLBT network, Betty's Family, named after
one of our most familiar icons--Betty Crocker. This network's mission
is to create a safe, open and productive environment for General Mills'
GLBT employees and allies. Our employees comment frequently on the
powerful impact this network has on our ability to recruit and retain
top talent. We know this network, in addition to our many other
affinity groups, is a tangible demonstration of our commitment to
attracting, developing and advancing every unique employee.
We also understand that establishing a culture of respect is a
baseline for our employment standards. Beyond that, we strive to be an
employer of choice--a place where we demonstrate support for the
personal needs of our employees to allow them to be fully committed to
their work. In 1999, we introduced Domestic Partner benefits, another
demonstration that we are committed to providing equality to our GLBT
employees in all of our employment benefits. And we recently affirmed
that we provide equal health coverage for transgender individuals
without exclusion for medically necessary care.
In addition to promoting diversity because of its benefits to our
business, we support the ENDA legislation because we believe it is a
fundamental right of all American citizens to be treated fairly, with
respect and dignity in the workplace, regardless of their sexual
orientation or gender identity. Our support mirrors the State in which
we are headquartered--Minnesota--which is one of 21 States with laws
preventing discrimination on the basis of sexual orientation and one of
16 that also includes gender identity. Our company values clearly
state, ``We do the right thing all of the time.'' We believe the
Federal protection afforded to citizens by ENDA will be both a symbolic
and effective means to deliver civil rights to all.
Thank you for the opportunity to speak to you today. I would be
happy to take any questions.
The Chairman. Thank you very much, Mr. Charles.
And now, we will turn to Mr. Craig Parshall.
Mr. Parshall.
STATEMENT OF CRAIG L. PARSHALL, SENIOR VICE PRESIDENT AND
GENERAL COUNSEL, NATIONAL RELIGIOUS BROADCASTERS ASSOCIATION,
MANASSAS, VA
Mr. Parshall. Thank you, Chairman Harkin and members of the
committee. It is a pleasure being back here again.
NRB, National Religious Broadcasters, is a non-profit
association representing, and supporting, and defending the
First Amendment interests of Christian communicators including
television, radio, and Internet broadcasters, publishing
companies, churches with a media outreach, faith-based charity,
and humanitarian organizations, as well as a number of
Christian colleges and universities.
It is my opinion that ENDA as it stands now, in the form of
Senate bill 811, would impose a substantial unconstitutional
burden on religious organizations. Furthermore, it would
interfere with their ability to effectively pursue their
missions. That is because, in my opinion, section 6, the
religious exemption that has already been referred to here, is
both textually and constitutionally insufficient. I think at
this point, a short, legal history might be in order.
In 1970, the Supreme Court recognized the importance of
exemptions for religious groups with regard to general Federal
laws, in that case, the tax code. The Supreme Court affirmed
the 501(c)3 exemption for religious groups indicating that it,
``Preserved the autonomy and freedom of religious bodies,'' and
also helped insulate those religious bodies, which are
constitutionally protected from government overreaching.
Nine years later, the Supreme Court in the NLRB case, a
case involving exemption of religious schools from the National
Labor Relations Board, cited similar First Amendment grounds to
support that crafted exemption.
Then in 1987, Corporation of Presiding Bishop v. Amos, the
Supreme Court upheld the current exemption in title VII for
religious organizations. In that case, in the context of the
fact it permitted a Mormon church to terminate a lower level
employee for purely religious grounds.
The Court noted that the group, not only the Mormon Church
in that case but all religious groups, under the First
Amendment must be left alone to define and carry out their
religious mission and that adequate--and I emphasize
``adequate''--statutory exemptions serve the purpose of
preventing courts from conducting, in their words, ``The kind
of intrusive inquiry into religious belief that the district
court engaged in, in this case.'' Those kinds of inquiries, of
course, raise excessive entanglement problems under the
Establishment Clause, and the Supreme Court noted that.
And then, of course, this year in the case of Hosanna-
Tabor, the Supreme Court in a unanimous decision, upheld the
so-called ministerial exception, which the courts of appeal
were required to develop, because title VII had failed to do
so, and so it was a matter of court-made law.
The circuit courts around the country, and then now the
U.S. Supreme Court, recognized the need for, in the context of
that case, clergy-level or minister-level employees with regard
to their termination or demotion, those actions to be protected
in terms of protecting the religious groups from later
discrimination claims by clergy, ministers, or religious
leaders at that tier of their employment.
So now we come to section 6 of Senate bill 811, which is
substantially, I think it is identically, the same as the last
go-round of ENDA in 2009. In essence, here is my objection.
No. 1, it is an apples and oranges ratcheting of Senate
bill 811 to title VII. It creates huge problems for future
courts to iron out what organizations and under what conditions
would be exempted and which ones would not. I think that kind
of uncertainty obviously raises constitutional problems. Here
is the reason I think the courts are going to have a problem.
No. 1, there is a two-tier process of applying the
religious exemption process in title VII, one that is cross-
referenced from section 6. No. 1, is it a religious
corporation, society, institutions, and so forth. Now, the
courts have noted that Congress never defined what those terms
mean. So they have had a problem applying that to what kinds of
organizations to which that exemption would apply. Are they
religious? Are they an organization? Are they a corporation?
Second of all, the second element in the religious
exemption portion of title VII requires that the religious
organization employ persons of a, ``particular religion,'' and
it is that conduct, not the organizational structure alone, but
also specific conduct relating to the employee's religion that
then triggers the exemption process.
Now, the courts have held almost uniformly, at least
recently, that transgender issues, that serial sex stereotyping
relative to homosexual claims and so forth can fall under the
definition of sex discrimination. And yet under title VII,
religious organizations except for clergy-level employees get
no protection on sex discrimination.
The possibilities of confusion of analysis by future
courts, I think, are tremendous. And the chilling effect on
religious organizations will be monumental.
Ladies and gentleman, I would suggest that we go back to
the drawing board and take a look at the cases that I have
cited for the proposition that exemptions must be clear. They
must be grounded on the First Amendment protection of religious
organizations. They must not lend themselves to confusion, and
they must give a wide berth. And in the words of the Supreme
Court in the Hosanna-Tabor case, while discrimination laws are
important, so too are the basic fundamental religious liberties
of religious organizations.
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. 811, the Employment Non-Discrimination Act of
2011 (ENDA). We oppose S. 811 because, among other reasons which I also
outline below: (1) it generally illustrates the kind of unaccommodating
approach to religious organizations that was recently rejected by a
unanimous decision of the Supreme Court; (2) the insufficient
``religious exemption'' provisions of this bill would permit a
substantial and unconstitutional burden to be placed on religious
organizations; and (3) court decisions dealing with ``gender identity''
type employment discrimination claims indicate that a legal remedy is
already available for such claims under existing title VII law, also
subsuming within them numerous ``sexual orientation'' claims as well.
NRB is an association representing the free speech interests of
Christian communicators, including television, radio and Internet
broadcasters, as well as Christian publishing companies, churches with
a media outreach, Christian broadcast 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. The comprehensive nature of the
Christian groups that we represent gives us a valuable perspective on
the religious liberty and free speech implications of S. 811.
s. 811 and the constitutional threat to religious employers
Sexual Orientation and Gender Identity Cases as a Form of ``Sex''
Discrimination: the Gutting of Religious Liberty
Discrimination laws must not infringe on the constitutionally
protected autonomy of religious organizations. Hosanna-Tabor
Evangelical Lutheran Church and School v. Equal Employment Opportunity
Commission, et al.,_U.S._, 132 S. Ct. 694, 710 (2012) (unanimous
decision, upholding the ``ministerial exception'' as a bar to title VII
employment discrimination claims, where the Supreme Court stated:
``The interest of society in the enforcement of employment
discrimination statutes is undoubtedly important. But so too is
the interest of religious groups in choosing who will preach
their beliefs, teach their faith, and carry out their
mission'').
Requiring discrimination laws to adequately protect and accommodate
the religious liberties of faith groups is not a mere legislative
prerogative: it is a constitutional mandate. Montrose Christian School
Corp. v. Carver, Montrose Christian School Corp. v. Walsh, 770 A.2d 111
(Md. Ct. App. 2001).
S. 811 is an exceedingly broad 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 those persons. Structurally it would expand upon the
scope and effect of Title VII of the Civil Rights Act of 1964 as
amended, 42 U.S.C. 2000e et seq.
The bill purports to provide, in its section title to section 6, an
``exemption'' for ``religious organizations.'' However, it does so by
incorporating the current religious exemption provisions of title VII,
an exemption scheme that would provide little actual protection for
religious groups facing sexual orientation or gender identity-based
claims. Section 6 of S. 811 provides, in part, that the ``Act shall not
apply to a corporation, association, educational institution, or
society that is exempt from the religious discrimination provisions of
title VII . . .'' (emphasis added).
Title VII currently exempts religious organizations (``a religious
corporation, association, educational institution, or society'')
regarding employment decisions impacting persons ``of a particular
religion to perform work connected with the carrying on'' of the
organization's ``activities'' (emphasis added). Thus, it is the
position taken by the employer regarding the religion of the employee
(not that person's sexual orientation or gender identity), when coupled
with the religious nature and structure of the employer, that triggers
the religious exemption protections found in title VII. As the court
stated in Petruska v. Gannon University, 462 F.3d 294, 303 (3d Circuit
2006): ``[title VII] exempts religious entities and educational
institutions from its nondiscrimination mandate to the extent that an
employment decision is based on an individual's [i.e. an employee's]
religious preferences'' (emphasis added). On the other hand, as that
court also noted, ``title VII `does not' confer upon religious
organizations the right to make those same decisions on the basis of .
. . sex . . . '' Id., citing Rayburn v. Gen'l Conf. of Seventh Day
Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985).
Thus, this question is presented: will future courts construe
``sexual orientation'' or ``gender identity'' claims under S. 811
against religious employers as primarily asserting discrimination
because of ``sex,'' or discrimination because of ``religion?'' Numerous
court decisions support the former scenario, having already determined
that gender identity claims assert discrimination based on ``sex.''
See: Smith v. City of Salem, OH, 378 F.3d 566 (6th Cir. 2004); Schwenk
v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Rosa v. Park W. Bank &
Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000); Glenn v. Brumby, 663
F.3d 1312 (11th Cir. 2011).
Recent legal developments coupled with the text of S. 811 itself
indicate that the ``gender identity'' protections of the bill could
spell particular difficulties for religious groups and would result in
a serious violation of their religious liberties, despite the
superficial insertion of the ``religious exemption'' language in
section 6. As a textual matter, the bill prohibits employment
discrimination against persons on the basis of perceived or actual
``sexual orientation or gender identity.'' It should be noted that,
while each of those two categories is separately defined in the bill,
it seems clear that the ``gender identity'' category (``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'') is worded very broadly--broad
enough in fact to subsume within it various claims of ``sexual
orientation'' discrimination also.
This conclusion that both ``gender identity'' and ``sexual
orientation'' claims are likely to be construed as a species of ``sex''
discrimination is supported by Prowel v. Wise Business Forms, Inc., 579
F.3d 285, 292 (3d Cir. 2009): ``Wise [the employer] cannot persuasively
argue that because Prowel is homosexual, he is precluded from bringing
a gender stereotyping claim'' (submitting the claim of a homosexual for
employment discrimination to a jury trial under existing title VII law
based on ``sex'' discrimination). The court also noted the ``line
between sexual orientation discrimination and discrimination `because
of sex' [the latter category having been extended to include `gender
identity' status under case law discussed below] can be difficult to
draw.'' Id. at 291.
It is also noteworthy that the court in Prowel observed that much
of the alleged harassment levied by co-workers (and endorsed by the
company) regarding the plaintiffs's effeminate conduct and mannerisms
and which included criticism of his status as a homosexual, was
religious in nature. Supra at 288 and 293. Yet the Third Circuit also
concluded that despite this, the nature of this discrimination was not
``religious discrimination'' and therefore the plaintiff had no
``religious discrimination'' claim under title VII. Even though the
plaintiff Prowel referenced allegedly discriminatory conduct expressly
connected to the religious beliefs and expressions of his co-workers,
the court concluded: `` . . . we cannot accept Prowel's de facto
invitation to hold that he was discriminated against `because of
religion' merely by virtue of his homosexuality.'' Supra at 293. This
necessarily means that if Prowel was employed by a religious
organization, and the same adverse conduct occurred after the enactment
of S. 811, the court would have found that the employer would not be
entitled to a religious exemption, because the employer could not show
that it was in fact a ``religious organization . . . exempt from the
religious discrimination provisions of title VII . . .'' regarding the
plaintiff 's claim. If no ``religious discrimination'' took place in
Prowel v. Wise Business Forms, Inc. under title VII before S. 811 is
passed, neither would ``religious discrimination'' be found to have
taken place, sufficient to invoke the ``religious exemption'' in
section 6 for an employer, after passage of S. 811. This is true,
because section 6 simply incorporates, wholesale, the existing
religious discrimination exemption scheme of title VII, and the case
law that has interpreted it. And under existing case law, religious
employers receive no protection against ``sex'' discrimination
lawsuits.\1\
---------------------------------------------------------------------------
\1\ The sole exception, of course, being those claims relating to
employment of ministers and other clergy under the ``ministerial
exception'' vindicated in Hosanna-Tabor Evangelical Lutheran Church and
School v. Equal Employment Opportunity Commission, et al.,_U.S._,
(2012).
---------------------------------------------------------------------------
Even further, on April 20, 2012, the Equal Employment Opportunity
Commission (EEOC) rendered its decision in Macy v. Holder, Appeal No.
0120120821, officially recognizing ``gender identity'' discrimination
claims by ``transgender'' individuals to qualify as ``sex''
discrimination under title VII. Thus, under title VII, except for
disputes involving ``minister'' or other clergy type positions (see nt.
1 infra), such ``sex'' discrimination claims can be prosecuted against
religious groups. Because S. 811 simply incorporates the existing
exemption scheme of title VII for religious groups, if this bill is
passed, they will have no exemption regarding ``gender identity''
employment disputes, as several court decisions, and now the
administrative decision of the EEOC, consider such claims to be a
species of ``sex'' discrimination. And many of those types of suits
will also be available for homosexual plaintiffs as well, under the
reasoning of Prowel v. Wise Business Forms, Inc., supra.
A religious organization recently faced this type of ``gender
identity'' discrimination claim under existing employment
discrimination law. A former dean and faculty member of Spring Arbor
University, an institution affiliated with the Free Methodist Church,
filed a claim based on ``sex'' discrimination because of alleged
``gender identity'' mistreatment by the university. The plaintiff, a
male, underwent gender change counseling and as a result, started
wearing women's clothing, wearing makeup and painting his nails. When
he was fired in the wake of religious objections from the Christian
school, he filed an EEOC claim.\2\ Later, the discrimination claim was
settled, with the plaintiff stating that by the terms of the settlement
he considered himself to have been ``treated with justice and fairness
. . . '' \3\ On the other hand many religious employers would probably
prefer the kind of ``justice and fairness'' that comes from adequate
legal protections from such lawsuits in the first place. And in that
regard, S. 811 would provide little solace for them.
---------------------------------------------------------------------------
\2\ Gender Change Costs Dean a Job, InsideHigherEd.com, February 6,
2007.
\3\ Spring Arbor and Transgender Dean Settle, InsideHigherEd.com,
March 14, 2007.
---------------------------------------------------------------------------
I can envision that some future courts might seek to minimize this
harsh and illogical result of section 6's ``religious exemption'' being
nullified by its own terms, through a variety of legal gymnastics, a
direct consequence of section 6 ratcheting itself into an unwieldy and
mismatched partnership with title VII's religious exemption structure.
For instance, courts might require, as an example, that a central issue
involving the religious beliefs of the employee must be present in
sexual orientation or gender identity cases before the ``religious
exemption'' protections of section 6 could be triggered to protect the
religious employer. Such reasoning could conceivably be justified by
virtue of section 6's wording that only employers who are ``exempt from
the religious discrimination'' [as opposed to sex or gender
discrimination] provisions of title VII in given cases could be exempt
under S. 811. What are the ``religious discrimination provisions'' of
title VII, then, which Section 6 of S. 811 refers to? Clearly, under
prior precedent, courts are likely to hold that this wording of Section
6 of S. 811 refers to adverse employment decisions made by an employer
because of the religion of the employee. But what if an employee of a
religious organization declares that he is a homosexual, yet maintains
that his religious opinions are otherwise consistent with the beliefs
of the religious employer except for the single issue of ``sexual
orientation? '' If he is subsequently fired, would a court find that
his discrimination claim is basically one based on ``sex,'' a position
substantiated by court decisions and the EEOC, or would the court
decide that it is fundamentally a claim about discrimination based on
the employee's ``religion? '' \4\
---------------------------------------------------------------------------
\4\ As an additional complication, a secular court's intense
scrutiny of a religious employer's beliefs on these issues would likely
run afoul of the ``excessive entanglement'' prohibitions of the
Establishment Clause. See: ``Establishment Clause'' discussion, infra.
---------------------------------------------------------------------------
The uncertainty and complexity presented by this one scenario
illustrates the burden imposed on the religious liberties of religious
employers. After all, First Amendment rights of religious organizations
can be fatally chilled when those groups must guess at how courts will
construe their religious activities. ``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 [to be] religious.'' Corporation of the Presiding
Bishop v. Amos, 483 U.S. 327, 336 (1987).
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,
531-32 (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 principle
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 speculate as whether they are
sufficiently ``religious'' either in their structure or in their
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.
811 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. 811, 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. 811 (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. 811 creates another
world of uncertainty for religious organizations.
One added concern is that Section 6 of S. 811, through its
wholesale adoption by cross-reference to the title VII religious
exemption scheme, has also incorporated title VII's separate exemption
provision for religious schools. Regarding religious schools that do
not otherwise qualify, that exemption applies where the school can show
that its 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 than under the principles of the Dale
case. This conclusion is buttressed by the decision in Hosanna-Tabor,
supra:
The EEOC and Perich [the plaintiff] thus see no need--and no
basis--for a special rule for ministers grounded in the
Religion Clauses themselves. We find this position untenable.
The right to freedom of association is a right enjoyed by
religious and secular groups alike. It follows under the EEOC's
and Perich's view that the First Amendment analysis should be
the same, whether the association in question is the Lutheran
Church, a labor union, or a social club. . . . That result is
hard to square with the text of the First Amendment itself,
which gives special solicitude to the rights of religious
organizations.
Hosanna-Tabor, 132 S. Ct. 694, at 706. Private religious employers,
like private associations, must be given the right to reject members or
staff whose opinions would conflict with the religious organization's
declared mission and beliefs. A religious group has ``the autonomy to
choose the content of [its] own message.'' Hurley v. Irish-American
Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995).
sec. 6 adopts a pattern of inconsistent court decisions
By bootstrapping title VII's religious exemption language into Sec.
6, the ENDA bill, S. 811, 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. 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 (3d 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 a 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 more secular leadership which was then 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 was 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 3d Circuit has
not. Id.
The chances that the religious exemption in Sec. 6 of S. 811 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 public policy regarding discrimination). In Bob
Jones University the Supreme Court could only muster a meager reference
to the 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. 811. See also Swanner v. Anchorage Equal Rights
Commission,_U.S._, 115 S. Ct. 460 (1994) (Thomas, J., dissenting) where
the Supreme Court denied certiorari and declined the chance to
vindicate the rights of a landlord who had been 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. 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).
NRB's membership includes numerous 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 the exemption language of S. 811. We can add
to that list other for-profit groups whose mission is distinctly
Christian in nature but who will be denied exemption: Christian
publishers, religious media consulting groups and agencies, food
vendors who work exclusively with Christian schools, Christian-oriented
bookstores, adoption agencies, counseling centers, and drug rehab
facilities.
confusion regarding the f.c.c.'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''), paragraphs 50, 128.
Would S. 811 supersede the regulations of the F.C.C 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. F.C.C., 498 F. 2d 51, 53 (D.C. Cir. 1974)
(F.C.C. 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
F.C.C.''). Nothing in the language of S. 811 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 F.C.C.'s definition of a ``religious broadcaster?'' The F.C.C.
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. 811 exponentially increases the uncertainty regarding
which law applies. Furthermore, would ``gender identity'' protections
under S. 811 be viewed as the same, or different from the requirement
imposed by the F.C.C. 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 currently protected
without s. 811
S. 811 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). However, S. 811 appears to ignore
the fact that remedies already exist in Federal employment law. In
addition to the new rule pronouncement by the EEOC in Macy v. Holder,
courts have construed title VII to provide ``gender stereotyping''
discrimination protection for homosexuals or persons of non-
heterosexual gender identity under existing ``sex discrimination''
provisions. Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3d
Cir. 2009); Smith v. City of Salem, OH, 378 F.3d 566 (6th Cir. 2004);
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Rosa v. Park W.
Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000); Glenn v.
Brumby, 663 F.3d 1312 (11th Cir. 2011).
conclusion
S. 811 is the result of a public debate over legal protections for
sexual orientation and gender identity. But when we consider the sweep
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.'' \5\
---------------------------------------------------------------------------
\5\ 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 of Independence 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 must rally 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.'' \6\
---------------------------------------------------------------------------
\6\ ``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, IL.: Southern
Illinois University Press 1990), page 147.
S. 811 represents 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 advanced. If that happens
here, it would mean 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, Mr. Parshall.
We will start a round of 5 minute questions for our
witnesses. First, I want to start with Mr. Broadus. We have
heard statistics regarding the high level of discrimination
that gay, lesbian, and transgender Americans face. Again, I
want to thank you for coming here today, sharing your personal
experiences, putting a human face on this. We must always
remember that behind these statistics are real people like you
that, unfortunately, are too often not being judged by
qualifications and skills, but by who you are. I have to
imagine that your personal story is not unique through your
work with the Coalition.
Can you tell us about encountering others who similarly
have found themselves victims of discrimination with no legal
recourse?
Mr. Broadus. Thank you, Mr. Chairman.
And yes, I can. I get calls every single day of transgender
Americans that are unemployed that have been discriminated
against in the workplace. One of the most recent is a young
woman who finally gets the job after being pushed around for
several months. They keep her in the back. She is fine with
that. She wants a job. Then she gets promoted, she is a good
employee, by the general manager who had not seen her yet. Then
he comes and she is immediately terminated once he sees her
because he does not fit her expectation of what a female should
look like.
Others are people that are harassed daily from not being
able to use the bathroom in the workplace, to being harassed by
what they look like, what they do not look like, having
coworkers with epithets at them constantly, having supervisors
that affirm those epithets. And it is horrendous to hear the
stories that I hear on a daily basis of what people suffer and
encounter to be employed to maintain a living for themselves
and their family. So those are just a couple of the examples
that are out there.
But it is overwhelming that these claims I hear every
single day by somebody. And it does not matter where they live,
it does not have to be mid-Missouri, I hear from people all
over the United States.
The Chairman. Well Mr. Broadus, again, thank you for being
here.
Earlier versions of ENDA did not include transgender
individuals. This one does and I think we have become more
aware that there is a gross discrimination against transgender
people in our country.
I thank you for coming here and adding some more
information that we need as a committee.
Miss Badgett, Dr. Badgett, I want to ask you. One of the
suggestions of the critics of ENDA suggests that there will be
a flood of litigation if this bill is adopted. But you said in
your testimony that lawsuits had about the same frequency as
others.
Could you just expand on that a little bit more?
Ms. Badgett. Yes, we are able to see that the numbers of
complaints are actually quite low when you compare the sexual
orientation complaints to the race and gender, the race and
sex, and disability complaints, and other complaints by other
protected groups in the States that include sexual orientation
in their non-discrimination laws. And so right off the bat,
just those raw numbers suggest that there are not going to be
large numbers of complaints.
And yet, once we adjust them for the size of those
populations, and I said as I recall, about 5 people per 10,000
lesbian, gay, and bisexual people in a given State would file a
complaint, on average, each year. If we looked at women in
those States, it was also about 5 per 10,000 women. If we
looked at people of color, it was about 6.5 per person of color
in those States.
There are very similar rates to suggest that discrimination
is an across the board phenomenon still, and that is why we
have to have laws like this to give people recourse. And as
suggested, LGBT people are as vulnerable as many of those other
protected groups, and yet, it is not a flood of complaints. It
is a number that you would expect, given the size of the
lesbian, gay, and bisexual, and if we include transgender
people, the population size is relatively small, so the numbers
of complaints will not be huge.
The Chairman. Very good.
Last, Mr. Charles, critics complain that passage of this
bill will lead to costly accommodations or, as I said, needless
litigation. Now your company has been operating under a policy
for years, and in the State of Minnesota with a strong
antidiscrimination law.
What has been your experience about costly accommodations
and needless litigation with General Mills?
Mr. Charles. Mr. Chairman, that has not been our experience
at all. As you have mentioned, we are from a State that has
provided protection, both based on sexual orientation and
gender identity, for a number of years. We have not seen
significant litigation or had to invest in significant
accommodations.
The tools of human resources are very simple:
communication, preparation and with those, we have been able to
align our personnel so that all of our employees can be
respected and valued.
The Chairman. Thank you, Mr. Charles. My time is up.
I have in order: Senator Merkley, Senator Franken, Senator
Bennet, and Senator Casey.
Senator Merkley.
Senator Merkley. Thank you very much, Mr. Chairman. Thank
you to all of you for your testimony.
Miss Badgett, the Chair raised a question about the
frequency of lawsuits, and I think you responded to that with
the national perspective. In Oregon, we have about 2,000 cases
a year related to employment discrimination. Of those, an
average of about 40, so basically 1 out of 50, have been
transgender or sexual identity most of them related to male-
female, if you will, race and so forth.
Does that 1 out of 50 fall into about the same category
that you were referring to or slightly different?
Ms. Badgett. Thank you. It does sound very proportional.
Doing math in front of members of the Senate is always a tricky
thing. But thinking about the size of the LGB population, that
is more or less what you would expect to see, I think. That
definitely would fall into the range that we found in our
study.
Senator Merkley. Thank you very much. And I must say, I
have not heard any businesses come back to the State
legislature or come back to those of us who were involved at
the time in expressing a concern that this created a flood of
lawsuits because it has not been found.
Professor Bagenstos, you have years of experience with
employment law both as a senior member of the Justice
Department Civil Rights Division and as an academic.
Can you re-state, if you will, your understanding about
whether it is necessary to pass ENDA in order to effectively
counter discrimination in the workplace?
Mr. Bagenstos. I think it absolutely is. At the moment,
there is no clear Federal remedy for the very extensive
discrimination against lesbians, gays, bisexual, and
transgender individuals in the workplace. And in most States in
the Union, there is no State remedy either.
So it is absolutely necessary to pass this law, and all
this law would do, would be to add sexual orientation and
gender identity to the bases of non-discrimination in our well-
established workplace discrimination laws.
Senator Merkley. There are some who have criticized ENDA
saying that it would force businesses to create a quota system
in order to, if you will, protect themselves. We have not seen
that in Oregon, that concern did not materialize.
But as you look out, in terms of the national experience,
would ENDA require employers to set up a quota system for the
LGBT community or otherwise implement affirmative action
policies?
Mr. Bagenstos. Not only would ENDA not require it or
encourage it, it actually prohibits employers from establishing
quotas. There is a specific provision in the statute that would
do that.
Senator Merkley. Thank you very much.
Mr. Broadus, thank you for your testimony. This is very
important to have direct experience from the frontline.
One of the individuals who helped illuminate this issue in
Oregon is a woman, Laura Calvo, who was a transgender person
who hid her identity to keep her job with the sheriff 's
department. For 15 years, she worked for the sheriff 's
department. At one point, she was named Deputy of the Year. She
loved this job, but when she stopped hiding her transgender
identity, she was fired. The challenges she went through were
very much like the ones you described, and I think this story
is repeated across the country.
Is it fair to say that the results of discrimination have a
very direct and substantial impact on one's pursuit of life,
liberty, and the pursuit of happiness, if you will?
Mr. Broadus. Thank you, Senator.
And yes, I totally agree. People lose their career. It is
over once people find out you are transgender, if you choose
not to hide it. It also, if you choose to hide, it limits your
productivity as Mr. Charles indicated before, because you are
so fixated on pretending to be somebody that you are not. And
then the lasting longevity of the emotional scars if you suffer
the discrimination in the workplace, as well as the economic
scars, which I still extremely struggle with, are just
phenomenal.
One of my things that I share with people is that my
student loan debt has quadrupled since I have left school
because of the unemployment and the underemployment. And I sit
here, almost a 50-year-old man wondering what I am going to do,
and other people are in a much worse position than I.
Senator Merkley. Thank you.
The Chairman. I want to followup on that student loan
issue.
Senator Franken. Do you want to do it now?
The Chairman. Senator Franken, no that is OK. Go ahead,
Senator Franken.
Statement of Senator Franken
Senator Franken. Thank you, Mr. Chairman, for holding
today's hearing on this issue that affects so many Americans. I
want to thank all the witnesses for your testimony today.
Because I feel so strongly about ENDA, I end up having
conversations about it pretty regularly. People are often
surprised to learn that Minnesota passed a law in 1993 that
adds protections based on sexual orientation and gender
identity to our human rights act. It was the first law of its
kind in our Nation.
Since then, many States have followed suit, so all of us
who live in those States, Iowa where the Chairman lives, and
Oregon where Senator Merkley lives, Rhode Island, Colorado,
Connecticut, Washington, Vermont, I think we can all personally
attest that in our States the sky has not fallen. In fact, at
least in Minnesota, our State is basically the same as it was
before this law was passed in one small exception. About 20 or
so people per year exercise their rights under this law. That
is it. That is all; 20.
We still have many Fortune 500 companies based in our State
like General Mills. I think actually more per capita than any
other State. Most Minnesotans still go to church. We are still
all entitled to our own personal opinion, but LGBT workers are
protected from discrimination at work.
We can extend these common sense protections to all workers
by passing ENDA. So again, thank you, Mr. Chairman, for this
critical hearing.
Mr. Charles, thank you so much for being here today, for
your testimony. As I mentioned earlier, I am very proud of
Minnesota and our legacy of providing protections to LGBT
workers.
Critics of ENDA allege that this legislation will raise the
lawsuit costs or cause accommodation issues for businesses. I
know that Senator Merkley asked you this, but this has not been
an issue for General Mills, has it?
Mr. Charles. Not at all. Again, it has absolutely not been
an issue for us.
Frequently we talk about the cost of this legislation in
terms of accommodations and potential litigation. There is a
real cost that all U.S. companies are paying right now in terms
of loss of engagement when employees are in fear, loss of
productivity when they cannot concentrate on bringing their
whole self to their work every day, and loss of talent because
of these artificial barriers to entry.
It is our opinion that these are not in the best interest
of General Mills, the companies in Minnesota, or the companies
across the United States.
Senator Franken. Let me go to Professor Bagenstos or
Professor Badgett on exactly that.
Is either of you familiar with the working paper by Peter,
I think it is, Klenow and his colleagues called, ``The
Allocation of Talent?'' In it, a group of economists describe
their research and the surprising finding. Between 1960 and
2008, between 17 and 20 percent of U.S. economic growth could
be attributed to gains made from women and people of color
entering professional occupations, and making better use of
their talent. That is pretty stunning that workplace
discrimination could have such a significant impact on our
economy. The researchers cautioned that this is just a rough
estimate, so we will keep that in mind.
But would you expect that a parallel economic argument
could be made in regard to workplace discrimination based on
sexual orientation and gender identity? This is for either of
you.
Ms. Badgett. That is always a dangerous thing.
Yes, I do believe that the same kind of effect that we have
seen in terms of our other sort of commitments to non-
discrimination, the contributions they have made to the economy
have been real, and I think we would see the same kinds of
things happening.
I mean, just taking Mr. Broadus' experience as an example
of the difference that that can make. The fear, the need to
manage one's stigmatized identity as a lesbian, gay, bisexual,
or transgender person takes away from the work that people
could be doing to better understand the work, how to do the
work that they do, how to work with the people that they work
with, as opposed to hiding.
So we know that there are many LGBT people today who still
are not out to many of their coworkers, and the fact that they
are----
Senator Franken. It is what Mr. Charles said about bringing
your full self to work.
Ms. Badgett. Yes, yes. So that it remains an issue and we
know that that is affected by having a non-discrimination
policy where employees feel more comfortable, they are more
likely to be who they are to be out as LGBT people, and people
who are out are more satisfied with their jobs. They have lower
levels of anxiety. They are less likely to be thinking about
leaving their job, and all of those have a tremendous economic
effect.
Just to take the turn over example, there are many studies
that will also give you a range of estimates as to how much it
costs when you lose a worker that you have trained, but they
are all in the tens of thousands of dollars. So losing a single
employee because they are LGBT, and not comfortable in the
workplace, and have other options is something that will
definitely cost companies money.
Senator Franken. My time is up. I had wanted to ask Mr.
Bagenstos and Mr. Parshall to sort of reconcile their
differences. It probably would not have happened within----
Mr. Parshall. You never know, Senator.
Senator Franken [continuing]. The 3 seconds I thought I
had. I do have to go to the Judiciary Committee, but I will do
that on paper. The record will be open for another week, as I
understand it. But I want to thank you all for your testimony
on this very important issue.
Thank you, Mr. Chairman for holding this.
The Chairman. Thank you.
Senator Franken. Thank you.
The Chairman. I guess I was surprised to learn you were a
Cheerios person. I thought you were more of a Lucky Charms kind
of guy.
[Laughter.]
I did not know that.
Senator Franken. I am not Irish. I am Jewish, and we are
famous for loving Cheerios.
[Laughter.]
The Chairman. We are joined by Senator Murray, also a co-
sponsor of the bill.
Senator Murray.
Statement of Senator Murray
Senator Murray. Thank you very much, Chairman Harkin.
I also want to thank all of our witnesses who are here
today to talk about this very important issue.
I really believe that all Americans deserve to feel secure
in their workplace, and discrimination based on sexual
orientation or gender identity should not be tolerated in this
country. There are currently 16 States, including my home State
of Washington, that have active statutes that prohibit
discrimination, and as we know, another 5 States bar
discrimination on the basis of sexual orientation alone.
I am really proud to say that back in 2006, our Washington
State legislature enacted a bill called Washington Law Against
Discrimination that added protection from discrimination based
on sexual orientation and gender identity to our State's civil
rights laws. And it was a giant step forward for the civil
rights of Washington State workers.
These State laws do provide important protections and
should be commended, but employers in a majority of States can
still fire, refuse to hire, or otherwise discriminate against
individuals because of their sexual orientation or gender
identity. Sadly, this discrimination is happening in workplaces
across our country and we have heard some of the stories from
the panel today. It really is time to put a stop to this kind
of discrimination once and for all, because it is unacceptable.
I am very proud that I am an original co-sponsor of this
important legislation that will demand that employers evaluate
the performance of an employee on the basis of their work, not
on their sexual orientation.
This legislation has bipartisan support. There is no reason
it cannot be passed quickly through our committee. We need to
work together, I believe, to strengthen protections for our
workers and ensure an environment of equality at workplaces in
America.
I really appreciate you having this hearing today, and I
want to thank all of our witnesses who are here. I did have a
couple of questions I wanted to ask.
Mr. Charles, I wanted to ask you, you and others have
testified that nearly 90 percent of Fortune 500 companies
include sexual orientation in their non-discrimination
policies, and 50 percent also include gender identity.
As a representative of one of those companies, can you
comment on why it is important for employers like General Mills
to have inclusive workplace policies? Is it good for business?
Mr. Charles. Thank you, Senator.
As I have said before, it is absolutely critical that
employees are able to bring their full self to work every day.
It has been our experience that when employees can be their
genuine, authentic selves, their engagement, their
productivity, and the innovation that they bring to the table
is significantly increased. That allows our organizations to
grow and thrive. It is the bedrock of our success. Talent is
the key to everything that we do and we believe that ENDA will
unleash the potential of thousands and millions of employees to
be able to be their full selves.
Senator Murray. I appreciate that. And do you think General
Mills' model could be replicated by other companies?
Mr. Charles. Absolutely. We already live in a place where
87 percent of the Fortune 500 are providing appropriate
protections. We believe that companies that do provide those
protections outperform those that do not.
While we recognize that we are large organizations, we
believe that this is a model that can be replicated throughout
corporate America regardless of the size of the business. It is
as simple as talking to your employees, talking to other
companies that have already gone down the road, and leveraging
experts like HRC to provide guidance and insight on how to
effectively introduce this sort of thing into your workplace.
Senator Murray. Very good. I appreciate that very much.
Mr. Broadus, I wanted to ask you. I have heard from many
transgender constituents who have had similar experiences to
yours. One constituent in particular was fired from her job
after 29 years for what she believed was largely due to her
transition from a male to a female.
I wanted to ask you today what your experience has been,
what effect your experience has had on you both financially and
emotionally.
Mr. Broadus. It has been extremely tolling and it is still
very emotional for me to talk about this issue in a personal
way. I suffer posttraumatic stress. I lost an extremely well
paying position and career, and have never been able to recover
financially as well. I mentioned earlier, my student loan debt
has quadrupled, and it is unbelievable.
I would have never fathomed in my whole life growing up
where I grew up and believed that you just work hard, you go to
work every day, you do the right thing, and the rest will
follow that my life would have ended up this way because I was
a stellar employee. I still have all my job reviews in my
garage in a box because it was so demoralizing and dehumanizing
to be let go.
I mean, for 7\3/4\ years, I was a great and stellar
employee, and then once I announced, which was already what was
visible to the rest of the world because I was just being me,
it ended very rapidly. And overnight, I became a lazy,
shiftless, all these sorts of things just literally overnight
once announcing transition and it was a quick break to the end
at that point. I know many others that suffer the same thing,
and it will go with me to my grave.
Senator Murray. Well, thank you very much for your courage
both in going through what you have gone through, but also
sharing it with everybody else, and giving us a face to
identify with what is really an important issue in this country
today. It's important to make sure that every person in this
country has the ability to live up to their potential. It is
better for our economy, it is better for our businesses, it is
better for our country. So thank you very much for your
courage.
Mr. Broadus. Senator, thank you.
Senator Murray. Absolutely.
And thank you, Mr. Chairman. I hope we can move this bill
expeditiously.
The Chairman. I hope so. Thank you, Senator Murray.
I would, at this point, want to insert into the record a
letter that we received just today from nearly 90 corporations
supporting this bill, S. 811; 90 different corporations that
are listed here. I just want you to know that General Mills is
on the list, OK.
[Laughter.]
But companies all over America that everyone would
recognize. So I ask consent that that be inserted in the
record.
[The information referred to may be found in Additional
Material.]
The Chairman. I also want to followup a little bit on what
Senator Franken said about, not Minnesota, Iowa in 2007, 14
years later after Minnesota; I hate to admit that. But in 2007,
we passed our employment discrimination on the basis of sexual
orientation or gender identity for all businesses with four or
more employees.
Prior to the passage of the law, several cities, several
major employers had already had company policies protecting
gay, lesbians, and transgendered employees from discrimination.
But the point I want to make, Professor Badgett, is that Iowa
shows the concerns regarding ENDA are not borne out by actual
experience.
For example, one of the complaints is, as I raised earlier,
about costly litigation and extensive litigation. In fact last
year, of 1,539 total employment discrimination complaints to
the Iowa Civil Rights Commission only 74, 4.8 percent were
based on sexual orientation, and only 14, 0.9 percent were
based on gender identity. Again, not an explosion of lawsuits
based upon a law that we just passed in 2007.
So I think, again, that bears out that there is this idea
that there is going to be an explosion of litigation just is
not borne out by our experience in Iowa.
Mr. Bagenstos, let us get to this issue before we adjourn
here. There have been, recently, several successful suits
holding that, for example, discrimination based on gender
identity is actionable under Title VII of the Civil Rights Act
of 1964.
What do you say to those who say that title VII is enough
to address the problem and ENDA is not necessary? Second, ENDA
has a very broad religious exemption based on the exemption
that exists in title VII, yet we have heard the criticism that
this bill is an attack on religious liberties. Do you think
religious liberty of religious organizations is at risk under
this bill?
Mr. Bagenstos. Thank you. Let me answer as to whether title
VII is enough to address these problems first, and I think the
answer to that is clearly no.
There is some case law in some circuits that applies title
VII under a sex stereotyping theory to certain cases involving
LGBT individuals. But as you also see in the circuits that have
applied that case law, the courts work very hard to draw a line
between discrimination that is based on sex stereotypes versus
discrimination that is based on sexual orientation or gender
identity. They say the first kind is in. It is covered under
title VII. The second kind is out. This leads to a great deal
of uncertainty.
This means that even in some of the circuit courts where
LGBT plaintiffs have won some cases and they end up losing
others. And, of course, in most of the circuits, they have not
moved forward even to that extent.
So there is a need for a comprehensive, clear, Federal
standard that applies across the country.
As to the religious exemption, the religious exemption in
this bill, I think it is very important to respond to Mr.
Parshall here, because he does accurately describe at least the
stages of the analysis under title VII. He says there are two
stages of the analysis under title VII.
First, is this entity the kind of entity that gets the
religious exemption? And second, is the discrimination at issue
discrimination based on religion?
But under ENDA, under section 6 of the bill before this
committee, there is only one stage, the first stage of that
analysis, and that is why none of the problems with respect
that Mr. Parshall is identifying are really problems with this
bill.
Under ENDA as it appears before this committee, the only
question is: is this entity the kind of religious institution
that would get an exemption from discrimination on the basis of
religion under title VII? Once we decide that this is a
religious corporation, a religious association, educational
institution, or society, for example, that is the end of the
matter. That institution gets an exemption under ENDA, period,
from discrimination on the basis of gender identity or sexual
orientation.
Now, there is a very, very extensive body of case law
determining what is a religious corporation, association,
educational institution, or society. What are the organizations
that are covered by title VII's religious exemption? Like any
legal test, you know, there are sometimes cases at the edges,
but employers have over 40 years of case law to enable them to
understand what is covered and what is not covered here. And
there is no particular reason to believe that under ENDA, there
would be any difficulty in understanding what the scope of the
application of that exemption will be.
Mr. Parshall. Mr. Chairman, may I respond? Thank you.
The Chairman. Yes, in fact, I was going to turn to you for
response on this. Mr. Parshall.
Mr. Parshall. I think we are down, and I am glad to hear
that we are down to what, I think, is the analytical--of the
difference, in my opinion, from Professor Bagenstos.
And that is that he believes that at least the intent and
perhaps the letter of the exemption applies just to prong No.
1, which is, what type of organization is it in terms of its
religious structure? And that is it. Once you analyze that
under title VII, then you are either in or you are out.
The reason that I think that that is not an appropriate
evaluation of the way that section 6 would really work in the
real world is because if you look at section 6, it says, ``This
Act will not apply to those organizations, religious
corporations,'' and so forth, ``That are exempted from the
religious discrimination provisions.''
In order to be exempted from religious discrimination
provisions, you must have both prongs, not one. And the second
prong is the problem prong because it deals with a decision by
a religious employer about the religion of the employee. Now,
there is a case cited in my written testimony, Prowel v. Wise
Business Forms case 2009. It was relatively recent involving an
employee who was homosexual and he was criticized. The claim
was a sex stereotyping claim because he did not really declare
himself to be homosexual until later.
But he was criticized as an apparent or perceived
homosexual and the objections he cites are predominantly
religious. But the Third Circuit looked at it and said, ``This
is not a case of religious discrimination. It is a case of sex
discrimination.'' And that is what I am afraid will happen with
the courts as they try to parse and apply section 6.
Mr. Bagenstos. Mr. Chairman, might I reply.
The Chairman. Well, we are getting in this. Mr. Bagenstos
for your reply and then Mr. Parshall, and then we will end it
there. OK. This could go on forever.
Mr. Bagenstos. We could go on for a long time, I see, so
let me just try to be very brief.
So what section 6 says is, ``This Act shall not apply to a
corporation, association,'' et cetera, ``That is exempt from
the religious discrimination provisions of title VII.''
The Chairman. That is right.
Mr. Bagenstos. If it is the kind of corporation,
association, educational institution, or institution of
learning that is exempt from the religious discrimination
provisions of title VII by this text, it is exempt from the
sexual orientation and gender identity prohibitions of ENDA,
period. There is nothing in here that says, ``You have to
decide whether discrimination on the basis of sexual
orientation is religion or is sex.''
The whole point of this statute is to avoid that question.
That was the very first part, Mr. Chairman, of your question to
me. Under title VII, the only way that people who are LGBT are
protected is by bringing claims under sex discrimination. But
this statute would avoid that. This statute is purely a
separate cause of action for gender identity and sexual
orientation discrimination, and it would exempt--and there are
people, the ACLU, for example, has criticized the breadth of
this exemption--it would exempt any institution that is covered
by the religious exemption to title VII. Period.
The Chairman. Mr. Parshall.
Mr. Parshall. Thank you, Chairman.
If we go to the real world and we postulate a scenario
where, let us say, you have a Christian bookstore, a large one
so it comes within title VII. And you have an employee who has
just been hired and then a month after he comes in, and he was
hired as a man and he comes in dressed as a woman. He says,
``Look, I am in a gender transition.'' And the owner of the
Christian bookstore, I am going to say it is a for-profit, but
it is a Christian bookstore says, ``Well, I am sorry. That is
inconsistent with our religious beliefs,'' and the person is
terminated, and they bring a claim under Senate bill 811. What
would happen?
The employee would come in and say, ``Look, when I signed
on, I agreed with your mission statement.'' You know, ``All the
basics of the Christian faith, who Jesus Christ was, who died
for our sins. I believe in Him,'' and so forth. ``It is just
that you and I differ on this issue of gender identity. That is
all.'' And the employer says, ``Well, this is a substantial
burden on us.''
He goes to a court, and the judge has to now decide: is
this a case of religious discrimination in which I agree, then
in that situation, the Christian bookstore would get a pass. Or
is it a case of sex discrimination in which case they would not
get a pass.
And let me also say, if it is a for-profit bookstore, they
probably will not get any kind of a pass because in the way in
which the courts have treated for-profit as opposed to non-
profit religious organizations, so.
Thank you, Chairman.
The Chairman. I am resisting the urge to jump into this----
[Laughter.]
The Chairman [continuing]. As a lawyer, but these debates
can go on. I think this is a very technical part of the bill.
This is technical, and there are always these kinds of
technical aspects of legislation.
I do not know if Mr. Merkley, you are one of the authors of
this bill, the sponsor of it. I would ask if you have any view
on this yourself, since you are the lead sponsor on this. If
you want to address yourself to it, if not that is fine. We
will move on.
Senator Merkley. Mr. Chair, I think, the perspective Mr.
Bagenstos has presented is very much in line with all of the
legal efforts to create significant and broad exemptions for
these organizations.
The Chairman. Then, let us go. I have then, since we were
talking about it, I do have a letter for the record now, at
this point, from a large number, I do not know exactly how
many, religious organizations in support of S. 811. I will ask
that it be put in the record at this point also.
[The information referred to may be found in Additional
Material.]
Senator Merkley, you are recognized.
Senator Merkley. Thank you, Mr. Chair.
Thirty-seven religious organizations on that list, and
thank you for putting it into the record.
I would like to also enter in the record a list of non-
profit organizations. Let us see, 88 non-profit organizations
that have sent a letter to us in support of the ENDA bill. And
this is titled, ``Co-sponsor, the Employment Non-Discrimination
Act, letter from the Leadership Conference on Civil and Human
Rights.''
[The information referred to may be found in Additional
Material.]
Senator Merkley. Mr. Parshall, when Oregon was wrestling
with its non-discrimination act which, by the way, was much
broader than employment applied to all retail activity,
housing, restaurants, services of every kind. We wrestled with
defining the boundaries of religious exemption. It seems to
have worked very well in that I have never heard a single
complaint in the 5 years since.
Have you taken a look at Oregon's religious exemption and
the kind of experience on the ground, or in any other States
that have been essentially down this path already?
Mr. Parshall. Specifically, I have not with regard to
Oregon.
My experience has been that well-intentioned discrimination
laws are often passed without understanding the difficulty that
the courts often complain about when they step into areas of
religion, because on the one hand, the judge is handicapped
from going into areas of religious belief by the Establishment
Clause. On the other hand, sometimes they are required to do so
because it is the language of the exemption.
Thinking of a situation I had in a case up in Maryland
involving a Christian school where the county passed an
ordinance that was broader than the State that had not
adequately provided protection for the Christian school, and
they were sued. Had to go to the supreme court version of the
court system there in Maryland, the court of appeals, to get
redress. And they did establish the free exercise of religion
rights at the school, only after 3 or 4 years of litigation.
So it is important, I think, to realize what a difficult
area this is. And I will look at Oregon's because I am
intrigued by the history that you recount. Thanks, Senator.
Senator Merkley. You are welcome.
Mr. Bagenstos, have you had the opportunity to look at any
of the individual States that have wrestled with this challenge
of identifying the religious exemption? Are there any insights
to be gained from those States' experiences?
Mr. Bagenstos. I think there are insights to be gained from
those States' experiences. I had because in the previous
hearing on this bill 2 years ago because you, Senator, had
referred to the discussions about the religious exemption in
Oregon, I had looked into that in particular. And my sense of
the experience is as an academic looking at it, sort of diving
in, is very much as your sense as a public official in the
State of Oregon that there really has not been the kind of
problem in implementing it, and I think we see that elsewhere.
I think in this bill in particular, the real advantage is
this bill simply incorporates a religious exemption that has
been upheld as constitutional by the Supreme Court, so we know
that the constitutional lines that Mr. Parshall is talking
about drawing, have already been drawn appropriately, and it
has several decades of experience behind it. We know the basic
parameters of the religious exemption here. This is not
something where we are going to have to create 4 years of
litigation in order to figure out what it means. It is clear
what it means. And I think that is a real advantage that we can
get in a Federal law may be over a State law.
Senator Merkley. Thank you. You mentioned that the ACLU has
been concerned about this being too broad.
Do you want to expand on that some?
Mr. Bagenstos. I think you could probably talk to someone
from the ACLU about what exactly their concern is, but my sense
is the concern that the--it is sort of, in some ways, the flip
side of what Mr. Parshall is saying.
Under title VII, the religious exemption applies only to
discrimination taken for religious reasons. Under this bill,
the religious exemption would apply to any discrimination on
the basis of sexual orientation or gender identity by an entity
covered by the religious exemption of title VII whether or not
it is taken for a religious reason.
It could be a religious college or university that
discriminates on the basis of sexual orientation not because of
any religious tenet, but just because of bias and that would be
exempted by this bill.
In that sense, in some ways, the religious exemption here
actually operates more broadly than the religious exemption
under title VII, and certainly it does not operate any more
narrowly than the religious exemption under title VII.
Senator Merkley. I am looking at section 7(a) which refers
to, ``The subchapter shall not apply to religious
corporations,'' and then it gives a list and I assume the word
``religious,'' applies to all these,
``Religious corporation, or religious association,
religious educational institution, religious society
with the respect to the employment of individuals of a
particular religion to perform work.''
But essentially, it is the first part of the phrase of
saying that any of these religious corporations, associations,
educational institutions or societies are all exempted, and
that is why this is considered such a broad exemption.
Mr. Bagenstos. Exactly.
Senator Merkley. Thank you very much, Mr. Chair.
I want to conclude my thoughts by simply saying--if that is
what we are down to--wrestling with the exact legal language
and the boundaries of religious exemption, then we are within
reach of having a national framework that ends discrimination.
Because State after State has wrestled with these boundaries
and worked it out.
I do think that the way that this particular statute or
proposed statute is crafted has been to address a major
concern, which is to create a new list of uncertainties. But by
basing the language on a past that is now 48 years old since
this language was first introduced into law, so the definitions
and the courts have worked it over time and time again. There
is such an enormous case history is the soundest foundation,
the most thorough and thoughtful foundation we could possibly
have for extending protection to the LGBT community in terms of
giving assurance that the definitions are well-examined and
well-worked.
Let us not lose sight as we wrestle over clauses that raise
questions about what is a religious association, the courts
have worked that out, or what is an educational institution,
the courts have worked it out. Let us not lose sight that each
and every day American citizens are discriminated against in
their employment or their potential employment in ways that
have a profound impact on their opportunity to fully live their
lives, to fully contribute, to fully pursue happiness. In other
words, to do all that they can be, all that they are, which is
a benefit to them and a benefit to our Nation. And this
discrimination is absolutely wrong. It is morally wrong and we
must end it.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Merkley, for your
sponsorship of the bill and your strong support for it.
I would ask if anyone has any last thing they want to add
before I close down the hearing. Any one last thing they want
to bring up?
We will hold the record open for 10 days. I know Senator
Franken had some additional questions he wanted to submit. We
will hold the record open for 10 days for further insertions or
for questions the other members of the committee might have.
I will close by saying that I thank you all for being here.
This is, to echo what Senator Merkley said, this is an issue
that we have to confront as a Nation, and we have to get over
it. We have to get over it and move on.
Again, I want to be as protective as anyone of religious
liberty in this country, but I would also remind people that in
1964, we passed the Civil Rights Act. Arguments were made that
the 1964 Civil Rights Act would violate the religious liberty
of employers to ban discrimination on the basis of race.
And so, we have been through this before that we would
violate their religious liberty if we said you could not
discriminate against African-Americans in our society. So we
have been down that road before. And quite frankly, again just
to echo what Senator Merkley said, this discrimination ``has no
place in our society''. We wish we had done this a long time
ago. People should be judged, as so many of you said, on the
basis of their talents and who they are as an individual. They
should be given every opportunity to succeed. They should not
be discriminated against.
So I do not consider it a difficult area. I just do not
consider it difficult. We simply should not discriminate on the
basis of sexual orientation or sexual identity, period. And I
think it is something that we need to pass, and we need to pass
as soon as possible, and move on. A lot of States have done
different things, companies have come forward; we know that.
It is time now to say to all Americans no matter who you
are, no matter your sexual identity, your gender identity, if
you are willing to work hard, if you are willing to contribute
to society, then you are important to us. You are part of the
American family. You ought to be included. That is really what
this is all about.
The committee will stand adjourned.
(Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Casey
Mr. Chairman, thank you for agreeing to hold this important
hearing on fairness in the workplace and the bipartisan
Employment Non-Discrimination Act (ENDA). I joined Senators
Merkley, Kirk and Collins in requesting today's hearing to
highlight the pressing need for this legislation. Over the
course of our Nation's history, great strides have been made to
ensure the fair treatment of all citizens under the law. ENDA
represents one more important step to ensure that basic
American values of fairness and equality protect all citizens
in the workplace.
The United States has already extended Federal employment
discrimination protections for race, religion, sex, national
origin, age and disability. These protections were enacted to
ensure that all American workers are evaluated on the quality
of their work and not some aspect of their identity. Beyond the
argument for equity, these protections encourage broad-based
participation in the workforce and strengthen the American
economy. However, in many places, Americans still face
employment discrimination as a result of their sexual
orientation or gender identity. I am a cosponsor of ENDA
because it would prohibit public and private employers,
employment agencies and labor unions from considering an
individual's sexual orientation or gender identity when making
employment decisions such as hiring, firing, promotion or
compensation. These protections would apply to Congress, the
Federal Government and employees of State and local
governments. ENDA would make exceptions for businesses with
fewer than 15 employees and religious organizations.
Today we will hear the compelling arguments that ENDA is
good for business and beneficial to the American economy.
Perhaps most importantly, however, ENDA reaffirms our American
ideal of fairness: workers should be judged on their skills and
abilities. I look forward to this hearing as the first step
toward swift and bipartisan passage of ENDA in both the Senate
and the House.
Prepared Statement of Senator Kirk
Chairman Harkin and Ranking Member Enzi, thank you for
holding a hearing on this important legislation. I am proud to
join Senator Merkley in co-sponsoring the bipartisan Employment
Non-Discrimination Act (ENDA), S. 811. I was a strong supporter
of this bill in the House of Representatives, and I am happy to
help lead this effort in the Senate. In the long tradition of
Senator Dirksen from Illinois--who helped pass the Civil Rights
Act--I believe opposition to discrimination is a time-honored
American tradition.
Nothing creates dignity more than a job, and this
legislation will ensure that all Americans can realize their
right to economic independence. Senator Merkley and I are
following the lead of hundreds of top companies in the business
community. Almost 90 percent of the Fortune 500 companies have
implemented similar non-discrimination polices and agree that
an open corporate environment enables employees to be more
enthusiastic, mentally healthy, and productive.
Many of these companies continue to advocate for workplace
fairness, including Illinois employers, Hospira Inc., Orbitz
Worldwide Inc., MillerCoors Brewing Co. and HSBC--North
America. Another coalition member, Sara Lee Corporation,
headquartered in Downers Grove, IL, says of anti-discrimination
policies,
``We believe that having a workforce comprised of
people from different backgrounds and life perspectives
can lead to better customer and consumer insights,
greater innovation and a more inclusive environment for
our employees.''
Unfortunately, there are a number of misconceptions about
this legislation. It does not create any quotas or preferential
practices; in fact, both are explicitly prohibited in the bill.
ENDA simply takes prejudices out of the employment
decisionmaking process to ensure that employees or applicants
are judged solely on their qualifications and job performance.
The bill also provides broad exemptions for religious
institutions to protect First Amendment freedoms. Churches,
synagogues and other places of worship; religious schools,
colleges, seminaries and universities; and religious
corporations, associations, and societies are all exempt from
the requirements of this bill. In sum, ENDA provides the same
religious freedom rights as existing employment discrimination
civil rights laws.
ENDA is a common sense bill that ensures our workforce is
the best it can be--competitive and consistent with American
values of liberty, tolerance, and equality. Again, I appreciate
the committee holding this hearing, and I look forward to
moving ENDA through the legislative process.
Prepared Statement of Camille A. Olson, Seyfarth Shaw LLP
I am pleased to submit testimony addressing S. 811, the Employment
Non-Discrimination Act of 2011 (``S. 811'' 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 Condon
McGlothlen, Laura Maechtlen, Annette Tyman, Sam Schwartz-Fenwick and
case assistants Chris Nelson and Craig Nelson 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. 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 company-wide, state-wide, 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, I am
co-editor of a book entitled Guide to Employment Law Compliance for
Thompson Publishing Group (2012); and 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 EEO obligations. 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.
ii. summary of testimony
I have been invited to submit testimony concerning the impact of
the Employment Non-Discrimination Act of 2011 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 non-discriminatory 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.\2\
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\2\ 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.''
For the past 5 years, Seyfarth Shaw has achieved a perfect score of
100 percent on the Human Rights Campaign Corporate Equality Index, a
survey of workplace practices for the LGBT community.
---------------------------------------------------------------------------
My purpose in providing this testimony is not to comment positively
or negatively on whether the U.S. Senate should enact S. 811 into law
as sound public policy. Rather, my testimony is a summary of my legal
analysis concerning certain provisions of S. 811 as they apply to
private sector employers only.\3\ 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. 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 it will result in the clarification of
certain of S. 811's provisions for the benefit of employees and
employers alike. If S. 811 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. 811'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.
---------------------------------------------------------------------------
\3\ My testimony is limited to S. 811's application to private
sector employers. It does not specifically address S. 811'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)).
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A drafted, S. 811 clearly provides the following:
S. 811 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.\4\
---------------------------------------------------------------------------
\4\ S. 811, Section 4(a)(1).
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S. 811 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.\5\
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\5\ S. 811, Section 4(a)(2).
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S. 811 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.\6\
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\6\ S. 811, Section 4(e).
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S. 811 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.\7\
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\7\ S. 811, Section 5.
---------------------------------------------------------------------------
S. 811 does not prohibit an employer from enforcing rules
and policies that do not intentionally circumvent its purposes.\8\
---------------------------------------------------------------------------
\8\ S. 811, Section 8(a)(1).
---------------------------------------------------------------------------
S. 811 does not require an employer to treat an unmarried
couple in the same manner as a married couple for employee benefits
purposes.\9\ The term ``marriage'' as used in S. 811 is defined in the
Defense of Marriage Act (``DOMA''), 1 U.S.C. 7 et seq.\10\
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\9\ S. 811 Section 8(b-c).
\10\ At least two courts have recently held that portions of DOMA
are unconstitutional. See Windsor v. United States, 10-cv-8435, 2012 WL
2019716 (S.D.N.Y. June 6, 2012); Massachusetts v. U.S. HHS, 10-2204,
2012 WL 1948017 (1st Cir. May 31, 2012). My testimony does not address
issues related to the definition of ``marriage'' under DOMA.
---------------------------------------------------------------------------
S. 811 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 by either: (1) providing access to the
general shower or dressing areas of the gender the employee is
transitioning to or has transitioned to; or (2) by providing reasonable
access to adequate facilities that are not inconsistent with that
gender.\11\
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\11\ S. 811, Section 8(a)(3).
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S. 811 does not require employers to build new or
additional facilities.\12\
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\12\ S. 811, Section 8(a)(4).
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S. 811 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. 811, Section 4(f)(1).
---------------------------------------------------------------------------
S. 811 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. 811, Section 4(f)(2).
---------------------------------------------------------------------------
S. 811 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. 811, Section 8(a)(5).
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S. 811 requires employers to post notices that describe
its provisions.\16\
---------------------------------------------------------------------------
\16\ S. 811, Section 13.
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S. 811 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\
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\17\ S. 811, Section 17.
However, as drafted, S. 811 creates the following ambiguity and
---------------------------------------------------------------------------
uncertainty:
Whether title VII and ENDA will provide duplicate causes
of action for sex discrimination, including 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 2011
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 Act of 1964, 42 U.S.C.
2000e et seq. (``Title VII''); see also The Equal Pay Act of 1963, 29
U.S.C. 206(d) et seq (the ``EPA'').
---------------------------------------------------------------------------
Discriminate against a person because he is a male;
Discriminate against a person because she is pregnant;\19\
---------------------------------------------------------------------------
\19\ See Pregnancy Discrimination Act of 1978, amending title VII
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 Sav. 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
homosexual, alleges same-sex sexual harassment which is a violation of
title VII); Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 188 (5th Cir.
2012) (Sexual harassment is a form of discriminatory treatment, and
applies in any situation where there is discrimination ``because of ''
sex, whether it be between members of the same or opposite sexes).
---------------------------------------------------------------------------
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, expressly 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\
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\23\ See, e.g., Larson v. United Air Lines, No. 11-1313, 2012 U.S.
App. LEXIS 11066, at *9, n.1 (10th Cir. June 1, 2012) (unpublished)
(``Title VII discrimination is only cognizable on the basis of sex, not
sexual orientation.''); Gilbert v. Country Music Ass'n, 432 Fed. Appx.
516 (6th Cir. Tenn. 2011) (concluding that title VII prohibits only
discrimination ``because of . . . sex,'' not 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''); 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); Creed v. Family Express Corp., No. 3:06 CV-465RM, 2009
U.S. Dist. LEXIS 237, at *14 (N.D. Ind. Jan. 5, 2009) (``Although
discrimination because one's behavior doesn't conform to stereotypical
ideas of one's gender may amount to actionable discrimination based on
sex, harassment based on sexual preference or transgender status does
not.'').
\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 Glenn v. Brumby, 663 F.3d 1312,
1317 (11th Cir. Ga. 2011) (concluding that discrimination against a
transgendered individual because of gender-nonconformity is sex
discrimination); 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.
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Administrative decisions have also created inconsistency in
application of title VII. The Equal Employment Opportunity Commission
(``EEOC'') recently issued an administrative decision in the matter of
Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives,\26\
holding that transgender individuals may state a claim for ``sex''
discrimination under title VII, through multiple theories including per
se ``sex'' discrimination and/or sex stereotyping. The decision
expressly overrules the EEOC's own prior rulings, which had taken a
narrow view of the concept of ``discrimination because of sex'' under
the statute in finding that it did not include transgender status.\27\
It also conflicts with certain Federal court decisions.\28\
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\26\ EEOC Appeal No. 0120120821 (April 23, 2012).
\27\ See, e.g., Jennifer Casoni v. United States Postal Service,
EEOC DOC 01840104 (Sept. 28, 1984); Campbell v. Dep't of Agriculture,
EEOC Appeal No. 01931703 (July 21, 1994); Kowalczyk v. Dep't of
Veterans Affairs, EEOC Appeal No. 01942053 (March 14, 1996).
\28\ See authorities cited in footnote 23, supra.
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A number of jurisdictions have enacted legislation prohibiting
discrimination in the private sector based on sexual orientation and/or
gender identity. To date, 16 States and the District of Columbia
prohibit discrimination based on gender identity and sexual
orientation.\29\ Twenty-one States and the District of Columbia
prohibit discrimination based on sexual orientation.\30\ The legal
obligations imposed by State laws differ from State to State.
---------------------------------------------------------------------------
\29\ These jurisdictions include California, Colorado, Connecticut,
Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New
Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, as
well as the District of Columbia.
\30\ These jurisdictions include those set forth directly above, as
well as Delaware, Maryland, 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 103d
Congress.\31\ Since then, legislation has been introduced in almost
every session of Congress to address this topic.\32\ Most recently, in
2009, I provided legal analysis before this committee on S. 1584, a
bill identical in scope and content to S. 811. I also provided
testimony with respect to similar legislation that was also introduced
before the House that year.\33\
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\31\ The Center for American Progress, FAQ: The Employment Non-
Discrimination Act, http://www.americanprogress.org/issues/2011/07/
enda_faq.html (last visited June 6, 2012).
\32\ 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 (H.R. 2015). 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 (H.R.
3685). Similar legislation was not introduced in the Senate in 2007.
\33\ H.R. 2981, H.R. 3017.
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Many of S. 811'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. 811
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.\34\
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\34\ See, e.g., S. 811, 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. 811 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. 811 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.\35\ Given that the concept of retaliation is a well-understood
principle in employment law, legal practitioners suggested ENDA track
the language already available under existing laws to minimize
confusion and litigation. S. 811 includes revised retaliation language
that parallels the well-established language prohibiting retaliation
contained in title VII.\36\
---------------------------------------------------------------------------
\35\ H.R. 2015.
\36\ Compare H.R. 2015, Section (5) with S. 811, 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.\37\
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\37\ Compare H.R. 2015, Section 8(a)(1) with S. 811, 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. 811 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. 811
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. 811 Requires Clarification
As described in section III.B. above, as drafted, S. 811 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 earlier clarifications, certain
ambiguities still remain that were previously raised in 2009 with
respect to S. 1584, but were not addressed in S. 811. These ambiguities
warrant further discussion and analysis and 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 \38\ and gender identity.\39\ 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,\40\ 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. The EEOC has also
recently interpreted title VII's prohibitions against sex
discrimination to encompass claims by transgender individuals.\41\
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\38\ Sexual orientation is defined as ``homosexuality,
heterosexuality, or bisexuality.'' S. 811, Sectiona)(9).
\39\ 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. 811, Section 3(a)(6).
\40\ Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2004); Bibby
v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001); Simonton
v. Runyon, 232 F.3d 33 (2d 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).
\41\ Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives,
EEOC Appeal No. 0120120821 (April 23, 2012).
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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?'' \42\ These concepts are
overlapping, thus, certain factual situations that some courts and the
EEOC have found actionable under title VII would most assuredly also be
actionable under ENDA.\43\
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\42\ S. 811, Section 3(a)(6); see also Price Waterhouse, 490 U.S.
228.
\43\ The EEOC's decision in Macy v. Bureau of Alcohol, Tobacco,
Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012)
applies only to the EEOC's adjudication of administrative charges at
the regional office level and to the EEO offices of Federal agencies.
---------------------------------------------------------------------------
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.
I suggest consideration of language to the effect of: ``Nothing in this
Act shall be interpreted to permit a double recovery of damages.'' This
language will ensure that congressional intent on this issue is clear
and may minimize litigation over this issue.
b. Disparate Impact Claims Are Not Available Under S. 811
Disparate treatment claims are actionable under S. 811.\44\ S. 811
prohibits intentional discrimination only.\45\
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\44\ S. 811, Section 4(g).
\45\ S. 811, Section 8(a)(1).
---------------------------------------------------------------------------
In contrast, disparate impact claims are not available under S.
811.\46\ In other words, S. 811 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.
---------------------------------------------------------------------------
\46\ Id.
---------------------------------------------------------------------------
The most familiar statutory definition of a disparate impact claim
is in title VII.\47\ 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.
---------------------------------------------------------------------------
\47\ 442 U.S.C. 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. 811. I would suggest this committee adopt language in section 4(g)
defining the parameters of Disparate Impact claims more clearly, such
as:
Disparate Impact claims as described in title VII, section
2000e-2(k), or any other statute, cannot be established under
this Act. Only disparate treatment claims may be brought under
this Act.
c. The Remedies Available Under S. 811 Should Parallel
Those Available Under title VII
S. 811, Section 10(b)(1) specifically provides that the procedures
and remedies applicable are those set forth in title VII (42 U.S.C.
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.\48\
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\48\ S. 811, 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.\49\
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\49\ Title VII Sec. 2000e-5(k). Attorney's Fees; Liability of
Commission and United States for Costs (emphasis added).
Specifically, S. 811, 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. Further, 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. Additionally, 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, by specifically mirroring the language contained in title VII,
2000e-5(k).
2. Specific Provisions Requiring Clarification Regarding
Gender Identity
Among other protections, S. 811 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.'' \50\
---------------------------------------------------------------------------
\50\ S. 811, Section 4(a)(1).
---------------------------------------------------------------------------
S. 811 further provides as follows:
[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.\51\
---------------------------------------------------------------------------
\51\ S. 811, 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.\52\
---------------------------------------------------------------------------
\52\ S. 811, 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.'' \53\ These
affirmative obligations present unique issues in the workplace that
merit further consideration and reflection.
---------------------------------------------------------------------------
\53\ 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.
811.
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.\54\
---------------------------------------------------------------------------
\54\ Transgender Visibility Guide: A Note on Transitioning,
available at http://www.hrc.org/files/assets/resources/
transgender_visibility_guide.pdf. (last viewed June 6, 2012); 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 June 6, 2012).
---------------------------------------------------------------------------
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).\55\ 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.\56\
---------------------------------------------------------------------------
\55\ Id.
\56\ 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.\57\ Finally, transitioning
individuals may utilize courts or other agencies to achieve legal
recognition of their new name and/or gender.\58\ Thus, the term
``gender transition'' implicates a wide range of steps that employees
may be said to have ``undergone'' or be ``undergoing.''
---------------------------------------------------------------------------
\57\ Id.
\58\ 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> 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.''
\59\ 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.
---------------------------------------------------------------------------
\59\ S. 811, 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 may also be
unavoidable. Employers should be provided the same flexibility that S.
811 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. 811
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. Clarity here is paramount because ENDA
goes beyond the relatively simple concept of nondiscrimination in the
workplace and instead imposes affirmative obligations on employers.
Thus, any vagueness in the law could lead to significant damages
awarded against well-intentioned employers who simply may not
understand their obligations, as well as significant time-lags for
these issues to be resolved through litigation.
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.\60\
---------------------------------------------------------------------------
\60\ S. 811, 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.\61\
---------------------------------------------------------------------------
\61\ 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 2011. 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.
Prepared Statement of Human Rights Campaign, Chad Griffin, President
Mr. Chairman and members of the committee, my name is Chad Griffin,
and I am 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 1 million members and supporters nationwide, I am
honored to submit this statement in support of S. 811, the Employment
Non-Discrimination Act (``ENDA'').
Work is a core part of our lives. Of course, it is most basically
how we provide for our selves and our families. But it is also how we
contribute to the life of our communities and our Nation. And if we are
lucky, work is how we continue to learn, grow, challenge ourselves and,
just maybe, realize our dreams. Even in difficult economic times,
generation after generation of Americans have gone to work to build
better lives for themselves and to show their children that they can be
anything they want to be. That is at the very heart of the American
dream.
The Employment Non-Discrimination Act is critical to protect both
aspects of that dream--the chance, today, at a fair shake in the
American workplace and the promise, tomorrow, that no young person must
choose between being who they are and striving for their strongest
aspirations. ENDA must be passed because, for too many LGBT people in
this country, that dream remains out of reach. In 29 States, it remains
perfectly legal to fire someone solely based on his or her sexual
orientation, and, in 34 States, to do so based on gender identity.
Without comprehensive Federal protections in the workplace, many LGBT
people must go to work or a job interview unable to be fully
themselves, hiding their families and home lives, in order to protect
their livelihoods and careers. Like everyone else, these employees
simply want to be judged based on their merits and rewarded for their
accomplishments.
Instead, they face discrimination and unequal opportunities. 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. A 2009 national
survey of more than 6,000 transgender people found that 47 percent had
experienced an adverse job action--firing, refusal to hire or denial of
promotion--because of their gender identity, and nearly everyone
surveyed (97 percent) had experienced some form of anti-transgender
harassment or discrimination on the job.
But our Nation's failure to protect LGBT Americans in the workplace
does not simply deny equal opportunity to those struggling to succeed
in the workforce today. It tells young lesbian, gay, bisexual and
transgender people that their futures are not as limitless as their
peers'--that before they have even had a chance to dream, some doors
are already closed to them. Earlier this month, HRC released a report
entitled ``Growing Up LGBT in America'' based on a nationwide survey of
more than 10,000 LGBT-identified young people. The survey starkly
demonstrates how we are failing LGBT youth, who broadly encounter
harassment, bullying, ostracism and rejection. And while they are also
resilient, a large majority believes they must leave their hometowns to
find happiness, compared to less than a third of their straight peers.
Forty-one percent of LGBT youth believe they must move to a new city or
town simply to have a good job. This should hardly come as a surprise
when, in a solid majority of States, they face the very real
possibility that their sexual orientation or gender identity might keep
them from succeeding at work, or getting a job at all.
Our Nation owes these LGBT youth access to the same dream that we
have promised generation after generation before--an equal chance to
succeed, to reach higher than those who came before you. That promise
has been denied to far too many people in our Nation's history. Over
the years, we have worked hard to change that--not always perfectly,
sometimes stumbling in the effort. But with laws like the Civil Rights
Act of 1964 and the Americans with Disabilities Act, Congress has taken
great strides to ensure that workers are judged on merit, not
characteristics like race, gender and religion, which have nothing to
do with someone's ability to do a job. By passing ENDA, Congress can
remove one more barrier to ensuring that all Americans can succeed.
Fortunately, support for job protections for LGBT people is very
strong among the American people and American businesses. Fairness is a
fundamental American value, so it should come as no surprise that there
has been majority of Americans supporting equal job opportunities for
gays and lesbians for decades. Gallup has polled on this question
regularly since 1978--when 56 percent of Americans already supported
workplace equality--and in the last several years, support has reached
89 percent. It's rare that 89 percent of the American people agree on
anything. Other polls have shown that this support crosses ideological
and demographic lines. A 2011 poll conducted for HRC by Greenberg
Quinlan Rosner Research found that 77 percent of Americans favor
protecting lesbian, gay, bisexual and transgender people from workplace
discrimination, including 70 percent of Republicans, 67 percent of
conservatives, 69 percent of seniors, 74 percent of born-again
Christians and 72 percent of residents of the Deep South. A 2007 Hart
Research poll showed strong majority support specifically for ENDA
among white, African-American and Latino voters.
America's top companies and many small businesses also support
equal employment opportunities for LGBT people, which is why corporate
America has taken the lead on the issue of workplace equality. These
successful employers know that in order to remain competitive in a
global marketplace, they must recruit and retain the best possible
talent, regardless of irrelevant characteristics like sexual
orientation and gender identity. Currently, 86 percent of Fortune 500
companies have implemented non-discrimination policies that include
sexual orientation. Half of those companies also cover gender identity
in their policies--up from only three companies in 2000. More than 90
major corporations and almost 60 small businesses have joined the
Business Coalition for Workplace Fairness, a group that actively
lobbies Congress in support of ENDA. These companies represent a wide
range of geography and industry, and include: Alcoa, American Airlines,
BP America, Citigroup, Clear Channel Communications, Coca-Cola, Dow
Chemical, Ernst & Young, General Mills, General Motors, Google, Kaiser
Permanente, Marriot International, Microsoft, Nationwide, Nike, Sara
Lee, Time Warner, Whirlpool and Xerox. Without any requirement under
Federal law, these companies have taken affirmative steps to ensure
that their LGBT employees have an equal chance to contribute and
succeed. We applaud their leadership and urge Congress to follow suit.
As President of the Human Rights Campaign, I am privileged to
speak on behalf of our membership and the broader LGBT community, for
individuals who do not have the chance to come before Congress and ask
for the equal opportunity that they deserve. They are gay and lesbian
breadwinners determined to keep a steady paycheck for the family at
home that they can't talk about. They are transgender job-seekers with
highly sought skills and experiences who face rejection after rejection
because of who they are. They are young LGBT people who look around
their hometowns and see no future for people like them.
On behalf of all of them, I urge you to pass the Employment Non-
Discrimination Act. Over the past half-century, our Nation has moved
steadily closer to making the American Dream a reality for all
Americans. 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 opportunities for millions of Americans, raising
standards of living and providing hope of a better future for each
successive generation. Congress must act to ensure that lesbian, gay,
bisexual and transgender Americans have access to that same
opportunity.
Prepared Statement of the Log Cabin Republicans
employment non-discrimination act and the freedom to work
Log Cabin Republicans\1\ support passage of S. 811, the Employment
Non-Discrimination Act (ENDA) because preventing discrimination in the
workplace is not just the right thing to do--it's good for any
business's bottom line and vital to the American economy as a whole.
Joining with a coalition of major American employers, Log Cabin
Republicans view ENDA as closely tied to the need for job creation and
the conservative principles of hard work, personal responsibility and
individual liberty.
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\1\ Log Cabin Republicans is the only Republican organization
dedicated to representing the interests of lesbian, gay, bisexual and
transgender (LGBT) Americans and their allies. The 30-year old
organization has State and local chapters nationwide, a full-time
office in Washington, DC, a Federal political action committee and
State political action committees. Log Cabin works to build a stronger,
more inclusive Republican Party by promoting the core values of limited
government, individual liberty, personal responsibility, free markets
and a strong national defense while advocating for the freedom and
equality of LGBT Americans.
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Workplace discrimination, for any reason, is un-American, unfair,
and unwise. The secret to our Nation's success in building the most
qualified, dedicated, and competent workforce is our status as a free
society, where people have the opportunity to pursue any career they
wish, and the ability to succeed or fail based on their own efforts,
merit, and good fortune. Unfortunately, that foundation for our
national success is undermined when millions of lesbian, gay, bisexual
and transgender (LGBT) Americans fear that they may lose their jobs due
solely to their sexual orientation or gender identity.
Today, 4.3 million LGBT Americans live in the 29 States without
basic protections from workplace discrimination. Especially in a job
market distinguished by high unemployment and underemployment, the fear
of losing a paycheck for being gay or transgender is very real. This
fear translates into significant losses in workplace productivity,
leading some to say that ``discrimination is a tax on the American
economy.'' \2\
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\2\ Ken Charles of General Mills, June 12th before the Senate HELP
Committee.
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Leaders of the private sector know that nondiscrimination is good
for business, and many businesses are taking active steps to make all
employees feel valued and welcome. Among Fortune 500 companies, 86
percent have non-discrimination policies that include sexual
orientation. Even Wal-Mart, which defines conservative old-fashioned
American values, safeguards workers from discrimination and harassment
based on both sexual orientation and gender identity.
While the progress made by American companies like Lockheed
Martin,\3\ General Mills and Sarah Lee is real, so is the potential for
harm from lingering anti-gay bias. Many LGBT Americans still report
experiencing direct employment bigotry, and a full 25 percent say they
are not comfortable ``being myself '' at work. We live in a fast-moving
economy where communication and teamwork are vital. The detachment and
emotional burden of the closet are a drag on American excellence,
productivity, and freedom that we simply cannot afford. Like the
military's former ``Don't Ask, Don't Tell'' policy, workplace
discrimination is detrimental to productivity, and there are serious
negative ramifications when employees feel forced to live a redacted
life, carefully guarding every word and gesture, unable to confide in
their colleagues or lying out of fear of losing their job.
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\3\ http://communities.washingtontimes.com/neighborhood/politics-
and-pride/2012/mar/19/military-lockheed-martin-glbt-inclusiveness/.
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The complexity of the American economy and the patchwork nature of
current LGBT protections also speak to the need for Federal employment
non-discrimination legislation. The freedom to work is hindered when an
employee can be hired in one State with legal assurance that they will
not be discriminated against for who they are, and then faces being
transferred to a new office in a State where he and his family run the
risk that his career could be ended due to anti-LGBT discrimination.
Likewise, the inconsistent and complicated nature of legal employment
protections, which can vary State by State or even by municipality
within States, places a burden on employers. After the recent U.S.
Equal Employment Opportunity Commission determination that Title VII of
the Civil Rights Acts of 1964 covers gender identity, there is a real
need for clarity that ENDA would provide once and for all.\4\ It is
significant that the National Federation of Independent Businesses and
the U.S. Chamber of Commerce, which as a rule are staunchly opposed to
any invasive or harmful regulation of businesses, are neutral on ENDA.
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\4\ http://www.washingtonblade.com/2012/04/24/eeoc-ruling-on-trans-
rights-triggers-new-call-for-enda/.
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ENDA enjoys a long history of bipartisan support in both the House
and Senate, and Log Cabin Republicans are grateful for the leadership
of Senators Susan Collins (R-ME), Mark Kirk (R-IL) and Olympia Snowe
(R-ME) in promoting this important legislation, and for recent
Statements by Republican National Committee Chairman Reince Priebus in
support of ``equal rights in regard to discrimination in the
workplace.'' This Republican support extends to the American population
at large, with recent polls showing that significant majorities of
Republicans (66 percent) and independents (74 percent) support
workplace nondiscrimination laws for LGBT Americans.\5\ Republicans
support it, businesses support it, and LGBT Americans need it. It is
time to pass ENDA.
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\5\ http://www.freedomtowork.org/?page_id=39.
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Prepared Statement of the National Gay and Lesbian Task Force Action
Fund, Rea Carey, Executive Director
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. 811. 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 grow our communities and ensure that
all Americans have an equal playing field as they seek to secure a
livelihood for their families.\1\
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\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.
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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 by the Williams Institute of 50 studies of
workplace discrimination against LGBT people found consistent evidence
of bias in the workplace. Critical concerns such as overt
discrimination, firing, denial of promotion or negative performance
evaluation (based on bias) ranged 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.
These stark 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 life-span. According to the
Williams Institute, lesbian couples have a poverty rate of 6.9 percent
compared to 5.4 percent for opposite-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 families
comprised of two adults and their children, the poverty rate for
lesbian families is 9.4 percent compared to 6.7 percent for those in
opposite-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 opposite-sex couples or gay male couples.
Lesbians who are 65 or older are twice as likely to be poor as
heterosexual married couples.
Poverty rates for children of same-sex couples are twice as high as
poverty rates for children of opposite-sex 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
opposite-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 disposable income than
others. Workplace discrimination negatively affects the entire
family.\2\
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\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 published Injustice at
Every Turn: A Report of The National Transgender Discrimination Survey,
which documents the discrimination transgender people experience 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 as well as Washington, DC, Puerto Rico, Guam, and the U.S.
Virgin Islands. Until this study, data on the prevalence of
discrimination against transgender people 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 percent (90 percent) of our sample reports
mistreatment or discrimination on the job or taking actions like hiding
who they are to avoid it.
Nearly half (47 percent) lost their jobs, or were denied a
job or promotion as a direct result of being transgender. These
statistics are alarming and have multiple, spiraling negative effects
on quality of life.
Transgender Americans face twice the rate of unemployment (14
percent) as the general population for our sample during the time of
the study (7 percent). Black transgender people reported nearly four
times the rate of unemployment as the general population (28 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.
Transgender people who lost a job due to bias were six times as likely
to be living on an annual household income under $10,000 (24 percent)
as the general U.S. population (4 percent). Again, transgender people
of color struggle with poverty at significantly higher rates, with 23
percent of multiracial transgender people living on $10,000 or less,
Latinos/as at 28 percent, and African-American transgender people at an
outrageous 34 percent. In response to high levels of employment
discrimination, many transgender people resort to underground economies
like sex work and drug sales to survive. In our sample 16 percent said
they had been compelled to engage in underground employment for income
and 11 percent turned to sex work to survive.
Future employment success is also impacted by the discrimination
that respondents experienced in educational settings. Those who
reported mistreatment in school were 50 percent less likely to earn
$50,000/year than the general population. Our study also found that
leaving school because of intolerable harassment was associated with
future unemployment. Nineteen percent (19 percent) of those who had to
leave school because of harassment reported being unemployed as
compared with 11 percent of those who did not. Physical abuse in school
settings also had significant impact on future employment, the lack
thereof, or participation in underground economies like sex work and
drug sales. Those who were physically attacked in school were far more
likely to stay in a job they would prefer to leave (64 percent)
compared to those who were not (42 percent). Similarly, 47 percent of
those who were physically assaulted in school ``did not seek a
promotion or raise'' in order to avoid discrimination as opposed to 27
percent of those who were not. Perhaps most notable, 32 percent of
those who were physically assaulted at school also reported doing sex
work or other work in the underground economy as compared to 14 percent
of those who were not assaulted. Thirty-nine percent (39 percent) of
those who had to leave school ``because the harassment was so bad''
reported doing sex work or other work in the underground economy.
Experiences of discrimination and abuse in school settings can and do
reflect the discrimination perpetuated in future employment.
Even when transgender people resiliently pursue traditional tools
of economic advancement like education, rampant discrimination prevents
them from earning requisite incomes. Despite the fact that 27 percent
of our sample attained a college degree and 20 percent went to graduate
school or received a professional degree, educational attainment did
not protect respondents from experiencing poverty. Our sample is 4-5
times more likely than the general population to have a household
income of less than $10,000 per year at each education level. For
example, 8 percent of those who achieved a bachelor's degree or higher
in our sample still made less than $10,000/year as compared to only 2
percent of the general population, and 42 percent of our respondents
who did not have a high school diploma made less than $10,000 per year
as compared with 9 percent of the general population without a high
school diploma. The study's findings of higher levels of poverty,
incarceration, homelessness, and poor health outcomes among respondents
demonstrate the power of anti-transgender bias to overwhelmingly
outweigh educational attainment designed to increase employment
opportunities.
Survey respondents experienced a series of devastating negative
outcomes, many of which stem from the discrimination they face in
employment. A large percentage of our sample experienced negative
impacts on their housing security as a direct result of their gender
identity, with almost one-fifth of respondents becoming homeless
because they are transgender. Additionally, respondents who had lost a
job due to bias were four times more likely to have experienced
homelessness due to bias (40 percent) than those who did not lose a job
due to bias (10 percent). Of the 19 percent of respondents who
experienced homelessness, 29 percent were denied access to a shelter
because they were transgender or gender non-conforming. This trend is
even more devastating for Latina/o and Black respondents who reported
45 percent, and 40 percent denial of access to homeless shelters,
respectively. The tremendous impact of employment discrimination
reaches into the most fundamental aspects of transgender people's
lives.
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 more likely to be uninsured (19 percent) than the
general population (17 percent) and only 51 percent of the sample
enjoys employer-based insurance coverage, compared to 58 percent of the
population at large. Not only were respondents less likely to be
insured, but individuals with the highest rates of postponing care when
sick or injured included those who have lost a job due to bias (45
percent). Another barrier to meaningful health care access, the study
reflects, is that 50 percent of respondents had to teach their medical
provider about transgender care. These figures underscore how
employment discrimination often leads to unemployment or severe under-
employment, which creates multiple liabilities for our sample.
These statistics and the remainder of the NTDS study reflect that
transgender people face injustice and discrimination in acquiring,
sustaining, and advancing in meaningful employment. Without work,
transgender people are at the mercy of public accommodation and support
systems that are unwelcoming at best, and more often, actively hostile.
enda benefits real people
As the National Transgender Discrimination Study and those of the
Williams Institute demonstrate, employment discrimination against LGBT
people is more prevalent and widespread than ever imagined.
Our mandate today is clear: employment protections are paramount.
Because the law protects LGBT people in only 44 percent of the
country, and many of the protections are in the form of hard-to-enforce
local laws, there is unfortunately very little LGBT people can do to
seek redress. Where there are laws and complaint processes, LGBT
employees are often reluctant to utilize these processes because they
must ``out'' themselves to members of the community or to future
employers when they file official complaints, thus further exposing
themselves to continued discrimination and retribution.
ENDA is crucial because it will create a Federal standard that
imposes a baseline of respect and equal treatment for LGBT people,
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 their work performance and provides
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. In their capacities as employers,
State governments have acted as every other employer by engaging in
widespread patterns of employment discrimination against LGBT employees
and applicants. When 90 percent of transgender people experience
mistreatment and harassment in employment and report rampant
unemployment and underemployment, as our study demonstrates, it is
clear that no employment sector is blameless.
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.
Public Sector Employment Discrimination
Laura Calvo
Laura Calvo, a transgender woman in her 50's who resides in
Portland, OR, worked for the Josephine County, OR 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.
Alexandra
Prior to Illinois passing a gender identity inclusive non-
discrimination law in 2002, Alexandra*, 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 claimed that the staff is trying to make ``adjustments'' for
Alexandra, but the supervisor was one of the biggest culprits who
continued 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. *Note: This is not the true name of the victim to
protect her privacy.
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
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.
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 was
quickly promoted to the Animal Control Officer position. 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 a vacation and, informed management that 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 experienced discrimination from WHS management.
This began when a promotion to Field Services Supervisor became
available. WHS management had initially asked Alynna to apply for a
Field Services Supervisor position only to be told later that her
application would not be considered.
Over the next 5 months she suffered 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.
Private Sector Discrimination
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.
Tony
Tony*, 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. *This is not the true
name of the victim to protect his privacy.
Source: Transgender Law Center, Kristina Wertz, Legal Director.
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
clients were within the State of New Jersey Government Departments,
including with the NJ Department of Health, NJ Department of Treasury,
and NJ Department of Human Services. Jacqui let her supervisor know
that between assignments she planned to undergo gender transition, and
at the next assignment would be coming to work as her new gender,
including using her new name, (Jacqui), dressing as other women
employees, and that female pronouns would be appropriate for her at
that point. She 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 new
work. For the next 3\1/2\ years, Jacqui was unable to find a job in the
public or private sphere in New Jersey. Upon discovering she was
transgender, many potential employers turned her away. Interviewers for
one position told Jacqui that they wanted to hire a ``real man'' for
the position. With 26 years of total work experience, and 10 years as a
consultant at the firm that ``laid'' her off, Jacqui found she was
forced to leave 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 work. Brooke was not out as transgender to her
co-workers at the store. She was quiet and kept to herself because she
did not fit in with female coworkers and the 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 for the rest of
the day. Later, Brooke overheard the manager tell another co-worker,
``I knew there was something off about her.''
When Brooke arrived at work the next day, her manager asked to
speak with her immediately and fired Brooke. 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 traditionally feminine attire to ``cure'' him of his gender
identity. Now in his 40's, 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. 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 employee.
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-bitch 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 minute 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 the gag order. An entire
year passed with her employer threatening to fire her if she came 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 as they had threatened. To Kim's surprise the employer did not
take action against her. 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
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 senior Sun Microsystems manager interfaced with Ethan
for the first time since his transition. Following this interaction,
The Sun Microsystems senior 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 supervisees, 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
senior manager did not believe Ethan could do the job because of his
gender transition. 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/
StPierreFiring.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 being gay 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.
Michelle
Michelle is a Navajo transgender woman who was employed as a
waitress in California. Michelle was not ``out'' as transgender to her
employer or coworkers. After working for a month and a half, Michelle
disclosed her transgender status to a coworker who then shared
Michelle's personal information with their supervisor. One day, after
learning about Michelle's transgender identity, the supervisor
approached Michelle alone, grabbed her breast and said ``I know what
you are.'' Though Michelle was intimidated by her supervisor, she did
not leave her job. Before this incident, the restaurant had
accommodated Michelle's other obligations when completing the employee
schedule. However, following the sexual harassment by her supervisor,
the management team demanded that Michelle work full-time, or leave the
job. Because Michelle could not work full-time, she was forced out of
the job.
Source: Conversation between Jack Harrison, Task Force Policy Analyst
and Michelle, 2012.
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 private employers with 15 or more employees, labor
unions, employment agencies, and Federal, State, and local governments.
The legislation exempts the Armed Forces, religious institutions, and
employers with less than 15 employees. 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 explicit protections in Federal statute for gender identity,
and sexual orientation, which will be created by ENDA are crucial,
despite recent rulings from courts and the EEOC that transgender
people, as well as lesbian, gay, and bisexual people, are protected by
the prohibition of sex discrimination in Title VII of the Civil Rights
Act.\3\
---------------------------------------------------------------------------
\3\ See, e.g., Macy v. Holder, EEOC Appeal No. 0120120821, Agency
No. ATF-2011-00751 (Apr. 20, 2012) (finding that discrimination based
on gender identity, change of sex, and/or transgender status is
cognizable under title VII; Schroer v. Billington, 577 F.Supp.2d 293
(2008) (D.C. 2008) (holding that transgender plaintiff was protected by
title VII both due to sex stereotyping and because discrimination
against a person who had changed gender was gender discrimination just
as it was religious discrimination to discriminate against a person
because they changed their religion); Lopez v. River Oaks Imaging &
Diagnostic Group, Inc., 542 F. Supp. 2d 653, 655-56 (S.D. Tex. 2008)
(holding that title VII is violated when an employer discriminates
against any employee, transsexual or not, because of their gender
expression); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 292 (3d
Cir. 2009) (denying summary judgment on a sex discrimination claim,
explaining that evidence of sexual orientation harassment ``does not
vitiate the possibility that [the plaintiff] was also harassed for his
failure to conform to gender stereotypes''); Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004) (holding that a transgender woman
plaintiff fired from her job for expressing feminine gender
characteristics at work could recover under title VII).
---------------------------------------------------------------------------
Decisions such as Glenn v. Brumby and Macy v. Holder correctly hold
that transgender people are fully covered by the sex discrimination
provisions of title VII.\4\ This is true regardless of whether the
discrimination occurred because the person is gender non-conforming,
has transitioned gender, or identifies as transgender.\5\ Other Federal
cases such as Centola v. Potter and Heller v. Columbia Edgewater
Country Club, and two non-binding decisions by the EEOC, have held that
discrimination against lesbian, gay, and bisexual people also falls
within the purview of sex discrimination laws.\6\
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\4\ Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Macy, Appeal
No. 0120120821 (EEOC Apr. 20, 2012).
\5\ Macy, Appeal No. 0120120821 (2012).
\6\ Centola v. Potter, 183 F.Supp.2d 403 (D. Mass 2002) (finding
that an employer cannot discriminate against an openly gay man or a man
perceived to be gay based on a failure to conform to sexual stereotypes
of how ``real'' men behave); Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002) (denying summary judgment on a title
VII sex discrimination claim and stating that nothing in title VII
suggests that Congress intended to confine the benefits of that statute
to heterosexual employees alone); Castello v. Postmaster General, EEOC
Appeal No. 0120111795, Agency No. 1G-701-0071-10 (Dec. 20, 2011);
Veretto v. Postmaster General, EEOC Appeal No. 0120110873, Agency No.
4B-060-0130-10 (July 1, 2011).
---------------------------------------------------------------------------
The protections created by ENDA in no way limit the protections
that LGBT people have under title VII or other laws that prohibit sex
discrimination. Federal courts and other bodies interpreting title VII
should continue to apply that statute in a manner that recognizes that
the prohibition of sex discrimination encompasses all types of
discrimination related to a person's gender, including discrimination
because a person does not conform to narrow gender stereotypes or is
lesbian, gay, bisexual, or transgender. However, Congress needs to pass
ENDA to ensure that all employers are on clear notice that Federal law
prohibits discrimination on the basis of sexual orientation and gender
identity. Without ENDA, employers are likely to be unaware of their
potential liability under Federal law, and LGBT and gender non-
conforming employees are likely unaware of their right to be free from
discrimination on the job.
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 U.S. support an
inclusive Federal employment non-discrimination law. In April 2011, A
Center for American Progress (CAP) poll conducted by the Greenberg
Quinlan Rosner Research Group of likely 2012 voters found that a
striking 73 percent support protecting gay and transgender people from
workplace discrimination. Further noteworthy, this support cuts across
party affiliation with 81 percent of Democrats, 74 percent of
independents, and 66 percent of Republicans supporting workplace
nondiscrimination laws for LGBT people. The poll also found that 50
percent of respondents who feel ``generally unfavorable'' toward gay
people supported workplace non-discrimination protections for gay and
transgender people. Voters and their representatives in 16 States and
more than 140 localities--areas comprising nearly 44 percent of the
U.S. population--have already taken action by adopting legislation that
protects lesbian, gay, bisexual and transgender workers from
discrimination. However, coverage is inconsistent across the country,
varying from State to State, and local ordinances are often under-
enforced. ENDA is needed to expressly and uniformly prohibit workplace
discrimination throughout the United States.
Businesses, too, have realized the importance of nondiscrimination
policies that protect against discrimination based upon sexual
orientation or gender identity. An impressive 86 percent of Fortune 500
companies have enacted non-discrimination policies inclusive of sexual
orientation, and 50 percent have policies which include protection for
gender identity.\7\ As further evidence of the majority support of
diverse workplaces, the 50 largest Federal contractors and 50 biggest
Fortune 500 companies recently reported in a Williams Institute study
that they have policies against sexual orientation discrimination and
said unequivocally that diversity is good for business.\8\ 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. Companies have adopted these workplace non-discrimination
policies because they are motivated by the bottom line: hiring and
retaining the best, most experienced person for the job makes good
business sense; employees who do not have to fear discrimination are
loyal and productive; and searching for and training replacement
employees is expensive. Recently, the National Football League added a
ban on discrimination based on sexual orientation to its collective
bargaining agreement which was ratified by the league's players on
August 4, 2011. This clear stance against LGBT employment
discrimination by American corporations demonstrates the readiness of
the country for the comprehensive protections of ENDA.
---------------------------------------------------------------------------
\7\ The Corporate Equality Index 2012: Rating American Workplaces
on Gay, Lesbian, Bisexual and Transgender Equality. Human Rights
Campaign Foundation, 2011. Available at http://sites.hrc.org/documents/
CorporateEqualityIndex_2012.pdf.
\8\ The Williams Institute: Economic Motives for Adopting LGBT-
Related Workplace Policies, 2011.
---------------------------------------------------------------------------
conclusion
Employment discrimination affects all Americans, preventing them
from meaningfully contributing their talents to our Nation's workforce.
Rampant discrimination leaves LGBT Americans with the perilous choice
of either hiding their LGBT identity in the workplace or risking
discriminatory treatment and harassment by disclosing their LGBT
identity.
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
subsequent dire consequences to American families. Our data from The
National Transgender Discrimination Study affirms the reality and
severity of employment discrimination for LGBT Americans and their
families. Eliminating the toll that employment discrimination takes on
individuals, 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, assuring all
Americans that what truly matters in the workplace are the merits of
their work, and not the people they love or the gender they express.
In support of this goal, we respectfully ask that Chairman Harkin
move S. 811, the Employment Non-Discrimination Act, to a committee vote
and that the committee supports ENDA as the critical step toward
securing fair workplace treatment for all Americans.
Prepared Statement of the Transgender Law Center, Masen Davis,
Executive Director
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. 811. 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 national non-profit, civil rights organization advocating
for the rights of transgender and gender nonconforming people. Created
in 2002 in response to the overwhelming discrimination that transgender
people and our families face in nearly every area of life, TLC utilizes
legal services, education, community organizing, and policy and media
advocacy to overcome this discrimination and help ensure that every
person can live safely and authentically, regardless of their gender
identity or expression. We provide legal information and assistance to
nearly 1,500 transgender and gender non-conforming people per year. We
also provide advice and technical assistance to private attorneys
representing transgender and gender non-conforming clients nationwide.
Approximately 10-15 percent of the inquiries we receive are related to
employment discrimination. We have also represented transgender people
in prominent discrimination cases, including Macy v. Holder, in which
the Equal Employment Opportunity Commission ruled in April of this year
that transgender people are covered by the sex-discrimination
prohibition of Title VII of the Civil Rights Act of 1964.\1\
Accordingly, TLC has extensive knowledge of the widespread pattern of
discrimination against transgender and gender non-conforming workers.
---------------------------------------------------------------------------
\1\ Macy v. Holder, EEOC Appeal No. 0120120821, Agency No. ATF-
2011-00751 (Apr. 20, 2012).
---------------------------------------------------------------------------
Many times a week, we hear from a transgender or gender
nonconforming person somewhere in the United States who has been fired,
denied a job, or mistreated at work just because of their gender
identity or expression. Despite existing protections under some State
laws and under Federal sex discrimination laws like title VII, both
employers and employees lack the basic knowledge that transgender
people have legal protections from job discrimination. In the last year
alone, Transgender Law Center assisted individuals in all types of
jobs, including a transgender former police detective, Mia Macy, who
was denied a job at the Federal Bureau of Alcohol, Tobacco, Firearms,
and Explosives after she came out as transgender \2\; a transgender man
in California who was fired a day after he inquired about whether his
employer, a nationwide company, provided health care benefits that
covered gender transition; a transgender woman who worked as a skilled
maintenance worker for a school district and was constantly harassed by
coworkers after she transitioned from male to female; and a transgender
woman in Virginia who was let go after a customer made a negative
comment about her gender.
---------------------------------------------------------------------------
\2\ See Macy, EEOC Appeal No. 0120120821 (2012).
---------------------------------------------------------------------------
In 2008, Transgender Law Center conducted the first statewide
survey in California 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.\3\ 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.
---------------------------------------------------------------------------
\3\ Available at http://transgenderlawcenter.org/pdf/
StateTransCA_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. Yet 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
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 experienced some loss of
employment either directly as a result of their gender identity 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 employment discrimination, only 15 percent of
transgender Californians who reported some form of discrimination or
harassment went on to file 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 the many 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 because they are not assured legal recourse for such
discrimination or retaliation.
enda is necessary to clarify employers' obligations under federal law
The explicit protections in Federal statute for gender identity and
sexual orientation created by ENDA are crucial, despite recent rulings
from courts and the EEOC that transgender people, as well as lesbian,
gay, and bisexual people, are protected by the prohibition of sex
discrimination in Title VII of the Civil Rights Act.\4\
---------------------------------------------------------------------------
\4\ See, e.g., Macy, EEOC Appeal No. 0120120821 (2012) (finding
that discrimination based on gender identity, change of sex, and/or
transgender status is cognizable under title VII; Schroer v.
Billington, 577 F.Supp.2d 293 (2008) (D.C. 2008) (holding that
transgender plaintiff was protected by title VII both due to sex
stereotyping and because discrimination against a person who had
changed gender was gender discrimination just as it was religious
discrimination to discriminate against a person because they changed
their religion); Lopez v. River Oaks Imaging & Diagnostic Group, Inc.,
542 F. Supp. 2d 653, 655-56 (S.D. Tex. 2008) (holding that title VII is
violated when an employer discriminates against any employee,
transsexual or not, because of their gender expression); Prowel v. Wise
Bus. Forms, Inc., 579 F.3d 285, 292 (3d Cir. 2009) (denying summary
judgment on a sex discrimination claim, explaining that evidence of
sexual orientation harassment ``does not vitiate the possibility that
[the plaintiff] was also harassed for his failure to conform to gender
stereotypes''); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)
(holding that a transgender woman plaintiff fired for her job for
expressing feminine gender characteristics at work could recover under
title VII).
---------------------------------------------------------------------------
Decisions such as that recently issued by the EEOC in the case
brought by Transgender Law Center, Macy v. Holder, have correctly held
that transgender people are fully covered by the sex discrimination
provisions of title VII.\5\ This is true regardless of whether the
discrimination occurred because the person is gender non-conforming,
has transitioned gender, or identifies as transgender.\6\ Other Federal
decisions such as Centola v. Potter and Heller v. Columbia Edgewater
Country Club, and two non-binding decisions by the EEOC, have held that
discrimination against lesbian, gay, and bisexual people also falls
within the purview of sex discrimination laws.\7\
---------------------------------------------------------------------------
\5\ Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Macy, Appeal
No. 0120120821 (Apr. 20, 2012).
\6\ Macy, EEOC Appeal No. 0120120821 (2012).
\7\ Centola v. Potter, 183 F.Supp.2d 403 (D. Mass 2002) (finding
that an employer cannot discriminate against an openly gay man or a man
perceived to be gay because of or based on a failure to conform to
sexual stereotypes of how ``real'' men behave); Heller v. Columbia
Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) (denying
summary judgment on a title VII sex discrimination claim and stating
that nothing in title VII suggests that Congress intended to confine
the benefits of that statute to heterosexual employees alone); Castello
v. Postmaster General, EEOC Appeal No. 0120111795, Agency No. 1G-701-
0071-10 (Dec. 20, 2011); Veretto v. Postmaster General, EEOC Appeal No.
0120110873, Agency No. 4B-060-0130-10 (July 1, 2011).
---------------------------------------------------------------------------
The protections created by ENDA in no way limit the protections
that LGBT people have under title VII or other laws that prohibit sex
discrimination. Federal courts and other bodies interpreting title VII
should continue to apply that statute in a manner that recognizes that
the prohibition of sex discrimination encompasses all types of
discrimination related to a person's gender, including discrimination
because a person does not conform to narrow gender stereotypes or is
lesbian, gay, bisexual, or transgender. The passage of ENDA is
necessary, however, to make sure that all employers are on clear notice
that sexual orientation and gender identity are prohibited bases of
discrimination. Without ENDA, employers are likely to be unaware of
their potential liability under Federal law, and LGBT and gender non-
conforming employees are likely unaware of their right to be free from
discrimination on the job.
conclusion
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 be denied a job just because of their gender. In
support of this goal, we respectfully ask that Chairman Harkin move S.
811, the Employment Non-Discrimination Act, to a committee vote and
that the committee supports ENDA as the critical step toward securing
fair workplace treatment for all Americans.
______
Letters of Support
Human Rights Campaign,
June 12, 2012.
Dear Chairman Tom Harkin and Ranking Member Michael Enzi: 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 (H.R. 1397 & S. 811).
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. In 2011, 86 percent of Fortune 500
companies provided employment protections on the basis of sexual
orientation, and 50 percent provided employment protections on the
basis of gender identity.
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; Alcoa Inc., New York, NY; American
Institute of Architects, Washington, DC; 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. (BNY Mellon), New York, NY; Barclays, 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 USA Corp.,
Ridgefield, CT; BP America Inc., Warrenville, IL; Bristol-Myers Squibb
Co., New York, NY; Caesars Entertainment Corp., Las Vegas, NV; Capital
One Financial Corp., McLean, VA; Charles Schwab & Co., San Francisco,
CA; Chevron Corp., San Ramon, CA; Choice Hotels International Inc.,
Silver Spring, MD; 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; 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;
JPMorgan Chase & Co., New York, NY; Jenner & Block LLP, Chicago, IL;
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; Marsh & McLennan Companies Inc., New York, NY; Merck &
Co. Inc., Whitehouse Station, NJ; 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;
Orbitz Worldwide Inc., Chicago, IL; Oracle Corp., Redwood City, CA;
Pfizer Inc., New York, NY; PricewaterhouseCoopers LLP, New York, NY;
QUALCOMM Inc., San Diego, CA; RBC Dain Rauscher Inc., Minneapolis, MN;
Replacements, Ltd., Greensboro, NC; Robins, Kaplan, Miller & Ciresi
LLP, Minneapolis, MN; Ryder System Inc., Miami, FL; Sara Lee Corp.,
Downers Grove, IL; 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; US Airways Group Inc., Tempe,
AZ; WellPoint Inc., Indianapolis, IN; Wells Fargo & Co., San Francisco,
CA; Whirlpool Corp., Benton Harbor, MI; Xerox Corp., Stamford, CT;
Yahoo! Inc., Sunnyvale, CA.
______
Interfaith Alliance,
Washington, DC 20005-4706,
June 12, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael Enzi, Ranking Member,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: Thank you for holding
today's hearing on the bipartisan Employment Non-Discrimination Act
(ENDA) (S. 811). I write to you today as the president of Interfaith
Alliance to express strong support for this important legislation. As a
national organization whose more than 185,000 members are committed to
religious freedom, championing individual rights, and promoting
policies that protect both religion and democracy, ENDA is a crucial
part of our work protecting faith and freedom.
Protecting the religious freedom of all Americans is of our utmost
concern. We also believe a vibrant democracy guarantees the protection
of civil rights for everyone with no exceptions made because of an
individual's sexual orientation or gender identity. It is for these
reasons that Interfaith Alliance is working hard to get passed an ENDA
that is both fully inclusive and contains a religious exemption
provision to protect the constitutional rights of all.
Despite what opponents may contend, the truth is that ENDA would
not create new or special rights, or violate the religious freedom of
those whose religious beliefs condemn the LGBT community. 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. This legislation
will simultaneously protect employers' First Amendment religious
freedom rights, while ensuring employees are treated with the respect
and equality that is mandated by our faiths and our American values.
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. For more than a decade,
Interfaith Alliance has worked to see ENDA become a reality--it's time
to get this done.
Thank you again for devoting the committee's time to this important
issue.
Sincerely,
Rev. Dr. C. Welton Gaddy,
President.
______
The Leadership Conference on Civil and Human
Rights,
Washington, DC 20006,
June 11, 2012.
Re: Cosponsor the Employment Non-Discrimination Act (ENDA)
Dear Member of Congress: The Leadership Conference on Civil and
Human Rights and the undersigned organizations urge you to become a
cosponsor of 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 34
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-six percent of Fortune 500 companies have included sexual
orientation protections in their workplace policies and more than 50
percent 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 contact Rob Randhava, Senior Counsel at The Leadership
Conference, at (202) 466-6058 if you have any questions.
Sincerely,
A. Philip Randolph Institute; AFL-CIO; 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 Government Employees, AFL-CIO; American Federation of State, County
and Municipal Employees; American Federation of Teachers; American
Jewish Committee; American Psychological Association; American Speech--
Language-Hearing Association; Americans for Democratic Acton, Inc.;
Amnesty International USA; Anti-Defamation League; Asian American
Justice Center; Association of Flight Attendants--CWA; Bazelon Center
for Mental Health Law; B'nai B'rith International; Catholics for
Equality; Center for American Progress Action Fund; Center for Women
Policy Studies; CenterLink: The Community of LGBT Centers; COLAGE:
People with a Lesbian, Gay, Bisexual, Transgender, or Queer Parent;
Communications Workers of America; Disability Rights Education and
Defense Fund; Disciples Justice Action Network; Equal Justice Society;
Equality Matters; Family Equality Council; Freedom to Work Advocacy
Fund; Friends Committee on National Legislation; Gay, Lesbian &
Straight Education Network; GetEQUAL; Human Rights Campaign;
Immigration Equality Action Fund; International Foundation for Gender
Education; International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW); Japanese American
Citizens League; Jewish Council for Public Affairs; Lambda Legal;
Lawyers' Committee for Civil Rights Under Law; The Leadership
Conference on Civil and Human Rights; League of United Latin American
Citizens; Legal Aid Society-Employment Law Center; Legal Momentum; Log
Cabin Republicans; Mexican American Legal Defense & Educational Fund
(MALDEF); NAACP; NAACP Legal Defense & Educational Fund, Inc.; National
Asian Pacific American Bar Association; National Association of Human
Rights Workers; National Association of Social Workers; National Black
Justice Coalition; National Center for Lesbian Rights; National Center
for Transgender Equality; National Congress of Black Women, Inc.;
National Council of Jewish Women; National Council of La Raza; 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; National Workrights
Institute; OCA; People For the American Way; PFLAG National (Parents,
Families and Friends of Lesbians and Gays); Planned Parenthood
Federation of America; Pride At Work, AFL-CIO; SEIU; Sexuality
Information and Education Council of the U.S. (SIECUS); Southern
Poverty Law Center; Transgender Law Center; Unid@s; Union for Reform
Judaism; Unitarian Universalist Association of Congregations; United
Church of Christ, Justice and Witness Ministries; United Electrical,
Radio and Machine Workers of America; United Food and Commercial
Workers, International (UFCW); United Methodist Church, General Board
of Church and Society; United Steelworkers; Women Employed; Women of
Reform Judaism; and Woodhull Sexual Freedom Alliance.
______
June 12, 2012.
Re: Religious Organizations Letter in Support of the Employment Non-
Discrimination Act (ENDA) (S. 811)
Dear Senator: On behalf of our organizations, representing a
diverse group of faith traditions and religious beliefs, we urge you to
support S. 811, 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 Congress to swiftly pass the Employment Non-Discrimination
Act (S. 811) 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 Conference of Cantors; American Friends Service Committee;
American Jewish Committee; Anti-Defamation League; B'nai B'rith
International; Brethren Mennonite Council for Lesbian, Gay, Bisexual
and Transgender Interests; Central Conference of American Rabbis;
DignityUSA; Disciples Justice Action Network (Disciples of Christ); The
Episcopal Church; Fortunate Families; Friends Committee on National
Legislation; GLAD Alliance (Disciples of Christ); Hindu American
Foundation; Interfaith Alliance; Jewish Council for Public Affairs;
Jewish Women International; Metropolitan Community Churches; Muslims
for Progressive Values; National Black Justice Coalition; National
Council of the Churches of Christ in the U.S.A; National Council of
Jewish Women; Presbyterian Church (U.S.A.) Office of Public Witness;
Progressive Christians Uniting; Progressive Jewish Alliance; Rabbinical
Assembly; Sisters of Mercy of the Americas; Institute Justice Team;
Union for Reform Judaism; Unitarian Universalist Association of
Congregations; United Church of Christ, Justice and Witness Ministries;
United Church of Christ, Office for Lesbian, Gay, Bisexual and
Transgender Ministries; United Church of Christ, Wider Church
Ministries; United Methodist Church, General Board of Church and
Society; United Synagogue of Conservative Judaism; Women of Reform
Judaism.
Response to Questions of Senator Casey by Kylar W. Broadus
Question 1. Mr. Broadus, thank you for your testimony. Beyond the
difficult challenges you experienced while still in the workplace, you
have spoken eloquently about the psychological impact of unemployment.
As a transgender individual who was driven out of your job by
discriminatory practices, can you please speak further to the unique
challenges you faced in the hunt for a new job?
Answer 1. Senator Casey thanks for your question. After building a
career in the financial services industry for almost 8 years, I had to
start looking in fields or areas that I hadn't considered. I was
desperate to find anything! Prior to transition, I had been good at job
hunting. After transition, job hunting was an extreme challenge because
people judged me not on my qualifications but on their perceived bias
against transgender people. In many cases, I couldn't even get my foot
in the door. I was turned away from most jobs that I was qualified or
even overqualified to do. I wouldn't get the interview because my
records didn't match my name or gender marker after my transition. Or,
I would get the interview but once they saw me or learned that I was
transgender there would be no opening or I wasn't the right candidate
for the job. I had no success in finding full-time employment but was
able to obtain part-time employment.
I was so afraid during this time that I would never find a job
again or have any kind of career again. It was pure survival. It was
economically as well as emotionally traumatic to go through this period
of unemployment. Even when I did begin employment, it wasn't near the
level that I had been employed but provided insurance benefits and a
steady paycheck. I still suffer from the vestiges of unemployment from
that time period. I have never economically recovered and have just
started to make yearly what I made at the corporation I worked for over
15 years ago before being pushed out. My student loan debt has
quadrupled during this time and I have and continue to struggle to
survive. As an out transgender American, my employment options are
still extremely limited because I am judged for being transgender and
not on the basis of my qualifications.
Response to Questions of Senator Casey by Kenneth Charles
Question 1. Mr. Charles, I was impressed to hear of the forward-
thinking and inclusive human resources policies employed by General
Mills. In your opinion, what obstacles exist currently for other
companies to implement similar non-discrimination policies?
Answer 1. Senator Casey, thank you for that question. It appears
that the greatest obstacle is a lack of commitment to providing equal
protection. It's important to appreciate that companies that would be
affected by ENDA passage routinely meet a number of Federal Government
requirements to provide equal protection. ENDA execution would be
incremental to those efforts. Employers would need to expand the
training they are currently providing their employees and effectively
communicate the new requirements and expectations. Our experience has
been that it is easy to accomplish if you're committed to doing it.
There are numerous resources, many at no cost, that can help an
organization navigate the change.
Response to Questions of Senator Franken by Craig L. Parshall
MEMORANDUM
To: Senator Al Franken, c/o Senate Committee on Health, Education,
Labor, and Pensions
From: Craig Parshall, Sr., V.P. & General Counsel, National Religious
Broadcasters (NRB)
Date: July 24, 2012
Re: Hearing on S. 811, June 12, 2012, ``Equality at Work--the
Employment Non-Discrimination Act (ENDA)''
Following my testimony on June 12, 2012, before the Senate ``HELP''
Committee regarding the above, Senator Al Franken submitted a written
question to me, for the record. I appreciate Senator Franken's interest
in my testimony, and I will attempt to address his question in this
Memorandum. As Senator Franken's question actually consists of several
queries, I have divided them into their logical components and will
address each of them.
Question 1. In your testimony, you assert that the religious
exemption in ENDA will require that courts will be forced to determine
whether sexual orientation and gender identity claims are more like
claims of sex discrimination or religious discrimination. This seems to
ignore the fact that the legislative language of ENDA states that the
``Act shall not apply to [entities] exempt from the religious
discrimination provisions of title VII,'' which means that if an entity
cannot be sued for religious discrimination under title VII, it cannot
be sued for sexual orientation or gender identity discrimination under
ENDA.
Answer 1. In my testimony I pointed out that currently, title VII
law, as uniformly interpreted by the courts, does not exempt religious
employers from discrimination based on ``sex.'' This is so, regardless
of the religious exemption in title VII, which enables those employers
to apply religious criteria regarding the ``religion'' of the employee,
as courts have ruled that: ``Title VII `does not' confer upon religious
organizations the right to make those same decisions on the basis of .
. . sex . . .'' Id., citing Rayburn v. Gen'l Conf. of Seventh Day
Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985).\1\
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\1\ The sole exception is alleged sex discrimination in choosing or
firing pastors, priests, rabbis, and other heads of religious
organizations under the ``ministerial exception.'' Hosanna-Tabor
Evangelical Lutheran Church and School v. Equal Employment Opportunity
Commission et al.,_U.S._, 132 S. Ct. 694, 710 (2012).
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Recent court decisions have also expanded the reach of the meaning
of discrimination based on ``sex'' to include adverse employment
decisions based on the ``gender-identity'' of the employee. Smith v.
City of Salem, OH, 378 F.3d 566 (6th Cir. 2004); Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000); Rosa v. Park W. Bank & Trust Co., 214
F.3d 213, 215-16 (1st Cir. 2000); Glenn v. Brumby, 663 F.3d 1312 (11th
Cir. 2011). Further, on April 20, 2012, the Equal Employment
Opportunity Commission (EEOC) rendered its decision in Macy v. Holder,
Appeal No. 0120120821, officially recognizing ``gender identity''
discrimination claims by ``transgender'' individuals to qualify as
``sex'' discrimination under title VII. Added to these kinds of claims
that can supersede the religious exemption of title VII are also claims
based on sexual orientation. See: Prowel v. Wise Business Forms, Inc.,
579 F.3d 285, 291 (3d Cir. 2009): ``Wise [the employer] cannot
persuasively argue that because Prowel is homosexual, he is precluded
from bringing a gender stereotyping claim'' (the court submitting the
claim of a homosexual for employment discrimination to a jury trial
under existing title VII law based on ``sex'' discrimination).
Thus, if ENDA intends to fully incorporate the existing religious
exemption under title VII, courts will invariably have to grapple with
the fact that the language chosen appears to create an inherent Catch-
22: religious employers are presumably exempted under ENDA from
employee claims based on sexual orientation and gender identity, by
utilizing the very religious exemption scheme under title VII, which
has in essence been held not to provide protection for religious
employers against sexual orientation and gender identity claims under
existing law.
The only way for a future court to extricate itself from this
dilemma is to recognize that ENDA's religious exemption creates a
statutory ambiguity (if not an anomaly), forcing the court to attempt
to harmonize conflicting precedent and perhaps to decipher
congressional intent, a journey that invariably involves imprecise, and
sometimes damaging forms of judicial creativity.
The supporters of ENDA counter, as you have, Senator, by suggesting
that ENDA's religious exemption is ``much broader'' than that in title
VII. This leads to your next point below, and my response.
Question 2. In fact, the ENDA religious exemption is much broader
than the exemption granted under title VII, in which courts have
historically conducted an inquiry that examines the religious nature of
the institution, and whether their mission and teachings conflict with
the requirements of the law. Even if one were to accept your reading of
the religious exemption, can you explain why the court's inquiry into
whether an entity were exempt from ENDA would be so different from the
inquiries that they've been making for decades in enforcing title VII?
Answer 2. In my testimony, I indicated that title VII contains two
basic components, both of which must be met in order for a religious
organization to qualify for exemption: (1) The first has to do with the
religious structure of the employer as a ``religious corporation . .
.'', etc. (2) The second has to do with the employer's objections to
the religion of the employee and the employer's decision to make an
adverse employment decision based on that factor. I testified that, in
my opinion, ENDA's religious exemption, by incorporating title VII's
religious exemption, has incorporated both (1) and (2), thus creating,
at a minimum, a lack of critical clarity, if not dangerous ambiguity
when applied to sexual orientation and gender identity claims.
In the same hearing, Samuel Bagenstos, Professor of Law, University
of Michigan Law School, called as a witness in support of ENDA,
indicated his agreement with my analysis of the two elements necessary
for any religious organization to obtain an exemption under title VII.
However, Professor Bagenstos went on to disagree with my statement that
ENDA's religious exemption incorporates both elements (1) and (2) of
title VII; he concluded, to the contrary, that ENDA's religious
exemption only incorporates factor (1) relating to the religious
identity of the employer. However, the sole basis for such an argument
is an inference that this result is commanded by a fair reading of the
language of ENDA's section 6, which states that the Act would not apply
to a religious ``corporation . . .'', etc. ``that is exempt from the
religious discrimination provisions of title VII . . .'' . But what are
the ``religious discrimination provisions of title VII? '' They are
both elements (1) and (2), as outlined in my testimony.
You have asked, Senator Franken, why I believe the court inquiries
into section 6 of ENDA would be ``so different'' from past judicial
analysis of the religious exemption of title VII. The answer to that,
first, is that courts would be faced with the Catch-22 that I mentioned
above, deciding whether just factor (1) or both (1) and (2) are
included in ENDA. Second, the courts would be faced with the fact that
prior decisions (several of which are listed in this Memorandum) have
already expanded the natural and reasonable reading of title VII's
prohibition against discrimination because of ``sex'' to now include
discrimination on the basis of sexual orientation and gender identity--
categories that, as a form of ``sex'' discrimination, the courts have
uniformly ruled can be protected through legal claims which trump the
religious exemption language of title VII in all cases except for
adverse employment actions involving a pastor, priest, rabbi or other
similar religious leadership position.
Last, title VII's religious exemption language is itself fraught
with interpretative problems. 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). This has led to numerous decisions depriving
religious employers of fundamental liberties: EEOC v. Townley Eng'g &
Mfg. Co., 859 F. 2d 610 (9th Cir. 1988) (no exemption for a small,
closely held manufacturing shop whose owner had a clearly Christian
world view and wanted it to permeate the work place); Fike v. United
Methodist Children's Home of Virginia, Inc., 547 F. Supp. 286 (E.D. Va.
1982) (A Methodist orphan's home dedicated to instilling in orphaned
children Christian beliefs was held not to be qualified as a
``religious corporation . . .'', etc. when it sought to return to its
original spiritual mission following a temporary period of more secular
leadership); 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).
This sad parade of bad decisions has been reinforced recently by
the EEOC, which filed its own action last month in Equal Employment
Opportunity Commission v. Voss Electric Company, d/b/a Voss Lighting,
U.S. District Court for the Northern District of Oklahoma, Case No. 12-
CV-330-JHP-FHM. In the complaint, page 2, paragraph 6. B., the EEOC
alleges that ``Voss Lighting generally considers itself and its
employees to be Christian.'' Press reports indicate that the company
was founded by a Christian man who wanted to incorporate faith-based
principles in his workplace, and currently the Web site of the company
spells out that Christian mission explicitly. However, because the
company discussed religious subjects with a prospective employee during
an employment interview, and the person was ultimately not hired, the
EEOC is suing this company and asking the court for a permanent
injunction against the company, enjoining it from carrying out its
religious mission, and also asking the court to assess punitive damages
against the company, a remedy that could well devastate its ability to
continue.
In summary, the lack of precision in title VII's own religious
exemption language, the decisions by courts, and the EEOC elevating
sexual orientation and gender identity rights and at the same time
lowering the protection afforded to religious employers under title
VII, together with the interpretative dilemma created by ENDA's section
6, which I have outlined above, all lead me to believe that ENDA would
not offer adequate or constitutional protection for religious
employers.
[Whereupon, at 11:35 a.m., the hearing was adjourned.]
[all]