[Congressional Record Volume 143, Number 80 (Tuesday, June 10, 1997)]
[Senate]
[Pages S5457-S5460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JEFFORDS (for himself, Mr. Kennedy, Mr. Lieberman, Mr. 
        Torricelli, Mr. Wyden, Mr. Bingaman, Mr. Kerry, Mr. Wellstone, 
        Mr. Harkin, Ms. Landrieu, Mr. Feingold, Mrs. Murray, Mrs. 
        Boxer, Mr. Levin, Mr. Sarbanes, Mr. Akaka, Mr. Lautenberg, Mr. 
        Durbin, Mr. Chafee, Mr. Kohl, Mr. Inouye, Ms. Mikulski, Mr. 
        Robb, Mr. Moynihan, Mrs. Feinstein, Mr. Dodd, Mr. Reid, Mr. 
        Leahy, Mr. Bryan, Ms. Moseley-Braun, Mr. Glenn, Mr. Kerrey, Mr. 
        Reed, Mr. D'Amato, and Mr. Cleland):

  S. 869. A bill to prohibit employment discrimination on the basis of 
sexual orientation; to the Committee on Labor and Human Resources.


             The Employment Non-Discrimination Act of 1997

  Mr. JEFFORDS. Mr. President, I am pleased to be here today to 
introduce the Employment Non-Discrimination Act of 1997 [ENDA]. As many 
of you recall, my colleagues and I introduced similar legislation in 
the last Congress. While we were unable to pass ENDA in the last 
Congress, I was encouraged that ENDA was only narrowly defeated, by a 
vote of 50 to 49. It is my hope that in the 105th Congress, we can 
bridge that narrow gap and pass this legislation. By extending to 
sexual orientation the same Federal employment discrimination 
protections established for race, religion, gender, national origin, 
age, and disability, this legislation will further ensure that 
principals of equality and opportunity apply to all Americans.

[[Page S5458]]

  I believe that all Americans deserve to be judged at work based on 
their ability to do their jobs and not their sexual orientation. People 
who work hard and perform well should not be kept from leading 
productive and responsible lives because of an irrational, non-work-
related prejudice. Unfortunately, many responsible and productive 
members of our society face discrimination in their workplaces based on 
nothing more than their sexual orientation. Because this insidious 
discrimination persists, there is a need for Congress to pass the 
Employment Non-Discrimination Act.
  Mr. President, the Senate's vote last Congress is no doubt reflective 
of the American people's support of the concept behind ENDA. In a 
recent poll, 83 percent of the respondents support the passage of a law 
extending civil rights and preventing job discrimination against gays 
and lesbians. While ENDA will achieve this goal of equal rights for job 
opportunities, it does so by not creating any special rights for gays 
and lesbians. Specifically, this legislation prohibits preferential 
treatment based on sexual orientation. In addition, ENDA does not 
require an employer to justify a neutral practice that may have a 
statistically disparate impact based on sexual orientation, nor provide 
benefits for the same-sex partner of an employee. Rather, it simply 
protects a right that should belong to every American, the right to be 
free from discrimination at work because of personal characteristics 
unrelated to successful performance on the job.
  Since ENDA's narrow defeat last September, we have taken a fresh look 
at this important legislation in an attempt to allay some of the 
concerns raised by ENDA's detractors in the last Congress. I am pleased 
to announce that we have made several significant improvements in the 
bill.
  Our first change is intended to address the concern raised that 
employees' privacy rights would be violated if the Equal Employment 
Opportunity Commission [EEOC] required employers to provide the 
Government with data on the sexual orientation of their employees. As a 
result, the bill now prohibits the EEOC from collecting such statistics 
and from compelling employers to do so. Opponents of the previous 
legislation were also concerned that the EEOC would require employers 
who have violated ENDA to hire gay and lesbian employees as part of its 
enforcement scheme. To alleviate that possibility, the new legislation 
precludes the EEOC from entering into a consent decree that includes 
quotas, or gives preferential treatment based on sexual orientation. In 
addition, we have narrowed the language of the previous bill so that 
only actual paid employees are protected and we have attempted to 
ensure that exempted religious organizations from coverage.

  In today's global economy, our Nation must take full advantage of 
every resource that is at our disposal if we want U.S. companies to 
maintain their competitive advantage over their international 
competitors. The fact that a majority of Fortune 500 companies have 
incorporated many of ENDA's policies, clearly indicates the acceptance 
of these changes within the workplace. In fact, it can be stated that 
without these American companies, on their own, undertaking these 
actions to insure adequate working protections for all of their 
employees they would be less competitive and may even be unable to 
maintain their existence within this fiercely competitive international 
environment.
  Mr. President, some concern has been raised by my colleagues that 
passing ENDA will create a new wave of litigation. I am proud to say 
that my home State of Vermont is one of several States and localities 
that have enacted a sexual orientation anti-discrimination law, and it 
is no surprise, to me, that the sky has not fallen. Since the enactment 
of Vermont's law in 1991 the Vermont Attorney General has initiated 
only 17 investigations of alleged sexual orientation discrimination. 
Seven are pending at this time. Five have been closed with 
determinations that unlawful discrimination cannot be proven to have 
occurred. Four have been closed for miscellaneous administrative 
reasons, unrelated to the merits of the charge, and one resulted in a 
settlement. In addition, I am not aware of a single complaint from 
Vermont employers about the enforcement of the State law. However, I do 
know that thousands of Vermonters no longer need to live and work in 
the shadows. The facts bear out my belief that the effect experienced 
in Vermont on litigation has been experienced in other States and the 
District of Columbia that have implemented policies similar to the one 
of my home State of Vermont.
  As I have stated before, success at work should be directly related 
to one's ability to do the job, period. The passage of ENDA would be a 
significant step toward ensuring the ability of all people, be they 
gay, lesbian, or heterosexual, to be fairly judged on their work 
product, not on an unrelated personal characteristic. I urge all my 
colleagues to join me in supporting this bill.
  I ask unanimous consent that a copy of this bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 869

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Employment Non-
     Discrimination Act of 1997''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to provide a comprehensive Federal prohibition of 
     employment discrimination on the basis of sexual orientation;
       (2) to provide meaningful and effective remedies for 
     employment discrimination on the basis of sexual orientation; 
     and
       (3) to invoke congressional powers, including the powers to 
     enforce the 14th amendment to the Constitution and to 
     regulate interstate commerce, in order to prohibit employment 
     discrimination on the basis of sexual orientation.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Commission.--The term ``Commission'' means the Equal 
     Employment Opportunity Commission.
       (2) Covered entity.--The term ``covered entity'' means an 
     employer, employment agency, labor organization, joint labor-
     management committee, an entity to which section 717(a) of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies, 
     an employing authority to which section 302(a)(1) of the 
     Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) 
     applies, or an employing office, as defined in section 101 of 
     the Congressional Accountability Act of 1995 (2 U.S.C. 1301). 
     The term ``covered entity'' includes an employing office, as 
     defined in section 401 of title 3, United States Code.
       (3) Employer.--The term ``employer'' means a person engaged 
     in an industry affecting commerce (as defined in section 
     701(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h))) 
     who has 15 or more employees (as defined in section 701(f) of 
     such Act (42 U.S.C. 2000e(f)) for each working day in each of 
     20 or more calendar weeks in the current or preceding 
     calendar year, and any agent of such a person, but such term 
     does not include a bona fide private membership club (other 
     than a labor organization) that is exempt from taxation under 
     section 501(c) of the Internal Revenue Code of 1986.
       (4) Employment agency.--The term ``employment agency'' has 
     the meaning given the term in section 701(c) of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e(c)).
       (5) Employment or an employment opportunity.--Except as 
     provided in section 10(a)(1), the term ``employment or an 
     employment opportunity'' includes job application procedures, 
     hiring, advancement, discharge, compensation, job training, 
     or any other term, condition, or privilege of employment, but 
     does not include the service of a volunteer for which the 
     volunteer receives no compensation.
       (6) Labor organization.--The term ``labor organization'' 
     has the meaning given the term in section 701(d) of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e(d)).
       (7) Person.--The term ``person'' has the meaning given the 
     term in section 701(a) of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e(a)).
       (8) Religious organization.--The term ``religious 
     organization'' means--
       (A) a religious corporation, association, or society; or
       (B) a school, college, university, or other educational 
     institution or institution of learning, if--
       (i) the institution is in whole or substantial part 
     controlled, managed, owned, or supported by a religion, 
     religious corporation, association, or society; or
       (ii) the curriculum of the institution is directed toward 
     the propagation of a religion.
       (9) Sexual orientation.--The term ``sexual orientation'' 
     means homosexuality, bisexuality, or heterosexuality, whether 
     the orientation is real or perceived.
       (10) State.--The term ``State'' has the meaning given the 
     term in section 701(i) of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e(i)).

     SEC. 4. DISCRIMINATION PROHIBITED.

       A covered entity shall not, with respect to the employment 
     or an employment opportunity of an individual--
       (1) subject the individual to a different standard or 
     different treatment, or otherwise

[[Page S5459]]

     discriminate against the individual, on the basis of sexual 
     orientation; or
       (2) discriminate against the individual based on the sexual 
     orientation of a person with whom the individual is believed 
     to associate or to have associated.

     SEC. 5. RETALIATION AND COERCION PROHIBITED.

       (a) Retaliation.--A covered entity shall not discriminate 
     against an individual because the individual opposed any act 
     or practice prohibited by this Act or because the individual 
     made a charge, assisted, testified, or participated in any 
     manner in an investigation, proceeding, or hearing under this 
     Act.
       (b) Coercion.--A person shall not coerce, intimidate, 
     threaten, or interfere with any individual in the exercise or 
     enjoyment of, or on account of the individual's having 
     exercised, enjoyed, assisted in, or encouraged the exercise 
     or enjoyment of, any right granted or protected by this Act.

     SEC. 6. BENEFITS.

       This Act does not apply to the provision of employee 
     benefits to an individual for the benefit of the partner of 
     the individual.

     SEC. 7. NO DISPARATE IMPACT; COLLECTION OF STATISTICS.

       (a) Disparate Impact.--The fact that an employment practice 
     has a disparate impact, as the term ``disparate impact'' is 
     used in section 703(k) of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e-2(k)), on the basis of sexual orientation does 
     not establish a prima facie violation of this Act.
       (b) Collection of Statistics.--The Commission shall not 
     collect statistics on sexual orientation from covered 
     entities, or compel the collection of such statistics by 
     covered entities.

     SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED.

       (a) Quotas.--A covered entity shall not adopt or implement 
     a quota on the basis of sexual orientation.
       (b) Preferential Treatment.--A covered entity shall not 
     give preferential treatment to an individual on the basis of 
     sexual orientation.
       (c) Consent Decrees.--The Commission may not enter into a 
     consent decree that includes a quota, or preferential 
     treatment to an individual, based on sexual orientation.

     SEC. 9. RELIGIOUS EXEMPTION.

       (a) In General.--Except as provided in subsection (b), this 
     Act shall not apply to a religious organization.
       (b) Unrelated Business Taxable Income.--This Act shall 
     apply to employment or an employment opportunity for an 
     employment position of a covered entity that is a religious 
     organization, if the duties of the position pertain solely to 
     activities of the organization that generate unrelated 
     business taxable income subject to taxation under section 
     511(a) of the Internal Revenue Code of 1986.

     SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; 
                   VETERANS' PREFERENCES.

       (a) Armed Forces.--
       (1) Employment or an employment opportunity.--In this Act, 
     the term ``employment or an employment opportunity'' does not 
     apply to the relationship between the United States and 
     members of the Armed Forces.
       (2) Armed forces.--In paragraph (1), the term ``Armed 
     Forces'' means the Army, Navy, Air Force, Marine Corps, and 
     Coast Guard.
       (b) Veterans' Preferences.--This Act does not repeal or 
     modify any Federal, State, territorial, or local law creating 
     a special right or preference concerning employment or an 
     employment opportunity for a veteran.

     SEC. 11. CONSTRUCTION.

       Nothing in this Act shall be construed to prohibit a 
     covered entity from enforcing rules regarding nonprivate 
     sexual conduct, if the rules of conduct are designed for, and 
     uniformly applied to, all individuals regardless of sexual 
     orientation.

     SEC. 12. ENFORCEMENT.

       (a) Enforcement Powers.--With respect to the administration 
     and enforcement of this Act in the case of a claim alleged by 
     an individual for a violation of this Act--
       (1) the Commission shall have the same powers as the 
     Commission has to administer and enforce--
       (A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.); or
       (B) sections 302 and 304 of the Government Employee Rights 
     Act of 1991 (2 U.S.C. 1202 and 1220);

     in the case of a claim alleged by the individual for a 
     violation of such title or of section 302(a)(1) of such Act 
     (2 U.S.C. 1202(a)(1)), respectively;
       (2) the Librarian of Congress shall have the same powers as 
     the Librarian of Congress has to administer and enforce title 
     VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 
     in the case of a claim alleged by the individual for a 
     violation of such title;
       (3) the Board (as defined in section 101 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 1301)) 
     shall have the same powers as the Board has to administer and 
     enforce the Congressional Accountability Act of 1995 (2 
     U.S.C. 1301 et seq.) in the case of a claim alleged by the 
     individual for a violation of section 201(a)(1) of such Act 
     (2 U.S.C. 1311(a)(1));
       (4) the Attorney General shall have the same powers as the 
     Attorney General has to administer and enforce--
       (A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.); or
       (B) sections 302 and 304 of the Government Employee Rights 
     Act of 1991 (2 U.S.C. 1202 and 1220);

     in the case of a claim alleged by the individual for a 
     violation of such title or of section 302(a)(1) of such Act 
     (2 U.S.C. 1202(a)(1)), respectively;
       (5) the President, the Commission, and the Merit Systems 
     Protection Board shall have the same powers as the President, 
     the Commission, and the Board, respectively, have to 
     administer and enforce chapter 5 of title 3, United States 
     Code, in the case of a claim alleged by the individual for a 
     violation of section 411 of such title;
       (6) a court of the United States shall have the same 
     jurisdiction and powers as the court has to enforce--
       (A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.) in the case of a claim alleged by the 
     individual for a violation of such title;
       (B) sections 302 and 304 of the Government Employee Rights 
     Act of 1991 (2 U.S.C. 1202 and 1220) in the case of a claim 
     alleged by the individual for a violation of section 
     302(a)(1) of such Act (2 U.S.C. 1202(a)(1));
       (C) the Congressional Accountability Act of 1995 (2 U.S.C. 
     1301 et seq.) in the case of a claim alleged by the 
     individual for a violation of section 201(a)(1) of such Act 
     (2 U.S.C. 1311(a)(1)); and
       (D) chapter 5 of title 3, United States Code, in the case 
     of a claim alleged by the individual for a violation of 
     section 411 of such title.
       (b) Procedures and Remedies.--The procedures and remedies 
     applicable to a claim alleged by an individual for a 
     violation of this Act are--
       (1) the procedures and remedies applicable for a violation 
     of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 
     et seq.) in the case of a claim alleged by the individual for 
     a violation of such title;
       (2) the procedures and remedies applicable for a violation 
     of section 302(a)(1) of the Government Employee Rights Act of 
     1991 (2 U.S.C. 1202(a)(1)) in the case of a claim alleged by 
     the individual for a violation of such section;
       (3) the procedures and remedies applicable for a violation 
     of section 201(a)(1) of the Congressional Accountability Act 
     of 1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged 
     by the individual for a violation of such section; and
       (4) the procedures and remedies applicable for a violation 
     of section 411 of title 3, United States Code, in the case of 
     a claim alleged by the individual for a violation of such 
     section.
       (c) Other Applicable Provisions.--With respect to a claim 
     alleged by a covered employee (as defined in section 101 of 
     the Congressional Accountability Act of 1995 (2 U.S.C. 1301)) 
     for a violation of this Act, title III of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1381 et seq.) shall 
     apply in the same manner as such title applies with respect 
     to a claim alleged by such a covered employee for a violation 
     of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).

     SEC. 13. STATE AND FEDERAL IMMUNITY.

       (a) State Immunity.--A State shall not be immune under the 
     11th amendment to the Constitution from an action in a 
     Federal court of competent jurisdiction for a violation of 
     this Act.
       (b) Remedies Against the United States and the States.--
     Notwithstanding any other provision of this Act, in an action 
     or administrative proceeding against the United States or a 
     State for a violation of this Act, remedies (including 
     remedies at law and in equity, and interest) are available 
     for the violation to the same extent as the remedies are 
     available for a violation of title VII of the Civil Rights 
     Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity, 
     except that--
       (1) punitive damages are not available; and
       (2) compensatory damages are available to the extent 
     specified in section 1977A(b) of the Revised Statutes (42 
     U.S.C. 1981a(b)).

     SEC. 14. ATTORNEYS' FEES.

       Notwithstanding any other provision of this Act, in an 
     action or administrative proceeding for a violation of this 
     Act, an entity described in section 12(a) (other than 
     paragraph (4) of such section), in the discretion of the 
     entity, may allow the prevailing party, other than the United 
     States, a reasonable attorney's fee (including expert fees) 
     as part of the costs.The United States shall be liable for 
     the costs to the same extent as a private person.

     SEC. 15. POSTING NOTICES.

       A covered entity shall post notices for employees, 
     applicants for employment, and members, to whom the 
     provisions specified in section 12(b) apply, that describe 
     the applicable provisions of this Act in the manner 
     prescribed by, and subject to the penalty provided under, 
     section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
     10).

     SEC. 16. REGULATIONS.

       (a) In General.--Except as provided in subsections (b), 
     (c), and (d), the Commission shall have authority to issue 
     regulations to carry out this Act.
       (b) Librarian of Congress.--The Librarian of Congress shall 
     have authority to issue regulations to carry out this Act 
     with respect to employees of the Library of Congress.
       (c) Board.--The Board referred to in section 12(a)(3) shall 
     have authority to issue regulations to carry out this Act, in 
     accordance with section 304 of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1384), with respect to 
     covered employees, as defined in section 101 of such Act (2 
     U.S.C. 1301).
       (d) President.--The President shall have authority to issue 
     regulations to carry out this Act with respect to covered 
     employees, as defined in section 401 of title 3, United 
     States Code.

[[Page S5460]]

     SEC. 17. RELATIONSHIP TO OTHER LAWS.

       This Act shall not invalidate or limit the rights, 
     remedies, or procedures available to an individual claiming 
     discrimination prohibited under any other Federal law or any 
     law of a State or political subdivision of a State.

     SEC. 18. SEVERABILITY.

       If any provision of this Act, or the application of the 
     provision to any person or circumstance, is held to be 
     invalid, the remainder of this Act and the application of the 
     provision to any other person or circumstance shall not be 
     affected by the invalidity.

     SEC. 19. EFFECTIVE DATE.

       (a) In General.--Except as provided in subsection (b), this 
     Act shall take effect 60 days after the date of enactment of 
     this Act and shall not apply to conduct occurring before the 
     effective date.
       (b) Presidential Offices.--The second sentence of section 
     3(2), and sections 12(a)(5), 12(a)(6)(D), 12(b)(4), and 
     16(d), shall take effect on, and shall not apply to conduct 
     occurring before, the later of--
       (1) October 1, 1997; and
       (2) the effective date described in subsection (a).

  Mr. LIEBERMAN. Mr. President, I am delighted to join with Senators 
Jeffords, Kennedy, and over 30 of our colleagues as an original 
cosponsor of this important legislation, the Employment Non-
Discrimination Act of 1997. By guaranteeing that American workers 
cannot lose their jobs simply because of their actual or perceived 
sexual orientation, this bill would extend the bedrock American values 
of fairness and equality to a group of our citizens who too often have 
been denied the benefit of those most basic values.
  Our Nation's foundational document, the Declaration of Independence, 
expressed a vision of our country as one premised upon the essential 
equality of all people and upon the recognition that our Creator 
endowed all of us with the inalienable rights to life, liberty, and the 
pursuit of happiness. Two hundred and twenty years ago, when that 
document was drafted, our laws fell far short of implementing the 
declaration's ideal. But since that time, we have come ever closer, 
extending by law to more and more of our citizens--to African-
Americans, to women, to disabled Americans, to religious minorities, 
and to others--a legally enforceable guarantee that, with respect to 
their ability to earn a living at least, they will be treated on their 
merits and not on characteristics unrelated to their ability to do 
their jobs.
  It is time to extend that guarantee to gay men and lesbians, who too 
often have been subject to incidents of discrimination and denied the 
most basic of rights: the right to obtain and maintain a job. A 
collection of nearly two dozen studies shows that as many as 46 percent 
of gay and lesbian workers have experienced significant discrimination 
in the workplace. The fear in which these workers live was clear from a 
survey of 1,400 gay men and lesbians in Philadelphia. Seventy-six 
percent of the men and 81 percent of the women told those conducting 
the survey that they hide their orientation at work out of concern for 
their job security. This result, although unfortunate, is not 
surprising in light of a University of Maryland study that found gay 
men's income to be 11 to 27 percent lower than that of heterosexual 
men, thanks to the effects of discrimination.
  The toll this discrimination takes extends far beyond its effect on 
those individuals who must live in fear and without full employment 
opportunities. It also takes an unacceptable toll on America's 
definition of itself as a land of equality and opportunity, as a place 
where we judge each other on our merits, and as a country that teaches 
its children that anyone can succeed here as long as they are willing 
to do their job and work hard.
  This bill provides for equality and fairness--that and no more. It 
says only what we already have said for women, for people of color, and 
for others: that you are entitled to have your ability to earn a living 
depend only on your ability to do the job and nothing else. In fact, 
the bill would even do somewhat less than it does for women and people 
of color, because it would not give gay men and women all of the 
protections we currently provide to other groups protected under our 
civil rights laws.
  Mr. President, this bill would bring our Nation one large step closer 
to realizing the vision that Thomas Jefferson so eloquently expressed 
220 years ago when he wrote that all of us have a right to life, 
liberty, and the pursuit of happiness. I urge my colleagues to join me 
in supporting this important legislation.
                                 ______