[Congressional Record Volume 142, Number 123 (Tuesday, September 10, 1996)]
[Senate]
[Pages S10129-S10139]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMPLOYMENT NONDISCRIMINATION ACT OF 1996
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 2056, the Employment Nondiscrimination Act
of 1996, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 2056) to prohibit employment discrimination on
the basis of sexual orientation.
The Senate resumed consideration of the bill.
Mr. KENNEDY. May we have order, Mr. President.
The PRESIDING OFFICER. The Senate will be in order.
The Senator from Massachusetts.
Mr. KENNEDY. I yield 2 minutes to the Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized for 2
minutes.
Ms. MOSELEY-BRAUN. I thank the Chair. I thank the Senator from
Massachusetts.
Mr. President, every American should have the opportunity to work, to
use their talents to the fullest extent possible, and no one should be
discriminated against. No one should be denied the opportunity to work
at jobs they are qualified to fill. That is why I am so proud to be a
cosponsor of S. 932, the Employment Nondiscrimination Act, along with
30 of my colleagues.
Strides have to be made to provide gay and lesbian Americans with
full and equal protection of the laws promised every American by the
14th amendment. Nowhere is the absence of that protection felt more
insidiously than in the area of employment.
The Employment Nondiscrimination Act prohibits employment
discrimination based on sexual orientation. It
[[Page S10130]]
creates no special rights, or quotas, it merely grants gay and lesbian
Americans the same rights afforded other Americans in the workplace.
The legislation exempts religious organizations and businesses with
fewer than 15 employees, prohibits preferential treatment, and does not
require an employer to provide benefits to domestic partners. It also
does not apply to the Armed Forces.
It is so important to enact this bill into law. This bill is not
about special rights; it is, instead, about equal rights, equal
protection. Congress has the power to act to protect your rights, and
overwhelming majorities of Americans support doing so. Every Member of
Congress should support ENDA, because this legislation embodies
American values. It is an essential step to take if we are to continue
making progress toward ensuring equal opportunity for all Americans.
A broad coalition of religious, labor and business leaders have
endorsed the bill, including the United Methodist Church, the
Presbyterian Church, the ACLU, and the National Education Association.
The American Bar Association endorsed the bill when they stated:
Over the years, and with some struggle, this Nation has
extended employment discrimination protection to individuals
on the basis of race, religion, gender, national origin, age,
and disability. ENDA takes the next necessary step by
extending this same basic protection to another group that
has been vilified and victimized--gay men, lesbians, and
bisexuals. All workers, regardless of their sexual
orientation, are entitled to be judged on the strength of the
work they do; they should not be deprived of their livelihood
because of the prejudice of others.
Ending employment discrimination is an area where Federal action is
needed to protect individual liberty and opportunity. Furthermore, it
is important to provide a stable, healthy, and productive work
environment for employees. Many companies have already adopted their
own antidiscrimination policies, recognizing the negative impact
discrimination can have on our country's transition into the 21st
century's global workplace. They know that there is no place for
discrimination in this country.
Furthermore, this is an issue of economic competitiveness. Our work
force is what makes America strong. If we are going to head into the
21st century as strong as we can, we need to utilize the talents of
all. Every American stands to benefit when each citizen is given a
chance to contribute to the maximum extent of his or her ability.
This is also about fundamental fairness. Each of us should be allowed
to fully participate in society, regardless of our gender, race, or
sexual orientation. Americans should not be held back by conditions
that have nothing to do with merit, or talents and abilities.
If there is any objective that should command complete American
consensus, it is ensuring that every American has the chance to
succeed--and that, in the final analysis, is what this bill is about.
No issue is more critical to our country, and nothing makes a bigger
difference in a person's life than opening up opportunities.
At this time there is no truly effective recourse for sexual
orientation job discrimination in 41 States across the Nation.
Currently, nine States have laws that prohibit discrimination on the
basis of sexual orientation in employment, as well as in other areas,
such as housing. But the vast majority of gay men and lesbians across
the country have no protection.
Opponents of ENDA claim that this legislation will provide gay men
and lesbians with special treatment and cause a proliferation of
litigation, but that is not the case. ENDA prohibits giving
preferential treatment to any individual based on sexual orientation.
Thus, employers may not provide special treatment to gay men, lesbians,
or heterosexuals. The bill provides that an employer may not use the
fact of an individual's sexual orientation as the basis for positive or
negative action against that individual in employment opportunities.
Furthermore, existing data suggests that ENDA will not result in much
litigation. Consider the experience of the District of Columbia whose
Human Rights Act (1977) was the first statute to bar employment
discrimination on the basis of sexual orientation. The D.C. Department
of Human Rights states that in fiscal year 1995, 435 discrimination
complaints were filed. Out of the 435 complaints, only 20 were based on
sexual orientation. The nine States having statutes giving legal
remedies to employees suffering from sexual orientation job
discrimination follow the same pattern as the District.
Although Illinois does not have an employment discrimination statute,
the city of Chicago has an ordinance protecting gay men and lesbians
from discrimination in the work place. Due to this city ordinance,
Chicago residents have protection against discrimination. And it works.
For example, in October 1991, a Chicago man, shortly after being hired
as a waiter at a restaurant told his manager that he was gay. From that
point on, the manager yelled and screamed at the man using derogatory
epithets. None of the other employees were called similar names.
After a few months on the job, the man's shifts were cut from 6 to 7
shifts per week to 2 to 3 shifts per week. The assistant manager stated
that the hours were being reduced because the waiter complained about
carrying three hot plates at once and because he brought a donut into
the restaurant. However, none of the other waiters carried three hot
plates at once, nor were other employees penalized for bringing food
into the restaurant. No one else on the staff had their shifts cut for
the above reasons.
Because Chicago has a city ordinance protecting gay men and lesbians
from employment discrimination, this man was able to file a complaint
with the city of Chicago Commission on Human Relations. The commission
found substantial evidence that the ordinance was violated. The
restaurant appealed the case to the State courts and the court upheld
the commission's decision.
It is clear that discrimination in the workplace still occurs.
Without national legislation to protect all Americans, cases of
discrimination against gay men and lesbian women will continue to occur
unchallenged.
The basic principle we should keep in mind is that every American
must have the opportunity to advance as far in their field as their
hard work will take them. Gay and lesbian Americans should not have to
face discrimination in the workplace, including being fired from a job,
being denied a promotion, or experience harassment on the job just
because of their sexual orientation.
As a matter of fundamental fairness and because all workers should be
entitled to legal protection in the work force, I will enthusiastically
support this legislation.
I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. NICKLES. Mr. President, I yield to the Senator from Kansas 3
minutes.
The PRESIDING OFFICER. The Senator from Kansas is recognized for up
to 3 minutes.
Mrs. KASSEBAUM. I would like to reiterate my opposition to the
legislation before us.
Last Friday, we had a thorough debate on the Employment
Nondiscrimination Act during the course of which important arguments
were made why it should not become law.
First, Senator Hatch pointed out the relationship between this bill
and title VII and how the use of statistics in certain cases will also
be available under this bill. The net result is that under this bill,
as under title VII, statistics may be used by the EEOC as evidence of
discrimination. Employers, as a defensive measure, may feel compelled
to keep track of the sexual preferences of their employees. This is an
example of the unintended consequences that may flow from this bill.
Second, Senator Ashcroft pointed out that the bill itself
acknowledges that there are legitimate reasons why in certain
situations the law should not apply. For example, the bill exempts the
military as well as religious organizations and their not-for-profit
activities. His question, which I think is a good one, is: If there are
reasons for exempting these employers, may not these same reasons apply
to other employers in the private sector?
Finally, Mr. President, I want to repeat my own principal objection
to this bill. I do not believe that relying on more lawsuits and
litigation, as this bill would do, will promote greater tolerance in
the workplace. I believe prejudice and discrimination can be fought
[[Page S10131]]
in other ways, and I hope that it would be done--leading by way of
example.
The Senator from Massachusetts [Mr. Kennedy], who is the author of
the legislation, pointed out numerous examples of employers who adopted
their own nondiscrimination policies, and I applaud those efforts, but
I do not believe we need to create another legal cause of action with
compensatory and punitive damages that will only lead to more division
in the workplace, not less.
Mr. President, I urge my colleagues to vote against this bill, and I
yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. Mr. President, I yield 2 minutes to the Senator from
Rhode Island.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized
for up to 2 minutes.
Mr. CHAFEE. Mr. President, I wish to take a moment to make two
comments in favor of this bill, the Employment Nondiscrimination Act,
or ENDA.
I believe the matter before the Senate is a very simple one: Whether
or not sexual orientation is a factor that should be considered in
employment decisions. In my view, the answer is clear. The only factor
that should be considered in the workplace is the ability of an
employee or potential employee to do the job at hand. Since sexual
orientation, like race or ethnicity, has nothing to do with job
ability, it seems to me it has no place as a basis for discrimination.
There is nothing particularly radical about this proposition, Mr.
President. It is a singularly American belief that each and every
person shall be judged not on unrelated factors such as color or gender
but on their merits. In the workplace, that translates to an
individual's job skills and capabilities. To judge a person otherwise,
I believe, goes against the grain of what this whole country stands
for. As Barry Goldwater recently noted, ``job discrimination against
gays or anybody else is contrary to each of our founding principles.''
Other Senators have recounted tales of gays and lesbians who have
suddenly lost their jobs when employers discovered their sexual
orientation. These instances are shocking and, I believe, shameful. No
one deserves such treatment.
So let me make one point clear, Mr. President. An employee whose
behavior in the workplace is inappropriate deserves no protection from
sanction. A gay employee who makes inappropriate statements or
otherwise conducts him or herself in an inappropriate manner should not
be countenanced. That is clear. The same would apply to a nongay
individual who conducts him or herself inappropriately. That conduct
would not be tolerated.
As my colleague from California, Mrs. Feinstein, put it last Friday,
``Do something that is improper conduct, and it all changes.'' Any kind
of untoward behavior, no matter from whom it comes, must not be
permitted.
This bill before us would provide basic protection to Americans who
are subject now to arbitrary and unreasonable job denial or dismissal.
I think that is appropriate, Mr. President, so I urge support of this
measure.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. I yield 2 minutes to the Senator from Virginia.
The PRESIDING OFFICER. The Senator from Virginia is recognized for up
to 2 minutes.
Mr. ROBB. Mr. President, I understand the difficulty many Members may
have with the prospect of same-sex marriages, and so I understand why
the vote completed just a few minutes ago was so tough for many
Senators. But this one shouldn't be. Those of us who support the
Employment Non-Discrimination Act have a simple plea--let's end
discrimination in the work-place.
We can't forget, Mr. President, that we are a nation made prosperous
and strong by the labor of millions of American workers. And each
American worker--whether they build houses, pave roads, serve meals in
country diners, or manage corporations--deserves to be judged by their
dedication to their job and the quality of their work.
It is indefensible, that in a great country like ours men and women
can lose their jobs, be passed over for promotions, or suffer
harassment because they have--or are perceived to have--a different
sexual orientation than the rest of us.
And for their part, American businesses deserve a work force which
embodies maximum talent and minimal prejudice and dissention. Surely
ending discrimination will improve productivity and enhance employee
satisfaction. Former Senator Barry Goldwater, just quoted by the
Senator from Rhode Island, wrote in support of this legislation: ``job
discrimination excludes qualified individuals, lowers work-force
productivity and eventually hurts us all. It's not just bad--it's bad
for business.''
So this bill, Mr. President, which extends Federal employment
discrimination protections modeled after those currently in place for
race, gender, age, and disability to sexual orientation, is good for
American businesses and good for American workers.
It is moderate, reasonable, and eminently fair. This vote on this
bill ought to be an easy one. It specifically rejects special rights
and preferences. It exempts businesses with 15 or less employees, as
well as all religious institutions and educational nonprofits owned or
managed by religious organizations. It does not affect the U.S.
military. It does not provide benefits for same-sex partners.
I first became a cosponsor of the 1994 act in the midst of a very
difficult re-election campaign. But I knew that equality on the job
ought to be the right of every single American, that prejudice divides
us, that discrimination is wrong, and that I could justify my support
for this bill to anyone.
Mr. President, this bill is not about special rights for anyone. It
is about equal rights for everyone. I urge my colleagues to vote
``yes'' to the Employment Non-Discrimination Act.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. I yield the Senator from Indiana 4 minutes.
Mr. COATS. Mr. President, today's debate concerns an issue of extreme
import and controversy--extending civil rights protection to sexual
orientation.
This is an issue of great importance because, for the first time in
our history, Federal legislation would protect an individual's
behavior, rather than an individual's status, as traditional civil
rights laws have done. The practical impact of this bill is that
employers will no longer be able to consider or hold an employee
accountable for any acts related to their sexual orientation.
The fact that this issue--the extension of civil rights to an
individual's behavior--is controversial goes without saying. This is an
issue about gay rights in the workplace, which the American people have
not reached a moral consensus. Many Americans, including business
people, those who support strong traditional families, and persons with
religious or moral objections, have serious concerns about promoting
homosexuality as a lifestyle. This is important, because if this bill
becomes law, it will give the Federal stamp of approval to activities
that are still considered illegal in many States. It is significant
also because individual employers, employees, forprofit religious
organizations and enterprises will no longer be able to conduct their
business without the fear of Federal intrusion and potentially costly
litigation.
Mr. President, we are not speaking of extending rights that every
citizen of the United States is guaranteed--rather we are considering
special rights for persons based on their lifestyle choice, as
evidenced by their behavior. I share the concern of many that no person
be subjected to violence and hatred simply because they do not meet
with societal approval. But I am just as concerned about individuals
who, because of sincerely and deeply held religious or moral
convictions, find certain lifestyles to be morally unacceptable and yet
are told by the Government that those beliefs must be kept private and
may not be applied to their business decisions. These individuals are
told that the first amendment's protections do not apply to the way
they run their businesses, their family bookstore, or their day care
center. This should not be the case.
[[Page S10132]]
I ask my colleagues to join with me in voting to preserve one of our
Nation's most cherished rights: The freedom to freely exercise our
religious beliefs and to not be coerced by the Government into
accepting into our employ those whose behavior violates our deeply held
religious convictions.
I yield back any time I have.
Mr. KENNEDY. I yield 2 minutes to the Senator from Vermont, a
cosponsor on this important legislation.
The PRESIDING OFFICER. The Senator is recognized for 2 minutes.
Mr. JEFFORDS. Mr. President, I have spoken at length on this issue
previously so I will not extend my remarks to any great extent. I
remind people what we are talking about here.
First of all, we ought to have a sense of the public; 84 to 85
percent of the people in this country say, ``What is the issue? Pass
the bill.'' Nobody should be inquired of about their sexual preference
or whatever in getting employment. They ought to be allowed to work.
The questions about all these things that have been brought up--there
are exceptions to almost all of them. The religious organizations are
excepted, nonprofits are excepted. The rights of employers in all these
areas are protected. There is no question here.
My question is why should I or why should my wife or my kids be
asked, when they go to get a job in this Nation, ``Where are you living
and who are you living with?'' And, if it is of the same sex, be
inquired of as to what their sexual preferences are, their sexual
activities? To me, that is a disgrace, to allow that to happen in this
Nation of freedom, where working is so important, where our people
ought to be free to work where they please and ought to be able to have
a life they want and to live free from that kind of intimidation.
I yield the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. I yield 2 minutes to the Senator from Connecticut, a
cosponsor.
The PRESIDING OFFICER. The Senator from Connecticut is recognized for
2 minutes.
Mr. LIEBERMAN. Mr. President, I rise to support the bill. This bill
offers us an opportunity to take, not only a fundamental principle of
American life and history, but in my opinion the driving impulse of the
American experience, which is equal opportunity, and apply it to a
specific circumstance. The basic question here is whether a person who
works hard, plays by the rules, does the job, is entitled to be
protected from discrimination in hiring, in promotion, in salary, based
on a very private and personal decision which is that person's sexual
orientation.
You do not have to decide the question of whether you believe
homosexuality is right or wrong. You do not have to decide the question
of whether domestic partnership is right or wrong. You do not have to
decide the question of whether one's sexual orientation is a matter of
choice or whether you are born with it, to vote for this bill. All of
that is irrelevant.
The question here is whether we are going to protect a category of
our fellow Americans, fellow citizens, fellow human beings--children of
God--from being discriminated against based on their sexual
orientation; a private matter.
I say the answer has to be ``yes.'' In 1996, it is time to offer that
protection to keep the promise of the American Constitution and the
American dream. This is a narrowly circumscribed bill. By God, this
bill even says to an employer you can regulate the clothing of someone
working for you if that is an issue.
I support the bill and ask all my colleagues to do the same.
The PRESIDING OFFICER. Who yields time?
Mr. NICKLES. Mr. President, I yield the Senator from Utah 4 minutes.
The PRESIDING OFFICER. The Senator from Utah is recognized for 4
minutes.
Mr. HATCH. Mr. President, everybody here knows I have worked hard to
pass the hate crime statistics bill, I worked hard with the
distinguished Senator from Massachusetts to pass AIDS bills and do
other things that benefit people who are gay and lesbians. I believe
that we should respond to the needs of our citizens in these regards.
Special protected status in the law, however, is another matter. I,
therefore, oppose this legislation.
Mr. President, I oppose this legislation. This bill represents a
massive increase in Federal power. The Federal bureaucracy will have a
field day with this bill. The bill will be a litigation bonanza.
Moreover, this bill deals in a blunderbuss way with an issue much more
complex than issues raised by legislation addressing race, ethnicity,
and gender. Sexual orientation involves conduct, not immutable
nonbehavioral characteristics.
Indeed, during the debate about homosexuals in the military, Gen.
Colin Powell made this point in responding to the suggestion that
discrimination against homosexuals in the military should be equated
with racial discrimination. He said,
Skin color is a benign, non-behavioral characteristic.
Sexual orientation is perhaps the most profound of human
behavioral characteristics. Comparison of the two is a
convenient but invalid argument.
Indeed, this very bill exempts employment in the U.S. military,
although it does not exempt the National Guard.
It is totally indefensible to say that a black person should be
denied the right to teach children of any race in any of our public or
private schools. But should the Senate run roughshod over the concerns
of parents and educators about having homosexuals teach their kids?
I mentioned last week on the floor that Loudoun County, VA, parents
and educators wanted to fire a male health and physical education
teacher at a middle school, who was also an assistant athletic coach at
a high school because of public homosexual conduct, in this case,
participation in homosexual videos. Such concern is not triggered just
by participation in videos. It can be triggered by public displays of
romantic, physical affection between two persons of the same sex.
In Loudoun County, the school superintendent said,
We believe that teachers, as people who are chosen to be
instructors as well as leaders of our young people, should be
exemplary in their professional as well as personal lives.
What we have here is an allegation of a lifestyle that is not
in keeping with that. If the allegations are true, that is
not conduct befitting a teacher.
One parent of a daughter who attended a school where this person
taught said she believed that what people do in their private lives is
their business--unless they are teachers. ``I want our teachers to have
the highest moral fiber. I'm not comfortable with him doing both.'' A
school board member said,
Here we have a teacher in a middle school working with
children who are at that age where they are struggling with
their identity. This is obviously a person who has made bad
choices. To give someone like this access to children at that
stage of development would be irresponsible of us.
And just because some of the citizens of Loudoun County and across
this country do not share the view of public morality of some of the
sponsors of this measure, who seek to cast aspersions on opponents of
this legislation, does not make those citizens bigots.
Moreover, those proponents of this bill who, wrongly in my view,
support blatant, intentional discrimination on the basis of immutable
characteristics such as race and ethnicity in teacher hires in order to
provide role models to students, are in no position to lecture parents
concerned about the conduct of teachers as role models. Finally, I want
to know how it is that proponents of a bill that itself exempts the
military can dismiss the concerns of parents about the conduct of their
children's teachers.
I note, Mr. President, that if a school district wanted to dismiss,
or decline to hire, a male teacher, for example, who engages in
romantic, physical displays of affection in public with his male
partner, this bill makes such a dismissal or refusal illegal--unless
the school district will do the same regarding a male teacher's
equivalent display of romantic affection for his wife or girlfriend.
Additionally, this bill will empower the EEOC to require employers to
collect statistics on the sexual orientation of their employees.
One proponent of this bill last week said the bill does not give the
EEOC this authority. That is wrong. The bill,
[[Page S10133]]
at section 11, gives the EEOC, ``with respect to the administration and
enforcement of this act'' the same power the EEOC has to administer and
enforce title VII of the 1964 Civil Rights Act. Under title VII, the
EEOC collects statistics on the race, ethnicity, and gender of
employees. Would the EEOC request such information? No one in this body
can assure us that the EEOC won't do so at some time in the future.
Remember, the EEOC is one of those entities responsible for the growth
and development of quotas and other preferences under title VII,
relying heavily on statistics in the process.
Moreover, it is well established that statistics can be used in
intentional discrimination cases under title VII, such as pattern or
practice cases. So, notwithstanding language in the bill about prima
facie cases of disparate impact, this bill does not at all preclude the
use of statistics in sexual orientation cases.
Suppose a complainant, alleging that he was discriminatorily denied a
promotion because he is a homosexual, asserts that a supervisor made
anti homosexual remarks, and one or two more complainants make the same
allegations. Those allegations, and evidence of a supervisor's anti
homosexual remarks, could be combined by a Federal enforcement agency
or private plaintiffs' lawyer with statistics on the number or
percentage of homosexuals in the job in question, or the promotion
rates based on sexual orientation, or both, to press a case of a
pattern or practice of discrimination.
Finally, let me note that this bill will lead to reverse
discrimination and preferences in favor of homosexuals, and I will
mention just one way that will happen. The bill's provision allegedly
barring preferential treatment does not affect judicial power to
enforce this bill. This bill gives the courts the same jurisdiction and
powers as such courts have to enforce title VII of the Civil Rights Act
of 1964. Further, the procedures and remedies applicable for a title
VII violation are available under this bill.
Under title VII's section 706(g), the Federal courts are authorized
to order such affirmative action as may be appropriate in cases of
intentional discrimination. The Supreme Court has said, unfortunately,
that there are some cases in which a court may order numerical and
other forms of preferential relief under title VII. Moreover, such
preferential relief can be entered as part of a consent decree with the
Federal Government, which wields enormous leverage over employers in
these costly lawsuits, and in cases with private plaintiffs' lawyers.
Proponents of this legislation have argued that it will not produce
much litigation, because there have been very few cases brought in the
States with similar laws. That prediction is not persuasive. By
authorizing the EEOC to become involved in and to initiate law suits
based on gender-preference discrimination, this bill would lead to
scores of thousands of new law suits against persons acting on the
basis of strongly held religious views. Consider the case of religious
broadcasters, for example. This bill would force religious broadcasters
to engage in hiring and promotion practices that are contrary to their
reasonable, deeply held religious views. We should not force citizens
to endorse sexual practices that are contrary to their religious views.
This bill, however, would do just that.
Let me also say that my support for the Hate Crimes Statistics Act,
which Senator Simon and I have gotten through the Senate and enacted
into law twice, is fully consistent with my position on this bill. My
view that absolutely no one should be subjected to violence or
vandalism because of who they are is, of course, widely shared. But it
does not follow from the fact that while everyone, including
homosexuals, should be free of violence, society must confer
affirmative civil protections on the basis of sexual orientation not
available, I might add, to everyone else.
Let me just add this. There is a religious side to this that must be
considered. There are sincerely believing, mainstream religious people
in this country who believe we have gone too far in this matter. Can
you imagine a religious broadcaster, because they are in a profitmaking
business, having to comply with the provisions of this act?
I urge the defeat of this legislation.
Mr. HATFIELD. Mr. President, throughout my career in public service,
amounting to over four decades now, I have fought to end discrimination
and advance the ideal of equal opportunity in society. One of my first
successes as a young Oregon State legislator in the early 1950's was as
the sponsor of the Oregon Public Accommodations Act, which prohibited
discrimination on the basis of race in public accommodations. With this
new law, Oregon set an example for the Nation.
The Public Accommodations Act was the first of many divisive civil
rights debates in which I have become involved. I have also played a
role in many other civil rights advances as this Nation has attempted
to stamp out the irrational and hateful scourge of discrimination.
These efforts have often taken the form of extending protection from
discrimination in the workplace. Over the years, we have focused on
discrimination on the basis of race, gender, national origin, age,
religion, and disability. These laws are based on a simple premise:
Employees should be judged on the work they do, not on the basis of
prejudice not related to workplace performance.
The time has arrived to take the next logical step toward equality of
opportunity in the workplace. Senate bill 2056, the Employment
Nondiscrimination Act which would prohibit discrimination in employment
on the basis of sexual orientation is such a step. The Employment
Nondiscrimination Act focuses on a group of citizens who have been
victimized and vilified like few other minority groups in this Nation's
history. Oregon has not been spared from this prejudice, and I speak
here today on behalf of many Oregonians touched by it. One prominent
example took place in Medford, OR, last year where two women were
murdered. Their murderer confessed that he killed them because of his
hate for homosexuals.
While we will not be able to wash this type of deep-seeded hatred
from our society merely by enacting a Federal statute, employment
relations is narrowly focused and appropriate for a Federal statement
of national policy, as we have demonstrated many times. This
legislation now before the Senate takes a very measured approach toward
addressing this difficult problem. It does not create special
protections, preferences, or hiring quotas for gay people. As has been
the case in prior civil rights statutes, particularly the Civil Rights
Act of 1991, this legislation specifically prohibits quotas on the
basis of sexual orientation. This prohibition is further undergirded by
a provision that prohibits an employee from bringing a disparate impact
suit.
Religious organizations are given a broad exemption from this
proposal. The armed services are also exempt, as are small businesses
with fewer than 15 employees. Moreover, no business would be required
to provide benefits to an employee's same-sex partner.
As this Nation turns the corner toward the 21st century, the global
nature of our economy is becoming more and more apparent. If we are to
compete in this marketplace, we must break down the barriers to hiring
the most qualified and talented person for the job. Prejudice is such a
barrier. It is intolerable and irrational for it to color decisions in
the workplace.
The employee manual for my office has for some time included a
specific provision prohibiting discrimination based on sexual
orientation. A majority of the Fortune 500 companies have reached this
same conclusion. It is time for this body to do the same. It is time
for our laws to reflect a point of fundamental fairness: An employee
should be free from discrimination at work because of personal
characteristics unrelated to the successful performance of his or her
job.
Mr. LAUTENBERG. Mr. President, I rise as a cosponsor of the
Employment Nondiscrimination Act, or ENDA, to urge my colleagues to
support this historic and important legislation.
This bill would ensure that no American citizen is discriminated
against in employment because of their sexual orientation. It's a
simple, straightforward bill. And it stands for a fundamental American
principle: the principle that discrimination of any kind is wrong.
Mr. President, our Nation was founded over 200 years ago by people
who had
[[Page S10134]]
migrated to America largely to escape persecution. The earliest
Americans often didn't fit in where they used to live. They were
different. Maybe they belonged to a religious minority. Maybe they had
different political ideas. Or maybe they were ostracized merely because
of the way they looked.
These earliest Americans left their homes, their communities, and
their homelands to live in a new kind of nation. A nation that not only
tolerated differences, but honored them.
From the beginning, Mr. President, this respect for individual
differences--perhaps more than anything else--is what has defined us as
Americans. It lies at the heart of our culture. It's embedded in our
Constitution. And, in the eyes of the world, it's what makes America
the special place it is.
Unfortunately, Mr. President, our Nation has not always lived up to
our own highest principles. And it's often taken great battles to make
sure that we do.
It took almost 100 years and a civil war to eliminate slavery.
It took another 100 years, and enormous social strife, to outlaw
racial discrimination.
And it took a long, difficult effort to win women the right to vote,
and to prohibit sex discrimination.
Unfortunately, Mr. President, the fight for equal rights for all
Americans is not over. Today, it is still legal to fire someone because
they are gay, lesbian, or even heterosexual--or merely for
being perceived as such.
This kind of discrimination affects hardworking Americans in all
sorts of jobs, no matter how well they perform their duties. With
hundreds of such cases documented, and many others undocumented,
countless Americans fear losing their jobs to discrimination.
Mr. President, today we have another opportunity to restore our
commitment to American principles. But, this time, we can do it without
the bloodshed and division of previous battles.
Today we have an opportunity to extend the Civil Rights Act, and to
say to each and every American, that you have a right to be treated as
an individual in employment. You have a right to be judged on the
quality of your work. A right to be judged on the basis of your
performance. And sexual orientation is irrelevant.
Mr. President, the right to be treated as an individual in employment
is consistent with the great American tradition of individual
liberties. And so it should not be surprising that it enjoys strong
public support. Most Americans believe that people should not be denied
a job, or a promotion, simply because of their sexual orientation.
But discrimination against homosexual Americans remains a serious
problem. Many employers just will not hire a gay or a lesbian. Or they
will fire or fail to promote them once they have been hired.
Sometimes, Mr. President, employment discrimination is based on raw
and malicious bigotry--open hatred of people different than themselves.
But often, the discrimination is more subtle. Often, employers don't
hate gays. They're just uncomfortable with them. They're uneasy with
the concept of homosexuality. And, so, all other things being equal,
they'll choose to hire someone with whom they're more comfortable.
Mr. President, from the perspective of an individual employer, that
decision may seem entirely reasonable. But that's equally true of
employers who are just uncomfortable with blacks. Or employers who are
just uncomfortable with Jews.
For those employers, we say: you may be uncomfortable with blacks or
Jews. But you may not discriminate against them. Because it's wrong.
It's wrong morally and ethically. And it's not fair.
The same reasoning applies in the case of discrimination based on
sexual orientation.
Mr. President, individual employers are not making these decisions in
isolation. Millions of employers are making similar decisions. And
together, they can create a systemic bias with serious consequences.
In the case of homosexuals, this bias limits their opportunity to
find meaningful employment. It limits their ability to make ends meet
financially. It limits their ability to live full and satisfying lives,
and to make meaningful contributions to society.
Mr. President, that's not right. Every American should have the
opportunity to live the American Dream. Every American. No matter their
race. No matter their religion. And no matter their sexual orientation.
Mr. President, as Senator Lieberman said on the floor last week, we
are all God's children. Each and every one of us.
And if we allow hate and discrimination against anyone, we damn our
own loved ones. We shame ourselves. And we violate the fundmental
principles upon which this great Nation was based.
Mr. President, let me just close by recalling the words of the
Declaration of Independence. All men are created equal. They are
endowed by their creator with certain inalienable rights. Among those
are life, liberty, and the pursuit of happiness.
Mr. President, let us live up to the principles of that Declaration.
Let us be true to our values as Americans. And let us ensure that our
own loved ones enjoy the respect and dignity that each and every
American deserves.
I urge my colleagues to support this legislation.
Mr. KENNEDY. How much time remains?
The PRESIDING OFFICER. The Senator from Massachusetts controls 5
minutes 30 seconds.
Mr. KENNEDY. Mr. President, I yield myself 5 minutes.
Mr. President, for 200 years, we have tried to free this Nation from
forms of discrimination. Discrimination was written into the
Constitution of the United States, and the American people have paid a
fierce price for discrimination over its history.
We fought a civil war in the 1860's. It really was not until the late
1950's that we began to rally in support of the work of Dr. Martin
Luther King--by businessmen, by laborers, by church leaders, by all
Americans--and said, ``Let's finally get serious and free ourselves
from discrimination.''
We all remember what happened with the Japanese internment, one of
the darkest periods in American history at the beginning of World War
II. And still this country went ahead with that dastardly act.
So in the 1960's, we began to make progress on the issues of race,
with the 1964 and 1965 act. Many of the arguments I just heard on the
floor of the U.S. Senate were made during that particular debate. Then
in 1965, we freed ourselves from a national-origin quota system in
immigration, we freed ourselves from the Asian Pacific triangle that
was left over from the early part of the 1900's, called the yellow
peril. We made progress.
We made progress on race. Then we began on religion and national
origin. Then we began to make progress on gender. We did not include an
equal rights amendment that said there were ``founding mothers'' as
well as Founding Fathers, but, nonetheless, we began to knock down the
walls of discrimination on the issues of gender, and we became a more
powerful and significant and stronger nation.
In recent years, we have made progress with regards to Americans with
disabilities. Six years ago we passed that legislation to say to 44
million Americans, ``We will do everything we can to recognize it isn't
disability, it is ability, it is what you can do, what you can
contribute, that you can be a part of the American dream.'' That has
been the path that we have taken in this country, and we have an
opportunity to take a very important and significant step by supporting
ENDA.
Just the other night, under the leadership of Senators Domenici and
Wellstone, we began to make progress in terms of knocking down the
discrimination that exists with regard to mental health in our country.
That exists out there. It exists in our health care systems. We began
to knock down that barrier as well with the action that was supported
by Republicans and Democrats alike.
Mr. President, today we have the chance to take a meaningful forward
step on the road to make America America. We have a really important
opportunity to turn our back on bigotry, to turn our back on
intolerance, to turn our back on discrimination. We can take an
important step in the progress of making America America.
America will only be America when we free ourselves from
discrimination,
[[Page S10135]]
and this particular legislation, carefully crafted, tries to say, ``If
you work in America, if you have the ability to work, you can work, and
you ought to be judged on your ability to work and not on the issues of
sexual orientation.'' That is the case.
We know that discrimination against gay men and lesbian women exists
in this country today, No. 1.
No. 2, we know that there are no laws to protect them.
No. 3, we know that the whole issue of gay men and lesbian women is
an immutable condition. It is a condition of life.
What we are trying to say is when Americans want to work and can work
and do a job, they ought to be able to be judged on the job that they
are going to do and not on one of these other factors.
We can free ourselves from discrimination against those gay men and
lesbian women in the employment place. This is a targeted response to
that challenge, and I hope we will support it and pass it
overwhelmingly.
I withhold the remainder of the time.
The PRESIDING OFFICER. Who yields time?
Mr. NICKLES. How much time remains on both sides?
The PRESIDING OFFICER. The Senator from Oklahoma controls 5 minutes
40 seconds. The Senator from Massachusetts 1 minute 26 seconds.
Mr. NICKLES. Mr. President, I rise in opposition to Senator Kennedy's
bill, and I urge my colleagues to do the same.
Senator Kennedy's bill before us elevates sexual orientation to
special status under the Civil Rights Act. It grants Government
approval, acceptance, and protection to homosexual and bisexual
behavior under the Civil Rights Act.
Sexual orientation, as defined under the bill proposed by Senator
Kennedy, includes homosexuality, bisexuality, and heterosexuality. It
does not just apply to people in a monogamous relationship. Basically,
any of the above sexual behaviors are going to be protected by the
Federal Government. Such behavior must be OK, because Uncle Sam is now
going to protect it.
Senator Byrd made an eloquent speech earlier today, and he read from
the Bible. He quoted a couple verses in Genesis talking about what God
said about marriage. Many people believe the Bible and believe in it
very strongly. Maybe that is recognized by the authors of ENDA, because
they exempted religious organizations, but they did not exempt
religious people.
We exempt churches under the bill. Well, a lot of people consider
themselves part of a church 7 days a week, and they have very serious
problems with granting special status to people based on their sexual
orientation because they are learning, whether they are Jewish or
whether they are Christian or whether they are Muslim, that
homosexuality is wrong, it is immoral and should not be condoned and
certainly should not be elevated to a special protected status by the
Federal Government.
Does that mean that you want to discriminate? No. But should
homosexuals and bisexuals have special protected status? Most people
would say no.
Mr. President, nine States have something in their statutes, in their
State codes, that provide some protections for sexual orientation; 41
States do not. The State of Massachusetts does. The State of Oklahoma
does not. I do not really want the State of Massachusetts putting their
mandate on my State. Maybe our norms are a little different.
The sponsor of ENDA did exempt religious organizations. They did not
exempt schools. There is a high school principal in West Virginia who
was recently caught cross-dressing, and he was arrested for soliciting.
That was against the law. That was against the State's prostitution
laws. What if he was just cross-dressing? He would be protected under
ENDA. Cross-dressing could be considered part of a sexual orientation.
What about a schoolteacher who is found to be in homosexual videos--
Senator Hatch mentioned one example--what if somebody was particularly
well known as a gay activist? What if the school board said, ``We
really don't want this person to be teaching our kids physical
education in the fifth grade.'' The school board might say, ``That is
not the type of mentor, teacher or role model that we would like to
have for our young people.'' They can be sued, under this legislation,
not only for compensatory damages, but for punitive damages.
Some of us have stated the net result of this bill is going to
require employers to ask questions about sexual orientation. That has
been denied by the proponents. But the facts are, if you are sued, if
someone sues you and says, ``Mr. Employer, you didn't hire me because
of my sexual orientation, the fact I am well known as a gay, the
employer might say, I didn't know that.'' But they can still sue.
How are employers to protect themselves? They are going to have to
ask a lot of questions. One way of protecting yourself is to tell the
court or convince the court that you have hired homosexuals in the
past. How do you find that out? Well, you better ask questions.
You will have to ask questions and have to survey all your employees.
We have never done that before. But the net result of this legislation
is that employers would have to ask an employee to at least be able to
defend himself. And they would have to ask what their sexual
orientation is. That may not be well received by the employees, and it
may not be well received by their employers because now you really have
the intrusive arm of the Federal Government going into areas they
should not.
The sponsors of ENDA have exemptions for religious organizations that
are not-for-profit. What about a religious broadcaster? What about a
religious book store? Bingo, we are going to tell them, we do not care
what your belief is, you are going to have to hire somebody that maybe
is diametrically opposed to your fundamental beliefs.
Three years ago, we passed legislation that said we rejected
President Clinton's call for gays in the military--Congress did--with
an overwhelming vote. Three years ago today, we adopted a policy that
says, ``Don't ask, don't tell.'' We are going to tell the school boards
that such a policy is not good enough, because this legislation goes
way beyond ``don't ask, don't tell,'' way beyond ``don't ask, don't
tell.''
So that is what Congress said was acceptable for the military.
Congress said, sexual orientation is relevant concerning the military,
but now, if ENDA becomes law, we are going to tell millions of
employers, oh, sexual orientation is irrelevant; it does not make any
difference; we do not care what your personal beliefs are, we do not
care what your religious beliefs are, it is irrelevant. For some people
it is relevant, and for some school boards it might be relevant, or for
some religious people or some religious groups or religious
broadcasters it is very, very relevant.
Mr. President, this legislation is a serious mistake and goes way too
far. I urge my colleagues to vote no.
The PRESIDING OFFICER. Who yields time?
Mr. DASCHLE. Mr. President, I would like to use my leader time for
whatever time I may consume.
The PRESIDING OFFICER. The minority leader has a right to do so.
Mr. DASCHLE. Mr. President, there has been so much misinformation
about what this does and does not do, so many claims about the effect
it has on certain groups and places of employment, that I would not be
surprised that people are confused and very concerned.
As we vote, I think we ought to try to clear the air as much as
possible as to what this does. This bill simply rectifies a significant
omission in our job discrimination laws, period. It simply prohibits
anyone from using sexual orientation as the basis for hiring, firing,
promotion, or pay. ENDA allows no special privileges, period. It grants
no special rights to any group of people. It simply ensures that no one
will be denied the opportunity to support him or herself financially
because of discrimination on the job.
This is a matter of simple fairness and common sense. In terms of
fairness, no one should be denied employment on the basis of a
characteristic that does not relate to his or her ability to get the
job done. This principle is already embodied in our civil rights laws.
It protects religious institutions. Churches, synagogues, and related
institutions will not be forced to change
[[Page S10136]]
their hiring practices by this bill, nor will it apply to the military
or to small businesses with fewer than 15 employees. This is a narrowly
crafted bill that simply upholds the basic American principle that
employees should be judged by the work they do. It deserves our
support.
I ask my colleagues, prior to the time we vote, how many times have
we heard the same arguments raised against minorities in other segments
of our society, against African Americans, against the disabled,
against women? The same arguments that I just heard presented to our
colleagues on the Senate floor moments ago were used in the 1960's, in
the 1970's, and in the 1980's. We have heard them all.
I ask my colleagues, who today would come to the floor to roll back
the rights now that we provided African Americans? Who would come to
the floor to roll back the rights we have given women? Who would
propose now we roll back the rights for the disabled? Every time we
come to the floor, we pronounce our advocacy of freedom. We talk about
how free this democracy is, how great it is for all of us to enjoy the
magnificent freedom that we enjoy beyond that of anybody else. If this
is true, then we will support the freedom guaranteed in this
legislation, too. I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Massachusetts has 1 minute, 26 seconds remaining.
For the Senator from Oklahoma, all time has expired.
Mr. NICKLES. Mr. President, let me just check and see if the majority
leader wants to make a speech on his time. In the meantime, unless the
Senator from Massachusetts wants to speak, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant 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.
Mr. LOTT. Mr. President, I will use leader time to make a closing
statement.
The PRESIDING OFFICER. The majority leader has that right.
Mr. LOTT. The legislation we will be voting on in a few minutes, the
Employment Nondiscrimination Act, known here as ENDA, should be
rejected by the Senate, in my opinion. In its various versions it has
been around for many years, I think probably as many as 20 years. But
even when there was a Democratic majority in the Senate, this bill was
never even called up before.
We are bringing it up today for a vote, a freestanding vote without
amendments, as part of our larger effort to work together and move
ahead on urgent business of the Senate. There were intense and lengthy
negotiations last week to try to come to a conclusion on how to handle
the appropriations bill, the Defense of Marriage Act, ENDA--this
legislation--and the defense authorization bill, and I have tried to
set a record of trying to be fair and make sure that we have our chance
to make our cases here, within limits, and then move on, do the
business of the Senate, and then move on.
So that is how this legislation was set up to be considered in a
freestanding way. There are those that really do not think it should
have been brought up this way or would have preferred it not even come
up as an amendment. But I think it is a fair process, and it is one
that we agreed to in order to be able to do our business. So, be that
as it may, that is how we got to where we are.
ENDA, in my opinion, is part of a larger attempt to equate, by law,
what the bill itself calls, in the language of the bill,
``homosexuality, bisexuality, or heterosexuality.'' This is part of a
larger campaign to validate or to approve conduct that remains illegal
in many States. That has to be of concern to a lot of Senators whose
States would fall in that category.
ENDA would mean that ethical and religious objections to homosexual
or bisexual conduct would have to be pushed aside or closeted. Those
objections could no longer touch the workplace. The bill before us
seems to be full of exceptions, exceptions for small businesses, the
Armed Forces, religious organizations, though not for law enforcement,
schools, day care, or for-profit entities that are part of a church's
religious mission.
It seems to me there are many instances that should have been
exempted or should have been excluded. It seems to me that this is just
a guarantee of multiple lawsuits as to exactly what the intent is and
what it means. We do not need that. I think Senator Hatch explained in
his very definitive statement on September 6 those exemptions will not
limit the damage that will be done by this bill. It would put the full
force of the Federal Government behind the campaign to validate a
lifestyle that is unacceptable in many areas. I think that is the heart
of the matter.
Under ENDA, the antidiscrimination apparatus of the Federal
Government--the apparatus of the Federal Government--would treat sexual
orientation like race. It would scrutinize employment practices,
require remedial hiring or promotion, and treat negative attitudes in
this area as workplace harassment.
President Clinton's letter supporting this legislation notes that 41
States currently do not outlaw discrimination in employment on the
basis of sexual orientation. Only nine States have adopted anything
like ENDA. Only 18 Senators represent States which have their own
versions of this type of legislation, and 82 Senators are here to
represent States which do not have their own laws similar to this one.
I cannot believe that the majority of the Senate will impose upon those
41 States a piece of legislation which the citizens of those States
apparently do not want.
If ever there was a case of ``Washington knows best,'' ENDA is it. If
ever there was a one-size-fits-all approach to social engineering, ENDA
is it.
Mr. President, the American people are not bigoted or hateful or
prejudiced. They just are not. When it comes to ENDA, the American
people are cautious, prudent, and weary. I think they are right. They
have seen the good intentions of official Washington go astray time and
time again. They have heard sweet slogans to cover up legislation with
major problems.
That is the case with ENDA. Senators Nickles and Ashcroft and others
who have spoken have very forcefully explained the ramifications of
what seems to be a simple bill. But it is not simple at all. It is a
blank check to a court system increasingly out of touch, in many
instances, with the public. It is an open invitation to a Federal
bureaucracy brutally indifferent to what goes on in American life--in
our businesses, in our schools, and in our communities.
In short, I think this legislation is out of sync with the majority
of American people. I think the Senate should not pass it. It a very
serious matter, and I urge my colleagues to vote against it.
I yield the floor, Mr. President.
Mr. NICKLES. Mr. President, we are about to vote on final passage of
S. 2056, the Employment Nondiscrimination Act. I urge each Senator to
vote ``no.''
Before we vote, I want to address a few issues that have come up
during debate. Time does not, of course, allow me to go into these
issues in detail.
I urge each Senator to consider the moral implications of this vote.
In her recent, acclaimed book, ``The De-Moralization of Society,''
Gertrude Himmelfarb reminded us of a truth that needs to be repeated
here:
Individuals, families, churches, and communities cannot
operate in isolation, [they] cannot long maintain values at
odds with those legitimated by the state and popularized by
the culture. * * * Values, even traditional values, require
legitimation. At the very least, they require not to be
illegitimated. And in a secular society, legitimation or
illegitimation is in the hands of the dominant culture, the
state, and the courts.
This bill goes to the heart of traditional values--the values of
religious liberty, free association, and traditional sexual morality.
ENDA is solicitous of religious organizations, Mr. President, but
what about religious individuals? This bill concedes that it is going
to compel an approval of homosexual and bisexual behavior--that is why
religious organizations are exempted from the bill--but what about
religious individuals?
ENDA will punish those Americans who believe it is important to apply
[[Page S10137]]
their moral views in the workplace. To millions of Americans, human
sexuality is still a matter of the deepest moral concern, but ENDA says
to them that in the workplace they cannot make distinctions based on
sexual orientation, no matter how compelling.
Mr. President, I have heard it said on this floor that ENDA is
necessary to guarantee to homosexuals and bisexuals the equal
protection of the laws. That is not true.
The Constitution of the United States guarantees to every person the
equal protection of the laws.
Our colleagues know, for example, that under Federal employment laws
as now written every heterosexual, homosexual, or bisexual person is
treated equally. Of course, Federal law does not prohibit
discrimination on the basis of sexual orientation, so Government
bureaucrats cannot forbid or require a particular result if ``sexual
orientation'' should become an issue in the workplace, but each person
has identical rights, whatever his or her sexual orientation.
I believe that ENDA is going to mean quotas. The sponsors don't think
so, and they point to Section 7 of the bill that says that an employer
shall not give preferential treatment or establish a quota based on
sexual orientation.
Of course, there were many people who thought that the Civil Rights
Act of 1964 also prohibited quotas and preferential treatment. History
has shown that view to be naive. Today, quotas and preferential
treatment are a red-hot issue all across the country--but they are
opposed by the vast, vast majority of the American people.
I would remind Senators that ENDA gives to the EEOC--in
Sec. 11(a)(1)--the Attorney General--in Sec. 11(a)(4)--and the Federal
courts--in Sec. 11(a)(5)--the same powers they have with respect to
race and sex discrimination under current law--see Sec. 11(b). All of
the powers of the EEOC and the courts will be brought to bear against
the employer who believes that sexual orientation cannot be ignored in
his workplace.
There are a hundred traps for every covered employer. For example, if
ENDA is enacted 42 U.S.C. 2000e-2(m) will make it an ``an unlawful
employment practice'' if sexual orientation `'was a motivating factor
for any employment practice, even though other factors also motivated
the practice.''
Mr. President, ENDA is a power grab, and it is exactly the kind of
inside-the-Beltway power grab that Americans have come to resent.
ENDA threatens to make sexuality an issue where it has never been an
issue before. Currently, most employers don't know about their
employees' sexual orientation and don't care. ENDA will help put an end
to that. Some employers do care, and ENDA will put an end to that, too.
ENDA is about sexuality, but it is not about privacy. ENDA is about
going public.
Mr. President, I have heard it said on this floor that 80 percent of
the American people support this bill. This is not true.
The claim seems to be based on a poll taken by Newsweek magazine: In
that poll, conducted in May of this year, 84 percent of the Newsweek
respondents did say there should be ``equal rights for gays in terms of
job opportunities''--but that doesn't mean 84 percent of Americans want
a new Federal mandate. In fact, that very same poll shows that they
don't.
When asked about the effort the country has already made ``to protect
the rights of gays and lesbians,'' 26 percent said the country had made
the right amount of effort, 27 percent said more effort is needed, but
40 percent said the effort had gone too far.
When asked specifically if there should be ``special legislation to
guarantee equal rights for gays,'' 41 percent agreed that there should
be such legislation but 52 percent said there should not be such
legislation. In sum, Americans favor fairness but they oppose the heavy
hand of government which is what ENDA represents.
Mr. President, ENDA equates homosexuality and bisexuality with
heterosexuality, but the American people have never regarded
homosexuality or bisexuality as the moral or legal equivalent of
heterosexuality, whether in the workplace or not.
ENDA for bids discrimination ``on the basis of sexual orientation''
which it defines to mean ``homosexuality, bisexuality, or
heterosexuality, whether such orientation is real or perceived.''
Frankly, no one knows what those words mean or how they will be applied
in many real-life situations.
There is much more that ought to be said, Mr. President, but let me
conclude with this.
Just 3 years ago yesterday, the Senate voted 63 to 33 for a
compromise policy on homosexuals in the military. With that vote and
later votes and the President's signature, the laws of the United
States states that homosexuality was relevant to service in the Armed
Forces of the United States, and that open homosexuality was
disqualifying.
Today, we will vote on ENDA, a bill that will tell every employer in
America that homosexuality and bisexuality must at all times and in all
workplaces be irrelevant. Can the Senate truly believe that
homosexuality can be relevant in the military services but must be
irrelevant in the thousands of private workplaces that will be covered
by ENDA?
The Congress and the President have told the Pentagon that
homosexuality is contrary to good order and discipline--is it now going
to tell every private employer in America that, regardless of his or
her own moral judgment, homosexuality and bisexuality are just another
orientation that Congress has decreed to be irrelevant?
Mr. President, are we prepared to levy fines on a school district
that uses a policy that looks very much like the military's ``don't
ask, don't tell''? Are we prepared to force the American people into a
policy that holds sexual orientation irrelevant in every workplace
except the church and the military? What are we going to say to the
small business owner who wants to know why he, a private citizen with
strong moral views, doesn't have at least as much freedom to choose
employees as a Navy recruiter?
ENDA is a radical step, and it is a step in the wrong direction. It
should be defeated.
Mr. President, I ask unanimous consent several letters urging
opposition to this bill be printed in the Record.
There being no objection, the material ordered to be printed in the
Record, as follows:
U.S. Chamber of Commerce,
Washington, DC, September 10, 1996.
Members of the U.S. Senate: The Senate will soon consider
the Employment Nondiscrimination Act (ENDA), S. 2056. On
behalf of our membership of over 215,000 businesses, 3,000
state and local chambers of commerce, 1,200 trade and
professional associations, and 76 American chambers of
commerce abroad, I am writing to urge you to vote against
this bill.
S. 2056 amends Title VII of the 1964 Civil Rights Act to
allow lawsuits against employers, for compensatory and
punitive damages, based on an individual's actual or
perceived sexual orientation. Notwithstanding our concerns
regarding the specifics of S. 2056, a significant addition of
this nature to our basic laws against employment
discrimination should be thoroughly deliberated and vented
through our legislative process. Thus, the measure should be
the subject of hearings and careful consideration by the
appropriate committees. ENDA has not been considered by the
Labor and Human Resources Committee nor any other committee
in the 104th Congress. To pass this bill without thorough
consideration by the appropriate committees would be, at
best, manifestly unfair to American employers as well as all
of the citizens who would be affected by such sweeping
legislation.
The Senate should not hastily pass this legislation without
first thoroughly considering all of its advantages and
disadvantages. We urge you to vote against ENDA and send it
to the appropriate committees for careful consideration.
Sincerely,
R. Bruce Josten.
Senior Vice President,
Membership Policy Group.
____
National Association
of Manufacturers,
Washington, DC, September 10, 1996.
Hon. Don Nickles,
Senate Hart Office,
Washington, DC.
Dear Senator Nickles: On behalf of the NAM's 14,000 member
companies, 10,000 of which employ 500 or fewer workers, I
urge your opposition to the Employment Non-Discrimination Act
(ENDA), S. 2056.
This measure is an unwarranted and unwise extension of
Title VII of the Civil Rights Act. Expanding Title VII is a
significant legislative initiative that should not be
undertaken without the careful consideration afforded by the
committee process. The ENDA has not been the subject of any
hearings in the Labor and Human Resources Committee, nor has
it been considered by any committee in the 104th Congress.
Surely an initiative that would have such far-reaching
consequences for individual privacy
[[Page S10138]]
rights, employment policies and employers, rights should have
the benefit of full congressional consideration.
Expanding the reach of Title VII would not only increase an
already daunting case load at the EEOC (which currently has
significant backlogs due to enforcement authority for the
Americans With Disabilities Act), but would dramatically
increase record-keeping requirements for most employers. The
burden of federal recordkeeping requirements falls
disproportionately on smaller companies. It is these same
companies that continue to generate the greatest number of
new jobs and growth in our economy.
I urge you to reject the efforts of the ENDA backers to
short-circuit the legislative process, and vote against S.
2056.
Sincerely,
Sharon F. Canner,
Vice President,
Human Resources Policy.
____
Business Leadership Council,
Washington, DC, September 10, 1996.
Hon. Don Nickles,
U.S. Senate,
Washington, DC.
Dear Senator Nickles: On behalf of the Business Leadership
Council I am writing to express strong opposition to S. 2056,
the so-called ``Employment Nondiscrimination Act.''
At a time when Congress and the Nation should be working
toward cooperation in the workplace, this measure once again
revives the failed agenda of confrontation, regulation, and
litigation. This bill would expand Title VII of the Civil
Rights Act to include and amorphous category based on sexual
orientation. As a result the legislation threatens to embroil
virtually every workplace in politically and socially
motivated controversies which will cost jobs for thousands of
workers.
We hail your leadership in opposing this dangerous and
costly piece of legislation and will work vigorously to
ensure its defeat.
Very truly yours,
David L. Thompson.
____
Small Business
Survival Committee,
Washington, DC, September 10, 1996.
Hon. Don Nickles,
U.S. Senate,
Washington, DC.
Dear Senator Nickles: On behalf of the 45,000 members of
the Small Business Survival Committee, I urge the defeat of
the Employment Nondiscrimination Act, S. 2056. Unlike other
protected classes under Title VII of the Civil Rights Act of
1964, sexual orientation is a private matter of choice and
lifestyle. Federal workplace policy has not and should not
intrude in this highly volatile area.
This radical piece of social legislation is anti-worker and
anti-small business. There can be no doubt that the bill, if
enacted, would result in excessive lawsuits, regulations and
costs. As is typically the case with dictates and mandates,
the brunt of the federal policy would fall on small
businesses across the country. Every dollar spent defending
against this ill-conceived measure would be money denied to
workers in the form of raises and denied to small businesses
to be used to create jobs.
We strongly oppose S. 2056. Thank you for your leadership
against the bill.
Sincerely,
Karen Kerrigan,
President.
Mr. NICKLES. If the Senator yields back his time, I ask for the yeas
and nays.
Mr. KENNEDY. Mr. President, I just want to take 30 seconds.
Mr. President, our friend from Rhode Island pointed out that Barry
Goldwater supports this legislation. Coretta Scott King wrote to all of
us. In the Coretta Scott King letter she says:
As my husband, Martin Luther King, Jr. said, ``Injustice
anywhere is a threat to justice everywhere,'' and, ``I have
fought too long and hard against segregated public
accommodations to end up segregating my moral concern.
Justice is indivisible.''
Those are the words of Dr. Martin Luther King, Jr. They could be said
again here on the floor of the U.S. Senate on this particular issue,
because what it is all about is the questions of discrimination and
bigotry in the workplace. Below the clock in this Senate are the words
``E pluribus unum,'' one out of many. Why do we not eliminate the
discrimination that excludes so many of our fellow citizens and make
them part of the one as well?
This legislation will help. I ask unanimous consent to have printed
in the Record the letter from Coretta Scott King.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The King Center,
Atlanta, GA, September 10, 1996.
Dear Senator: Ernest Dillon, an African-American postal
employee in Detroit, worked hard and was good at his job. But
that wasn't enough. Deciding he was gay, his co-workers
repeatedly taunted him, until one day, while on the job they
beat him unconscious. And the harassment did not end there.
It continued unabated until he was forced out, fearing for
his life.
Mr. Dillon sought relief--first from his employer, then
from the courts. Tragically, both turned their backs on him.
Had he been harassed for being black, federal civil rights
law would have protected him. But job discrimination, and
even serious harassment, based on sexual orientation is still
perfectly legal in the United States of America in 1996. This
is unjust, un-American, and intolerable.
Today, workplace discrimination against gay men and
lesbians is real, widespread, and continues to cast a dark
shadow on our ideals as a free and fair nation. To remedy
this situation a bipartisan coalition in Congress introduced
the Employment Non-Discrimination Act. This essential
legislation will provide dedicated workers with long-overdue
protection from irrational fear and unjust discrimination
based on sexual orientation.
I am proud to join mayors, governors, religious leaders,
CEOs, and the Leadership Conference on Civil Rights in
support of this essential legislation. Lesbians and gay men
are a productive part of the American workforce, but the gap
in current law leaves them vulnerable to bigotry in the
workplace. For too long, our nation has ignored
discrimination against this group of Americans. They work
hard, pay their taxes, and yet continue to be denied equal
protection under the law. It is time for a change.
I am encouraged that in a recent Newsweek poll, 84 percent
of the respondents favored protecting gay and lesbian people
from job discrimination, and I am proud to stand with the
overwhelming majority of Americans who recognize the
importance of such protection.
The bill in Congress will grant the same rights to victims
of discrimination based on sexual orientation that are now
available to victims of racial, gender, and religious
discrimination and those who have been unfairly treated in
the workplace because of their age, ethnic background, or
disability. The bill provides no preferential treatment or
special rights. It simply requires that all people be judged
by their skills and the quality of their work, and not by the
prejudice, fear, and stereotypes of others. It is time to
root out bias, whatever form it takes.
As my husband, Martin Luther King, Jr. said, ``Injustice
anywhere is a threat to justice everywhere,'' and ``I have
fought too long and hard against segregated public
accommodations to end up segregating my moral concern.
Justice is indivisible.''
Lesbians and gays supported the African American freedom
struggle. None of us who achieved that freedom should turn
our back on this next phase of the movement for freedom and
dignity. Like Martin, I believe you cannot stand for freedom
for one group of people, and deny it to others. As history
affirms, none of us is free until all of us are free.
The Employment Non-Discrimination Act is a logical
extension of the Bill of Rights and the civil rights reforms
of the 1950s and 1960s. Then as now, we were told that
employers were not prejudiced, but their workers and
customers feared diversity. In the 1960s, businesses cited
``customer preference'' to rationalize their refusal to hire
African Americans. We should learn from these mistakes and
not repeat them.
The great promise of our democracy is that we encourage all
people to reach their full potential, and provide protection
against senseless discrimination and persecution. In doing
so, we strengthen ourselves as a nation and all that America
stands for.
Congress should help stop job discrimination by enacting
the Employment Non-Discrimination Act. Fundamental principles
of fairness and human dignity are at stake. All Americans who
support real equality in the workplace should watch closely
on Tuesday, September 10th as Senators cast their votes on
this landmark legislation.
Sincerely,
Coretta Scott King.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mr. NICKLES. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. All time has been yielded back.
The bill having been read the third time, the question is, Shall the
bill pass?
The yeas and nays have been ordered, and the clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Arkansas [Mr. Pryor] is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 49, nays 50, as follows:
[[Page S10139]]
[Rollcall Vote No. 281 Leg.]
YEAS--49
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Chafee
Cohen
Conrad
D'Amato
Daschle
Dodd
Dorgan
Feingold
Feinstein
Glenn
Graham
Harkin
Hatfield
Hollings
Inouye
Jeffords
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Pell
Reid
Robb
Rockefeller
Sarbanes
Simon
Simpson
Snowe
Specter
Wellstone
Wyden
NAYS--50
Abraham
Ashcroft
Bennett
Bond
Brown
Burns
Byrd
Campbell
Coats
Cochran
Coverdell
Craig
DeWine
Domenici
Exon
Faircloth
Ford
Frahm
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Heflin
Helms
Hutchison
Inhofe
Kassebaum
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Roth
Santorum
Shelby
Smith
Stevens
Thomas
Thompson
Thurmond
Warner
NOT VOTING--1
Pryor
The bill (S. 2056) was rejected.
Mr. GRAMM. Mr. President, I move to reconsider the vote.
Mr. NICKLES. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BYRD. Mr. President, I voted against S. 2056, the Employment
Nondiscrimination Act. I would like to take a few moments of the
Senate's time to explain my opposition and concerns with respect to
that legislation.
At the outset, however, I would first like to acknowledge the fact
that I do not condone employment discrimination based on factors
immaterial to the performance of one's duties. I do not practice it in
my own office, nor am I aware of any other member of the Senate that
does. And, as the proponents of S. 2056 have shown, many employers
throughout this nation--both large and small--have adopted
nondiscrimination provisions as part of their corporate policies. I
applaud that effort.
But the fact that I do not approve of, or practice, employment
discrimination does not mean that I believe it is wise for the Senate
to pass this bill at this time. On the contrary, I think it is
inadvisable, at this late stage of the 104th Congress, for us to shift
our focus from the immediate tasks at hand to a matter that is clearly
deserving of extended deliberation by way of committee hearings and
floor debate.
Mr. President, in my opinion, the legal ramifications that could
necessarily extend from enactment of this Act are monumental. I believe
this is so because passage of the Act would, for the first time in our
history, place sexual conduct on an equitable legal footing with such
benign, nonbehavioral factors as race, gender, and national origin--
immutable characteristics which each of us possess, but which none of
us can alter.
It is my hope, then, that when the 105th Congress convenes next year,
hearings may be held that will bring together various legal scholars
who will concentrate on this important aspect, and in so doing help us,
as Senators, in making a more informed decision.
Until such considerations and debate has taken place, I cannot, in
all good conscience, support this measure.
____________________