[Congressional Record Volume 159, Number 155 (Monday, November 4, 2013)]
[Senate]
[Pages S7783-S7785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMPLOYMENT NON-DISCRIMINATION ACT OF 2013--MOTION TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 815, which the
clerk will report.
The legislative clerk read as follows:
Motion to proceed to Calendar No. 184, S. 815, a bill to
prohibit employment discrimination on the basis of sexual
orientation or gender identity.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, today marks another step forward in the
progress of the United States of America in making sure that all of our
citizens are treated fairly and equitably under the law, that each
citizen of this country will know he or she cannot be discriminated
against because of race, religion, sex, or national origin. That was
all covered in the Civil Rights Act of 1964.
In 1990 I was proud to stand at this very desk when we took another
step forward when we said we were going to extend civil rights to cover
people with disabilities. Today I stand here to mark another step
forward when we will have a vote on proceeding to the debate to end
discrimination in employment because of a person's sexual orientation.
It is a huge step forward, one too long in coming.
I was here in 1996 when we voted on the Employment Non-Discrimination
Act, the bill that is now before the Senate. We lost by one vote--50 to
49. That was a dark day. We have been trying to get it before the
Senate ever since, and we have finally done so. I am proud to say that
we got it through the HELP Committee this summer on a strong bipartisan
vote, and we now have it before the Senate.
People should understand this is a momentous day in the development
of our country, ensuring that every person is recognized for their
individual worth and for what they contribute to society, not for the
color of their skin or race or religion or national origin or whether
they have a disability. Today we also say: We will make sure you cannot
be discriminated against because of your sexual identity or whom you
love.
It has been 17 years since Ted Kennedy, who chaired the committee at
the time, brought this bill to the floor in 1996, and it was, again,
one vote shy of passage. In the meantime, over those 17 years, the
attitudes in this country have changed dramatically about the rights of
gay, lesbian, transsexual, and transgender Americans. In a nutshell, I
think the vast majority of Americans believe that individuals ought to
have the right to earn a living free from discrimination and that they
should be judged on their performance in the workplace based on their
talent, their ability, and their qualifications.
Interestingly enough, since 1996, 17 States--including my State of
Iowa--have passed legislation that includes basic employment
protections for all LGBT Americans. I will use that acronym or those
letters to explain lesbian, gay, bisexual, and transgender Americans.
Eighty-eight percent of Fortune 500 businesses have included
protections in their nondiscrimination policies, as have the majority
of small businesses. Over 100 major businesses, including
pharmaceutical and technology companies, banks, manufacturing
companies, and chemical companies have announced their support for this
bill. In fact, there are polls that show 8 out of 10 Americans already
believe that discrimination against people because of their sexual
orientation is already illegal; for example, that it is illegal to fire
someone for being gay or for being a lesbian.
Why are we here today? Twenty-three years ago I stood at this desk as
the manager of the Americans with Disabilities Act. That bill was to
extend nondiscrimination clauses to people with disabilities. At that
time a lot of people said: What is the problem?
Here is the problem in a nutshell. Let's say you are an African
American--or a woman or Jewish or Catholic or anything else--and you
applied for a job for which you were fully qualified and the
prospective employer said: No, I am not hiring African Americans. I
don't want any Black people working here. No, you are Jewish; get out
of here. Do you know what you could do? You could turn right around,
walk out the door, go down to the courthouse, and the courthouse door
would be open for you. You can go into that courthouse and take that
case to court.
When I stood here 23 years ago, I said: Until the President signs
that bill into law, a person with a disability--for example, someone
bound to a wheelchair--could be turned down in spite of being qualified
for the job. The prospective employer could say: Get out of here; I
don't hire cripples. If you then went down to the courthouse, the door
was locked. You had no recourse under law for the violation of your
civil rights. That is true today for gays, lesbians, bisexual, and
transgender Americans. They could be fired just because of that. If
they go down to the courthouse door, it is locked. They have no
recourse under law.
As I said, 17 States have State laws, some municipalities have
municipal laws, but the vast majority of Americans live in States in
which there is no civil rights law governing LGBT people. The majority
of Americans--more than 56 percent--live in States in which it is
perfectly legal to fire or refuse to hire someone because of who they
are--lesbian, gay, bisexual, or transgender. They have no recourse
under law. As I said, most people in America think they are covered.
They think you can't discriminate against someone because of that. The
fact is that it is still perfectly legal to do so in most States in the
United States.
As I said, I think we have changed quite a bit in the 17 years since
we last considered this bill. That last vote was 49 to 50. We lost by
one vote, and there were no amendments. At that time a majority of
Senators would have been enough to pass it. All we needed was one more
vote. I remember Vice President Al Gore was sitting in the chair, but
we were one vote short.
Today, however, as times have changed, we know we need 60 votes to
pass bills. Just think about that--17 years ago 51 votes would have
passed this bill; now we have to have 60 votes. I won't get into the
necessity of having to change the rules of the Senate. We need 60 votes
before we can even bring up the bill. It is a tribute to the leadership
of the bill's sponsors, Senator Jeff Merkley and Senator Mark Kirk,
that we have now reached 60 votes. As of last week we only had about 57
or 58 votes, and then 2 more people decided to support the bill. Now
that Senator Heller of Nevada has announced his support for the bill,
we have 60 votes. We have 60 votes, and I predict we will get more than
60 votes. Once we reach the critical mass, I think my colleagues will
understand that this is another step in the direction of opening
America and making our society more inclusive rather than exclusive.
Senator Kirk, who is managing the bill for the minority, had been a
supporter of this legislation before he was elected to the House.
Senator Merkley, who is the sponsor of the bill, was the leader of this
effort when he was in the Oregon State Legislature. One Republican and
one Democrat were champions of this bill before they came to Congress.
They both played a critical role in ensuring the bill was brought
before our committee. Even though Senator Merkley left our committee to
join the Appropriations Committee, he always kept on top of this. With
their help, we voted it out of our HELP Committee in July with a strong
bipartisan vote of 15 to 7. I thank the present occupant of the Chair,
the distinguished Senator from Connecticut, for all of his help and
support for getting this bill through. We had the support of three
Members of the minority as well. The vote was 15 to 7. It was a great
vote.
Despite the passage of laws at the State and local levels,
discrimination in the workplace continues to be all too real. Forty-two
percent of lesbian, gay, and bisexual workers report having experienced
some form of discrimination at work. Even with the progress that has
been made at the State and local levels, as I mentioned, too many
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hard-working Americans, whether employed by private companies or public
entities, are judged not by their ability and qualifications but by
their sexual orientation or gender identity.
Consider the example of Michael Carney, who was denied reinstatement
as a police officer three times before successfully using the
protections of State law to get his job back. This is a job in which he
has now served with distinction for many years.
Consider Sam Hall, a West Virginia miner who suffered destruction of
property and verbal harassment from coworkers because of his identity
as a gay person. Sam is one of those millions of Americans who
currently have no legal recourse without this law.
Discrimination against transgender Americans is even more common,
with 78 percent reporting harassment at work. I was fortunate enough to
hear from Kylar Broadus, who was a witness at our HELP Committee
hearing last year. Kylar faced intense harassment at work as he
transitioned from female to male. He has never fully recovered
financially from the loss of his well-paid position.
Allyson Robinson also provided written testimony to the committee
regarding the painful separation from her family that she endured
because of financial hardships while she searched for her first job as
an openly transgender female.
Again, too many of our fellow citizens are being judged not by what
they can contribute to the workplace but by who they are and whom they
choose to love. Unfortunately, we can cite countless cases of bigotry
and blatant job discrimination based on sexual orientation or gender
identity. Equal opportunity is not just an abstract principle or a
matter of statistics. Every day, decent hard-working Americans are
being hurt by this form of discrimination.
It has been almost 50 years since we first took steps to eliminate
discrimination at work and 23 years since we passed the Americans with
Disabilities Act to eliminate discrimination against people with
disabilities. We still have a long way to go, but our country is a far
better place because of laws against discrimination based on race and
sex and national origin and religion and age and, yes, disability. At
long last, it is time for us to also prohibit discrimination on the
basis of sexual orientation and gender identity. Such discrimination is
fundamentally wrong and cannot be tolerated any longer in our country.
Lesbian, gay, bisexual, and transgender Americans deserve the same
civil rights protections as all other Americans. This bill will
accomplish that. It will say to millions of LGBT Americans that they
are full and welcome members of our American family and that they
deserve the same civil rights protections as every other American.
The bill is very simple. It is very clear. It states that private
businesses, public employers, and labor unions cannot make employment
decisions--hiring, firing, promotion or compensation--because of a
person's actual or perceived sexual orientation or gender identity.
There are exemptions for small businesses and religious organizations,
and current rules that are applicable to the Armed Forces are not
affected. The bill expressly prohibits disparate impact claims. I wish
to repeat that. The bill expressly prohibits disparate impact claims.
It is modeled on title VII of the Civil Rights Act. That law has been
in place, as I said, since 1964. This bill also incorporates many
suggestions from members of both sides, Republicans and Democrats, on
our HELP Committee, and I am glad we could work on a bipartisan basis
to improve the bill and get it through our committee.
ENDA, as it is known--the Employment Non-Discrimination Act--has
unprecedented support from major American businesses, including Dow
Chemical, General Electric, Hilton Hotels, GlaxoSmithKline, Chevron,
Wells Fargo, Marriott Hotels, Coca-Cola, Cisco, Kaiser, and on and on.
I ask unanimous consent to have printed in the Record this list of
over 100 companies that support the passage of the bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Business Coalition for Workplace Fairness
The majority of United States businesses have already
started addressing workplace fairness for lesbian, gay,
bisexual and transgender employees. But we need a federal
standard that treats all employees the same way.
The Business Coalition for Workplace Fairness is a group of
leading U.S. employers that support the Employment Non-
Discrimination Act, a federal bill that would provide the
same basic protections that are already afforded to workers
across the country.
Lesbian, gay, bisexual and transgender employees are not
protected under federal law from being fired, refused work or
otherwise discriminated against. ENDA would do just that.
Leading employers that support workplace fairness and the passage of
the federal Employment Non-Discrimination Act
Accenture Ltd., New York, NY; AIG, New York, NY; Alcoa
Inc., New York, NY; American Eagle Outfitters Inc.,
Pittsburgh, PA; American Institute of Architects, Washington,
DC; Ameriprise Financial Inc., Minneapolis, MN; Amgen Inc.,
Thousand Oaks, CA; AMR Corp. (American Airlines), Fort Worth,
TX; Apple, Cupertino, CA; Bank of America Corp., Charlotte,
NC; The Bank of New York Mellon Corp. (BNY Mellon), New York,
NY; Barclays, New York, NY; BASF Corp., Florham Park, NJ;
Bausch & Lomb Inc., Rochester, NY; Best Buy Co. Inc.,
Richfield, MN; Bingham McCutchen LLP, Boston, MA; Biogen Idec
Inc., Weston, MA; BMC Software Inc., Houston, TX; BNP
Paribas, New York, NY; Boehringer Ingellheim Pharmaceuticals
Inc., Ridgefield, CT; BP America Inc., Warrenville, IL;
Bristol-Myers Squibb Co., New York, NY; Broadridge Financial
Solutions Inc., Lake Success, NY; CA Technologies Inc.,
Islandia, NY; Caesars Entertainment Corp., Las Vegas, NV;
Capital One Financial Corp., McLean, VA; Cardinal Health
Inc., Dublin, OH; CareFusion Corp., San Diego, CA.
CC Media Holdings Inc. (Clear Channel), San Antonio, TX;
Charles Schwab & Co., San Francisco, CA; Chevron Corp., San
Ramon, CA; Choice Hotels International Inc., Silver Spring,
MD; Chubb Corp., Warren, NJ; Cisco Systems Inc., San Jose,
CA; Citigroup, New York, NY; Clorox Co., Oakland, CA; The
Coca-Cola Co., Atlanta, GA; Corning Inc., Corning, NY; Darden
Restaurants Inc., Orlando, FL; Delhaize America Inc.,
Salisbury, NC; Dell Inc., Round Rock, TX; Deloitte LLP, New
York, NY; The Depository Trust & Clearing Corp., New York,
NY; Deutsche Bank, New York, NY; Diageo North America,
Norwalk, CT; Dow Chemical Co., Midland, MI; E.I. du Pont de
Nemours and Co. (DuPont), Wilmington, DE; Eastman Kodak Co.,
Rochester, NY; Electronic Arts Inc., Redwood City, CA; Eli
Lilly & Co., Indianapolis, IN; EMC Corp., Hopkinton, MA;
Ernst & Young LLP, New York, NY; Expedia Inc., Bellevue, WA;
Gap Inc., San Francisco, CA; General Electric Co., Fairfield,
CT; General Mills Inc., Minneapolis, MN; General Motors
Corp., Detroit, MI; GlaxoSmithKline, Philadelphia, PA;
Goldman Sachs Group Inc., New York, NY; Google Inc., Mountain
View, CA.
Groupon Inc., Chicago, IL; Hanover Direct Inc., Weehawken,
NJ; Herman Miller Inc., Zeeland, MI; The Hershey Co.,
Hershey, PA; Hewlett-Packard Co., Palo Alto, CA; Hillshire
Brands Co., Downers Grove, IL; Hilton Worldwide, McLean, VA;
Hospira Inc., Lake Forest, IL; HSBC--North America, Prospect
Heights, IL; Hyatt Hotels Corp., Chicago, IL; Integrity
Staffing Solutions Inc., Wilmington, DE; Intel Corp., Santa
Clara, CA; InterContinental Hotels Group Americas, Atlanta,
GA; International Business Machines Corp., Armonk, NY; Jenner
& Block LLP, Chicago, IL; JPMorgan Chase & Co., New York, NY;
Kaiser Permanente, Oakland, CA; KeyCorp, Cleveland, OH;
Kimpton Hotel & Restaurant Group, San Francisco, CA; KPMG
LLP, New York, NY; Levi Strauss & Co., San Francisco, CA;
Marriott International Inc., Bethesda, MD; Marsh & McLennan
Companies Inc., New York, NY; Merck & Co. Inc., Whitehouse
Station, NJ; Microsoft Corp., Redmond, WA; MillerCoors
Brewing Co., Chicago, IL.
Mitchell Gold + Bob Williams, Taylorsville, NC; Moody's
Corp., New York, NY; Morgan Stanley, New York, NY; Motorola
Inc., Schaumburg, IL; Nationwide, Columbus, OH; The Nielsen
Co., Schaumburg, IL; Nike Inc., Beaverton, OR; Oracle Corp.,
Redwood City, CA; Orbitz Worldwide Inc., Chicago, IL; Pfizer
Inc., New York, NY; PricewaterhouseCoopers LLP, New York, NY;
Procter & Gamble Co., Cincinnati, OH; QUALCOMM Inc., San
Diego, CA; RBC Wealth Management, Minneapolis, MN;
Replacements Ltd., McLeansville, NC; Robins, Kaplan, Miller &
Ciresi LLP, Minneapolis, MN; Self-Help Credit Union, Durham,
NC; SUPERVALU Inc., Eden Prairie, MN; Target Corp.,
Minneapolis, MN; Teachers Insurance and Annuity Association--
College Retirement Equities Fund, New York, NY; Tech Data
Corp., Clearwater, FL; Texas Instruments Inc., Dallas, TX;
Thomson Reuters, New York, NY; Time Warner Inc., New York,
NY; Travelers Companies Inc., New York, NY; UBS AG, Stamford,
CT; US Airways Group Inc., Tempe, AZ; WellPoint Inc.,
Indianapolis, IN; Wells Fargo & Co., San Francisco, CA;
Whirlpool Corp., Benton Harbor, MI; Wynn Resorts Ltd., Las
Vegas, NV; Xerox Corp., Stamford, CT; Yahoo! Inc., Sunnyvale,
CA.
Mr. HARKIN. Mr. President, in the course of our hearings on this
bill, we
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heard from executives from Nike and General Mills, among others. Asked
why they had chosen to implement strong nondiscrimination policies
themselves, the Nike executive testified:
ENDA is good for business because teams thrive in an open
and welcoming work environment, where individuals are
bringing their full selves to work.
The bill we are debating specifically protects religious liberty with
a substantial exemption that allows specific religious organizations to
continue to take sexual orientation and gender identity into account
when making employment decisions in their religious organizations. I
might point out this bill is supported by 60 faith-based organizations,
including congregations and organizations ranging from the Presbyterian
Church of America, the Episcopal Church, the Progressive National
Baptist Convention, the Union of Reform Judaism, the Union Synagogue of
Conservative Judaism, the Islamic Society of North America, and many
others.
Among other things, polls show that 67 percent of American Catholics
support basic workplace protections for LGBT workers. Almost 70 percent
in that poll of evangelical Christians supports LGBT employment
protections. So there is overwhelming support for this bill, as I said,
amongst people of faith and religious-based organizations.
Again, I acknowledge the leadership of Senator Kirk, as well as the
bill's lead sponsor, Senator Jeff Merkley of Oregon, who has championed
this bill and without whom, I dare say, we would not be starting this
debate today. In addition, we are fortunate the lead Democratic sponsor
of the bill in the House in previous Congresses is now a Member of the
Senate and a member of our HELP Committee, that is Senator Tammy
Baldwin of Wisconsin. I hope she will soon be able to say she helped
pass this bill in both the House and the Senate.
I look forward to the vote later today when we will vote to proceed
to this bill. As we all know, under the rules of the Senate, after
cloture is invoked, we will have up to 30 hours of debate and then the
bill will be on the floor and open. We had several amendments filed in
committee that members of the HELP Committee reserved to try to bring
to the floor. So I am confident we can work with those if they are
offered again. I hope all amendments that are offered will be directed
at improving this important civil rights legislation. I hope amendments
that are focused on unrelated matters can wait for another time,
another day, perhaps when that issue is on the floor. This is just too
important--this major step forward in expanding our concept of civil
rights laws--too important to be dragged down by spurious amendments
that have nothing to do with the bill whatsoever. I hope we do not get
bogged down with that.
As I said, it has been a long time coming for this bill, when we
think about it. Seventeen years ago we voted on it and lost by one
vote. Attempts have been made periodically to get it back to the floor
again and it has just never happened, but now we have the opportunity.
We reported it out of committee, as I said, with a good bipartisan
vote.
ENDA is a critically needed bill. It is commonsense legislation. It
has overwhelming support from corporate America, from religious groups,
from small and large businesses all across the country. As I said, 8
out of 10 Americans already think it is the law. So let's make sure
those 8 in 10 Americans who already think it is the law will now know
it is the law, and we can pass it, send it to the House. Hopefully, the
House will pass it and the President can sign it into law as soon as
possible.
No American should be turned away or have to fear the loss of their
job or their means of support or fear of not being hired, even though
they are eminently qualified, for any reasons other than their ability
to do that job. People shouldn't be fired and shouldn't be
discriminated against in hiring because of the color of their skin,
their race, their religion, their sex, national origin, disability.
That is already in the law; now we put this next piece in place--no one
should be denied a job, an opportunity to work because they are gay,
lesbian, bisexual or transgender. That is what this bill does.
I encourage all Senators to join with us in passing this important
civil rights legislation and continuing our Nation's advance toward
freedom and inclusion for everyone in our society. Let's say this is a
bright day for America. We are finally bringing it to the floor. As I
said, we will have the vote later today. We have 60 people who have
said they will vote for it; I hope we have more. Sometime later this
week--I don't know if we will use the 30 hours but, hopefully, sometime
later this week, we can finally pass it. As I said, I think this week
will be one that will be an uplifting week. We have had a lot of
problems around this place over the last couple of months. I know from
the polls that Members of Congress, in both the House and the Senate,
are probably about as popular as a toothache with the general public
right now. But this week we can show the American people we can come
together and we can lift our eyes above the haze and the smoke on the
horizon, and we can make this country a better place for all of us by
passing this bill. Let's do this, and let's bring to the American
people what they think they have already and what they now want. That
is, a society free of discrimination.
I yield the floor and I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BARRASSO. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________