[Congressional Record Volume 142, Number 122 (Monday, September 9, 1996)]
[Senate]
[Pages S10066-S10067]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    EMPLOYMENT NONDISCRIMINATION ACT

  Mr. NICKLES. Mr. President, I would like to take a moment to respond 
to some of the statements that were made earlier today by some of our 
colleagues dealing with a variety of legislation, most important, the 
legislation that is called ENDA, the Employment Nondiscrimination Act, 
that Senator Kennedy and some other people have alluded to.
  I heard comments such as, ``If this bill becomes law, employers will 
not be required to keep any information concerning sexual 
orientation.'' I totally disagree with this analysis. Granted, there is 
a section in ENDA that says no quotas, but also if you read the bill, 
and I encourage my colleagues to read the bill, if you look at section 
11(A)(1), it grants to the Equal Employment Opportunity Commission the 
same powers with respect to sexual orientation it now has with respect 
to race, religion and sex.
  Under current law, employers are required to make, keep, and preserve 
records on their employment practices and to make reports to EEOC. That 
is under the United States Code 42, section 2000 e-8c. I read that code 
last Friday when we had the debate.
  I am amused, or interested, when people say, ``Well, that's just not 
factual. Employers, you won't have to do that.''
  I am reading section 11(A) of the bill that says the EEOC has the 
same authority as currently under the Civil Rights Acts to require such 
records. So the net result is employers are going to have to find out 
what people's sexual orientation is. They are going to have to ask 
questions they never asked before that employers don't want to ask and 
employees don't want to be asked. They are going to have to ask those 
kinds of questions.
  Plus, people said, ``It is not really required. Disparate impact is 
not allowed to be considered under this bill. We're not going to allow 
disparate impact to be used.'' Well, how is an employer to defend 
himself or herself? If they are sued under the legislation--and 
sponsors of this bill do not deny they have the right to sue for 
punitive and compensatory damages--how is an employer able to prove 
they have not discriminated? They have to show they have employed 
homosexuals and bisexuals. How do they show that? They have to ask 
questions. That is their defense. It is the same defense employers have 
as far as race, as far as sex, as far as disability or age.
  They have to be able to show that is not their practice, they have 
not discriminated; therefore, they have employed people of whatever 
sexual orientation. So, for that defense, they are going to have to ask 
people, they are going to have to ask questions: ``What is your sexual 
orientation? Are you homosexual, are you bisexual, are you 
heterosexual,'' in order to defend themselves.
  Maybe some people don't agree with that, but I don't see any other 
way. So the net result of this legislation will require employers to 
ask questions about sexual orientation which are not desired by 
employees or by employers.
  Plus, Mr. President, I have heard people imply, ``Wait a minute, this 
is not a whole lot different than what several people in the Senate 
have signed on to, a statement put out by the Human Rights Campaign 
Fund which says: ``Sexual orientation is not a consideration in the 
hiring, promoting or terminating of employees in my office.'' And 66 
Members of the Senate have signed this statement.
  I did not sign that statement, but I guess I could have, because it 
has never been a consideration in my office. I never asked anybody, I 
do not want to ask anybody what their sexual orientation is. I didn't 
sign it because I thought, well, what if a person who is leading a gay 
activist cause--and there are individuals like that and some are in 
Congress, and other people--if somebody who had a known propensity to 
be a very strong advocate of gay rights, I guess, if they came and 
asked for a job in my office, I don't think they would be compatible 
and, therefore, I wouldn't hire them. So I didn't sign that pledge. But 
I can see why Senators would. Basically, I could sign it. It has never, 
ever been any consideration in any of my employment decisions as a 
Senator or when I ran a manufacturing company in Oklahoma.

  But some people could interpret this language as the same as ``don't 
ask, don't tell.'' If you don't ask, they can't tell. It is not a 
consideration, so no big deal. But that is not what is underlying 
Senator Kennedy's bill.
  Under the bill that we have before us, ENDA would make it law of the 
land, ENDA would elevate sexual orientation to a protected class under 
the Civil Rights Act. What it would do is say if the school board, for 
example, did not want to hire a person who was openly homosexual or a 
gay activist and have that person be a teacher or a coach or physical 
education instructor, if they felt like that was an inappropriate type 
person to have as a role model, they are in trouble under this 
legislation because that school could be sued. That school board might 
want to take disciplinary action or might not want to employ a person 
who had that orientation as a role model or mentor to a grade school 
class.
  So they might say, ``We don't want to make that decision,'' and, 
frankly, they could be sued under this legislation.
  Recently, there was a case in West Virginia where a principal was 
found dressing in drag and actually soliciting sexual favors in West 
Virginia. It just happened a couple of days ago. Because the principal 
asked for money, it was in violation of the State's prostitution act 
and, therefore, illegal. But if he had not asked for money, you could 
have a person who would be cross-dressing and soliciting sex--and that 
might be their sexual orientation--and the school board could not take 
disciplinary action because of their sexual orientation if it is kept 
private. My point being, you could have a lot of repercussions that go 
beyond what individuals have thought about in this legislation.

  This legislation is not ``don't ask, don't tell.'' I look at this 
statement that many Senators signed. I think a lot of people thought, 
``Hey, don't ask, don't tell. That's my policy. I'll stick by it.'' 
That is not what we will ask if this proposed bill became law. ENDA 
would elevate sexual orientation to a much higher level, giving Federal 
protection and sanction, almost a Federal acceptance to promiscuity.
  You might say, how would that be? The legislation says you cannot 
discriminate on account of someone's sexual orientation as defined by 
``homosexual, bisexual or heterosexual.'' It does not say by individual 
conduct that is done in monogamous relationships in private. So you 
might have a homosexual or heterosexual that is very promiscuous, with 
lots and lots of partners, and a company or an individual

[[Page S10067]]

or an organization, maybe with somewhat of a religious orientation or 
moral commitment, finds that behavior very repulsive. If such 
individual or organization did not want to hire such a person or 
continue their employment, they would find themselves subject to suit. 
If ENDA passes, the Federal Government will say: Wait a minute. You 
can't make any distinctions no matter what your religious beliefs are. 
You can't make any distinction on account of a person's sexual 
orientation.
  ``Bisexual'' by definition means promiscuous, having relations with 
both male and female. We are going to give that a Federal preferred 
protected status under this legislation. I think that is a serious 
mistake. What about that school board in West Virginia? What about a 
school board in Montana? What about a school board making decisions 
like this in Alabama where maybe this small community says we do not 
think we should have avowed open homosexual leaders, gay activists, as 
teachers in the fifth grade?
  Mr. President, I ask unanimous consent for an additional 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. If they want to have that policy--right now they are 
able to choose to have such a policy. If this legislation became law, 
they could be sued. I think it is important to point that out. Do we 
want to give that kind of special status to behavior that many 
Americans find objectionable? Some people have said, ``Well, it's 
immutable.'' I would debate that or question that. But many, many 
people feel, because of Biblical orientation, that it is immoral. Do we 
want to give that special protection and status to ``sexual 
orientation'' under the Civil Rights Act?
  I met with a couple of black ministers who were very offended by the 
assessment of some that, well, this is just another special class that 
needs special status, such as race and gender. They are offended 
because they participated in civil rights demonstrations and they 
worked to bring about civil rights for minorities. They are very, very 
offended by this. So, Mr. President, I just make that comment. Plus, I 
want to make another comment in regard to the military.
  The legislation exempts the military. I guess everybody applauds 
that. This Congress, 3 years ago, voted basically to repeal President 
Clinton's efforts to say that homosexuals should serve in the military. 
It was one of President Clinton's first efforts in this Congress. In a 
bipartisan fashion, we said we do not agree, and we changed the 
President's policy. He did not like it, but we changed it. And we came 
up with a policy, ``don't ask, don't tell.'' Most of us basically were 
comfortable with that result and still are. That is the law of the land 
today.
  It was not what President Clinton wanted. President Clinton wanted to 
have gays serve in the military, but a lot of us thought, no, that is a 
mistake. Evidently, the promoters of the legislation agree this is a 
mistake because they do not try to change this policy in ENDA. They 
said, OK, we are going to have an exemption for the military. The 
military is a large Federal employer. We are going to exempt the 
military from this language.
  Wait a minute. We have millions of private companies and employers in 
this country that we are going to say, wait a minute, for this big 
Federal employer, the Federal Government, we are going to exempt them 
from this policy of nondiscrimination based on sexual orientation. But 
for all other employers, no matter what your religious conscience tells 
you, no matter what your religious beliefs are, whether it is Christian 
or Jewish or Moslem--all of those basic religions have very strong 
tenets and statements that homosexuality is wrong and it is immoral--no 
matter what your religious belief is, no matter where you are coming 
from, too bad, that is an irrelevant decision concerning your 
employment practices.

  When we are exempting the military and saying, oh, it does make a 
difference in the military--and we passed that; that is now the law of 
the land--but now we are going to say for all other employers, no 
matter what your convictions are throughout the country, you are not 
exempt. I think that is a serious mistake, a serious mistake.
  Granted, nine States have some type of nondiscrimination based on 
sexual orientation laws, nine States. That means there are 41 States 
that do not. I guess a few of those States have done something by 
executive order. Senator Kennedy is right, those executive orders can 
be changed, rescinded, or amended. But why in the world would we think 
we have to come in and have 41 States be overridden by the Federal 
Government? I think that would be a serious mistake.
  So, Mr. President, I would just urge our colleagues to think about if 
school boards in some places, maybe, again, Alabama or West Virginia, 
really find promiscuous conduct unacceptable, and such persons engaging 
in such conduct not the right type of role models they would like to 
have for their young people they would be subject to suit under ENDA. 
Let us not leave them subjected to unbelievable lawsuits. Let us not 
have the Federal Government tell them that, no, they are not right. Let 
us not tell organizations such as the Boy Scouts or others that might 
have a policy that would be contrary to this legislation, let us not 
tell them they have to change it because we have decided we know 
better. I think that would be a serious mistake.
  The reason why I mention this tonight is we will have 3 hours of 
debate on the defense of marriage bill tomorrow. But we only have 30 
minutes on the legislation dealing with sexual orientation, elevating 
sexual orientation to special status under the Civil Rights Act. I know 
my colleague from Massachusetts spoke on this earlier today. I felt 
like it was important to speak on it because tomorrow we only have 30 
minutes, 15 minutes equally divided, for the biggest expansion to the 
Civil Rights Act since its inception, and in my opinion a serious, 
serious mistake. So I hope all of our colleagues will look at it very, 
very closely before they vote, and I hope that they will vote no 
tomorrow afternoon. I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina, [Mr. Helms], 
is recognized.
  Mr. HELMS. I thank the Chair.
  First of all, I commend the distinguished assistant majority leader, 
Mr. Nickles. He has made some excellent points that have floated like a 
ship passing in the night by a lot of Senators. I hope Senators who did 
not hear him by way of television in their offices will have the 
Senator's remarks called to their attention by their assistants 
tomorrow morning.

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