[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.

                          ____________________