[Congressional Record Volume 142, Number 122 (Monday, September 9, 1996)]
[Senate]
[Pages S10068-S10069]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    EMPLOYMENT NONDISCRIMINATION ACT

  Mr. KENNEDY. Mr. President, I addressed the Senate earlier today, but 
I just take a very few moments to respond to some of the points that 
have been made earlier by those who are opposed to the Employment 
Nondiscrimination Act.
  First of all, on the question of disparate impact and disparate 
treatment of individuals, I want to make it clear again this evening, 
as we tried to make it clear earlier in the day--this is an issue that 
keeps coming up and I think it is important that we address--the 
Employment Nondiscrimination Act covers a showing of discrimination 
based on disparate treatment, not disparate impact. That means the 
person must do the following, first, prove that he or she is covered by 
ENDA.
  Second, a person must show that he or she was qualified for the 
employment opportunity at issue and that the employer's adverse 
treatment was based on the person's sexual orientation.
  Third, the employer must then present evidence to show that the 
adverse treatment was taken because of some legitimate 
nondiscriminatory reason, not sexual orientation, and then the 
individual making the claim bears the ultimate burden of proving that 
discrimination based on sexual orientation actually occurred.
  Now, the Employment Nondiscrimination Act is not violated merely 
because an employment practice has a disparate impact on gay men and 
lesbian women. Therefore, statistics are not needed to enforce the 
Employment Nondiscrimination Act and employers are not required to ask 
whether an employee is gay. Despite this provision in the Employment 
Nondiscrimination Act, my colleagues are concerned that the Equal 
Employment Opportunity Commission will require employers to keep 
statistics regarding the sexual orientation of their employees.
  The Employment Nondiscrimination Act grants the EEOC the same 
enforcement powers that it has under title VII. This enforcement 
structure parallels the ADA--under which employers do not have to ask 
if an employee has a disability or keep statistics--and the EEOC says 
that it will undoubtedly enforce ENDA in the same way that it enforces 
the ADA. Therefore, there will not be any additional reporting 
requirements.
  Finally, the EEOC says that because ENDA does not recognize a cause 
of action for disparate impact discrimination, there are no 
requirements pursuant to the Uniform Guidelines on Employee Selection. 
That has been an issue that has been brought up several times and 
raised again this evening. I hope I have responded to any of the 
concerns that people have on this issue, and I have included 
information from the EEOC in the record earlier today.
  Second, Mr. President, this legislation is not a license for bizarre 
behavior--we heard that referenced earlier this evening. Like other 
civil rights laws, the Employment Nondiscrimination Act does not 
protect bizarre behavior. Employers can still enforce workplace rules 
as long as they apply them uniformly to heterosexuals and homosexuals. 
This legislation allows employers to discipline homosexuals and 
heterosexuals whose behavior is illegal or unsafe or that compromises 
their ability to perform their job--the examples given earlier this 
evening would clearly fall under those standards. These policies must 
simply be applied to all employees--heterosexual and homosexual.
  For example, my colleagues expressed concern about dress conveying 
explicit sexual messages or that is otherwise inappropriate. There is 
no need for concern. An employer can enforce a dress code. It must 
simply apply to all employees. An employer may also enforce a code of 
conduct. School systems can discipline teachers who appear in 
pornographic movies or other kinds of activities, but they must 
discipline both homosexuals and heterosexuals similarly.
  That is all we are looking for, similar treatment. Employers can 
establish codes of conduct. All they have to do is make sure that they 
apply to both groups.
  I say to my colleagues who feel they do not understand this 
legislation, the Employment Nondiscrimination Act is not a license to 
illegal behavior. It is legislation that allows homosexuals and 
heterosexuals to work without being the subject of discrimination. Once 
again, the legislation simply says that employees, whether heterosexual 
or homosexual, must be treated fairly and equally.
  Finally, there is some question about where all of this would lead. I 
think we can look to the nine States that have laws at the present 
time. They can be the best answers to many of the questions posed by 
those opposed to the bill. We know, that these laws are not, and they 
have not been problematic. I

[[Page S10069]]

have pointed out that in the 9 States, if you added all the cases 
together, over the period of the last 5 years, you would be lucky if 
there are 15 cases, in the last 4 to 5 years.
  In fact, when the people of California faced a referendum in 1978 to 
exclude gay people from teaching or mentoring, that referendum was 
defeated with the help of Ronald Reagan, who did television spots in 
opposition. He understands, and I think most understand, that we should 
not be stereotyping individuals. But stereotypes have been used against 
gay men and lesbians in the past and in this debate, as well.
  This is what former President Reagan said in 1978:

       As to the role model argument, a woman writing to the 
     editor of a Southern California newspaper said it all: ``If 
     teachers had such power over children, I would have been a 
     nun years ago.'' Whatever else it is, homosexuality is not a 
     contagious disease like the measles. Prevailing scientific 
     opinion is that a child's teachers do not really influence 
     this.

  Although I have not always agreed with former President Reagan, in 
this case, I think he is right on target, just as Senator Barry 
Goldwater.
  This legislation deals with the unfair stereotypes. Homosexuals are 
not strangers, or pedophiles, or child molesters. They are people we 
know, respect, and care about. They are people of integrity. They have 
a sense of right and wrong, an understanding of justice and fair play, 
and a willingness to work hard. They are American citizens, and they 
don't deserve to be subjected to discrimination on the job.
  We have fought against similar stereotypes regarding women, 
minorities, the disabled, the elderly, and religious believers.
  In the past, we thought women were too weak to compete in the board 
room or on the playing field. Today, we celebrate their business acumen 
and gold medal-winning athletic achievements. In the past, people in 
this Chamber have questioned the intelligence and tenacity of 
minorities. We still fight some of those battles, but we are not where 
we used to be. In the past, the Nation questioned whether a Catholic 
should be President. I remember when our country pushed bigotry aside 
and put such a man in the White House.
  We have become a better country because we rose above the 
discrimination that divides us and nurtures bigotry.
  Mr. President, I yield the floor.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. I am pleased that the Senate, tomorrow, will be voting on 
the Employment Nondiscrimination Act. Every worker in this country 
should be judged solely on the basis of valid work-related criteria: 
The worker's job performance and his or her ability to perform the job. 
People who work hard and perform well should not be kept from leading 
productive and responsible lives because of sexual orientation any more 
than they should be kept from employment or discriminated against 
because of race, religion, gender, national origin, age, or disability.
  Unfortunately, workplace discrimination on the basis of sexual 
orientation remains a real problem in many communities. In case after 
documented case, highly qualified individuals have been dismissed, or 
otherwise discriminated against in their jobs for no other reason than 
their sexual orientation.

  Such discrimination is intolerable in America. We are better than 
that. A recent poll in Newsweek indicates that this measure is 
supported by over 80 percent of the American people. It has been 
endorsed by a wide array of religious organizations, including the 
United Methodist Church, the Presbyterian Church (USA), the Episcopal 
Church, the Evangelical Lutheran Church in America, the American Jewish 
Congress, the National Council of the Churches of Christ in the U.S.A., 
the Religious Action Center of Reform Judaism, and the United Church of 
Christ, to mention some.
  As the presiding bishop of the Episcopal Church, Edmund L. Browning, 
wrote in a letter, dated July 30, 1996:

       Since 1967, the Episcopal church has been committed 
     publicly to the notion of guaranteeing equal protection for 
     all citizens, including the homosexual persons, under the 
     law. In that year, the General Convention of the Episcopal 
     Church, the Church's highest policymaking body, expressed its 
     conviction that homosexual persons are entitled to equal 
     protection of the laws with all other citizens and called 
     upon society to ensure that such protection is provided in 
     actuality. The Employment Nondiscrimination Act explicitly 
     fulfills that mandate. . .
       My warm embrace of this legislation, of course, reflects 
     more than my standing as Presiding Bishop of the Episcopal 
     Church. It represents my deep, personal belief in the 
     intrinsic dignity of all God's children. That dignity demands 
     that all citizens have a full and equal claim upon the 
     promise of the American ideal, which includes equal civil 
     rights protection against unfair employment discrimination. 
     For far too long, our civil rights laws look the other way 
     with respect to discrimination based on race, gender, 
     religion, national origin, age, or disability. Fighting to 
     right those wrongs taught us that the cause of civil rights 
     protection for one is the cause of such protection for all. 
     Today, so long as some of us remain subject to employment 
     discrimination on the basis of sexual orientation, our system 
     of civil rights protection for all Americans remains an 
     unfulfilled ideal. The long overdue protection embodied in 
     this legislation brings that ideal one significant step 
     closer to reality.

  Mr. President, the opponents of this legislation have argued that the 
Employment Nondiscrimination Act will cause practical problems in the 
workplace. But we know that this is not true, because similar 
legislation is already in place, as the Senator from Massachusetts 
pointed out, in nine States. As Michael P. Morely, the president of 
Eastman Kodak Co., testified on July 17 of this year:

       It is our belief that ENDA is good for American business, 
     large or small. The bill is in step with trends in the 
     Nation's most successful businesses, and is in tune with the 
     fundamental sense of fairness valued by Americans. If we at 
     Kodak felt that this bill were intrusive, expensive, or 
     otherwise inappropriate for American business, we would not 
     support it. But after a thorough analysis of its provisions, 
     we are convinced that the Employment Nondiscrimination Act 
     will have a positive impact on our country's ability to 
     compete.

  Mr. President, this legislation is carefully drafted to prohibit any 
preferential treatment, including quotas, and to prohibit disparate 
impact suits based on sexual orientation, as the Senator from 
Massachusetts has pointed out. It exempts small businesses with fewer 
than 15 employees, and it exempts religious organizations, including 
educational institutions substantially controlled or supported by 
religious organizations.
  Mr. President, for too long, many Americans have suffered employment 
discrimination. In recent decades, we have done much to eliminate this 
blot on our history. It is time for us to enact this legislation and 
extend the principle of fairness embodied in the Nation's civil rights 
laws to all Americans, regardless of sexual orientation.
  I thank the Chair and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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