[Congressional Record Volume 159, Number 158 (Thursday, November 7, 2013)]
[Senate]
[Pages S7894-S7909]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMPLOYMENT NON-DISCRIMINATION ACT OF 2013
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 815, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 815) to prohibit employment discrimination on the basis of
sexual orientation or gender identity.
Pending:
Reid amendment No. 2014 (to the language proposed to be
stricken by the committee substitute), to change the
enactment date.
Reid amendment No. 2015 (to amendment No. 2014), of a
perfecting nature.
Reid motion to recommit the bill to the Committee on
Health, Education, Labor, and Pensions with instructions to
report back forthwith, Reid Amendment No. 2016, to change the
enactment date.
Reid amendment No. 2017 (to (the instructions of the motion
to recommit) Amendment No. 2016), of a perfecting nature.
Reid amendment No. 2018 (to amendment No. 2017), of a
perfecting nature.
Reid (for Toomey/Flake) amendment No. 2013, to strike the
appropriate balance between protecting workers and protecting
religious freedom.
Collins (for Reid) amendment No. 2020 (to amendment No.
2013), to change the enactment date.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. COATS. Mr. President, I come to the floor today to discuss the
topic of religious freedom. This issue is an important component in the
debate on the legislation that we are currently considering, but it's
also an issue that defines, I believe, who we are as a Nation as well
as the rights granted to us in the Constitution.
To paraphrase what Thomas Jefferson said in 1807, for Americans, he
said, `Among the most inestimable of our blessings' is the blessing `of
liberty to worship our Creator in the way we think most agreeable to
His will; a liberty deemed in other countries incompatible with good
government and yet proved by our experience to be its best support.'
From Jefferson's time to today, freedom of religion has been a core
American principle, a principle our founding fathers put their lives on
the line for and a principle that generations of Americans in uniform
have defended so that we can all enjoy this cherished freedom.
Unfortunately, this principle of religious freedom is under attack
across our country today. Though in many cases these attacks may be
subtle, make no mistake, we are seeing the free exercise of religion
and freedom of speech constrained and restricted.
We have seen it in the administration's rule regarding church-
affiliated groups to facilitate insurance coverage that includes
contraceptives and abortion-inducing drugs despite their deeply held
religious beliefs.
I think about my alma mater, Wheaton College in Illinois, which is a
school from which Billy Graham graduated years ago.
I appreciate the Senate's Majority Leader and Minority Leader's
reference to his life as he celebrates his 95th birthday. Billy Graham
had an important impact on my life and millions of people--not just
Americans, but people around the world. I appreciate the recognition
that has been given here by our leaders.
I also think about Indiana-based University of Notre Dame. Despite
conscious objections and the clearly outlined standards of these
colleges and universities--the College's Community Covenant at Wheaton
and the values of the University of Notre Dame--they have been told by
the government that they are not considered religious institutions and
must comply with the Health and Human Services Mandate.
Let me describe a little bit the thread of faith that runs through
every aspect of a school like Wheaton College and the values of faith
expressed frequently in a number of ways by the University of Notre
Dame. If you tune into the Notre Dame football programs on Saturday
afternoons, as I do every week, or intend to do, you will see an ad by
Father Jenkins, President of Notre Dame, that talks about the component
and element of faith that is essential to the beliefs of what the
University of Notre Dame is trying to address through its education
process.
Whether it is professors or students, administrators or
groundskeepers or others that thread of faith and values runs through
the university and throughout my alma mater as well. There's such a
thing as, it's been described by former president of Wheaton College,
as umbrella universities--those [universities] that have a faith
component perhaps in a theological school or a religious program. The
thought is well, certainly, they can exercise their constitutional
rights guaranteed by the First Amendment. But what about the doorkeeper
or receptionist at the administration building or the coaches of the
teams or the professors? Sure the professor of theology and the
professor of religion, but what about the professor of science,
professor of economics, or the professor of business, how does that
apply? Or what about the groundskeepers or those who serve the meals in
the cafeterias to the students? Well, there are those types of
institutions, and there is an argument that it is not systemic, it is
not the thread that runs through every aspect of the program. And this
applies to homeless shelters and faith-based institutions across
America. Some are secular related. Some are a mix of secular-religious.
And some are systemically faith-based where a thread of faith runs
through every aspect of their program or the institution.
So what we're talking about here is a situation where institutions of
education, like Wheaton College and the University of Notre Dame, or
faith-based institutions reaching out through homeless shelters, food
kitchens, any number of programs provided by faith-based institutions
or individuals engaged in this that believe that the thread of faith is
important to their success and that's why they're there.
These faith-based institutions have been told by the government that
they're not considered religious institutions and must comply with the
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Health and Human Services Mandate. Last year administration officials
said they worked out a compromise on this rule, but the fact is the
mandate still exists. These institutions should not have to facilitate
insurance coverage for products that are counter to their moral
beliefs. In my opinion, to require faith-based institutions to betray
the fundamental tenets of their beliefs and accept this violation of
their First Amendment rights guaranteed by the Constitution is simply
wrong.
I think about the health care professionals who have been required to
participate--required by the government--to participate in medical
procedures that violate their rights of conscience and their deeply
held religious beliefs about the meaning of life and when life begins.
I think about the recent efforts in many States to force churches and
religious professionals into performing rituals or ceremonies that run
counter to their faith.
So what is at stake here is of extreme significance. Established in
our nation's founding days and sustained for over 200 years, this
principle is at the very core of our system of government, as Jefferson
was trying to say.
We can't pick and choose when to adhere to the Constitution and when
to cast it aside for cheap political prerogatives. We must consistently
stand for these timeless constitutional granted privileges and rights.
The legislation before us raises very serious concerns regarding
religious freedom. The so-called protections from religious liberty in
this bill are vaguely defined and do not extend to all organizations
that wish to adhere to their moral or religious beliefs in their hiring
practices.
For example, the religious beliefs of faith-based childcare providers
and small business owners would be disregarded under this legislation.
Faith-based daycare providers could be forced to hire individuals with
views contrary to the faith and incorporated values of these daycare
providers. Do we really want to support policies that discriminate
against an employer's religious beliefs and require employers to hire
individuals who contradict their very most deeply held religious
beliefs?
This bill also would allow employers to be held liable to workplace
environment complaints opening the door to the silencing of employees
who express their deeply held beliefs. This possibility runs counter to
everything America stands for in the realm of free speech.
Now I know there have been some efforts, including amendments offered
by my colleagues, Senator Toomey from Pennsylvania and Senator Portman
from Ohio, to clarify the existing religious protections in this bill.
Some Members believe that these amendments go too far. I frankly
believe they don't go far enough. However, they are at least a first
step, and I will support these two measures not to make a bad bill
better, but to highlight the importance of the freedom of religion
principle involved in this legislation.
Let me quote from Jay Sekulow, Chief Counsel for the American Center
for Law and Justice. He wrote this:
A steadfast commitment to one's religious scruples was once
lauded as a virtue, but in the current public discourse,
religious objectors are often chastised as seeking special
treatment that would impose their values on others. The
apparent unpopularity of the expression of religious values
through actions or words brings to mind Justice Oliver
Wendell Holmes' observation that: ``We should be eternally
vigilant against attempts to check the expression of opinions
that we loathe and believe to be fraught with death and the
Supreme Court's more recent reminder that the First Amendment
protects expression, be it of the popular variety or not.'''
The Supreme Court's recent reminder and I quote again, ``the First
Amendment protects expression, be it of the popular variety or not.''
It is an important thing for us to remember from a very respected
Supreme Court judge.
I oppose discrimination of any kind, and that includes discrimination
against individuals or institutions for their faith and values, which
often gets lost and has been lost in this discussion. So there's two
types of discrimination here we're dealing with and one of those goes
to the very fundamental right granted to every American through our
Constitution, a cherished value of the freedom of expression and
religion. And I believe this bill diminishes that freedom.
So I feel it's vital for this body to stand up for our country's
long-standing right to the freedom of religion and speech. For these
reasons, I am not able to support this current legislation, and I hope
my colleagues would stand with me in protecting our religious freedom
and oppose this legislation.
Mr. President, with that, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. Will the Senator withhold his suggestion for
the absence of a quorum.
Mr. COATS. I will, and I apologize for not recognizing my colleague,
who is standing in the back row. My eyesight is not as good as it used
to be.
Mr. FRANKEN. I can see my colleague from Indiana.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. FRANKEN. Mr. President, I rise today in strong support of the
Employment Non-Discrimination Act.
In many towns, cities, and States across our country, it is still
perfectly legal to fire someone simply because they are gay. One can be
a hard worker who shows up on time and gets exemplary performance
reviews, but if a person's boss discovers that he or she is gay or
transgender or suspects it, he can fire a person for being who they are
or for whom they love, and there is nothing the person can do about it.
That is a terrible injustice for Americans who happen to be LGBT. It
violates the principle that we are all equal under the law. We all
deserve the chance to work hard and to prove ourselves, regardless of
our race, color, religion, sex, national origin, disability, age,
sexual orientation, or gender identity.
Many Americans do not realize it remains legal to discriminate
against LGBT Americans in the workplace. In one recent poll, eight in
ten Americans believe it is already illegal under Federal law to fire
or refuse to hire someone because of their sexual orientation or gender
identity. Doesn't that tell us something about how obviously right ENDA
is?
The debate we are having in the Senate today is about whether we
should ensure LGBT Americans don't suffer discrimination in the
workplace. I have long been a supporter of ENDA, and enacting it into
law is something we should have done a long time ago. In fact, 17 years
ago, it came within one vote of passing in the Senate.
Making ENDA law will be the next significant step in the fight for
equality for LGBT Americans. After decades of struggle, we have
achieved a number of huge victories in rapid succession: ending don't
ask, don't tell; overturning the Federal ban on same-sex marriage
recognition; the achievement of marriage equality in more and more of
our States, including my home State of Minnesota.
While we are debating ENDA in the Senate today, equality in the
workplace is, in fact, something we achieved in Minnesota over two
decades ago. In 1993, the Minnesota State legislature amended our
State's human rights act to protect Minnesota's workers from
discrimination based on their sexual orientation or gender identity. At
the time only a few States prohibited discrimination based on sexual
orientation, and Minnesota was the first State to include protections
for transgender workers.
We have had this law in effect now for over 20 years in Minnesota,
and what has been the result? Well, for LGBT Minnesotans it has meant
they do not have to live in fear of being fired or discriminated
against in hiring just because of who they are or because of whom they
love. That is a big deal.
But if you are not an LGBT Minnesotan, very little has changed. Some
people, including House Speaker Boehner, are opposing ENDA because they
claim it will cause frivolous lawsuits and be bad for business. The
Minnesota experience shows these fears are unfounded. There has not
been a flood of lawsuits because the rights of LGBT Minnesotans are
wisely respected. And with 19 Fortune 500 companies, Minnesota has
become an ever better place to work and do business. Minnesota is
basically the same as it was before this law was passed, except that it
is better because LGBT Minnesotans are free from discrimination at
work.
Let me give you one example. Last year, a vice president from General
Mills--the Minnesota-based company
[[Page S7896]]
that is one of the world's largest food companies and which currently
employs 35,000 people and makes Cheerios--spoke at a Senate Health,
Education, Labor, and Pensions Committee hearing about General Mills'
support for making sure that the same legal protections people have in
Minnesota are extended to workers all across the United States.
The General Mills vice president spoke about how the company's policy
of inclusion has contributed to its innovation and growth. He said:
Employees who are members of the GLBT community are
incredible contributors to our enterprise. Absent their
unique perspectives, talents, and gifts, we would be less
competitive and successful. Simply said, talent matters. Now
more than ever, American business needs to leverage the
ingenuity of all sectors for our nation. Discriminatory
barriers to top talent just don't make business sense.
And there are many other large employers headquartered in Minnesota--
Target, Supervalu, U.S. Bancorp, Xcel Energy, Medtronic, 3M, Cargill,
Best Buy, and many others--who have put in place companywide policies
against discrimination on the basis of gender identity and sexual
orientation wherever their other factories or businesses or stores may
be.
Minnesota's small businesses have also reported on the positive
effects of Minnesota's human rights law. For instance, Nancy Lyons is
the owner of a small 70-person Minneapolis business that develops
software. Nancy says the protections and peace of mind her employees
get from not living in fear positively impact every aspect of their
lives, from their productivity at work to their family lives.
It is long past time that LGBT employees around the country be
guaranteed the same rights they have had in Minnesota for 20 years. In
Minnesota, our law has given LGBT Minnesotans peace of mind and freedom
from discrimination at work and improved the overall climate in our
State for those individuals, for families, and for businesses. I look
forward to the Senate passing this bill, and I hope the House will take
it up and pass it as well.
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.
ObamaCare
Mr. VITTER. Mr. President, I come to the Senate floor today to urge
my colleagues again to focus on an important issue in the overall
ObamaCare debate; and that is how Washington fares under ObamaCare, and
does Washington live by the same rules, the same laws it passes on the
rest of America?
All across the country, as we see daily in news reports, Americans
are struggling with real issues and real challenges created by
ObamaCare. We need to fix those issues and those challenges. We need to
get it right. But at the same time as that is going on in the real
world, Washington--leaders here--basically get an exemption, a
carveout, special treatment, a subsidy. That is particularly egregious
and particularly unfair when ordinary Americans suffer under these very
real challenges.
That is why I have introduced my No Washington Exemption from
ObamaCare bill, and that is why I continue to work hard with many other
Members--we have significant coauthors here and in the House--to get
that passed.
With regard to Congress, the ObamaCare statute actually got it right.
And with regard to Congress, all we are asking for is that we live by
the statute, live by the law. That statutory language says clearly that
every Member of Congress and all of our congressional official staff go
to the exchanges for our health care and be treated just like other
Americans going to the exchanges--many of them being forced off plans,
employer plans they like, and having to go to the exchanges--no special
treatment, no special exemption or carveout or subsidy.
The problem is that after the law passed--I guess it was a classic
case of what Nancy Pelosi said: We need to pass the law in order to
figure out what is in it--because after ObamaCare passed with that
specific statutory language, a lot of folks on Capitol Hill read it,
figured out what was in it, and said: Oh, you know what. We can't have
this. We can't live with this. And then they furiously started lobbying
for a way out, for an end-run around: And sure enough, they got it. The
Obama administration issued a special rule for Congress to take all of
that financial sting out of the provision.
The rule basically said two things, both of which I think are
outrageous and contrary to the statute itself. First of all, it said: I
know the law says all official staff go to the exchanges. But we don't
know who that is. We don't know who official staff are. So we are going
to leave it up to each individual Member of Congress to designate who
is official staff who must go to the exchanges for their health care.
Well, I think that is flat-out ridiculous. The law, the statute,
clearly says all official congressional staff. To create this
opportunity for exemption, where each individual Member designates
staff as official or not, is silly. That designation, by the way,
happened last week, and some Members have actually said: None of my
staff is official. I have no official staff for purposes of this
section, so none of my staff go to the exchanges. That is outrageous.
Other Members said: Well, my personal office staff is official but
committee staff, no; leadership staff, no. That is outrageous too.
The second thing this illegal rule did to get around the impact of
this provision of ObamaCare is to say: Well, for Members and staff who
do go to the exchanges, they get to take with them a huge taxpayer-
funded subsidy--a big subsidy no other American at that income level
gets. That is not in the ObamaCare statute either, and that is contrary
to the ObamaCare statute. In fact, that specific language was
considered for inclusion and was not put in--proof that was not the
intent of that section of ObamaCare.
I believe that is outrageous as well and defeats the whole purpose of
the section, which is to make sure Members of Congress and our staff
walk in the same shoes as other Americans, 8 million-plus of whom are
being forced off coverage they like and being forced on to that
ObamaCare exchange.
That is why I have joined with others to push this No Washington
Exemption from ObamaCare language.
As I mentioned, one key element is this election that this illegal
rule creates, where every individual Member of Congress determines who
on their staff goes to the exchange or does not. As I said, in some
cases, Members say: I have no official staff. Nobody has to live by the
law, nobody has to live by this mandate, which is particularly
outrageous.
To add insult to injury, these individual decisions by every Member
of Congress are not public. This is all secretive. This is hidden from
the public. Some Members have said what they are doing through the
press, but the full information, each individual Member's election in
this regard is not public.
So as soon as that loophole was created, I filed another bill,
another piece of legislation, that simply says we are going to make all
of these decisions public. Everybody has a right to know how each
Member of the Senate, how each Member of the House is handling the
situation. That is my Show Your Exemptions bill, which I filed about 10
days ago.
I think it should be a no-brainer. I think it should be beyond
debate. Whatever you think about the underlying issue, whatever you
think about ObamaCare, shouldn't this decision of each individual
Member be made public? Shouldn't the public have a right to know? That
is why I filed this bill, and that is why I am pushing for a vote on
this bill.
Getting a vote on that proposal will be a key priority of mine,
particularly when we consider the drug compounding bill in the near
future and when we consider the Department of Defense authorization
bill. It is going to be my key priority: to get a simple vote on that
simple proposal. Again, I believe that should be a no-brainer, that
this information--which does involve how taxpayer dollars are being
treated, which does involve how congressional offices are handling the
situation--that information one way or the other be made public. You do
not need to editorialize about it. Everybody can make up their own mind
about what they think about the underlying issue, about what they think
about ObamaCare, but shouldn't that information be made public?
We need to vote on that proposal, and I urge us to move and agree
quickly to
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have a vote, either in the context of the drug compounding bill or the
Defense authorization bill over the next few weeks. Those are probably
going to be the only opportunities for a vote this calendar year. I
think it is certainly fair and reasonable to get that vote, have the
American people be able to see that information, and that is the only
opportunity I am likely to have in the Senate this calendar year.
Again, whatever my colleagues think about the underlying issue,
certainly whatever we all think about ObamaCare, I would hope we can
all agree--that election, that information, how each individual Member
of the Senate, each individual Member of the House, handles the
situation should be made public. It certainly involves public policy
and taxpayer dollars and how we run Congress. It should be made public.
I urge my colleagues--Republicans and Democrats--to unite around that
reasonable, commonsense proposal and get that information out to the
public, as it should.
With that, I yield the floor and suggest the absence of a quorum.
Excuse me. I withhold my suggestion of the absence of a quorum, but I
do yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Budgetary Waste
Mr. FLAKE. Mr. President, after weeks of budgetary wrangling and a
government shutdown that had the country on edge, last week marked the
beginning of the bicameral budget conference. I commend my colleagues
who are meeting on the issue and are trying to reconcile the goals of
wildly different budget outlines. That is no easy task. I think we all
know that. However, we all know that shoveling more IOUs into our $17
trillion debt is simply unsustainable.
No matter on which side of the aisle we sit, I hope we can all agree
that America's present fiscal trajectory is untenable and that our
Nation's future depends on turning these economic issues around. There
is no secret formula. At a minimum, Congress should abide by the budget
control framework which has produced some of the most meaningful
discretionary spending reductions in decades. Beyond that, we have to
slow the rising costs of entitlement programs in order to achieve
significant long-term deficit reduction.
Sadly, some seem fixated on spending beyond the BCA's cap for next
year. Some of our colleagues have suggested that the spending
discipline we achieved with the sequester should be replaced with
revenue increases. Now, we all know that sequestration is a blunt
instrument for reducing spending, but this desire to replace it by
driving up taxes is based on an incorrect assessment. Washington has a
spending problem, not a revenue problem. In 2013 the government spent
some $3.5 trillion. We are on track to spend another $3.7 trillion in
2014. Before anyone starts to look at tax hikes, we should realize that
we are nowhere near cutting our budget to the bone. In fact, there is a
lot of fat left in a lot of agencies. These budgets deserve to get the
knife. But do not just take my word for it. The administration, our
colleagues in the Congressional Budget Office, the Government
Accountability Office, and numerous concerned-taxpayer organizations
have also posed examples of wasteful spending that should be
eliminated.
If the sequester's bluntness has taught us anything, it is that
Congress ought to jump at the chance to make smart, surgical spending
cuts. To that end, I intend to take 5 minutes each week for the coming
weeks to highlight some of the wasteful spending programs that still,
even in times of economic belt-tightening, lurk in our Federal budget.
Today I would like to highlight some of the programs in the U.S.
Department of Agriculture. With a budget request of $146 billion in
2014, the USDA rounds out the top five most expensive Federal agencies.
Many programs within the USDA provide valuable services, including meat
inspection, crop data collection, and managing the agricultural safety
net. But the USDA also has its own agency-level homeland security
department, pays for Sunkist to advertise overseas, and underwrites an
astonishing number of zero-down-payment suburban home mortgages. That
is the USDA.
The most obvious place to realize significant savings in the USDA is
with the Federal Crop Insurance Program. Here is a program in which the
taxpayers cover the majority of the risk. It pays private insurance
agents commissions to sell and administer individual policies. It funds
the oversight of the program and, on top of all of that, subsidizes
policyholders' premiums. That is a pretty good deal if you can get it.
In 2012 taxpayers spent more than $7 billion to subsidize this
program. In 2010--one of the better recent crop years--when the USDA
took in a record $2.5 billion more than it paid in claims, the Federal
Crop Insurance Program still cost taxpayers $3.7 billion. That is
because taxpayers foot the bill for roughly two-thirds of each premium,
leaving the policyholder only to cover the remaining third.
Congress could reap significant savings just by reducing the
percentage the taxpayers have to spend to subsidize these premiums. In
fact, according to CBO, simply rolling back the percentage of taxpayer
subsidy in the program to pre-2000 levels would shave more than $40
billion in spending from the pre-2013 farm bill baseline. To that end,
I have introduced the Crop Insurance Subsidy Reduction Act, which would
do just that.
There are a number of other places at USDA where Congress can find
savings. Surely one of those is USDA's own Office of Homeland Security,
created in the post-9/11 security glut. This department is supposedly
responsible for providing oversight and coordination for USDA's
preparation and response to matters of homeland security importance. A
$1 million program such as this may be easily lost in the President's
$4 trillion budget, but there is an entire agency in the Federal
Government tasked with the same objective and funded with the tens of
billions of taxpayer dollars.
Another place to find savings at USDA is in the Market Access
Program, which has spent $1.4 billion since 2006 and looks to collect
another $200 million in taxpayer funds in 2014. This program has spent
billions of tax dollars on overseas advertising campaigns that benefit
some of the most deep-pocketed corporations around, including
McDonalds, Nabisco, Welch's Foods, and Sunkist.
When it comes to questionable budgetary items at USDA, the single-
family housing direct and guaranteed loan program takes the cake. This
obscure but growing home loan program writes and guarantees mortgages
for low- and moderate-income families in rural and suburban areas.
These loans are 100 percent financed and require no down payment. While
home buyers in big cities are not eligible for these loans, residents
of many fast-growing towns and suburbs--some within 30 miles of this
very building--are receiving those kinds of subsidies. Do not be fooled
into thinking these loans are for rustic farmhouses either. They are
specifically designed to finance your standard home, and, inexplicably,
the USDA discourages buyers from using them to purchase farms or
ranches. This is the USDA discouraging us from using these subsidies to
purchase farms and ranches but, rather, regular homes.
Since 2006 the USDA--remember, that is the Department of
Agriculture--has spent nearly $10 billion on single-family housing
direct loans. While it did not show up in the budget, home loan
guarantees by the USDA have also put taxpayers on the hook for another
$118 billion. The agency has requested another $320 million to fund
single-family housing direct loans in 2014 and plans to issue another
$24 billion in guarantees. To put the figures in perspective, the
entire Department of Housing and Urban Development submitted a budget
request of $47 billion.
When we have such egregious examples of waste, why should we demand
more of the taxpayers' money?
In the coming weeks I hope my colleagues on the budget conference
committee, along with the President and Members of Congress and various
fiscal organizations, will consider some of the proposals I am offering
to eliminate this wasteful spending. A good start would be sowing the
seeds of fiscal restraint at the Department of Agriculture.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
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Mr. MERKLEY. Mr. President, I ask unanimous consent to have a short
colloquy with the distinguished Senator from Arizona and the Senator
from Wisconsin.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MERKLEY. Mr. President, I appreciate so much the comments of my
colleague from Arizona on the challenges inherent in getting our budget
under control. I particularly appreciated over the last few days the
conversation we have had about the Employment Non-Discrimination Act.
I would like to say that the Senator from Arizona has brought
particular value in expressing concerns about how we make sure
businesses have the guidance they will need to implement this act
effectively, particularly as this act embraces an area--that is,
transgender discrimination--that was not part of the act considered in
the House of Representatives.
Mr. FLAKE. Mr. President, I appreciate the work the Senator from
Oregon did with my office this week to try to arrive at language we
could put into an amendment. We were not able to get that amendment.
When I voted for ENDA in the House in 2007, as the Senator mentioned,
it did not contain the provisions with regard to gender identity. Those
added provisions have concerned me in terms of potential costs of
litigation or compliance. I still have those concerns. I hope that as
we work through the process, as this bill moves on to the House, we can
find ways to make sure employers can implement these provisions in a
way that is reasonable and proper.
I also thank the Senator from Wisconsin for working with my office on
these issues as well. I have a better appreciation for what needs to be
done and what we can do with this legislation as it moves through the
process.
I yield to the Senator from Wisconsin.
Ms. BALDWIN. Mr. President, I would like to express my appreciation
and gratitude to the Senator from Arizona for his very thoughtful and
careful approach to considering this legislation. I enjoyed working
with the Senator during our days in the House of Representatives and
remember well the vote the Senator cast back in 2007 after great study
and reflection.
I think we find ourselves in the position we are in right now, with
an expanded bill that has protections for both sexual orientation and
gender identity, because of the leadership of the Senator from Oregon.
To the point of the concerns that have been raised in this colloquy,
there has been a really exhaustive amount of research done on those
States that have passed similar pieces of legislation at the State
level and how they chose to move forward on employment protections on
the basis of sexual orientation and gender identity. I have discussed
with the Senator from Oregon on numerous occasions the approach most
States have taken and the success these bills have had in helping to
keep all of our employment decisions based on work ethic, character,
and loyalty, and the subjects on which they should be focused.
I look forward to working on this measure in the future, and I thank
both the Senators from Arizona and the Senator from Oregon for their
focus on ENDA.
Mr. MERKLEY. Mr. President, I look forward to that conversation as
well. The State of Wisconsin was one of the first or maybe the first in
the Nation to bring an end to workplace discrimination. Oregon has a
fully inclusive bill that has worked very well. We have worked out a
great partnership with the businesses of Oregon in making sure there is
satisfactory guidance for them. I look forward to bringing that
experience into this conversation about the concerns of the Senator
from Arizona. I echo the appreciation for the thoughtful dialog we have
had over the past few days and look forward to future dialog as we
continue to try to make this bill ending discrimination in the
workplace work well for businesses across the Nation and certainly for
the millions of LGBT Americans who will have the opportunity to break
these chains of discrimination and more fully participate in our
national economic life.
Mr. FLAKE. I thank both the Senator from Oregon and the Senator from
Wisconsin for working with me and look forward, as this process goes
on, to making sure the provisions in the legislation work for employers
as well as for employees. I appreciate the work and the assistance the
Senator has given our office. I thank the Senator.
Mr. MERKLEY. I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Women's Rights
Mrs. MURRAY. Mr. President, I thank Senator Blumenthal and Senator
Boxer, who will be joining me in this conversation in a few minutes.
I think that now more than ever, after we have emerged from this very
damaging and completely unnecessary government shutdown, the American
people want us to focus on jobs and the economy. That is what every
poll says, that is what all of our constituents say, and that is
absolutely what is needed at a time when families continue to struggle
to make ends meet.
Instead of working with us across the aisle on jobs and economic
growth, it seems as if some Republicans are now focused on something
else entirely--politics. In fact, in a short while, the senior Senator
from South Carolina is going to be introducing a bill that is blatantly
political, a bill that not only undermines a woman's access to her
doctor but also restricts an array of reproductive health services.
Today we wish to make it abundantly clear; that is, that this
extreme, unconstitutional abortion ban is an absolute nonstarter. It is
going nowhere in the Senate and those Republicans know it.
I want to think that over the last 40 years, since the historic
decision of Roe v. Wade, we have moved on from debating this issue. I
wish to think that after four decades many of those who want to make
women's health care decisions for them have come to grips with the fact
that Roe v. Wade is settled law. After all, the many signs of progress
are all around us.
This year a record 20 women are serving in this body. One year ago
yesterday women's power and voice at the ballot box was heard loudly
and clearly. In fact, last year when Republican candidates running for
office thought that rape was a political talking point, that idea and
their candidacies were swiftly rejected, thanks in large part to the
voices of women. Only this week we saw women in Virginia resoundingly
reject the Republican candidate for Governor and his misguided and
outdated agenda for women's health.
Sometimes it is tempting to think that times have indeed changed,
that maybe politicians have realized that getting between a woman and
her doctor is not their job, that it is possible that rightwing
legislators have a new-found respect for women's health care.
The truth is that the drumbeat of politically driven extremist and
unconstitutional laws continues to get louder. Apparently some of our
colleagues on the other side of the aisle want to make some noise about
this so that their adoring audience of rightwing radio hosts,
columnists, and activists is satisfied.
In fact, here is an example of how blatantly political this
restrictive ban is. One of the actual participants in the press
conference to introduce their bill today had this to say to Politico
about the strategy behind doing this. She said: ``It's a much better
thing to be campaigning on rape and incest these days.''
That is an insult to women everywhere, and it is most certainly not
what the Senator from South Carolina has called ``a debate worthy of a
great democracy.''
This is a debate we have had. A woman's access to her own doctor is
settled law. We are not going to let attacks on Roe v. Wade such as
this one change that.
I wish to remind all of those who are even considering supporting
this bill that real women's lives and the most difficult health care
decisions they could ever possibly make are at stake.
I wish for us to consider the story that Judy Nicastro from my home
State shared so bravely with the New York Times last summer. In an op-
ed she wrote only days after the House passed a bill that was virtually
identical to the one that is being introduced today, Judy talked about
being
[[Page S7899]]
faced with every pregnant woman's worst nightmare. In describing the
news that one of the twins she was carrying was facing a condition
where only one lung chamber had formed and that it was only 20 percent
complete, Judy captured the anguish that countless women in similar
positions have faced. She wrote:
My world stopped. I loved being pregnant with twins and
trying to figure out which one was where in my uterus.
Sometimes it felt like a party in there with eight limbs
moving. The thought of losing one child was unbearable.
She went on to say:
The M.R.I., at Seattle Children's Hospital, confirmed our
fears: the organs were pushed up into our boy's chest and not
developing properly. We were in the 22nd week.
Under the bill that is being introduced, the decision Judy ultimately
made through painful conversations with her family and consultation
with her doctors would be illegal.
The decision to make sure, as she put it, ``our son was not born only
to suffer'' would be taken from her and given to politicians.
I am here to provide a simple reality check. We are not going back.
We are not going back on settled law. We are not going to take away a
woman's ability to make her own decisions about her own health care and
her own body. Women are not going back to a time when laws forced them
into back alleys and made them subject to primitive and unsanitary
care. Senators such as me, Senator Boxer, Senator Blumenthal, and
others who join me in opposing this effort are not going to go
anywhere.
Advocates and doctors who treat women every day and know that their
health care must be protected are not going to go anywhere. Women who
continue to believe that their health care decisions are theirs alone
are not going anywhere.
By the way, the Constitution is not going anywhere. Therefore, this
bill is not going anywhere. This bill, as attacks on Roe v. Wade before
it, will eventually be lost to history. But millions of American women
will not forget. I welcome our colleagues on the floor to this debate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. I thank my colleague from the State of Washington for
her eloquence and leadership on this issue, as I do my colleague from
California. She has been steadfast and strong in support of a woman's
right to make choices about reproductive rights. She is absolutely
right; we are not going away.
This bill that will be introduced later today from our colleague from
South Carolina--as much as we respect him--is a nonstarter because it
is nonsensical and unconstitutional. This bill was passed by the House
of Representatives earlier this year. We could not have been clearer
then, and we should be very clear now, that it is inappropriate,
unwise, and unfair. It remains so today and will be so for as long as
we are here.
This bill essentially leaves any woman who needs an abortion for
health reasons--and I stress, for health reasons--after 20 weeks of a
pregnancy with no options--none. It punishes doctors with up to 5 years
in prison for providing a service that the doctor believes, in his or
her professional judgment, in his or her medical opinion, is best for
her and her family. Those decisions are what the Constitution protects,
what Roe v. Wade guarantees, what the right of privacy preserves in the
right to be left alone.
Quite simply, this bill is bad for women, and it criminalizes medical
professionals who would try to do what is right. I have a long history
in law enforcement, and this sort of ban, which would leave women in
completely desperate circumstances with no options is shortsighted,
misguided, and illegal. We should not be here talking about proposals
that would degrade and disgrace the Constitution, but about job
measures, economic growth bills, and measures to solve the immense
challenges that confront us in dealing with budget issues. I thank the
Senator from Washington State for the great work that she is doing on
those issues.
We should be debating the issues that concern and confront the
American people at this historic challenging time--not a measure that
will be struck down by the courts because it is so plainly
unconstitutional and so clearly bad policy--not only for women but for
men, families, and for all of us.
We have seen bill after bill in recent times stalled by disagreements
over health care. We have seen the Federal Government shut down over
health care. Now we see another legislative attempt to win,
essentially, political points at the expense of risking the health and
welfare of women and children in this country. The attack on women's
health care must stop.
We are here in the midst of a busy legislative session to restate the
fact that this bill is going nowhere. My colleagues and I will not
allow this bill to put women's lives at risk, and to put their health
care in jeopardy with politically motivated attempts at destroying
constitutionally protected rights. That is why we are elected to this
body, to take a stand and speak out, to protect the people who are most
vulnerable, and to make sure that women who are at risk can be allowed
to make personal private decisions about their health and their bodies
without obtrusive interference from the government.
These decisions should be made by women, their families, the medical
profession, and whomever else they wish to consult, not by politicians.
I yield the floor for my colleague from California
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. It is very good to see the Presiding Officer in the
chair.
Since the Senator has arrived, we have cast some landmark votes for
laws that are so critical and for candidates who are so critical. We
are about to have a moment in history where we are going to expand
opportunities for the LGBT community, expand protection for them so no
longer will they face fear in the workplace.
If we have an overwhelming vote--which I hope we will have--it will
send a message to Speaker Boehner that he should join with us. After
all, what is the purpose that we should serve here? It is really making
life better for people. It certainly is protecting our people.
This leads me to the reason I am here at the request of Senator
Murray. It is because we need to speak out against the bill that will
shortly be introduced. It is ironic, because as we are about to end
discrimination on a whole group of worthy people, this bill attacks
another group of people, the majority of this country, women.
We are here to say that the extreme and dangerous 20-week abortion
ban is not going anywhere in the Senate--not on our watch. Anyone who
knows this knows we mean what we say and say what we mean.
The American people continue in election after election to reject the
war on women. They did it in race after race in the 2012 cycle, and
they did it in these local and State-wide races only a couple of days
ago.
The American people, regardless of party, want us to focus on issues
that make a difference in their lives, such as creating jobs, reforming
our immigration system, keeping college affordable for students, and
rebuilding an infrastructure that is failing us. They don't want to
take us back to the last century and open up battles that have long ago
been fought in 1973.
I see my friend from Iowa, a real champion of Roe v. Wade, a decision
that was made by the Court that was a very tough decision. They really
did take a moderate view of balancing all of the interests.
We have a bill being introduced today that has been shopped around by
the most extreme elements in our country that would essentially say Roe
v. Wade doesn't make any difference, and it opens up a direct assault
on women's health, a direct assault on Roe v. Wade, a direct assault on
doctors.
It is a radical bill. It is an abortion ban. It offers no health
exception, no help for women facing cancer, facing kidney failure,
facing blood clots or other tragic complications during a pregnancy, no
exception for rape or incest when folks are too scared to report that
they were raped or they were a victim of incest. It throws trusted
doctors into jail for 5 years simply for providing needed health care
to their patients.
I wish to tell you who opposes this: the American Congress of
Obstetricians
[[Page S7900]]
and Gynecologists. They said that these restrictions are ``dangerous to
patients' safety and health.''
I want to speak about Judy Shackelford. Four months into her
pregnancy, she developed a pregnancy-induced blood clot in her arm. The
only guarantee that she wouldn't die and leave behind her 5-year-old
son was for Judy to end that pregnancy. She and her husband made that
very difficult decision.
No Senators were in the room when she made that decision with her
husband. No Governor was in the room. No President was in the room.
This was a personal decision she made with her husband, her god, and
her doctor. That is how it ought to be. If a family decides they are
going to save the life of their mom, that should be respected.
Christie Brooks of Virginia, when pregnant with her second child,
after her 20-week ultrasound found out that her daughter would be born
with a severe structural birth defect and the baby would suffocate at
birth. She made the incredibly difficult decision to end that
pregnancy. She wouldn't be allowed to do that under this radical ban.
We need to decide who we stand up and fight for. Is it some
ideological rightwing agenda or is it for the people, the families, the
loving families that we represent?
What is best for them? That is it.
So we are going to stop this dangerous bill. We are going to stop
this dangerous attack on women in its tracks. We are sending a clear
message--and I thank Senator Murray for organizing us today--that we
will protect women and their families across America.
I thank the Chair. I yield the floor. I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. TOOMEY. 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. TOOMEY. Mr. President, I rise today to address an amendment I
have pending on the ENDA bill which we will vote on soon. This is an
amendment I have offered on my own behalf and that of Senators Flake
and McCain, who have joined me in this effort, and I thank them for
that.
It occurs to me that sometimes in our work a tension can arise
between important competing American values, and two vitally important
American values are, I believe, somewhat in tension in some aspects of
this bill. First, one great enduring and important value for all
Americans is equality. This bill today clearly makes a strong stand for
greater equality.
I believe, and I think most Americans share the view, that every
individual is entitled to dignity and respect and fairness, and that
individuals ought to be judged based on their merits, on their
character, and on their abilities. A person's sexual orientation is
irrelevant to their ability to be a good doctor or engineer or athlete
or a Federal judge. That is why I have supported acknowledging that
reality.
I supported 17 years ago, in the writing of the charter of the city
government of Allentown, a provision that would ban discrimination on
the basis of sexual orientation in the hiring for that city. I
supported an end to don't ask, don't tell, because I thought it was an
inappropriate infringement on the freedom of gay and lesbian persons
serving in the military. I believe there are more legal protections
that are appropriate to prevent employment discrimination based on
sexual orientation. So these are an important set of values.
Another obvious and vitally important American value is freedom, and
particularly religious freedom. The First Amendment guarantee of the
free exercise of religion means that religious groups, even in the
course of secular services, can, for instance, choose to hire employees
who agree with their religion, employees who will promote that
religion. And of course, the First Amendment applies even when we don't
necessarily agree with the views of that religion or that faith.
What we have tried to do in this legislation and in other context is
to strike an appropriate balance between the tension that arises
between these sometimes competing values. The sponsors of this bill
have made a very thoughtful, credible effort to strike that balance. In
fact, the sponsor of this bill and I agree on what at least an
important aspect of that important balance ought to look like, and
specifically I believe the agreement is that religious institutions,
including those engaging in some secular activities, should be exempt
from the requirements of this bill if it violates the tenets of their
faith.
The goal of my amendment is to simply make sure the bill actually
achieves what the drafters intended. The Senator from Oregon, who is
the chief sponsor of the bill, has stated correctly, in terms of its
intent, that the bill ``broadly exempts from its scope houses of
worship as well as religiously affiliated organizations.'' This
exemption, which covers the same religious organizations already
exempted from the religious discrimination provisions of title VII of
the Civil Rights Act of 1964 should ensure that religious freedom
concerns do not hinder the passage of this critical legislation.
Other groups that are advocates for this legislation have similarly
observed that the provisions of title VII would ensure the exemption of
faith-based institutions. There are examples where circuit courts have
ruled, in interpreting title VII of the Civil Rights Act, that
affiliated organizations would in fact get this exemption. Examples
include a gymnasium run by the Mormon Church, Christian elementary
schools and universities, a Presbyterian-operated retirement home, a
Seventh Day Adventist hospital, a Jewish community center, and there
are others.
So I acknowledge it is absolutely true it is the case there are
Federal courts that have respected the religious freedom of these
institutions to be exempted from the religious hiring mandates of the
Civil Rights Act and, presumably, that would apply in the case of ENDA
because of the way the legislation is crafted.
The problem that concerns me is that there are other cases where
other courts have come to a different conclusion, and they have not
recognized religious institutions the same way. There is a lack of
uniformity across our country, across the different districts that
ultimately interpret the application of title VII of the Civil Rights
Act.
In fact, over the years, different courts have interpreted the
language quite differently, and so we have these two problems, in my
view, if we leave the underlying legislation as it is. One is that
Americans will live under not two but multiple different standards. The
12 circuits that apply the title VII exemptions have already adopted
four different tests for determining whether an institution qualifies
for the religious exemption.
The second problem is that employers and workers don't necessarily
have predictability even within a circuit that has its own test, which
differs from another circuit. And the reason is the tests themselves
are somewhat subjective and somewhat unpredictable. They have multiple
factors. For example, the Third Circuit, which includes my State of
Pennsylvania, has nine factors; and as the court explained, not all
factors will be relevant in all cases, and the weight given each factor
may vary from case to case. The result is that in a single case
decisionmakers looking at the same set of facts can reach very
different conclusions.
In the absence of my amendment, my concern is there will be no
uniform, predictable national standard for determining when a religious
entity, a religious organization, is exempt from the bill. There are a
couple of examples that illustrate my point.
In a case called the EEOC v. Kamehameha Schools--that is a Hawaiian
word. My pronunciation may not be correct. This is a 1993 decision--
there were two schools created by a charitable trust to help orphans
and poor children. The trust instructed ``the teachers . . . shall
forever be persons of the Protestant religion.'' The schools shall
provide a good education ``and also instruction in morals.''
The schools hired only Protestant teachers. They held themselves out
as Protestant schools. They required all the students to take religious
classes. They offered Bible studies and worship services, and they had
a cooperative relationship with one specific Protestant church.
[[Page S7901]]
The district court found the schools were religious and, therefore,
they were covered and they qualified for the exemption. But the Ninth
Circuit Court, considering the exact same set of facts, found the
opposite and decided the schools were secular. The Ninth Circuit
acknowledged the schools' original principle was providing religious
instruction, but they essentially ruled that since some students were
not Protestant and since the schools offered courses that were not
religious in nature--the schools taught math and they taught social
studies--for those reasons they would not qualify for the exemption and
the schools were required to hire non-Protestant teachers.
Another example--and I only have two--is a Methodist orphanage
founded by the Methodist Church. The board of trustees were Methodist
and they had close ties to the Methodist Church. The district court
eventually held that many of the orphanage's day-to-day activities of
caring for children were simply not necessarily religious, and so the
home was not exempt. But initially, the district court had actually
found for the Methodist orphanage. It was the Fourth Circuit that
reversed it, sent the case back with instructions they reconsider this.
The district court had an interesting comment in this. It stated its
opinion by declaring that it remains somewhat confused as to the proper
interpretation, but it would do its best. So if a Federal judge can't
tell what the test is, how could workers? How could an employer? How
could an institution based on faith?
My amendment really is a modest attempt to ensure the bill actually
achieves what I believe its authors and sponsors and supporters intend.
It would continue to guarantee equality to workers, but it would
protect religious groups' rights to the free exercise of their
religion. And it would ensure all Americans would live under the same
rule, the same formulation, with predictability and certainty. It would
clarify that ENDA's religious exemption applies to religious hospitals,
schools, charities, and other organizations that are owned by,
controlled by, or officially affiliated with a church or religious
group covered by ENDA's current exemption.
What this does is simply ensures we get close to striking a good,
sensible balance between the equality in the workforce that is the
principle motivation for this bill and the religious freedom I feel
very strongly about and I think many of my colleagues do as well.
I want to commend everybody who has put in a lot of hard work on a
careful and thoughtful effort here, and I hope my fellow Senators will
join me in supporting this amendment.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I ask unanimous consent that I be
permitted to speak for up to 5 minutes in opposition to the Toomey
amendment and that the Senator from Wisconsin also have 2 minutes to
speak in opposition.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. HARKIN. Mr. President, over the course of this debate, we have
documented the tremendous business community support for this bill,
including over 100 major companies. A key reason for that support is
that ENDA is closely modeled on title VII of the civil rights law.
Employers are familiar with the law, they understand how to comply with
the law, and it provides certainty.
The many Fortune 500 companies that have employment nondiscrimination
policies in place have modeled their policies on the nondiscrimination
requirements of title VII. Unfortunately, by proposing an entirely new
definition of businesses that would qualify for an exemption from the
Employment Non-Discrimination Act, this amendment calls into question
that very certainty. ENDA already exempts the same religious
organizations that qualify for an exemption under title VII of the
Civil Rights Act.
Under current law, the exemption includes not only houses of
worship--churches, synagogues, and mosques--but also religious schools
and religiously affiliated hospitals. The exemption in this bill passed
the House of Representatives on a broad bipartisan basis, 402 to 25, in
2007.
In determining what organizations should qualify for religious
exemption, most courts have also said that where the primary activity
of the organization is commerce or profit, despite strongly held
religious beliefs by the owners, the organization may not discriminate
in hiring. That is what this amendment, I believe, seeks to change.
This amendment would allow entities that are ``officially affiliated''
with a religious society to discriminate on the basis of sexual
orientation and gender identity. This is a new term that is undefined
in the text of the amendment and could lead to thousands of for-profit
businesses being allowed to discriminate.
Some examples that have been suggested could qualify for the
exemption could be a private employer whose only ``affiliation'' with a
religious society is receiving a regular newsletter from that society
or a private employer who sponsors a fundraiser for a religiously
affiliated nonprofit or a private employer who provides goods and
services to a religious organization. Again, this amendment would open
the floodgates for all kinds of lawsuits. Courts would be inundated
trying to figure out what does ``officially affiliated'' mean because
there is no definition to that. The definitions we had before provide
that kind of certainty to our business owners.
Our Nation's civil rights laws require those who participate in
commercial activity must adhere to the broad principles of fairness and
equal treatment. In potentially allowing secular commercial businesses
to discriminate in hiring and other employment practices on the basis
of sexual orientation or gender identity, this amendment threatens to
gut the fundamental premise of ENDA that all workers should be treated
equally and fairly.
So while I urge my colleagues to oppose this amendment, I wish to
note that the sponsor of the amendment supported beginning debate of
the bill. His amendment is one that goes directly to the substance of
the bill that we are debating and not an unrelated issue. So I wish to
compliment the author, Senator Toomey. This is the way we should
operate in the Senate.
As many know, I have been advocating for rules changes since 1995.
One thing I have always adhered to is that it is the right of the
minority to be able to offer relevant germane amendments to a bill. The
author of this amendment has adhered to that. This is certainly
relevant. This is certainly germane. That is why I compliment him for
providing us with a way the Senate should work. But the amendment, I
believe, is ill-defined. It would open the floodgates for all kinds of
new cases. It would disrupt businesses all over America. So for that
reason I urge my colleagues to oppose the amendment by the Senator from
Pennsylvania.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Ms. BALDWIN. Mr. President, the bill before us today, the Employment
Non-Discrimination Act, contains a very carefully negotiated bipartisan
religious exemption provision. The amendment before us right now
significantly expands that provision, and I rise to share why I believe
it would be unwise to do so and urge my colleagues to oppose the
amendment.
Religious organizations are not touched by this legislation. They can
use an individual's sexual orientation or gender identity in their
employment decisions if they choose to. ENDA does apply, however, to
businesses and entities that are not primarily religious in purpose and
character.
Just as with other civil rights legislation and in laws protecting
individuals from discrimination on the bases of race, sex, national
origin, religion, age, and disability, a capable employee in a
nonreligious business should not be fired--or not hired--because of his
or her boss's religious beliefs.
The amendment offered by Senator Toomey would broaden this exemption
to allow an employer to be exempt from ENDA if it is affiliated with a
particular religious organization, even if it engages primarily in
secular activities. Allowing this type of exemption could be
interpreted so broadly that it could negate the bill and its important
protections for American workers.
[[Page S7902]]
The provision of this bill that this amendment seeks to modify is the
product of a long and significant bipartisan negotiation and
compromise.
I ask unanimous consent for 2 additional minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Ms. BALDWIN. I am a former Member of the House of Representatives,
and I worked very closely with faith groups and civil rights advocates
over the months leading up to consideration of ENDA in 2007 to arrive
at the religious exemption compromise in the bill we are considering
today. In fact, this current language in the bill before us passed the
House of Representatives on a broad bipartisan basis of 402 to 25 as a
floor amendment during our consideration of ENDA in 2007. It is a
bipartisan compromise supported by many religious organizations,
including the Presbyterian Church, the United Methodist Church, and the
United Synagogue for Conservative Judaism.
Over 40 religious organizations wrote to endorse this bill with a
letter that reads:
Any claims that ENDA harms religious liberty are misplaced.
ENDA broadly exempts from its scope houses of worship as well
as religiously affiliated organizations. This exemption--
which covers the same religious organizations already
exempted from religious discrimination provisions of title
VII of the Civil Rights Act of 1964--should ensure that
religious freedom concerns don't hinder the passage of this
critical legislation.
I ask my colleagues to oppose this amendment and then join together
on a historic day to vote in support of the Employment Non-
Discrimination Act.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. TOOMEY. Mr. President, I ask for the yeas and nays on my
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
Under the previous order, the motion to recommit S. 815, the pending
amendments to the underlying bill, and amendment No. 2020 offered by
the Senator from Maine (Ms. Collins) for the Senator from Nevada (Mr.
Reid) are withdrawn.
Under the previous order, the question is on agreeing to amendment
No. 2013 offered by the Senator from Nevada (Mr. Reid) for the Senator
from Pennsylvania (Mr. Toomey).
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey)
is necessarily absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Oklahoma (Mr. Coburn).
The PRESIDING OFFICER (Ms. Heitkamp). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 43, nays 55, as follows:
[Rollcall Vote No. 230 Leg.]
YEAS--43
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Cochran
Corker
Cornyn
Crapo
Cruz
Donnelly
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Lee
McCain
McConnell
Moran
Paul
Portman
Pryor
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NAYS--55
Baldwin
Baucus
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Collins
Coons
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Levin
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NOT VOTING--2
Casey
Coburn
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for adoption of the amendment, the amendment is rejected.
Under the previous order, the committee-reported substitute
amendment, as amended, is agreed to.
Cloture Motion
Under the previous order, the cloture motion having been presented
under rule XXII, the Chair directs the clerk to read the motion.
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on S. 815, a bill to
prohibit employment discrimination on the basis of sexual
orientation or gender identity.
Harry Reid, Tom Harkin, Jeff Merkley, Patrick J. Leahy,
Tom Udall, Mark Begich, Brian Schatz, Al Franken,
Barbara Boxer, Richard J. Durbin, Christopher A. Coons,
Tammy Baldwin, Debbie Stabenow, Benjamin L. Cardin,
Sheldon Whitehouse, Patty Murray, Barbara Mikulski,
Kirsten E. Gillibrand
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on S. 815,
a bill to prohibit employment discrimination on the basis of sexual
orientation or gender identity, and for other purposes, shall be
brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant bill clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey)
is necessarily absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Oklahoma (Mr. Coburn).
The yeas and nays resulted--yeas 64, nays 34, as follows:
[Rollcall Vote No. 231 Leg.]
YEAS--64
Ayotte
Baldwin
Baucus
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Collins
Coons
Donnelly
Durbin
Feinstein
Flake
Franken
Gillibrand
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Heller
Hirono
Johnson (SD)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Levin
Manchin
Markey
McCain
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Portman
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Toomey
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--34
Alexander
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Cochran
Corker
Cornyn
Crapo
Cruz
Enzi
Fischer
Graham
Grassley
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Lee
McConnell
Moran
Paul
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Vitter
Wicker
NOT VOTING--2
Casey
Coburn
The PRESIDING OFFICER. On this vote, the yeas are 64, the nays are
34. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
Under the previous order, cloture having been invoked on S. 815, the
time until 1:45 p.m. will be equally divided between the two leaders or
their designees.
The Senator from Ohio.
Mr. BROWN. Madam President, I rise today to discuss the need to
protect all Americans from workplace discrimination. The vote that the
Presiding Officer from North Dakota just announced was a tremendous
victory for civil rights in our country; it was a tremendous victory
for all people, gay and straight. It will mean a more productive
workplace. It will mean better work conditions. It will mean an
expansion of human rights. And what is not to celebrate about that?
I worked on this bill as a cosponsor starting almost 15 years ago--
more than 15 years ago--in the House of Representatives, and I am
thrilled to have been able to vote for it today, as I know 60-plus of
my colleagues were, and I am hopeful the House of Representatives
decides to do the same.
Earlier this year people of different genders, ethnicities, and ages
gathered outside of the Supreme Court wanting to be there when civil
rights history
[[Page S7903]]
was made when the Defense of Marriage Act was declared
unconstitutional. Clergy, people in collars, parents with children,
students, seniors--everyone in between--were there too. The steps of
the Supreme Court that morning were filled with people who represented
every walk of life in our great country; so, too, must our laws.
Today and every day far too many Americans still go to work fearing
they can be fired for who they are and whom they love. This needs to
stop now. That is why the Senate needs to pass--later today, I hope--
the Employment Non-Discrimination Act and the House needs to bring up
ENDA for a vote. ENDA would protect LGBT Americans from workplace
discrimination. It is currently legal--this is what I think the public
does not always hear and what I think Speaker Boehner needs to hear--it
is currently legal in 29 States to discriminate based on sexual
orientation. Think about that. Twenty-nine States--in this great
country, with this Constitution, with this Bill of Rights--29 States
allow gay Americans to be fired solely on the basis of their sexual
orientation. In 2013 you can still be fired for whom you love in 29
States. It is legal to do that.
We have laws protecting Americans from workplace discrimination based
on the color of their skin, as we should; based on their religion, as
we should; based on whether they are a man or a woman, as we should; or
whether they have a disability, as we should have those laws in place.
We should offer these same protections to LGBT Americans. We
currently do not protect or workers, though, from being fired for whom
they love. It is morally wrong. We are not living up to the basic moral
standards. We teach our children the Golden Rule: that we are to treat
others as we would want to be treated. This country was not built on
the ideal that only some people deserve equality and justice. We know
that no one should be discriminated against simply because of who they
are.
Many Fortune 500 companies and small businesses have already taken
steps to protect their employees because they know it is right. In a
meeting a few months ago, I listened to a Cincinnati-based engineer
from Procter & Gamble discuss the importance of ENDA. She said, simply:
People should be able to bring all of themselves to work, not needing
to hide herself or her family in the workplace. She gets it.
Unsurprisingly, so does her employer, Procter & Gamble, an American
icon.
Passing ENDA makes good economic sense. In a competitive global
economy, it is essential that businesses attract talented, hard-working
employees. That is difficult to do when discrimination is allowed. If
we want to create jobs and compete on a global level, then we need all
workers from all walks of life to be contributing to the economy.
Purposefully leaving out a portion of our workforce only puts us behind
in that global competition.
We have already made progress in the fight for equality, but we need
to continue to move forward. We repealed don't ask, don't tell. This
June the Supreme Court held the Defense of Marriage Act--which five of
my Senate colleagues voted against in 1996, a few of us in the House
voted against--as unconstitutional. As a result, couples are able to
legally marry in many States across the country, the newest of which is
Illinois. We must continue this progress to create a most just,
inclusive Nation. Dr. King once said, ``Injustice anywhere is a threat
to justice everywhere.'' Workers fought for the right to organize,
woman for the right to vote, African Americans fought for equal
justice, and now LGBT Americans of all backgrounds are fighting for
equality. They are entitled to the support of their government, of all
of us, in that fight.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Heinrich.) The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWN. 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. BROWN. Mr. President, I ask unanimous consent that all time,
including the time during quorum calls, be equally divided between both
sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWN. 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. CORNYN. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
ObamaCare
Mr. CORNYN. During the first few years after it became the law, the
Affordable Care Act was known to most Americans as mainly a set of
promises. Americans were repeatedly told that ObamaCare, once it began
to take full effect--that coverage would expand, premiums would go
down, and everyone who liked their existing health care coverage could
keep it.
When the President and my friends across the aisle described it this
way, ObamaCare sounded too good to be true. Unfortunately, the promises
really have turned out to be too good to be true. After spending years
listening to hollow assurances about what ObamaCare would or would not
do, the past 5 years have taught us a lot, maybe only the tip of the
iceberg, about the realities of what ObamaCare actually looks like.
We have learned that no fewer than 3.5 million Americans have already
received cancellation notices from their insurance coverage because of
the new law. We have learned that millions more will receive those same
types of notices in the foreseeable future.
We have learned that the administration and, in fact, the Senate,
knew that was going to happen in 2010 because we had a vote on the
Congressional Review Act of the regulation which would have expanded
the grandfather clause, and it was defeated in a party-line vote with
all Republicans voting to expand the grandfathering provision and all
our Democratic colleagues voting against.
What we learned, when they launched the ObamaCare Web site--which has
been perhaps the most visible image of ObamaCare--was they did it
before they could guarantee the information people would put in it
would be secure. That includes both your tax information, your Social
Security, and your mental health and physical health conditions. We
learned yesterday from Secretary Sebelius that the navigators, who are
the people who have been hired to help people navigate the Affordable
Care Act and get signed up, were hired without performing any kind of
background check. To the surprise of a lot of people, Secretary
Sebelius answered a very direct question about that. I asked her in the
Finance Committee: Is it possible a person could be a navigator and be
a convicted felon? She said it is ``possible.'' Because there is no
criminal background check.
In other words, America's top health care officials believe it is
possible that convicted felons could be collecting some of our most
sensitive personal information--our Social Security numbers, tax
information, and sensitive medical data. Yet this administration
continues to insist upon refusing a proper vetting system. It is bad
enough the Web site is entirely dysfunctional--that will get fixed
sooner or later--but the fact is this same Web site could, in the
interim, become a magnet for fraud and identity theft.
Many of us who were skeptics about the President's extravagant
promises of ObamaCare once implemented have been expressing our
concerns for years. But as skeptical as I was about ObamaCare when it
passed the Senate on Christmas Eve in 2009, it is even worse than many
of us predicted--certainly worse than we imagined.
With millions of Americans getting cancellation notices from their
insurance companies, we are finding out their premiums are about to go
up and not down. It is important to remember exactly why this is
happening. Thanks to the regulations our friends across the aisle
continue to support, ObamaCare has allowed Washington bureaucrats to
define what constitutes an acceptable health insurance policy in the
individual and small group market. In other words, it has allowed
Washington bureaucrats to force hardworking American families to pay
for health care coverage they do not want and they do not need.
I have heard from my constituents in Texas who are absolutely furious
and, in some cases, absolutely desperate
[[Page S7904]]
about losing their coverage or being forced to pay higher premiums they
simply can't afford in order to buy coverage they do not need.
The underlying conceit of ObamaCare is that individuals and their
families can't be trusted to choose the right health insurance coverage
for themselves so they must turn those decisions over to the
bureaucracy in Washington to do it for them.
Some have heard us talk about a government takeover of the health
care system. This is what a government takeover of a health care system
looks like--when you lose the choices that should be available to you
as an American citizen--to decide what kind of policy you need at a
price you can afford--because of this monstrosity of a law. That is a
government takeover.
The main objective of ObamaCare, we were told, was to provide
coverage for all Americans. Yet the Congressional Budget Office has
made it clear ObamaCare fails even in that objective. They estimate
about 30 million people will still remain uncovered by the year 2023
when ObamaCare has been fully implemented. Thirty million people. OK,
explain to me again, what was the purpose of this exercise? We were
going to bring costs down and cover people without insurance, and
everyone would be able to keep the insurance they had if they liked it.
Yet none of that ends up being true. All of that ends up being false.
As I said yesterday, the cost of ObamaCare far outweighs the
benefits. It would have been a lot smarter for us to figure out how to
deal with the people who are uninsured and get them insured without
raising costs or prejudicing the rights of people who had policies they
already liked.
If Congress were to choose at some point to actually dismantle
ObamaCare in its entirety, which I think we ought to do, we ought to
start over and enact an alternative health care reform bill aimed at
solving the problem not creating new ones. These reforms could include
revising the Tax Code so that individuals could buy their own health
insurance on the same tax terms as if it were employer provided.
We would allow people to actually buy in the health care market
nationally and form pools to share risks. That would help bring down
the costs. It would increase competition.
We also ought to expand the use of tax-free health savings accounts
for people who decide they want to buy a high-deductible catastrophic
health insurance policy because it is pretty cheap, and in the meantime
they want to set money aside each month in a health savings account.
Maybe they will need it for health care and maybe they won't, but they
get to do that tax free. And if they don't use it, they can use that as
part of their retirement. We ought to expand that.
We ought to make health care price and quality information a lot more
transparent. One of the most successful health care programs I have
seen pass the Congress--though we made some mistakes with it and we
should have offset the cost--is the prescription drug plan, Medicare
Part D. It has actually worked better than any of us thought it would
because it is not a government takeover. It created competition between
competing prescription drug companies that had to compete based on
quality and price. The result has been the price has gone down roughly
30 percent under the projected costs when it was passed.
That is the kind of transparency and choice that is produced from
quality information and that leaves the choices to people individually
and not to the government.
And yes, we ought to crack down on frivolous medical malpractice
lawsuits. We have seen in Texas that reducing the costs of frivolous
medical malpractice lawsuits in turn helps to protect against defensive
medicine, where doctors make clinical decisions based not on their best
medical judgment but based on their aversion to litigation risk.
We ought to use high-risk pools to ensure people with preexisting
conditions can get covered. This is one of the biggest
misrepresentations I have heard about ObamaCare. Some of our colleagues
have said: Well, the only way you can get preexisting conditions
covered is to take ObamaCare hook, line, and sinker. That is clearly
not true. Virtually all of our States have high-risk programs for
people with preexisting conditions. They may need to be better funded--
and we ought to look to try to shore them up--but it would be better to
fix the problems we know exist rather than creating more problems.
We ought to give the States more flexibility to deal with Medicaid.
Medicaid is designed as a safety net program for people who can't
afford to buy their own health insurance. I see the Senator from Maine
on the floor, and she was very intimately involved in this when she was
the insurance commissioner for her State. Medicaid, unfortunately, pays
doctors about half of what private health insurance does to reimburse
them for their costs, so many doctors have to restrict their practice
and their ability to see new Medicaid patients.
In Texas, only about one-third of the doctors will see a new Medicaid
patient because they simply can't afford to do so. So we need to have
additional freedom to improve Medicaid and to shore it up while
providing competition and consumer choice to bring down costs in
Medicare.
Mr. President, such reforms would give us a health care system with
much lower costs, much better coverage, and much greater access to
quality care. Those are the sorts of reforms we should have embraced in
2009 and 2010 but did not. We missed our chance back then, but there is
no good reason we have to accept ObamaCare or nothing. As a matter of
fact, we should take this opportunity, as we see the promises of
ObamaCare being broken and not living up to the expectations of its
strongest proponents, to turn to these other sensible ways to lower
costs, increase coverage, and improve access.
As the law's deficiencies become more and more evident, I hope my
friends across the aisle will join with us, Republicans and Democrats
alike, to replace ObamaCare with something better.
Mr. McCAIN. Mr. President, today I will cast my vote in support of S.
815, the Employment Non-Discrimination Act. This vote is consistent
with my firm belief that workplace discrimination--whether based on
religion, gender, race, national origin, or sexual orientation--should
not be tolerated in America.
As my colleagues know, this legislation expands Federal employment
discrimination protections, provided under the Civil Rights Act, to
include sexual orientation. Under this bill, employers with more than
15 employees would be subject to new Federal regulations for hiring,
firing, or promoting an individual on the basis of sexual orientation.
Many of my colleagues raised concerns about how the bill's language
failed to provide adequate protections for religious businesses,
schools, charities, and other institutions. In order to address these
concerns, I worked with Senator Portman of Ohio and Senator Ayotte of
New Hampshire to offer an amendment to further protect the
constitutional rights and religious freedoms of religious
organizations. Our amendment prevents retaliation on religious
employers by Federal, State, and local governments based on the fact
that these employers are exempt from the non-discrimination
requirements of ENDA. I am pleased that this amendment was agreed to
without opposition.
I have always believed that workplace discrimination--whether based
on religion, gender, race, national origin, or sexual orientation--is
inconsistent with the basic values that America holds dear. With the
addition of the amendment I cosponsored with Senators Portman and
Ayotte strengthening protections for religious institutions, I am
pleased to support this legislation.
Ms. MIKULSKI. Mr. President, today the Senate is voting on the
Employment Non-Discrimination Act--a bill that I am proud to cosponsor.
Americans believe that hard-working people should be rewarded for their
efforts and commended for their skills. Yet all throughout our Nation
individuals are being held back at work or even fired--not because they
are incompetent but because of their sexual orientation or gender
identity.
I firmly believe people should be judged based on their individual
skills, competence, and unique talents and nothing else. Sexual
orientation does
[[Page S7905]]
not affect job performance, so it should not be a consideration, and
the vast majority of Americans agree. In fact, an overwhelming 73
percent of Marylanders support the Employment Non-Discrimination Act.
The Employment Non-Discrimination Act would close a significant gap
in our civil rights laws. It would ensure that people are judged on the
quality of their work, not on sexual orientation or gender identity.
Job discrimination on the basis of race, ethnicity, gender, or religion
has long been prohibited; however, it is still legal to hire and fire a
person based on their sexual orientation. This is an outrageous
practice for a country that prides itself on equal rights for all.
Today, when I look back at the civil rights movement of the 1960s, I
am shocked by how modest the demands of the African American community
actually were. If we can pass this piece of legislation, in the future
we will look back and think what a modest, obvious step it was and
wonder why it took so long. This bill does not bestow special rights;
it simply offers gay, lesbian, bisexual, and transgender Americans the
same protection against unfair discrimination in the workplace as other
groups--no more, no less.
Currently, 21 States and the District of Columbia have passed laws
that prohibit job discrimination on the basis of sexual orientation. In
addition, hundreds of companies have implemented nondiscrimination
policies that include sexual orientation.
Gay Americans are part of the American mosaic and are entitled to the
same rights and freedoms as every other American citizen. Change in
civil rights comes slowly, but we are long overdue in making sure they
have protection against unfair discrimination in the workplace. My hope
is that someday we will look back on this and wonder what took us so
long. We all deserve to live in an environment where people are treated
fairly and with the dignity they deserve, and today I urge my
colleagues to vote for this important bill.
Mr. LEVIN. Mr. President, this Nation began not as merely a plot of
land, or as a group of people united by language or ethnicity. It began
with an idea: ``That all men are created equal.'' Our story since
Thomas Jefferson wrote those words has been a story of progress toward
honoring what has been called ``the immortal phrase.''
Today, this Senate can move our Nation one important step forward in
honoring the truth of those words by finally passing the Employment
Non-Discrimination Act, or ENDA. We can help ensure that no American is
deprived of the opportunity to work--the opportunity to succeed--as all
of us want to succeed merely because of sexual orientation or gender
identity, just as we have acted to protect that opportunity against
discrimination based on age, race, color, religion, national origin or
disability.
This legislation is carefully crafted to protect the sincere
religious beliefs many Americans hold. It embodies a simple but
powerful American ideal: On the job, what matters is your work, not
your gender or skin color or faith or your sexual orientation any other
extraneous matter.
There may have been times in the past when the Congress pushed
Americans into new and perhaps uncomfortable territory in the march
toward equality. But today, the law lags public opinion in this area.
Public opinion polls show that roughly 7 in 10 Americans believe
workplace discrimination against gays, lesbians and transgendered
individuals should be against the law. In fact, they think it already
is--according to one poll, 80 percent of Americans believe such
discrimination is already a violation of Federal law. Support for ENDA
is not confined to one region of the country--polls show that
majorities in every State in the union support it. So, passage of ENDA
is not some bold social experiment or engineering process. It is what
the American people want and are ready for.
That is as true today as it was in 1996, the last time the Senate
held a vote on this measure. Even then, a majority of Americans
supported it, and just as it is today, it enjoyed the support of a
diverse group of religious and business organizations. Then, as today,
American businesses recognized that discrimination on the basis of
sexual orientation or gender identity is just bad business.
This is also not a partisan issue. This legislation is on the brink
of passage here because members of both parties have shown principled
leadership and dedication.
But the ultimate reason I have supported this legislation for decades
now is not related to public opinion polls or endorsement letters from
churches and corporations, though those are heartening and welcome.
Simply, it is wrong to deny employment to anyone who can do the job,
just because of their sexual orientation. ``All men are created equal''
means giving every American the opportunity to earn what their talents
and dedication allow, to provide for themselves and their families.
Denying anyone that right is at odds with the ideals on which this
country was founded and on which it depends to this day.
I strongly support this legislation. I urge my Senate colleagues to
support it, and upon Senate passage, I urge the leaders of the House of
Representatives to recognize just how far behind the American people
they have fallen on this issue, and bring the Employee Non-
Discrimination Act to the House floor for a vote.
Mr. LEAHY. Mr. President, the Senate has a historic opportunity today
to take discrimination out of the workplace by casting a vote for the
Employment Non-Discrimination Act. Today's vote has been 20 years in
the making, and it is long overdue for Congress to extend these
protections to all American workers. Years from now we will look back
on this remedy as another substantial milestone on our Nation's
everlasting quest to achieve a more perfect union--a quest to realize
more completely the motto engraved in Vermont marble above the Supreme
Court building that declares: ``Equal Justice Under Law.''
We now have protections for workers from discrimination on the basis
of race, sex, religion, national origin and disability, as we should.
Yet there are no Federal protections from discrimination on the basis
of sexual orientation or gender identity. In 29 States, it is still
legal for an employer to fire employees based on their sexual
orientation, and in 33 States employees can be fired based on their
gender identity. Maintaining the status quo would keep in place a
system that supports a second class of workers in a majority of States.
This runs counter to our founding values. It is time to remedy that.
As the son of Vermont printers, I learned at an early age the primary
importance of the First Amendment. The First Amendment in our Bill of
Rights is the foundation of our democracy and our way of life. It is
one of the most defining principles of our national character. It helps
preserve all of our other rights. By guaranteeing a free press and the
free exercise of religion, it ensures an informed electorate and the
freedom to worship God and to practice our religion as we choose--or to
practice no religion at all.
Religious freedom does not end with the vital protections afforded by
the First Amendment. The bill before us contains important protections
for religious organizations by ensuring that they can continue to make
significant faith-based employment decisions. The carefully crafted
religious exemption in this legislation is consistent with the freedoms
guaranteed by the Constitution.
All Americans deserve civil rights protections under our
Constitution, which, in addition to the First Amendment, also ensures
due process and equal protection. In previous legislative debates like
the one before us today, Congress has protected and bolstered these
rights by passing legislation to fill gaps in our Federal laws. This
includes passing legislation to protect the practice of religion
without discrimination, to prevent pay discrimination based on sex, and
to serve openly in the military. By passing the remedy before us today,
we will take another significant step forward in taking discrimination
out of our laws and ensuring the equal treatment of lesbian, gay,
bisexual, and transgender Americans.
I thank Chairman Harkin and Senators Merkley and Collins for their
leadership on this significant, overdue, and bipartisan
antidiscrimination remedy. I also am mindful and appreciative of the
leading role that Senator Jim
[[Page S7906]]
Jeffords of my State of Vermont took in advancing this remedy during
his time in this body. And I thank Majority Leader Reid for making this
a priority for the Senate. I know that my late friend Senator Kennedy
is smiling down on this chamber today as we advance his efforts to end
employment discrimination. Today we can honor his legacy with this
historic vote.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, we are about to make history in this
Chamber by passing the Employment Non-Discrimination Act, more commonly
known as ENDA. We will establish the principle that the right to work
free from discrimination is a fundamental right of each and every
American regardless of age, race, gender, religion, disability,
national origin, and now, finally, sexual orientation.
It has taken a long time to get to this day. More than 10 years ago I
was proud to join a life-long champion of civil rights, the late
Senator Ted Kennedy, as a cosponsor of ENDA. That was back in 2002.
Over the years our country has rightly taken a stand against workplace
discrimination in a wide variety of forms. It is past time we close
this gap for our LGBT employees. The time to pass this bill has come.
I thank Senators Merkley and Kirk for taking up the cause and for
moving this bill forward. Senator Kirk, along with Senators Hatch and
Murkowski, led Republican support for this bill during its
consideration by the HELP Committee.
I also acknowledge the work of the chairman of the committee Tom
Harkin in bringing this bill to the floor.
Other Senators who helped to improve this bill include Senators
Portman, Ayotte, Heller, Hatch, and McCain, in their effort to draft
strong antiretaliation language. Their amendment, which was adopted
unanimously, improves this bill by strengthening the protections for
religious institutions that are legitimately exempted under ENDA.
I thank each of those Senators and others, such as Senator Flake, for
their willingness to work with the sponsors and cosponsors of this
legislation. Senator Toomey also has worked hard.
Mr. President, all Americans deserve a fair opportunity to pursue the
American Dream. ENDA is simply about the fundamental right to work and
to be judged according to one's abilities, qualifications, and job
performance. Much of corporate America has already voluntarily embraced
LGBT protections because they know that doing so helps them attract and
retain the best and the brightest employees.
Nearly two dozen States have versions of ENDA. In fact, in my home
State of Maine, it has been the law for nearly a decade. Simply put,
ENDA is about fairness and workplace equality. Today, I am confident
the Senate will affirm that principle and will say to everyone in this
country the workplace is simply no place for discrimination.
Mr. HARKIN. Mr. President, today the Senate is sending a clear
message that all Americans are entitled to earn a living free from
discrimination and to be judged in the workplace based on
qualifications, ability, and integrity.
The Employment Non-Discrimination Act is simple and 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. The bill is modeled on title VII of the Civil Rights Act, a
law that has been in place for almost 50 years. It is a law that is
well understood by employers and is strongly supported by employers.
More than 50 years ago, with the Civil Rights Act, we took the first
steps to eliminate discrimination at work. Since that time we have
ensured that the employers may not discriminate on the basis of race,
sex, national origin, religion, or age. In 1990 with passage of the
Americans with Disabilities Act we ensured that Americans were not
discriminated against on the basis of a disability. Today, for the
first time, the Senate goes on record prohibiting discrimination at
work on the basis of sexual orientation and gender identity.
Yesterday I entered into a colloquy with Senator Leahy, the
distinguished chairman of the Judiciary Committee with regard to Senate
amendment No. 2012. I would like to further clarify my response to
Senator Leahy. As Senator Leahy clearly set forth in his question to
me, this amendment simply says that you cannot retaliate against an
organization solely because it qualifies for the exemption under
section 6(a) of ENDA. The amendment is not intended to undermine in any
way current or future Federal, State, or local civil rights
protections--States and localities can still enforce their own
nondiscrimination laws for violations within their jurisdiction,
regardless of whether an entity is exempt under the national ENDA
legislation.
We have had a very collaborative process on this bill, and I would
like to take this opportunity to thank all of those who have made that
possible first, to the sponsors of the bill, Senator Merkley, Senator
Kirk, Senator Baldwin, and Senator Collins, all of whom have put in
many hours behind the scenes working to build support for this bill and
make passage today a reality. Thank-yous also go to their staff:
Jeremiah Bauman, Cade Clurman, Amber Shipley, John Kane, Katie Brown,
and Betsy McDonnell.
On my HELP Committee staff I would like to thank Beth Stein, Lauren
McFerran, Chris Williamson, and Pam Smith. I would also like to thank
the HELP Committee minority staff who also worked to get this bill
through a very collaborative process: Kyle Fortson, Kai Hirabayashi,
and David Cleary. A special thank-you goes to Dan Goldberg, who
recently left my HELP Committee staff but did a tremendous job on this
bill up through the committee markup. I commend all of the staff for
helping to make final passage of this bill a reality.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I ask unanimous consent for 5 minutes to
speak to this bill.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. MERKLEY. Mr. President, I thank my colleague who preceded me who
has summarized the bipartisan collaboration to bring this bill to this
point that we will be voting on in just a few minutes. No one has done
more than she to advance this conversation over many years. I thank the
Senator from Maine for those incredible efforts on behalf of ending
discrimination and advancing liberty and opportunity.
Today the Senate will vote to break the chains of discrimination that
hold back millions of LGBT Americans from the full promise of liberty--
liberty, that freedom to participate fully in our society, in the
public square to the voting booth, to the school, to the workplace;
liberty, that quality deeply rooted in our national journey and
embedded in our Declaration of Independence `` . . . that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness;'' liberty, the declared mission of our Nation in the
preamble to the Constitution: We, the people, in order to form a more
perfect union and secure the blessings of liberty to ourselves and our
posterity, do ordain and establish a Constitution of the United States
of America.
But the march to liberty has been long, with numerous battles along
the way: the fight to end slavery that President Lincoln figured so
prominently in, the fight to end racial discrimination, the fight to
end gender discrimination, the fight to end discrimination against our
seniors, and the fight that continues today with this bill to end
discrimination based on sexual orientation and gender identity.
Discrimination diminishes the potential of the individual and it
diminishes the potential of our Nation. Senator Ted Kennedy said this
succinctly when he helped introduce in 2009 a predecessor of the bill
we will be voting on today. Senator Ted Kennedy said: ``The promise of
America will never be fulfilled as long as justice is denied to even
one among us.'' He spoke these words just 20 days before he passed
away. It is appropriate to quote Ted Kennedy because he led the fight
for this bill since its first introduction in 1994. I think he would be
tremendously pleased with the bipartisan vote of affirmation against
discrimination which we will soon be taking.
[[Page S7907]]
Along the course of the two decades many have helped on this bill,
whose footsteps no longer echo in these Halls, and to all of those
champions of liberty who have participated in this process I say thank
you.
There are many champions of liberty still in this body who have been
fighting toward this moment, and I wish to make sure I acknowledge
them: Senator Harkin, who championed many elements, including ending
discrimination against those with disabilities and who steered this
bill through his committee; Senator Harry Reid and the leadership team
who worked together to enable this moment in the calendar to have this
debate and to advocate this bill; Senator Tammy Baldwin, who brought in
energy from the House and the powerful voice of her personal experience
to bear on this debate; Senator Collins, who just spoke, who has done
so much for so long to make this happen, and in the first 2 years of
2009 and 2010 was the lead cosponsor. She passed the baton to Senator
Kirk, who has carried that baton forward in the most admirable way.
Senators Murkowski and Hatch joined to help this bill come out of
committee and helped create the momentum; Senators Portman, Ayotte,
Heller, Toomey, and Hatch engaged to help make sure the religious
exemption which we developed with the right hand is not taken away with
the left hand, to reinforce the integrity of the title VII religious
exemption; Senator Flake, who brought forward ideas on how to make sure
the guidance would be there to help businesses understand how to
implement this act.
There are a lot of coalition groups that have done a tremendous
amount of work. Well done. Every conversation such as this takes
advocates inside the Chamber and advocates outside the Chamber but a
particular acknowledgement of the Human Rights Campaign.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. MERKLEY. I ask unanimous consent for 1 more minute.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. MERKLEY. There are two staff members on my team who have labored
on this whom I wish to personally acknowledge: Scott Rosenthal, who
carried this organizational responsibility for a number of years, and
my legislative director Jeremiah Bowman, who provided over these last
few months this critical organizing stage.
I look forward to this vote for liberty, this vote for freedom, this
vote for opportunity, and this vote for a fairer and just America.
The PRESIDING OFFICER. Under the previous order, all postcloture time
is yielded back.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. Under the previous order, the question is,
Shall the bill (S. 815), as amended, pass?
Mr. MERKLEY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey)
is necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Wyoming (Mr. Barrasso), the Senator from Oklahoma (Mr.
Coburn), and the Senator from Alabama (Mr. Sessions).
The PRESIDING OFFICER (Mr. Murphy). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 64, nays 32, as follows:
[Rollcall Vote No. 232 Leg.]
YEAS--64
Ayotte
Baldwin
Baucus
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Collins
Coons
Donnelly
Durbin
Feinstein
Flake
Franken
Gillibrand
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Heller
Hirono
Johnson (SD)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Levin
Manchin
Markey
McCain
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Portman
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Toomey
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--32
Alexander
Blunt
Boozman
Burr
Chambliss
Coats
Cochran
Corker
Cornyn
Crapo
Cruz
Enzi
Fischer
Graham
Grassley
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Lee
McConnell
Moran
Paul
Risch
Roberts
Rubio
Scott
Shelby
Thune
Vitter
Wicker
NOT VOTING--4
Barrasso
Casey
Coburn
Sessions
The bill (S. 815), as amended, was passed, as follows:
S. 815
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 2013''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to address the history and persistent, widespread
pattern of discrimination on the bases of sexual orientation
and gender identity by private sector employers and local,
State, and Federal Government employers;
(2) to provide an explicit, comprehensive Federal
prohibition against employment discrimination on the bases of
sexual orientation and gender identity, including meaningful
and effective remedies for any such discrimination;
(3) to invoke congressional powers, including the powers to
enforce the 14th Amendment to the Constitution, and to
regulate interstate commerce pursuant to section 8 of article
I of the Constitution, in order to prohibit employment
discrimination on the bases of sexual orientation and gender
identity; and
(4) to reinforce the Nation's commitment to fairness and
equal opportunity in the workplace consistent with the
fundamental right of religious freedom.
SEC. 3. DEFINITIONS.
(a) In General.--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, or joint
labor-management committee.
(3) Demonstrates.--The term ``demonstrates'' means meets
the burdens of production and persuasion.
(4) Employee.--
(A) In general.--The term ``employee'' means--
(i) an employee as defined in section 701(f) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(f));
(ii) a State employee to which section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(a)(1)) applies;
(iii) a covered employee, as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301) or
section 411(c) of title 3, United States Code; or
(iv) an employee or applicant to which section 717(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies.
(B) Exception.--The provisions of this Act that apply to an
employee or individual shall not apply to a volunteer who
receives no compensation.
(5) Employer.--The term ``employer'' means--
(A) 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
subparagraphs (A)(i) and (B) of paragraph (4)) 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 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;
(B) an employing authority to which section 302(a)(1) of
the Government Employee Rights Act of 1991 applies;
(C) an employing office, as defined in section 101 of the
Congressional Accountability Act of 1995 or section 411(c) of
title 3, United States Code; or
(D) an entity to which section 717(a) of the Civil Rights
Act of 1964 applies.
(6) 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)).
(7) Gender identity.--The term ``gender identity'' means
the gender-related identity, appearance, or mannerisms or
other gender-related characteristics of an individual, with
or without regard to the individual's designated sex at
birth.
(8) 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)).
(9) 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)).
[[Page S7908]]
(10) Sexual orientation.--The term ``sexual orientation''
means homosexuality, heterosexuality, or bisexuality.
(11) 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)).
(b) Application of Definitions.--For purposes of this
section, a reference in section 701 of the Civil Rights Act
of 1964--
(1) to an employee or an employer shall be considered to
refer to an employee (as defined in subsection (a)(4)) or an
employer (as defined in subsection (a)(5)), respectively,
except as provided in paragraph (2) of this subsection; and
(2) to an employer in subsection (f) of that section shall
be considered to refer to an employer (as defined in
subsection (a)(5)(A)).
SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.
(a) Employer Practices.--It shall be an unlawful employment
practice for an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individual
with respect to the compensation, terms, conditions, or
privileges of employment of the individual, because of such
individual's actual or perceived sexual orientation or gender
identity; or
(2) to limit, segregate, or classify the employees or
applicants for employment of the employer in any way that
would deprive or tend to deprive any individual of employment
or otherwise adversely affect the status of the individual as
an employee, because of such individual's actual or perceived
sexual orientation or gender identity.
(b) Employment Agency Practices.--It shall be an unlawful
employment practice for an employment agency to fail or
refuse to refer for employment, or otherwise to discriminate
against, any individual because of the actual or perceived
sexual orientation or gender identity of the individual or to
classify or refer for employment any individual on the basis
of the actual or perceived sexual orientation or gender
identity of the individual.
(c) Labor Organization Practices.--It shall be an unlawful
employment practice for a labor organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
the actual or perceived sexual orientation or gender identity
of the individual;
(2) to limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or refuse
to refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment, or
would limit such employment or otherwise adversely affect the
status of the individual as an employee or as an applicant
for employment because of such individual's actual or
perceived sexual orientation or gender identity; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) Training Programs.--It shall be an unlawful employment
practice for any employer, labor organization, or joint
labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training
programs, to discriminate against any individual because of
the actual or perceived sexual orientation or gender identity
of the individual in admission to, or employment in, any
program established to provide apprenticeship or other
training.
(e) Association.--An unlawful employment practice described
in any of subsections (a) through (d) shall be considered to
include an action described in that subsection, taken against
an individual based on the actual or perceived sexual
orientation or gender identity of a person with whom the
individual associates or has associated.
(f) No Preferential Treatment or Quotas.--Nothing in this
Act shall be construed or interpreted to require or permit--
(1) any covered entity to grant preferential treatment to
any individual or to any group because of the actual or
perceived sexual orientation or gender identity of such
individual or group on account of an imbalance which may
exist with respect to the total number or percentage of
persons of any actual or perceived sexual orientation or
gender identity employed by any employer, referred or
classified for employment by any employment agency or labor
organization, admitted to membership or classified by any
labor organization, or admitted to, or employed in, any
apprenticeship or other training program, in comparison with
the total number or percentage of persons of such actual or
perceived sexual orientation or gender identity in any
community, State, section, or other area, or in the available
work force in any community, State, section, or other area;
or
(2) the adoption or implementation by a covered entity of a
quota on the basis of actual or perceived sexual orientation
or gender identity.
(g) No Disparate Impact Claims.--Only disparate treatment
claims may be brought under this Act.
(h) Standards of Proof.--Except as otherwise provided, an
unlawful employment practice is established when the
complaining party demonstrates that sexual orientation or
gender identity was a motivating factor for any employment
practice, even though other factors also motivated the
practice.
SEC. 5. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered
entity to discriminate against an individual because such
individual--
(1) opposed any practice made an unlawful employment
practice by this Act; or
(2) made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under
this Act.
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
(a) In General.--This Act shall not apply to a corporation,
association, educational institution or institution of
learning, or society that is exempt from the religious
discrimination provisions of title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section
702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-
2(e)(2)) (referred to in this section as a ``religious
employer'').
(b) Prohibition on Certain Government Actions.--A religious
employer's exemption under this section shall not result in
any action by a Federal agency, or any State or local agency
that receives Federal funding or financial assistance, to
penalize or withhold licenses, permits, certifications,
accreditation, contracts, grants, guarantees, tax-exempt
status, or any benefits or exemptions from that employer, or
to prohibit the employer's participation in programs or
activities sponsored by that Federal, State, or local agency.
Nothing in this subsection shall be construed to invalidate
any other Federal, State, or local law (including a
regulation) that otherwise applies to a religious employer
exempt under this section.
SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES;
VETERANS' PREFERENCES.
(a) Armed Forces.--
(1) Employment.--In this Act, the term ``employment'' 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 title does not repeal or
modify any Federal, State, territorial, or local law creating
a special right or preference concerning employment for a
veteran.
SEC. 8. CONSTRUCTION.
(a) Dress or Grooming Standards.--Nothing in this Act shall
prohibit an employer from requiring an employee, during the
employee's hours at work, to adhere to reasonable dress or
grooming standards not prohibited by other provisions of
Federal, State, or local law, provided that the employer
permits any employee who has undergone gender transition
prior to the time of employment, and any employee who has
notified the employer that the employee has undergone or is
undergoing gender transition after the time of employment, to
adhere to the same dress or grooming standards as apply for
the gender to which the employee has transitioned or is
transitioning.
(b) Additional Facilities Not Required.--Nothing in this
Act shall be construed to require the construction of new or
additional facilities.
SEC. 9. COLLECTION OF STATISTICS PROHIBITED.
The Commission and the Secretary of Labor shall neither
compel the collection of nor require the production of
statistics on actual or perceived sexual orientation or
gender identity from covered entities pursuant to this Act.
SEC. 10. 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 (42 U.S.C. 2000e-16b and 2000e-16c),
in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(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 such 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 such
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 (42 U.S.C. 2000e-16b and 2000e-16c);
in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(a)(1)), respectively;
(5) the President, the Commission, and the Merit Systems
Protection Board shall have
[[Page S7909]]
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 such individual for a violation of section 411 of
such title; and
(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 such
individual for a violation of such title;
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c) in the case
of a claim alleged by such individual for a violation of
section 302(a)(1) of such Act (42 U.S.C. 2000e-16b(a)(1));
(C) the Congressional Accountability Act of 1995 (2 U.S.C.
1301 et seq.) in the case of a claim alleged by such
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 such individual for a violation of
section 411 of such title.
(b) Procedures and Remedies.--Except as provided in section
4(g), 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 such 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 (42 U.S.C. 2000e-16b(a)(1)) in the case of a claim
alleged by such 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 such 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 such 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)).
(d) No Double Recovery.--An individual who files claims
alleging that a practice is an unlawful employment practice
under this Act and an unlawful employment practice because of
sex under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) shall not be permitted to recover
damages for such practice under both of--
(1) this Act; and
(2) section 1977A of the Revised Statutes (42 U.S.C. 1981a)
and title VII of the Civil Rights Act of 1964.
(e) Motivating Factor Decisions.--On a claim in which an
individual proved a violation under section 4(h) and a
respondent demonstrates that the respondent would have taken
the same action in the absence of the impermissible
motivating factor, the court--
(1) may grant declaratory relief, injunctive relief (except
as provided in paragraph (2)), and attorney's fees and costs
demonstrated to be directly attributable only to the pursuit
of a claim under section 4(h); and
(2) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment.
SEC. 11. STATE AND FEDERAL IMMUNITY.
(a) Abrogation of State Immunity.--A State shall not be
immune under the 11th Amendment to the Constitution from a
suit brought in a Federal court of competent jurisdiction for
a violation of this Act.
(b) Waiver of State Immunity.--
(1) In general.--
(A) Waiver.--A State's receipt or use of Federal financial
assistance for any program or activity of a State shall
constitute a waiver of sovereign immunity, under the 11th
Amendment to the Constitution or otherwise, to a suit brought
by an employee or applicant for employment of that program or
activity under this Act for a remedy authorized under
subsection (d).
(B) Definition.--In this paragraph, the term ``program or
activity'' has the meaning given the term in section 606 of
the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(2) Effective date.--With respect to a particular program
or activity, paragraph (1) applies to conduct occurring on or
after the day, after the date of enactment of this Act, on
which a State first receives or uses Federal financial
assistance for that program or activity.
(c) Remedies Against State Officials.--An official of a
State may be sued in the official capacity of the official by
any employee or applicant for employment who has complied
with the applicable procedures of section 10, for equitable
relief that is authorized under this Act. In such a suit the
court may award to the prevailing party those costs
authorized by section 722 of the Revised Statutes (42 U.S.C.
1988).
(d) 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. 12. ATTORNEYS' FEES.
(a) Definition.--For purposes of this section, the term
``decisionmaker'' means an entity described in section 10(a)
(other than paragraph (4) of such section), acting in the
discretion of the entity.
(b) Authority.--Notwithstanding any other provision of this
Act, in an action or administrative proceeding for a
violation of this Act, a decisionmaker may allow the
prevailing party, other than the Commission or the United
States, a reasonable attorney's fee (including expert fees)
as part of the costs, to the same extent as is permitted
under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.), sections 302 and 304 of the Government
Employee Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-
16c), the Congressional Accountability Act of 1995 (2 U.S.C.
1301 et seq.), or chapter 5 of title 3, United States Code,
whichever applies to the prevailing party in that action or
proceeding. The Commission and the United States shall be
liable for the costs to the same extent as a private person.
SEC. 13. POSTING NOTICES.
A covered entity who is required to post a notice described
in section 711 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-10) may be required to post an amended notice,
including a description of 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.
Nothing in this Act shall be construed to require a separate
notice to be posted.
SEC. 14. 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 and applicants for employment of
the Library of Congress.
(c) Board.--The Board referred to in section 10(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 411(c) of title 3, United
States Code, and applicants for employment as such employees.
SEC. 15. 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
regulation or any law or regulation of a State or political
subdivision of a State.
SEC. 16. 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 circumstances shall not be
affected by the invalidity.
SEC. 17. EFFECTIVE DATE.
This Act shall take effect on the date that is 6 months
after the date of enactment of this Act and shall not apply
to conduct occurring before the effective date.
Mr. CASEY. Mr. President, I was with my wife today, who was
recovering from surgery, but had I been present I would have proudly
cast my vote in favor of the Employment Non-Discrimination Act (ENDA).
As a cosponsor of ENDA, I am grateful for today's bipartisan Senate
vote, and I was pleased to vote for cloture earlier this week.
Despite the progress our Nation has made in ensuring equality for
all, more than one in five lesbian, gay, bisexual or transgender
employees have experienced workplace discrimination. That is completely
unacceptable and Congress is long overdue in extending workplace
protections to the LGBT community. Workers should be judged on the
quality of the job they do, not who they are. I applaud today's vote
and hope that the House of Representatives will quickly follow the
Senate and work in a bipartisan way to send this legislation to the
President for signing.
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