[Congressional Record (Bound Edition), Volume 159 (2013), Part 11]
[Senate]
[Pages 16668-16671]
[From the U.S. Government Publishing Office, www.gpo.gov]




      EMPLOYMENT NON-DISCRIMINATION ACT OF 2013--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to S. 815, which the 
clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to Calendar No. 184, S. 815, a bill to 
     prohibit employment discrimination on the basis of sexual 
     orientation or gender identity.

  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, today marks another step forward in the 
progress of the United States of America in making sure that all of our 
citizens are treated fairly and equitably under the law, that each 
citizen of this country will know he or she cannot be discriminated 
against because of race, religion, sex, or national origin. That was 
all covered in the Civil Rights Act of 1964.
  In 1990 I was proud to stand at this very desk when we took another 
step forward when we said we were going to extend civil rights to cover 
people with disabilities. Today I stand here to mark another step 
forward when we will have a vote on proceeding to the debate to end 
discrimination in employment because of a person's sexual orientation. 
It is a huge step forward, one too long in coming.
  I was here in 1996 when we voted on the Employment Non-Discrimination 
Act, the bill that is now before the Senate. We lost by one vote--50 to 
49. That was a dark day. We have been trying to get it before the 
Senate ever since, and we have finally done so. I am proud to say that 
we got it through the HELP Committee this summer on a strong bipartisan 
vote, and we now have it before the Senate.
  People should understand this is a momentous day in the development 
of our country, ensuring that every person is recognized for their 
individual worth and for what they contribute to society, not for the 
color of their skin or race or religion or national origin or whether 
they have a disability. Today we also say: We will make sure you cannot 
be discriminated against because of your sexual identity or whom you 
love.
  It has been 17 years since Ted Kennedy, who chaired the committee at 
the time, brought this bill to the floor in 1996, and it was, again, 
one vote shy

[[Page 16669]]

of passage. In the meantime, over those 17 years, the attitudes in this 
country have changed dramatically about the rights of gay, lesbian, 
transsexual, and transgender Americans. In a nutshell, I think the vast 
majority of Americans believe that individuals ought to have the right 
to earn a living free from discrimination and that they should be 
judged on their performance in the workplace based on their talent, 
their ability, and their qualifications.
  Interestingly enough, since 1996, 17 States--including my State of 
Iowa--have passed legislation that includes basic employment 
protections for all LGBT Americans. I will use that acronym or those 
letters to explain lesbian, gay, bisexual, and transgender Americans.
  Eighty-eight percent of Fortune 500 businesses have included 
protections in their nondiscrimination policies, as have the majority 
of small businesses. Over 100 major businesses, including 
pharmaceutical and technology companies, banks, manufacturing 
companies, and chemical companies have announced their support for this 
bill. In fact, there are polls that show 8 out of 10 Americans already 
believe that discrimination against people because of their sexual 
orientation is already illegal; for example, that it is illegal to fire 
someone for being gay or for being a lesbian.
  Why are we here today? Twenty-three years ago I stood at this desk as 
the manager of the Americans with Disabilities Act. That bill was to 
extend nondiscrimination clauses to people with disabilities. At that 
time a lot of people said: What is the problem?
  Here is the problem in a nutshell. Let's say you are an African 
American--or a woman or Jewish or Catholic or anything else--and you 
applied for a job for which you were fully qualified and the 
prospective employer said: No, I am not hiring African Americans. I 
don't want any Black people working here. No, you are Jewish; get out 
of here. Do you know what you could do? You could turn right around, 
walk out the door, go down to the courthouse, and the courthouse door 
would be open for you. You can go into that courthouse and take that 
case to court.
  When I stood here 23 years ago, I said: Until the President signs 
that bill into law, a person with a disability--for example, someone 
bound to a wheelchair--could be turned down in spite of being qualified 
for the job. The prospective employer could say: Get out of here; I 
don't hire cripples. If you then went down to the courthouse, the door 
was locked. You had no recourse under law for the violation of your 
civil rights. That is true today for gays, lesbians, bisexual, and 
transgender Americans. They could be fired just because of that. If 
they go down to the courthouse door, it is locked. They have no 
recourse under law.
  As I said, 17 States have State laws, some municipalities have 
municipal laws, but the vast majority of Americans live in States in 
which there is no civil rights law governing LGBT people. The majority 
of Americans--more than 56 percent--live in States in which it is 
perfectly legal to fire or refuse to hire someone because of who they 
are--lesbian, gay, bisexual, or transgender. They have no recourse 
under law. As I said, most people in America think they are covered. 
They think you can't discriminate against someone because of that. The 
fact is that it is still perfectly legal to do so in most States in the 
United States.
  As I said, I think we have changed quite a bit in the 17 years since 
we last considered this bill. That last vote was 49 to 50. We lost by 
one vote, and there were no amendments. At that time a majority of 
Senators would have been enough to pass it. All we needed was one more 
vote. I remember Vice President Al Gore was sitting in the chair, but 
we were one vote short.
  Today, however, as times have changed, we know we need 60 votes to 
pass bills. Just think about that--17 years ago 51 votes would have 
passed this bill; now we have to have 60 votes. I won't get into the 
necessity of having to change the rules of the Senate. We need 60 votes 
before we can even bring up the bill. It is a tribute to the leadership 
of the bill's sponsors, Senator Jeff Merkley and Senator Mark Kirk, 
that we have now reached 60 votes. As of last week we only had about 57 
or 58 votes, and then 2 more people decided to support the bill. Now 
that Senator Heller of Nevada has announced his support for the bill, 
we have 60 votes. We have 60 votes, and I predict we will get more than 
60 votes. Once we reach the critical mass, I think my colleagues will 
understand that this is another step in the direction of opening 
America and making our society more inclusive rather than exclusive.
  Senator Kirk, who is managing the bill for the minority, had been a 
supporter of this legislation before he was elected to the House. 
Senator Merkley, who is the sponsor of the bill, was the leader of this 
effort when he was in the Oregon State Legislature. One Republican and 
one Democrat were champions of this bill before they came to Congress. 
They both played a critical role in ensuring the bill was brought 
before our committee. Even though Senator Merkley left our committee to 
join the Appropriations Committee, he always kept on top of this. With 
their help, we voted it out of our HELP Committee in July with a strong 
bipartisan vote of 15 to 7. I thank the present occupant of the Chair, 
the distinguished Senator from Connecticut, for all of his help and 
support for getting this bill through. We had the support of three 
Members of the minority as well. The vote was 15 to 7. It was a great 
vote.
  Despite the passage of laws at the State and local levels, 
discrimination in the workplace continues to be all too real. Forty-two 
percent of lesbian, gay, and bisexual workers report having experienced 
some form of discrimination at work. Even with the progress that has 
been made at the State and local levels, as I mentioned, too many hard-
working Americans, whether employed by private companies or public 
entities, are judged not by their ability and qualifications but by 
their sexual orientation or gender identity.
  Consider the example of Michael Carney, who was denied reinstatement 
as a police officer three times before successfully using the 
protections of State law to get his job back. This is a job in which he 
has now served with distinction for many years.
  Consider Sam Hall, a West Virginia miner who suffered destruction of 
property and verbal harassment from coworkers because of his identity 
as a gay person. Sam is one of those millions of Americans who 
currently have no legal recourse without this law.
  Discrimination against transgender Americans is even more common, 
with 78 percent reporting harassment at work. I was fortunate enough to 
hear from Kylar Broadus, who was a witness at our HELP Committee 
hearing last year. Kylar faced intense harassment at work as he 
transitioned from female to male. He has never fully recovered 
financially from the loss of his well-paid position.
  Allyson Robinson also provided written testimony to the committee 
regarding the painful separation from her family that she endured 
because of financial hardships while she searched for her first job as 
an openly transgender female.
  Again, too many of our fellow citizens are being judged not by what 
they can contribute to the workplace but by who they are and whom they 
choose to love. Unfortunately, we can cite countless cases of bigotry 
and blatant job discrimination based on sexual orientation or gender 
identity. Equal opportunity is not just an abstract principle or a 
matter of statistics. Every day, decent hard-working Americans are 
being hurt by this form of discrimination.
  It has been almost 50 years since we first took steps to eliminate 
discrimination at work and 23 years since we passed the Americans with 
Disabilities Act to eliminate discrimination against people with 
disabilities. We still have a long way to go, but our country is a far 
better place because of laws against discrimination based on race and 
sex and national origin and religion and age and, yes, disability. At 
long last, it is time for us to also prohibit discrimination on the 
basis of

[[Page 16670]]

sexual orientation and gender identity. Such discrimination is 
fundamentally wrong and cannot be tolerated any longer in our country.
  Lesbian, gay, bisexual, and transgender Americans deserve the same 
civil rights protections as all other Americans. This bill will 
accomplish that. It will say to millions of LGBT Americans that they 
are full and welcome members of our American family and that they 
deserve the same civil rights protections as every other American.
  The bill is very simple. It is very clear. It states that private 
businesses, public employers, and labor unions cannot make employment 
decisions--hiring, firing, promotion or compensation--because of a 
person's actual or perceived sexual orientation or gender identity. 
There are exemptions for small businesses and religious organizations, 
and current rules that are applicable to the Armed Forces are not 
affected. The bill expressly prohibits disparate impact claims. I wish 
to repeat that. The bill expressly prohibits disparate impact claims. 
It is modeled on title VII of the Civil Rights Act. That law has been 
in place, as I said, since 1964. This bill also incorporates many 
suggestions from members of both sides, Republicans and Democrats, on 
our HELP Committee, and I am glad we could work on a bipartisan basis 
to improve the bill and get it through our committee.
  ENDA, as it is known--the Employment Non-Discrimination Act--has 
unprecedented support from major American businesses, including Dow 
Chemical, General Electric, Hilton Hotels, GlaxoSmithKline, Chevron, 
Wells Fargo, Marriott Hotels, Coca-Cola, Cisco, Kaiser, and on and on.
  I ask unanimous consent to have printed in the Record this list of 
over 100 companies that support the passage of the bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               Business Coalition for Workplace Fairness

       The majority of United States businesses have already 
     started addressing workplace fairness for lesbian, gay, 
     bisexual and transgender employees. But we need a federal 
     standard that treats all employees the same way.
       The Business Coalition for Workplace Fairness is a group of 
     leading U.S. employers that support the Employment Non-
     Discrimination Act, a federal bill that would provide the 
     same basic protections that are already afforded to workers 
     across the country.
       Lesbian, gay, bisexual and transgender employees are not 
     protected under federal law from being fired, refused work or 
     otherwise discriminated against. ENDA would do just that.


 Leading employers that support workplace fairness and the passage of 
             the federal Employment Non-Discrimination Act

       Accenture Ltd., New York, NY; AIG, New York, NY; Alcoa 
     Inc., New York, NY; American Eagle Outfitters Inc., 
     Pittsburgh, PA; American Institute of Architects, Washington, 
     DC; Ameriprise Financial Inc., Minneapolis, MN; Amgen Inc., 
     Thousand Oaks, CA; AMR Corp. (American Airlines), Fort Worth, 
     TX; Apple, Cupertino, CA; Bank of America Corp., Charlotte, 
     NC; The Bank of New York Mellon Corp. (BNY Mellon), New York, 
     NY; Barclays, New York, NY; BASF Corp., Florham Park, NJ; 
     Bausch & Lomb Inc., Rochester, NY; Best Buy Co. Inc., 
     Richfield, MN; Bingham McCutchen LLP, Boston, MA; Biogen Idec 
     Inc., Weston, MA; BMC Software Inc., Houston, TX; BNP 
     Paribas, New York, NY; Boehringer Ingellheim Pharmaceuticals 
     Inc., Ridgefield, CT; BP America Inc., Warrenville, IL; 
     Bristol-Myers Squibb Co., New York, NY; Broadridge Financial 
     Solutions Inc., Lake Success, NY; CA Technologies Inc., 
     Islandia, NY; Caesars Entertainment Corp., Las Vegas, NV; 
     Capital One Financial Corp., McLean, VA; Cardinal Health 
     Inc., Dublin, OH; CareFusion Corp., San Diego, CA.
       CC Media Holdings Inc. (Clear Channel), San Antonio, TX; 
     Charles Schwab & Co., San Francisco, CA; Chevron Corp., San 
     Ramon, CA; Choice Hotels International Inc., Silver Spring, 
     MD; Chubb Corp., Warren, NJ; Cisco Systems Inc., San Jose, 
     CA; Citigroup, New York, NY; Clorox Co., Oakland, CA; The 
     Coca-Cola Co., Atlanta, GA; Corning Inc., Corning, NY; Darden 
     Restaurants Inc., Orlando, FL; Delhaize America Inc., 
     Salisbury, NC; Dell Inc., Round Rock, TX; Deloitte LLP, New 
     York, NY; The Depository Trust & Clearing Corp., New York, 
     NY; Deutsche Bank, New York, NY; Diageo North America, 
     Norwalk, CT; Dow Chemical Co., Midland, MI; E.I. du Pont de 
     Nemours and Co. (DuPont), Wilmington, DE; Eastman Kodak Co., 
     Rochester, NY; Electronic Arts Inc., Redwood City, CA; Eli 
     Lilly & Co., Indianapolis, IN; EMC Corp., Hopkinton, MA; 
     Ernst & Young LLP, New York, NY; Expedia Inc., Bellevue, WA; 
     Gap Inc., San Francisco, CA; General Electric Co., Fairfield, 
     CT; General Mills Inc., Minneapolis, MN; General Motors 
     Corp., Detroit, MI; GlaxoSmithKline, Philadelphia, PA; 
     Goldman Sachs Group Inc., New York, NY; Google Inc., Mountain 
     View, CA.
       Groupon Inc., Chicago, IL; Hanover Direct Inc., Weehawken, 
     NJ; Herman Miller Inc., Zeeland, MI; The Hershey Co., 
     Hershey, PA; Hewlett-Packard Co., Palo Alto, CA; Hillshire 
     Brands Co., Downers Grove, IL; Hilton Worldwide, McLean, VA; 
     Hospira Inc., Lake Forest, IL; HSBC--North America, Prospect 
     Heights, IL; Hyatt Hotels Corp., Chicago, IL; Integrity 
     Staffing Solutions Inc., Wilmington, DE; Intel Corp., Santa 
     Clara, CA; InterContinental Hotels Group Americas, Atlanta, 
     GA; International Business Machines Corp., Armonk, NY; Jenner 
     & Block LLP, Chicago, IL; JPMorgan Chase & Co., New York, NY; 
     Kaiser Permanente, Oakland, CA; KeyCorp, Cleveland, OH; 
     Kimpton Hotel & Restaurant Group, San Francisco, CA; KPMG 
     LLP, New York, NY; Levi Strauss & Co., San Francisco, CA; 
     Marriott International Inc., Bethesda, MD; Marsh & McLennan 
     Companies Inc., New York, NY; Merck & Co. Inc., Whitehouse 
     Station, NJ; Microsoft Corp., Redmond, WA; MillerCoors 
     Brewing Co., Chicago, IL.
       Mitchell Gold + Bob Williams, Taylorsville, NC; Moody's 
     Corp., New York, NY; Morgan Stanley, New York, NY; Motorola 
     Inc., Schaumburg, IL; Nationwide, Columbus, OH; The Nielsen 
     Co., Schaumburg, IL; Nike Inc., Beaverton, OR; Oracle Corp., 
     Redwood City, CA; Orbitz Worldwide Inc., Chicago, IL; Pfizer 
     Inc., New York, NY; PricewaterhouseCoopers LLP, New York, NY; 
     Procter & Gamble Co., Cincinnati, OH; QUALCOMM Inc., San 
     Diego, CA; RBC Wealth Management, Minneapolis, MN; 
     Replacements Ltd., McLeansville, NC; Robins, Kaplan, Miller & 
     Ciresi LLP, Minneapolis, MN; Self-Help Credit Union, Durham, 
     NC; SUPERVALU Inc., Eden Prairie, MN; Target Corp., 
     Minneapolis, MN; Teachers Insurance and Annuity Association--
     College Retirement Equities Fund, New York, NY; Tech Data 
     Corp., Clearwater, FL; Texas Instruments Inc., Dallas, TX; 
     Thomson Reuters, New York, NY; Time Warner Inc., New York, 
     NY; Travelers Companies Inc., New York, NY; UBS AG, Stamford, 
     CT; US Airways Group Inc., Tempe, AZ; WellPoint Inc., 
     Indianapolis, IN; Wells Fargo & Co., San Francisco, CA; 
     Whirlpool Corp., Benton Harbor, MI; Wynn Resorts Ltd., Las 
     Vegas, NV; Xerox Corp., Stamford, CT; Yahoo! Inc., Sunnyvale, 
     CA.

  Mr. HARKIN. Mr. President, in the course of our hearings on this 
bill, we heard from executives from Nike and General Mills, among 
others. Asked why they had chosen to implement strong nondiscrimination 
policies themselves, the Nike executive testified:

       ENDA is good for business because teams thrive in an open 
     and welcoming work environment, where individuals are 
     bringing their full selves to work.

  The bill we are debating specifically protects religious liberty with 
a substantial exemption that allows specific religious organizations to 
continue to take sexual orientation and gender identity into account 
when making employment decisions in their religious organizations. I 
might point out this bill is supported by 60 faith-based organizations, 
including congregations and organizations ranging from the Presbyterian 
Church of America, the Episcopal Church, the Progressive National 
Baptist Convention, the Union of Reform Judaism, the Union Synagogue of 
Conservative Judaism, the Islamic Society of North America, and many 
others.
  Among other things, polls show that 67 percent of American Catholics 
support basic workplace protections for LGBT workers. Almost 70 percent 
in that poll of evangelical Christians supports LGBT employment 
protections. So there is overwhelming support for this bill, as I said, 
amongst people of faith and religious-based organizations.
  Again, I acknowledge the leadership of Senator Kirk, as well as the 
bill's lead sponsor, Senator Jeff Merkley of Oregon, who has championed 
this bill and without whom, I dare say, we would not be starting this 
debate today. In addition, we are fortunate the lead Democratic sponsor 
of the bill in the House in previous Congresses is now a Member of the 
Senate and a member of our HELP Committee, that is Senator Tammy 
Baldwin of Wisconsin. I hope she will soon be able to say she helped 
pass this bill in both the House and the Senate.
  I look forward to the vote later today when we will vote to proceed 
to this

[[Page 16671]]

bill. As we all know, under the rules of the Senate, after cloture is 
invoked, we will have up to 30 hours of debate and then the bill will 
be on the floor and open. We had several amendments filed in committee 
that members of the HELP Committee reserved to try to bring to the 
floor. So I am confident we can work with those if they are offered 
again. I hope all amendments that are offered will be directed at 
improving this important civil rights legislation. I hope amendments 
that are focused on unrelated matters can wait for another time, 
another day, perhaps when that issue is on the floor. This is just too 
important--this major step forward in expanding our concept of civil 
rights laws--too important to be dragged down by spurious amendments 
that have nothing to do with the bill whatsoever. I hope we do not get 
bogged down with that.
  As I said, it has been a long time coming for this bill, when we 
think about it. Seventeen years ago we voted on it and lost by one 
vote. Attempts have been made periodically to get it back to the floor 
again and it has just never happened, but now we have the opportunity. 
We reported it out of committee, as I said, with a good bipartisan 
vote.
  ENDA is a critically needed bill. It is commonsense legislation. It 
has overwhelming support from corporate America, from religious groups, 
from small and large businesses all across the country. As I said, 8 
out of 10 Americans already think it is the law. So let's make sure 
those 8 in 10 Americans who already think it is the law will now know 
it is the law, and we can pass it, send it to the House. Hopefully, the 
House will pass it and the President can sign it into law as soon as 
possible.
  No American should be turned away or have to fear the loss of their 
job or their means of support or fear of not being hired, even though 
they are eminently qualified, for any reasons other than their ability 
to do that job. People shouldn't be fired and shouldn't be 
discriminated against in hiring because of the color of their skin, 
their race, their religion, their sex, national origin, disability. 
That is already in the law; now we put this next piece in place--no one 
should be denied a job, an opportunity to work because they are gay, 
lesbian, bisexual or transgender. That is what this bill does.
  I encourage all Senators to join with us in passing this important 
civil rights legislation and continuing our Nation's advance toward 
freedom and inclusion for everyone in our society. Let's say this is a 
bright day for America. We are finally bringing it to the floor. As I 
said, we will have the vote later today. We have 60 people who have 
said they will vote for it; I hope we have more. Sometime later this 
week--I don't know if we will use the 30 hours but, hopefully, sometime 
later this week, we can finally pass it. As I said, I think this week 
will be one that will be an uplifting week. We have had a lot of 
problems around this place over the last couple of months. I know from 
the polls that Members of Congress, in both the House and the Senate, 
are probably about as popular as a toothache with the general public 
right now. But this week we can show the American people we can come 
together and we can lift our eyes above the haze and the smoke on the 
horizon, and we can make this country a better place for all of us by 
passing this bill. Let's do this, and let's bring to the American 
people what they think they have already and what they now want. That 
is, a society free of discrimination.
  I yield the floor and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________