[Senate Report 107-341]
[From the U.S. Government Publishing Office]
Calendar No. 763
107th Congress Report
SENATE
2d Session 107-341
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EMPLOYMENT NON-DISCRIMINATION ACT OF 2001
_______
November 15, 2002.--Ordered to be printed
_______
Mr. Kennedy, from the Committee on Health, Education, Labor, and
Pensions, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 1284]
The Committee on Health, Education, Labor, and Pensions, to
which was referred the bill (S. 1284) to prohibit employment
discrimination on the basis of sexual orientation, having
considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill (as amended) do pass.
CONTENTS
Page
I. Introduction.....................................................1
II. Summary of legislation...........................................2
III. Hearings.........................................................2
IV. Cost estimate....................................................4
V. Regulatory impact statement......................................6
VI. Application of law to the legislative branch.....................6
VII. Section-by-section analysis......................................6
VIII.Summary of committee action......................................9
IX. Need for the legislation.........................................9
X. Explanation of the legislation..................................26
XI. Minority views..................................................39
I. Introduction
On April 24, 2002, the Committee on Health, Education,
Labor, and Pensions, by voice vote, favorably reported S. 1284,
the Employment Non-Discrimination Act with an amendment in the
nature of a substitute and two amendments offered by Senator
Collins.
The bill is co-sponsored by Senators Kennedy, Specter,
Jeffords, Lieberman, Daschle, Akaka, Baucus, Bayh, Biden,
Bingaman, Breaux, Boxer, Cantwell, Carnahan, Carper, Chafee,
Cleland, Clinton, Collins, Corzine, Dayton, Dodd, Durbin,
Edwards, Feingold, Feinstein, Harkin, Inouye, Kerry, Kohl,
Landrieu, Leahy, Levin, Mikulski, Murray, Nelson of Florida,
Reed, Reid, Sarbanes, Schumer, Smith of Oregon, Stabenow,
Torricelli, Wellstone, and Wyden.
II. Summary of Legislation
The purpose of the Employment Non-Discrimination Act of
2001 is to prohibit employers, including government employers,
employment agencies, labor organizations, and joint labor-
management committees, from discriminating in employment or
employment opportunities on the basis of sexual orientation.
Employment opportunities include hiring, firing, compensation
and other terms, conditions, or privileges of employment or
union membership.
The Act does not require employers to provide benefits to
their employees or their domestic partners, or to collect
statistics. It expressly prohibits the Equal Employment
Opportunity Commission (``EEOC'') from collecting statistics
and does not require the collection of statistics by any
employer. The Act also prohibits the imposition of affirmative
action and the adoption of quotas or granting of preferential
treatment to an individual by any employer. Religious
organizations including religious corporations, associations,
societies, or educational institutions--are exempt from
coverage under ENDA. The relationship between the armed
services and its uniformed service members is also not subject
to the Act.
III. Hearings
S. 2238, The Employment Non-Discrimination Act of 1994, was
introduced on June 23, 1994. A hearing was held on July 29,
1994.
On July 29, 1994, the following persons presented
testimony: The Honorable Claiborne Pell, U.S. Senator from the
State of Rhode Island; The Honorable Jeff Bingaman, U.S.
Senator from the State of New Mexico; Ms. Cheryl Summerville,
Bremen, Georgia; Ernest Dillon, Detroit, Michigan; Mr. Justin
Dart, Jr., Chairman, President Bush's Committee on Employment
of People with Disabilities; Warren Phillips, former publisher,
The Wall Street Journal, and former CEO and Chairman, Dow Jones
& Company, Inc; Steven Coulter, Vice-President, Pacific Bell;
and Richard Womack, Director of Civil Rights, AFL-CIO; Mr.
Joeseph E. Broadus, George Mason School of Law; Robert H.
Knight, Family Research Council; and Chai Feldblum, Georgetown
University Law Center, on behalf of Leadership Conference on
Civil Rights.
Written statements were provided by: Mr. Philippe Kahn,
President, Chairman, and CEO, Borland, International;
Leadership Conference on Civil Rights, Washington, D.C.; Mr.
Deval Patrick, Assistant Attorney General, Department of
Justice; The Honorable John Chafee, U.S. Senator from the State
of Rhode Island; The Honorable Barry Goldwater, U.S. Senator
from the State of Arizona; Reverend Edmond Browning, Presiding
Bishop, Episcopal Church; Mrs. Coretta Scott King, President,
Martin Luther King Jr., Center for Non-Violent Social Change;
Ms. Mary Frances Berry, Chairperson, U.S. Commission on Civil
Rights; and Mr. Anthony Carnevale, Chair, National Commission
on Employment Policy.
S. 869, The Employment Non-Discrimination Act of 1997 was
introduced on June 10, 1997. A hearing was held on the bill on
October 23, 1997.
On October 23, 1997, the following persons and
organizations presented testimony: Ms. Kendall Hamilton,
Oklahoma City, Oklahoma; Mr. David N. Horowitz, Phoenix,
Arizona; Raymond W. Smith, Chairman of the Board and CEO, Bell
Atlantic Corporation, Arlington, Virginia; Mr. Thomas J. Grote,
Chief Operating Officer, Donato's Pizza, Blacklick, Ohio; Mr.
Herbert D. Valentine, Executive Presbyter, Baltimore
Presbytery, Moderator of the 203rd General Assembly, the
Presbyterian Church (USA); National Council of the Churches of
Christ in the U.S.A.; Mr. Oliver Thomas, Special Counsel for
Civil and Religious Liberties; Ms. Chai Feldblum, Associate
Professor of Law, Georgetown University Law Center; American
Civil Liberties Union; Ann McBride, President, Common Cause;
America Psychological Association; Elizabeth Birch, Executive
Director, Human Rights Campaign; PFLAG, Parents, Families, and
Friends of Lesbians and Gays.
S. 1284, The Employment Non-Discrimination Act of 2001, was
introduced on July 31, 2001. A hearing was held on the bill on
February 27, 2002.
On February 27, 2002, the following persons presented
testimony: Mr. Charles K. Gifford, President and CEO
FleetBoston Financial, Boston, Massachusetts; Lucy Billingsley,
Partner, Billingsley Company, Carrollton, Texas; Robert L.
Berman, Director of Human Resources and Vice President, Eastman
Kodak Company, Rochester, New York; Richard Womack, Director,
Department of Civil Rights, AFL-CIO, Washington, D.C.; Lawrence
Lane, Long Island, New York; and Matthew Coles, Director,
National Lesbian and Gay Rights Project, American Civil
Liberties Union, New York, New York.
Written statements were provided by: The American
Psychological Association; Kim Wisckol, Vice-President and
Director of Human Resources of the Consumer Business
Association, Hewlett-Packard Company; Elizabeth Birch,
Executive Director, Human Rights Campaign; and the Honorable
Patty Murray, U.S. Senator from the State of Washington.
A letter was provided from the President of New Balance
Athletic Shoe, Inc., James Davis, to Senators Kennedy and
Gregg, dated April 18, 2002.
IV. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 13, 2002.
Hon. Edward M. Kennedy,
Chairman, Committee on Health, Education, Labor, and Pensions, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1284, the Employment
Non-Discrimination Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 1284--Employment Non-Discrimination Act of 2002
Summary: S. 1284 would prohibit employment discrimination
based on sexual orientation. Assuming appropriation of the
necessary amounts, CBO estimates that implementing S. 1284
would cost $22 million over the 2003-2007 period for the Equal
Employment Opportunity Commission (EEOC) to handle additional
discrimination cases. This estimate assumes adjustments for
anticipated inflation. The bill could affect direct spending,
so pay-as-you-go procedures would apply, but we estimate that
any such effects would be less than $500,000 annually.
S. 1284 would prohibit state, local, and tribal governments
from discriminating against employees and applicants for
employment based on sexual orientation, and it would require
those governments to post notices regarding such prohibitions.
Those requirements would be intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA). However,
CBO estimates that the costs of complying with those mandates
would not be significant and would not exceed the threshold
established in UMRA ($58 million in 2002, adjusted annually for
inflation).
The bill also would impose a number of mandates on private-
sector employers, employment agencies, and labor organizations.
CBO estimates that the direct cost of those requirements would
not exceed the annual threshold specified in UMRA ($115 million
in 2002, adjusted annually for inflation) in any of the first
five years the mandates would be effective.
Estimated Cost to the Federal Government: The estimated
budgetary impact of S. 1284 is shown in the following table.
For this estimate, CBO assumes that the necessary amounts will
be appropriated by the start of each fiscal year and that
outlays will follow the historical spending pattern of these
activities. The costs of this legislation fall within budget
function 750 (administration of justice).
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By Fiscal Year, in Millions of Dollars
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2002 2003 2004 2005 2006 2007
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SPENDING SUBJECT TO APPROPRIATION a
EEOC Spending Under Current Law:
Estimated authorization Level b........... 311 325 336 348 360 373
Estimated Outlays......................... 310 324 335 347 359 372
Proposed Changes:
Estimated Authorization Level b........... 0 4 5 5 5 5
Estimated Outlays......................... 0 3 4 5 5 5
EEOC Spending Under S. 1284:
Estimated Authorization Level b........... 311 329 341 353 365 378
Estimated Outlays......................... 310 327 339 352 364 377
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a In addition to the bill's discretionary cost, S. 1284 could affect direct spending, but CBO estimates that any
such effects would be less than $500,000 annually.
b The 2002 level is the amount appropriated for that year for the EEOC. The estimated authorization levels for
2003 through 2007 are CBO baseline estimates, assuming adjustments for anticipated inflation.
The EEOC expects that implementing S. 1284 would increase
its annual caseload (currently about 80,000 cases) by 5-to-7
percent and would require an additional 60 to 90 staff. CBO
estimates that the costs to hire an additional 75 employees
would reach $5 million annually by fiscal year 2004, subject to
the appropriation of the necessary amounts. CBO expects that
enacting S. 1284 also would increase the workload for a few
other agencies, such as the Merit Systems Protection Board, but
any increase in costs for the agencies would not be significant
because of the small number of additional cases.
The additional cases resulting from S. 1284 also would
increase the workload of the Department of Justice's Civil
rights Division and the Federal judiciary. However, CBO
estimates that increased costs for these agencies would not be
significant because of the relatively small number of cases
referred to them.
Pay-as-You-Go Considerations: The Balanced Budget and
Emerging Deficit Control Act specifies pay-as-you-go procedures
for legislation affecting direct spending and receipts.
Enacting S. 1284 could increase payments from the Treasury's
Judgment Fund for settlements against federal agencies in
discrimination cases based on sexual orientation. However, CBO
estimates that nay increases in direct spending would be less
than $500,000 annually.
Estimated Impact on State, Local, and Tribal Governments:
S. 1284 would prohibit state, local, and tribal governments
from discriminating against employees and applicants for
employment based on sexual orientation, and it would require
those governments to post notices regarding such prohibitions.
those requirements would be intergovernmental mandates as
defined in UMRA. The costs of the mandates would include the
costs of posting notices and modifying employment procedures to
avoid discriminatory practices. CBO assumes that the costs of
notices would likely be relatively minor and would probably be
made in the course of other routine updates. Similarly, changes
to employment procedures likely would build on practices such
as ongoing training and personnel manual updates. Thus, CBO
estimates that compliance costs would not be significant and
would not exceed the threshold established in UMRA ($58 million
2002, adjusted annually for inflation).
By accepting federal financial assistance for any program,
states would waive their sovereign immunity under the 11th
Amendment and would be subject to suit for discriminatory
practices. Because UMRA excludes conditions of federal
assistance from the definition of an intergovernmental mandate,
the costs resulting from any potential suits would not be the
result of complying with an intergovernmental mandate as
defined in UMRA. In any event, the number of such cases likely
would be very small, and states would not be subject to any
punitive damages.
Estimated Impact on the Private Sector: The bill would
impose a number of mandates on private-sector employers,
employment agencies, and labor organizations by requiring them
not to discriminate against workers on the basis of sexual
orientation and by requiring them to post notices of the new
law where they would be accessible to workers. The direct cost
of complying with the mandates would equal the value of the
resources used by employers and other affected entities to
become familiar with the new law, the cost of posting notices,
and the cost, if any, of modifying their employment procedures
to conform with the new rules. CBO estimates that the aggregate
amount of this direct cost would not exceed the annual
threshold specified in UMRA ($115 million in 2002, adjusted
annually for inflation) in any of the first five years the
mandates would be effective.
Estimate Prepared by: Federal Costs, Impact on State,
Local, and Tribal Government, Impact on the Private Sector.
Estimate Approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
V. Regulatory Impact Statement
The act prohibits employers (including government
employers), employment agencies, labor organizations, and joint
labor-management committees from engaging in intentional
discrimination in employment on the basis of sexual
orientation. The act's requirements and enforcement mechanisms
are similar to those found in Title VII, and accordingly, it's
impact on individuals and businesses is similar. The direct
impact would equal the value of the resources used by employers
and others to become familiar with the law, post notices, and,
if necessary, modify employment procedures to conform with the
requirements of the Act.
VI. Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of the bill to the legislative branch. Consistent
with the CAA's mandate that civil rights laws be applied to the
legislative branch, S. 1284 prohibits employers--including
those in the legislative branch--from engaging in intentional
discrimination in employment on the basis of sexual
orientation.
VII. Section-by-Section Analysis
SEC. 1. SHORT TITLE
This section of the bill designates that act as the
``Employment Non-Discrimination Act.''
SEC. 2. PURPOSES
The purpose of the act is to provide a comprehensive
Federal prohibition on employment discrimination on the basis
of sexual orientation, to provide meaningful remedies against
such discrimination, and to invoke congressional powers,
including those pursuant to the 14th Amendment of the
Constitution, as well as the Commerce Clause and the Spending
Clause.
SEC. 3. DEFINITIONS
This section provides the definitions of key terms used in
the act, most of which come directly from existing Federal
civil rights laws, primarily Title VII of the Civil Rights Act
of 1964 (``Title VII''). The act defines ``sexual orientation''
as homosexuality, bisexuality or heterosexuality, whether the
orientation is real or perceived.
SEC. 4. DISCRIMINATION PROHIBITED
This section makes clear that the act is intended to
address intentional sexual orientation discrimination in
employment and does not provide a cause of action for disparate
impact claims. Most of the definitions and statutory language
are drawn from Title VII.
ENDA prohibits employers, employment agencies, labor
organizations, and joint labor-management committees from
discriminating in employment or employment opportunities on the
basis of sexual orientation. Employment opportunities include
hiring, firing, compensation and other terms, conditions, or
privileges of employment or union membership. Like a similar
provision of the Americans with Disabilities Act and consistent
with case law under Title VII, this section prohibits
discrimination based on the sexual orientation of someone with
whom an employee associates.
Importantly, ENDA does not require employers to justify
neutral practices that may result in a disparate impact against
people of a particular sexual orientation. As a result, the
disparate impact claim available under Title VII is not
available under this act.
SEC. 5. RETALIATION PROHIBITIED
This section prohibits retaliation against individuals
because they oppose any practice prohibited by the act, or
participate in an investigation or other proceeding authorized
by the act. This section is modeled directly on Title VII's
retaliation prohibition, and retaliation claims under the act
should be treated like similar claims under Title VII.
SEC. 6. BENEFITS
This section makes it clear that the act does not require
employers to provide benefits to their employees' domestic
partners.
SEC. 7. COLLECTION OF STATISTICS PROHIBITED
This section of the act expressly prohibits the EEOC from
collecting statistics on sexual orientation and from requiring
employers to collect such statistics. The collection of
statistics would require employers to engage in invasive
administrative procedures not intended by the Act.
SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED
This section sets forth the act's prohibition on quotas and
preferential treatment based on sexual orientation. The act
also prohibits orders or consent decrees that include quotas or
preferential treatment based on sexual orientation.
SEC. 9. RELIGIOUS EXEMPTION
This section exempts religious organizations from the scope
of the act. Religious organizations include religious
corporations, associations, or societies, and educational
institutions substantially owned, managed, controlled or
supported by religious organizations or whose curriculum is
directed to the propagation of a religion.
SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS'
PREFERENCES
This section makes clear the act's inapplicability to the
relationship between the United States government and uniformed
members of the Armed Forces. The act does not affect current
law on gay men, lesbians, and bisexuals in the military. Like
Title VII, Section 10 further provides that the act does not
repeal or modify any other law that gives special preferences
to veterans.
SEC. 11. CONSTRUCTION
This section clarifies that the act does not affect an
employer's authority to regulate employee conduct to the same
extent currently allowed under law. The act only requires that
employer rules and policies be sexual orientation-neutral in
design and implementation.
This section also clarifies that nothing in the Act shall
be construed to infringe upon the First Amendment associational
rights conferred on nonprofit, voluntary membership
organizations by the Constitution.
SEC. 12. ENFORCEMENT
This section authorizes the same enforcement powers,
procedures and remedies that currently exist in Federal
employment law, with the exception of the explicit prohibition
of affirmative action on the basis of sexual orientation
contained in subsection (d). All individual relief that is
available under Title VII is available under ENDA, except there
is no cause of action for a disparate impact claim.
SEC. 13. STATE AND FEDERAL IMMUNITY
This section would waive the States' Eleventh Amendment
immunity from suit for sexual orientation discrimination
against employees or applicants within any State program or
activity that receives Federal financial assistance. This
section also provides that if the Federal Government or the
States violate this act, they are subject to the same action
and remedies as other employers, except that punitive damages
are not available.
SEC. 14. ATTORNEY'S FEES
This section is identical to the attorney's fees provisions
in Title VII. Accordingly, a successful party, other than the
EEOC or the United States, is entitled to attorneys' fees and
litigation expenses.
SEC. 15. POSTING NOTICES
This section sets forth a covered entity's duty to post
notices describing the requirements of the law.
SEC. 16. REGULATIONS
This section authorizes, but does not require, the issuance
of regulations to enforce the act.
SEC. 17. RELATIONSHIP TO OTHER LAWS
This section preserves provisions in other Federal, State,
or local laws that currently provide protection from
discrimination.
SEC. 18. SEVERABILITY
This section ensures that if one or more provisions of the
act are held invalid by a court, the balance of the act remains
in effect.
SEC. 19. EFFECTIVE DATE
This section provides that ENDA shall take effect sixty
days after its enactment and does not apply retroactively.
VIII. Summary of Committee Action
The committee met to consider S. 1284 on April 24, 2002.
The committee, by voice vote, adopted an amendment in the
nature of a substitute proposed by Senator Kennedy and Senator
Jeffords. The Kennedy-Jeffords amendment clarified that only
disparate treatment claims may be brought under the act.
The committee, by voice vote, also adopted two amendments
offered by Senator Collins. The first amendment replaced the
``Retaliation and Coercion Prohibited'' section with a
``Retaliation Prohibited'' section which tracks the anti-
retaliation language used in Title VII. The second amendment
replaced the ``NonPrivate Conduct'' subsection with an
``Employer Rules and Policies'' subsection which makes it clear
that employers may adopt rules and policies that are designed
for and uniformly applied to all individuals regardless of
sexual orientation.
By voice vote, the committee voted to report S. 1284, as
amended, favorably to the full Senate.
IX. Need for the Legislation
A. HISTORICAL OVERVIEW OF SEXUAL ORIENTATION DISCRIMINATION IN
EMPLOYMENT
The problem of sexual orientation discrimination in the
workplace is wide-spread and well-documented.\1\ The history of
sexual orientation discrimination in American employment
represents the sum of half a century's worth of severe anti-gay
bias in State-sanctioned, as well as private employment
contexts. In the 1940's and 50's, evidence began to emerge of a
pattern of anti-gay discrimination in both public and private
employment contexts. Such discrimination was a matter of policy
in many areas of federal employment, and in many police forces,
fire departments, schools, and public agencies of our country.
Laws prevented gay and lesbian people from obtaining security
clearances for federal employment--a State of affairs that
lasted until an Executive Order prohibited sexual orientation
discrimination in the security clearance process in 1995--and
many law enforcement agencies and schools, in particular, made
homosexuality a disqualifier for employment. Even where no
government policies mandated sexual orientation discrimination,
unchecked private anti-gay biases cost thousands of dedicated
and talented lesbian, gay, and bisexual American workers their
careers in the latter half of the twentieth century.
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\1\ See generally Russell J. Davis, Refusal to Hire, or Dismissal
From Employment, On Account of Plaintiff's Sexual Lifestyle or Sexual
Preference as a Violation of Federal Constitution or Federal Civil
Rights Statutes, 42 A.L.R. Fed. 189 (2002); Robin Cheryl Miller,
Federal and State Constitutional Provisions As Prohibiting
Discrimination in Employment on the Basis of Gay, Lesbian or Bisexual
Orientation or Conduct, 96 A.L.R. 5th 391 (2002); The Human Rights
Campaign, Documenting Discrimination (2001); William D. Rubenstein, Do
Gay Rights Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65
(2001); John D'Emelio, Sexual Politics, and Sexual Communities: The
Making of a Homosexual Minority in the United States (1998); Lisa Keen
and Suzanne Goldberg, Strangers to the Law: Gay People on Trial (1998);
David K. Johnson, Homosexual Citizens: Washington's Gay Community
Confronts the Civil Service, Washington History, Fall/Winter 1994-95;
Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal
History, 79 Val L. Rev. 1551 (1993).
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Throughout the 1960's and 70's, discrimination based on
sexual orientation in employment, as well as other facets of
American life, gained visibility through events such as the
Stonewall uprising of 1969, and the ensuing political discourse
on the civil rights of gay and lesbian Americans. Americans
began to see the inequalities faced by gay and lesbian
Americans in the employment context and elsewhere, and the need
for comprehensive civil rights legislation guaranteeing
equality without regard to sexual orientation became apparent.
As Congress battled to address discrimination based on race,
sex, religion and national origin at the height of the modern
civil rights movement, many Americans began to develop a
growing awareness of an injustice left unaddressed by the
passage of the Civil Rights Act of 1964--that of sexual
orientation discrimination. By the end of the 1960's, a nascent
movement developed to address this injustice under Federal law.
In 1975, Congresswoman Bella Abzug introduced the first
legislation to address sexual orientation discrimination in
America. However, in the 27 years since that bill was
introduced, Congress has left this pressing civil rights issue
unaddressed. Severe discrimination continued through the
1970's, 80's, 90's and into the twenty-first century, with
private anti-gay biases fortified by the lack of a Federal
pronouncement on sexual orientation discrimination with courts
rendered virtually powerless to remedy the injustice for want
of a Federal cause of action.
Ample evidence has been presented to this Committee to show
that intentional employment discrimination on the basis of
sexual orientation causes harm to individual employees. It puts
them at an economic disadvantage by threatening job security
and by fostering an oppressive work environment in which gay,
lesbian, and bisexual employees fear that their sexual
orientation may be revealed to the detriment of their careers.
As long as tens of thousands of people go to work each day with
fear in their hearts--fear not only for themselves and their
individual welfare, but also for their continued ability to
provide for the families they love--our nation is failing to
live up to its promise of basic fairness and dignity for all.
States, municipalities, and private companies have
recognized this problem and have begun to institute policies to
address sexual orientation discrimination in the workplace. But
due to the limited number of jurisdictions in which they are
applicable and the lack of uniformity from State to State,
these developments, while laudable, do not provide a
comprehensive solution to the problem of sexual orientation
discrimination in employment.
Accordingly, courts have chastised Congress for failing to
provide a statutory cause of action to accommodate the many
cases of sexual orientation discrimination they are forced to
dismiss--despite compelling facts--for want of a Federal law
under which these claims may be brought. See, e.g. Bibby v.
Philadelphia Coca-Cola Bottling Co., 2001 U.S. App. LEXIS 17075
(3rd Cir. 2001), in which the Third Circuit Court of Appeals
laments, (Harassment on the basis of sexual orientation has no
place in our society. Congress has not yet seen fit, however to
provide protection against such harassment. (See also Higgins
v. New Balance Athletic Shoe, Inc., 21 F. Supp. 2d 66 (D. Me.
1998), which called upon Congress for a remedial response to
workplace discrimination against gay men and lesbians.
Congressional action to prohibit discrimination based on sexual
orientation is long overdue by any standard and should be a
priority of the 107th Congress.
The consequence of Congress' failure to take a stance on
anti-gay discrimination in the workplace is a tacit endorsement
by the Federal Government of anti-gay bias. By failing to
provide recourse for sexual orientation discrimination in
employment--the very essence of economic security--Congress has
effectively given its nod of approval to a regime of second
class citizenship for gay, lesbian, and bisexual Americans.
B. THE PROBLEM CONTINUES TODAY
Employment discrimination based on sexual orientation
continues in America's workplaces today, and thousands of
people experience harassment and adverse employment action
based on their sexual orientation.
The problem of sexual orientation discrimination in the
workplace is wide-spread and well-documented. Gay, lesbian,
bisexual and heterosexual Americans can be fired from their
jobs, refused work, paid less and otherwise subjected to
employment discrimination because of their sexual orientation
with no recourse under Federal law. Sexual orientation
discrimination occurs in major corporations, small businesses,
public agencies, schools, fire departments, retail stores and
warehouses. It affects executives with six-figure salaries and
people who wait tables and work at minimum wage. Discrimination
based on sexual orientation affects individuals of all income
and skill levels, ages, races, and religions.
The lack of basic protections leaves millions of
hardworking, taxpaying people vulnerable to unfair treatment.
The following are just a few examples of the discrimination
faced by lesbian and gay people, and heterosexual people
perceived to be gay, in every region of the country.
Cheryl Summerville began working as a cook for a
Cracker Barrel Country Store in Douglasville, Georgia in 1987.
She was well-liked at work and had recently purchased a home
where she lived with her partner and her son. In February 1991,
the company adopted an official policy to fire any employee who
``failed to demonstrate normal heterosexual values.''
Summerville's supervisor, who knew that she was a lesbian,
initially told her the firm's new policy apply to her because
she did not interact with customers in her job. The regional
manager, however, strictly enforced the policy. Summerville
asked to be treated like the other gay employees and was fired
February 16, 1991. Her official separation notice read: ``This
employee is being terminated due to violation of company
policy. The employee is gay.'' After drawing negative publicity
and picketing by civil rights groups, the restaurant chain
rescinded its official anti-gay policy, but has not rehired the
many employees fired on that basis.
``T.B.'' began working as a sales representative
for a large home furnishings company in 1993. After compiling a
stellar sales record in North and South Carolina during his
first nine months of work, T.B. received a raise and was
transferred to Washington, D.C., to revitalize the depressed
sales market in this area. Despite his outstanding performance,
T.B. was ``outed'' by a co-worker and subjected to demeaning
threats and anti-gay slurs. He was eventually fired, as was a
sympathetic colleague believed to be helping T.B. with his
case.
In 1993, Nan Miguel, the heterosexual manager of a
hospital radiology department in Washington, interviewed a
well-qualified candidate for a technician position in her
department. After the interview, one of the hospital
technologists commented that the candidate was obviously gay.
Subsequently, the medical director approached Miguel and
suggested that she not hire the young woman because she was
gay. Despite this advice, Miguel hired the young woman, but the
medical director was rude to the new employee and made anti-gay
remarks about her. Miguel stood up for her employee and refused
to fire her. For this, both Miguel and the technician were
fired.
Dwayne Simonton worked for the U.S. Postal Service
from 1984 to 1995. In 1987, when co-workers discovered he was
gay, Simonton became the target of ridicule and harassment. Co-
workers and supervisors threatened him, yelled obscenities at
him and placed notes on the bathroom walls with his name and
the names of celebrities who had died of AIDS. He was subjected
to fiercely abusive language and anti-gay epithets, was
physically assaulted twice, and was so upset by the persistent
torment that he eventually suffered a heart attack. His suit
for sexual orientation discrimination was dismissed by a
Federal judge because Title VII does not provide a cause of
action for sexual orientation discrimination. Simonton v.
Runyon, 232 F.3d 33 (2nd Cir. 2000).
Despite efforts at the State, local and corporate level to
address employment discrimination based on sexual orientation,
the absence of a Federal law allows discrimination to go
unchecked in workplaces around the country. The stories above
are not isolated incidents but are typical of the experiences
of gay and lesbian, as well as heterosexual Americans in many
workplaces today.
C. EXISTING LAWS ARE NOT COMPREHENSIVE
Only 12 States and the District of Columbia currently
prohibit employment discrimination based on sexual orientation.
By passing the Employment Non-Discrimination Act, Congress will
provide a comprehensive response to discrimination previously
unaddressed by the Federal Government. As with the Civil Rights
Act of 1964, the act will extend protection to those who live
in States and localities that provide no protection against
employment discrimination based on sexual orientation.
Congress has acted to pass Federal laws when some or all of
the states have also prohibited similar discrimination. For
example, several States had some form of civil rights law
prohibiting racial discrimination in 1964. Yet, Congress
recognized the need for Federal protection because of the large
number of States that offered no protection against racial
discrimination. Similarly, Congress passed the Americans with
Disabilities Act although several States provided some
protection to individuals with disabilities prior to 1990.
Regardless of State action, civil rights have traditionally
been considered a matter of national interest. As Congress
understood over 100 years ago, when it passed the first civil
rights laws against discrimination, uniform standards are
needed to reinforce our national commitment to equality.
In addition, Federal Courts of Appeal have been unanimous
in concluding that discrimination based solely upon sexual
orientation is not actionable under Title VII's sex
discrimination prohibition. For more than two decades
plaintiffs have attempted to bring sexual orientation claims
under Title VII's sex discrimination provision, but such a
claim has never succeeded at the Federal appeals court level.
Unless sexual orientation discrimination takes the form of sex-
stereotyping or same-sex harassment, such discrimination is not
recognized as actionable under Title VII as currently
interpreted by the courts. Federal district and appellate
courts are clear on this point and indicate the degree to which
courts' hands are tied when it comes to remedying workplace
discrimination based on sexual orientation under Title VII.
The first sexual orientation employment discrimination
cases raised under Title VII emerged in the 1970's. As early as
1979, the Fifth Circuit Court of Appeals ruled that ``discharge
for homosexuality is not prohibited by Title VII.'' Blum v.
Gulf Oil Corp., 597 F.2d 936, 938 (5th Circuit 1979). The same
year, the Ninth Circuit Court of Appeals came to a similar
conclusion, stating that ``Title VII's prohibition of `sex'
discrimination applies only to discrimination on the basis of
gender and should not be judicially extended to include sexual
preference such as homosexuality.'' DeSantis v. Pacific
Telephone and Telegraph Co., Inc., 608 F.2d 327, 329-30 (9th
Circuit 1979). Ten years later, in 1989, the Eighth Circuit
Court of Appeals clearly stated its opinion that ``Title VII
does not prohibit discrimination against homosexuals.''
Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th
Circuit 1989).
In considering a sexual orientation discrimination suit
brought under Title VII, the Eleventh Circuit Court of Appeals
found as follows. ``Finally, we address concerns raised by the
appellee regarding the implication of this case for the law
regarding discrimination based on sexual orientation. BVP
argues that to hold in favor of the appellant is, in effect, to
protect against discrimination on the basis of sexual
orientation. The short but complete answer to this argument is
to make clear the narrowness of our holding today. We do not
hold that discrimination based on sexual orientation is
actionable . . . We note that the EEOC has also drawn a
distinction between [what is] actionable as gender
discrimination, and discrimination because of sexual
orientation.'' Fredette v. BVP Management Associates, 112 F.3d
1503, 1510 (11th Cir. 1997), citing EEOC Compliance Manual
(CCH) Sec. 615.2(b)(3) (1987).
The last decade has witnessed a continuation of the Federal
appeals courts' refusal to recognize sexual orientation
discrimination claims under Title VII. In reference to
demeaning anti-gay graffiti and comments directed at a gay
employee by his co-workers, the Sixth Circuit Court of Appeals
in 1992 ruled that ``these actions, although cruel, are not
made illegal by Title VII.'' Dillon v. Frank, 1992 U.S. App.
LEXIS 766 (6th Circuit 1992). The Fourth Circuit Court of
Appeals came to the same conclusion in a 1996 case, in which it
denied a sexual orientation discrimination claim under Title
VII, clearly stating, ``Title VII does not prohibit conduct
based on the employee's sexual orientation, whether homosexual,
bisexual, or heterosexual.'' Hopkins v. Baltimore Gas and
Electric Co., 77 F.3d 745, 751-2 (4th Circuit 1996).
The First Circuit Court of Appeals regretfully denied a
sexual orientation discrimination claim brought under Title VII
in 1999, nonetheless finding such discrimination to be highly
troubling and deserving of a legislative response. Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Circuit
1999).
In 2001, the Third Circuit ruled, ``Harassment on the basis
of sexual orientation has no place in our society. Congress has
not yet seen fit, however, to provide protection against such
harassment. Because the evidence produced by Bibby--and,
indeed, his very claim--indicates only that he was being
harassed on the basis of his sexual orientation, rather than
because of his sex, the District Court properly determined that
there was no cause of action under Title VII [of the Civil
Rights Act of 1964].'' Bibby v. Philadelphia Coca-Cola Bottling
Co., 2001 U.S. App. LEXIS 17075 (3rd Cir. 2001).
The Second Circuit Court of Appeals in 2000 similarly found
that ``Title VII does not prohibit harassment or discrimination
because of sexual orientation,'' in another case in which a
sexual orientation claim was denied under Title VII. In this
case, the court found the vulgar and degrading behavior of the
plaintiff's co-workers ``morally reprehensible,'' but was
constrained by what it perceived to be the clear legislative
intent of Title VII to address sex discrimination, versus
sexual orientation discrimination. Simonton v. Runyon, 232 F.3d
33, 35 (2d Circuit 2000). The same year, the Seventh Circuit
Court of Appeals denied a sexual orientation discrimination
claim under Title VII, finding that ``sexual orientation is not
a classification that is protected under Title VII.'' Hamner v.
St. Vincent Hospital and Health Care Center, Inc., 224 F.3d
701, 707 (7th Circuit 2000).
An excerpt from the Ninth Circuit Court of Appeals' most
recent opinion on whether sexual orientation discrimination is
actionable under Title VII indicates the lack of movement on
this issue in the last twenty years.
. . . Title VII protects against discrimination only
on the basis of race, color, religion, sex, or national
origin . . . Discrimination based on a victim's other
characteristics, no matter how unfortunate and
distasteful that discrimination may be, simply does not
fall with the purview of Title VII. This court
recognized that fact more than twenty years ago in
DeSantis v. Pacific Telephone and Telegraph Company,
when we held that discrimination on the basis of sexual
orientation does not subject an employer to liability
under Title VII. While societal attitudes towards
homosexuality have undergone some changes since
DeSantis was decided, Title VII has not been amended to
prohibit discrimination on the basis of sexual
orientation; DeSantis remains good law and has been
followed in other circuits. . . .
The degrading and humiliating treatment [the
plaintiff] contends that he received from his fellow
workers is appalling, and is conduct that is most
disturbing to this court. However, this type of
discrimination, based on sexual orientation, does not
fall within the prohibitions of Title VII.
Rene v. MGM Grand Hotel, 2001 U.S. App. LEXIS 5201 (9th Cir.
2001).
Given the courts' clear indication that Title VII as
currently construed does not provide a cause of action for
employment discrimination based on sexual orientation, the
Employment Non-Discrimination Act is absolutely necessary to
provide a clear statement on Congressional intent to prohibit
workplace discrimination based on sexual orientation.
D. CONGRESS MUST PASS ENDA
Congress must pass the Employment Non-Discrimination Act to
fill a gaping hole in the fabric of Federal civil rights
legislation. Title VII prohibits discrimination based on race,
color, religion, sex and national origin--but not sexual
orientation. This leaves gay, lesbian, and bisexual Americans--
as well as heterosexual Americans--reliant on a patchwork of
legal protections inadequate to address the problem of sexual
orientation discrimination in employment in a uniform,
predictable, fair and reliable manner.
Twelve States and the District of Columbia have laws
prohibiting sexual orientation discrimination, and an estimated
225 municipalities have ordinances or policies barring sexual
orientation discrimination in private employment. At least 68
Senators and 268 Representatives have non-discrimination
policies encompassing sexual orientation for their staffs.
Federal civilian employees are governed by an executive order
prohibiting discrimination based on sexual orientation, and
over 2000 companies, colleges, universities, State and local
governments and Federal agencies have non-discrimination
policies encompassing sexual orientation for their employees.
Twenty-three States, the District of Columbia, and roughly 225
municipalities prohibit sexual orientation discrimination for
their public employees. The private and public sectors clearly
recognize the importance of guaranteeing fair treatment to
employees without regard to sexual orientation. Yet Congress
has still not acted to provide a Federal solution to this
pressing national problem.
For Americans working outside any of these jurisdictions--
that is--for the vast majority of Americans, there is no
explicit legal recourse for discrimination based on sexual
orientation in employment. Notwithstanding the significant
progress outlined above, in most of America, it is perfectly
legal to fire or refuse to hire someone purely because he or
she is--or is perceived to be--gay or lesbian. The fact that in
the year 2002 our Federal law still tolerates this kind of
unfair treatment in the workplaces of America is unacceptable.
Prohibiting sexual orientation discrimination in American
workplaces does not create special rights for gay and lesbian
Americans. ENDA would not give any greater rights to gay and
lesbian Americans than Irish-Americans, Baptists, senior
citizens, Americans with disabilities or women enjoy under
existing federal law. ENDA merely prohibits the consideration
of sexual orientation in employment decisions such as hiring
and firing to the same extent consideration of race, gender,
religion, and national origin is prohibited under current
Federal law. ENDA is a rational response to the inequities
created by sexual orientation discrimination in American
workplaces and guarantees nothing more than equality.
There exists broad support for including sexual orientation
among the classifications upon which employers may not
discriminate. According to a 2001 Harris Interactive/Witeck
Combs Communications survey, 42 percent of Americans believe
that a Federal law already exists to prohibit sexual
orientation discrimination. The fact that these Americans are
mistaken makes clear that Congress is well behind the times by
the gauge of the American people with respect to the issue of
employment discrimination based on sexual orientation.
Americans have always believed that people who do their
jobs, pay their taxes, and contribute to their communities
should not be singled out for unfair discrimination. Federal
law should ensure that this basic fairness applies to all
Americans without regard to sexual orientation, and the
Employment Non-Discrimination Act would accomplish that goal in
the workplace.
E. ENDA HAS BROAD PUBLIC SUPPORT
Overwhelming majorities have indicated that they believe
gays and lesbians should have equal rights in terms of job
opportunities. In fact, to ensure equal opportunities exist in
the workplace regardless of sexual orientation, a majority of
Americans support ENDA. In June of 2001, a Gallup Poll asked
respondents, ``In general, do you think homosexuals should or
should not have equal rights in terms of opportunities?'' Up
from 56 percent in 1977, 85 percent of respondents favored
equal opportunity in employment for gays and lesbians. Only 11
percent thought gays and lesbians should be discriminated
against based on sexual orientation in the workplace.
In June 2001, a Harris Poll found that 61 percent of
Americans favored a Federal law prohibiting job discrimination
based on sexual orientation. Additionally, the survey found
that 42 percent of adults surveyed incorrectly believe that
such a law currently exists.
In addition to the broad support this legislation enjoys in
Congress and among the American public, corporate America
supports ENDA and the legislation's principles. In fact, the
closer a corporation is to the top of the Fortune 500 list, the
more likely the company is to have a non-discrimination policy
that includes sexual orientation. Many of our nation's most
successful corporations have specifically endorsed ENDA,
including:
AT&T, New York, NY; Bausch & Lomb, Rochester, NY; Ben &
Jerry's Homemade Ice Cream, South Burlington, VT;
Borland International, Scotts Valley, CA; BP, Chicago,
IL; Capital One Financial Corp., Falls Church, VA;
Charles Schwab, San Francisco, CA; Coors Brewing Co.,
Golden, CO; Digi-Net Syndication, Tampa, FL; Eastman
Kodak, Rochester, NY; FleetBoston Financial Corp.,
Boston, MA; Franklin Research, Boston, MA; General
Mills, Minneapolis, MN; Hewlett-Packard Co., Palo Alto,
CA; Hill and Knowlton, New York, NY; Honeywell,
Morristown, NJ; Imation, Oakdale, MN; Louis Dreyfus
Corp., Wilton, CT; MFS Investment Management, Boston,
MA; Microsoft, Redmond, WA; Millipore Corp., Bedford,
MA; Nike, Beaverton, OR; Pacific Telesis, San
Francisco, CA; Prudential Insurance Co., Newark, NJ;
Quark, Denver, CO; SGI, Mountain View, CA; Shell Oil
Co., Houston, TX; Software Spectrum Inc., Garland, TX;
State Street Corp., Boston, MA; The Quaker Oats
Company, Chicago, IL; Triarc Beverage Group, White
Plains, NY; Wainwright Bank, Boston, MA; Xerox,
Stamford, CT.
While small businesses with less than 15 employees are
exempt from ENDA, many small businesses support this
legislation. Among the small businesses which have supported
ENDA are:
America's Second Harvest, Chicago, IL; Ansafone.com/
Ephonamation.com, Santa Ana, CA; Aquila Dallas
Marketing, Dallas, TX; Atlanta Computer Group,
Alpharetta, GA; Billingsley Co., Dallas, TX; Bridge
Capital, Irvine, CA; Ceres Capital Partners, Dallas,
TX; Corey & Co., Watertown, MA; Crow Design Centers,
Dallas, TX; Donato's Pizza, Boston, MA; EduMedia, Round
Lake Beach, IL; Emerson Partners Inc., Dallas, TX;
Employon, Cleveland, OH; Far West Management, Santa
Ana, CA; Greater Boston Food Bank, Boston, MA; Hall
Financial Group, Frisco, TX; Homewood Suite Hotels,
Lewisville, TX; I Love Flowers, Dallas, TX; James
Daniels & Associates, Fort Worth, TX; Linkage Inc.,
Lexington, MA; LOPEZGARCIA Group, Dallas, TX;
MassEnvelopePlus, Sommerville, MA; Memorial Family
Medicine Medical Group Inc., Long Beach, CA; Microtek
Inc., Chicopee, MA; Morrisey Associates Inc., Chicago,
IL; Mozzarella Co., Dallas, TX; Nims Associates Inc.,
Dallas, TX; Odell & Associates, Dallas, TX; Parma
Pediatrics Inc., Parma, OH; Phil's CookShop LLC,
Lexington, KY; Rafanelli Events Management Inc.,
Boston, MA; Replacements Ltd., Greensboro, NC; Resource
One, Columbus, OH; Riverview Center for Orthopedic
Rehabilitation, Columbus, OH; Saddleback Interiors,
Corona Del Mar, CA; Southern Enterprises Inc., Dallas,
TX; The Feed Bag Restaurants, Dallas, TX; The Staubach
Co., Addison, TX; Triton Funding Group, San Francisco,
CA; Voice Publishing Co. Inc., Dallas, TX; Waters Ford
Co. Inc., Blackshear, GA; WheelHouse Corp., Burlington,
MA; Winninghabits.com, Dallas, TX; Witeck-Combs
Communications, Washington, DC; Wyndham Jade, Dallas,
TX.
Business leaders support the act for numerous reasons. Many
believe it fosters a diverse workplace that encourages all
workers to fulfill their potential. Many believe its provisions
are not burdensome. Business leaders also note that the act is
unlikely to lead to excessive litigation. In fact, in a July 9,
2002, report to Senators Kennedy, Jeffords, Lieberman, and
Specter, the General Accounting Office wrote, ``For those
States where the law has taken effect, relatively few formal
complaints of employment discrimination on the basis of sexual
orientation have been filed, either in absolute numbers or as a
percentage of all employment discrimination complaints in the
State. Moreover, the state statistics generally do not show any
trend in the volume of employment discrimination cases based on
sexual orientation over the periods we examined.''
While religious organizations are not currently covered by
ENDA, many religious organizations support enactment of this
legislation. On April 24, 2002, religious groups in support of
the Act wrote the following:
ENDA is a modest measure that would extend employment
protections currently provided on the basis of race,
gender, and disability to sexual orientation, thereby
repairing the injustice that allows gay and lesbian
Americans to suffer discrimination in the workplace.
Under current Federal law, it is entirely legal to
fire, hire, demote, promote, and make all other
employment decisions based solely on sexual
orientation, regardless of workplace performance. As
people of faith who stand for the equality and dignity
for all people, we find this reprehensible.
Biblical tradition teaches us that all human beings
are created b'tselem elohim--in the Divine image. As it
says in Genesis 1:27, ``And God created humans in God's
own image, and in the image of God, God created them;
male and female God created them.'' Regardless of
context, discrimination against any person arising from
apathy, insensitivity, ignorance, fear, or hatred is
inconsistent with this fundamental belief. We oppose
discrimination against all individuals, including gays
and lesbians, for the stamp of the Divine is present in
each and very one of us.\2\
---------------------------------------------------------------------------
\2\ Letter from Union of American Hebrew Congregations; Central
Conference of American Rabbis; Women of Reform Judaism; Unitarian
Universalist Association; Presbyterian Church (USA), Washington Office;
Evangelical Lutheran Church in America; United Church of Christ,
Justice and Witness Ministries; Friends Committee on National
Legislation (Quaker); United Methodist Church, General Board of Church
and Society, Episcopal Church, USA to United States Senate (Apr. 24,
2002) (discussing passage of ENDA).
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F. CONSTITUTIONAL AUTHORITY FOR ENDA
Congressional authority to enact ENDA is found in the
Commerce Clause and the 14th Amendment. ENDA's provision
authorizing individual suits against State governmental
employers is based on Congress' Article I Spending Power and
Congress' enforcement power under Section Five of the
Fourteenth Amendment.
1. Commerce Clause Authority for ENDA
The Commerce Clause provides Congress' strongest source of
legislative authority to prohibit intentional employment
discrimination based on sexual orientation. Congress has a
well-established history of enacting civil rights laws based on
this authority, including Title VII, the ADEA, and the ADA. The
Supreme Court's recent decisions invalidating Federal statutes
as an inappropriate use of the Commerce Clause power do not
apply to ENDA because the discrimination prohibited--employment
discrimination--is very directly related to commerce.
Terms and conditions of employment in industries affecting
commerce fall squarely within the purview of Congress' Commerce
Clause authority. Discrimination based on sexual orientation is
an expensive detriment to American commerce, costing employers
lowered productivity and costing employees lost wages. The
economic impacts of sexual orientation discrimination in the
workplace are serious and broad, and ENDA is an appropriate
response to what is as much an economic problem as a civil
rights problem.
2. Fourteenth Amendment Authority for ENDA
The Federal Government has long recognized that ensuring
civil rights is essential to national citizenship and has
sought to enforce and protect those rights under the authority
granted to Congress by the Fourteenth Amendment. Section Five
of the Fourteenth Amendment gives Congress the power to enforce
the substantive provisions of the Fourteenth Amendment,
stating, ``The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.''
Section Five of the Fourteenth Amendment is an affirmative
grant of legislative power to Congress. Katzenbach v. Morgan
384 U.S. 641 (1966). The Supreme Court has recognized that
Congress may legislate, using its authority under Section Five
of the Fourteenth Amendment, to deter or remedy Federal
constitutional violations even if, in the process, the
legislation prohibits conduct which is not itself
unconstitutional. City of Boerne v. Flores, 521 U.S. 507
(1997). The Supreme Court has also ruled that the scope of
Congressional legislative authority under Section Five of the
Fourteenth Amendment is broader than the language of the
Amendment itself, providing Congress the ability to deter and
remedy conduct which is not forbidden by the Fourteenth
Amendment itself. Kimel v. Florida Bd. of Regents, 528 U.S. 62
(2000).
Sexual orientation discrimination in employment, like
discrimination based on race, sex, national origin, religion,
age, or disability, is an evil properly addressed by Congress
under its Fourteenth Amendment legislative powers. When
perpetrated through State action, such discrimination is in
many instances unconstitutional, and in the absence of State
action, employment discrimination based on sexual orientation
still deprives hard-working Americans of the basic fairness to
which all American workers aspire: the right to be judged on
one's merits, and not upon irrelevant factors such as sexual
orientation.
3. Enforceability against States through a private cause of action for
damages
ENDA is enforceable against State governments. Congress
invokes its authority under the Spending Clause and the
Fourteenth Amendment to provide a private cause of action for
damages against States to State employees who suffer
discrimination based on sexual orientation in the workplace.
a. Spending Clause.--In several recent cases, the Supreme
Court has indicated that Congress may use its Spending Clause
powers to condition the receipt of Federal funds upon a State's
agreement to forego its Eleventh Amendment immunity to suit
under certain Federal regulatory and statutory schemes. See
Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav.
Bank, 527 U.S. 627 (1999); South Dakota v. Dole, 483 U.S. 203
(1987). As Justice Scalia framed the issue, ``Congress has no
obligation to use its Spending Clause power to disburse funds
to the States; such funds are gifts.'' Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S.
627, 686-687 (1999). As such, ``Congress may, in the exercise
of its spending power, condition its grant of funds to the
States upon their taking certain actions that Congress could
not require them to take, and that acceptance of the funds
entails an agreement to the actions.'' Id. at 686.
Nonetheless, the Court has recognized five limitations on
Congressional power to condition funding upon a State's
agreement to subject itself to private suits for damages.
First, conditions placed upon receipt of Federal funds may not
be ``so coercive as to pass the point at which `pressure turns
into compulsion.' '' South Dakota v. Dole, 483 U.S. 203, 211
(1987). Second, the plain language of the Spending Clause
indicates that the use of the spending power must be aimed at
``the general welfare'' of the country, that is, it must have a
``general public purpose.'' South Dakota v. Dole, 483 U.S. 203,
207 (1987); Helvering v. Davis, 301 U.S. 619, 640-41 (1937).
Third, congressional intent to condition States' receipt of
funding on compliance with certain regulations must be
``unambiguous'' in the language of the statute, such that the
State may make an informed choice as to whether to adhere to
the conditions upon which the receipt of funds are contingent.
See South Dakota v. Dole, 483 U.S. 203, 207 (1987); Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Fourth,
conditions upon the grant of Federal funds must be related to
the Federal interest asserted by the ``particular national
projects or programs,'' in other words, the ``condition imposed
must be reasonably related to the purpose for which the funds
are expended.'' South Dakota v. Dole, 483 U.S. 203, 207, 213
(1987). Finally, the conditional grant of Federal funding must
not be barred by any provision of the Constitution. South
Dakota v. Dole, 483 U.S. 203, 208 (1987); Lawrence County v.
Lead-Deadwood Sch. Dist., 469 U.S. 256, 269-270 (1985).
Consistent with these guidelines for the use of Congress'
spending power, Congress intends to condition the receipt of
Federal funding in state programs and activities upon the
availability of a private cause of action for damages against
the State under ENDA to State employees.
i. The Condition Placed Upon Receipt of Funds is Not
Coercive
First, the conditioning of receipt of Federal funds under
ENDA upon a State's agreement to be open to private suits for
damages by employees under ENDA is not a condition so coercive
as to compel States to accept the condition in exchange for
Federal funding of programs or activities as defined by 42
U.S.C. 2000d-4a. A State which chooses not to forego immunity
to private suits for damages under ENDA becomes ineligible only
for Federal funding of those ``programs or activities,'' as
that term is defined by 42 U.S.C. Sec. 2000d-4a, for which it
wishes to retain its Eleventh Amendment immunity. The funds at
stake, therefore, are not so substantial as to compel the
exchange of Eleventh Amendment immunity for Federal funding.
This arrangement represents a non-coercive, reasonable use of
Congress' Spending Clause powers.
Further, States will not be unduly burdened by the choice
to remain open to such suits, as States' experience with Title
VII has shown that the defense of private employment
discrimination suits is not overly burdensome, and because
sexual orientation-based claims make up a relatively small
proportion of employment discrimination claims generally.
States have been subject to private suits under Title VII
since shortly after the statute's enactment. The resources
required to defend a private suit under ENDA should generally
be no different from those required to defend a private cause
of action under Title VII.
The number of cases a State may expect to defend would be,
in fact, a relatively small proportion of employment
discrimination cases generally. According to a 2002 GAO report
submitted to Senators Jeffords, Kennedy, Lieberman, and Specter
in response to their request for information regarding how much
litigation has been created by the advent of sexual
orientation-inclusive employment non-discrimination laws in the
States, of all the employment discrimination claims made under
those State laws ``relatively few'' pertained to sexual
orientation discrimination.\3\ The GAO examined the experiences
of the twelve States with statutory prohibitions on sexual
orientation discrimination, and the District of Columbia. Seven
of the thirteen jurisdictions have over ten years worth of
experience with their statutory prohibitions on sexual
orientation law, and sexual orientations claims ranged from .5
percent to 9 percent of yearly employment discrimination claims
in those jurisdictions.\4\ Only six of the States reported a
proportion of sexual orientation-based cases of 3 percent or
higher.\5\ Assuming a similar proportion of Federal employment
discrimination cases against States would be sexual orientated-
related were ENDA to become law, these figures indicate that
the proportion of additional employment discrimination
complaints and associated costs States are likely to face upon
ENDA's passage is relatively small.
---------------------------------------------------------------------------
\3\ U.S. General Accounting Office, Sexual Orientation-Based
Employment Discrimination: States' Experience with Statutory
Prohibitions, GAO-02-878R (Washington, D.C.: July 9, 2002).
\4\ U.S. General Accounting Office, Sexual Orientation-Based
Employment Discrimination: States' Experience with Statutory
Prohibitions, GAO-02-878R (Washington, D.C.: July 9, 2002).
\5\ U.S. General Accounting Office, Sexual Orientation-Based
Employment Discrimination: States' Experience with Statutory
Prohibitions, GAO-02-878R (Washington, D.C.: July 9, 2002).
---------------------------------------------------------------------------
ii. Prevention of Sexual Orientation Discrimination
Advances the General Welfare of the Country
The prevention of discrimination based on sexual
orientation by State employers is a legitimate national
interest, meaning that the spending at issue in the case of
ENDA falls well within the rubric of ``the general welfare.''
Extensive data support the contention that discrimination based
on sexual orientation is a pressing problem in both public and
private workplaces. ENDA would provide a reasonable, well-
tailored remedial scheme which, like Title VII is made most
effective through the inclusion of a private right of action
against State employers for violations of Title VII.
iii. The Conditions Imposed on the Receipt of Funding Are
Unambiguous
The conditions imposed upon receipt of Federal funds
through this statute are unambiguous. Specifically, States
accepting Federal funds for qualifying programs or activities
shall, as a condition upon the receipt of those funds, forego
their immunity to private suit by employees of those qualifying
programs or activities for the enforcement of the provision of
ENDA.
iv. The Nexus Between the Funding and Condition is Clear
The nexus between the conditions placed upon the receipt of
these Federal funds and the purpose of the expenditure of such
funds is clear; where the Federal Government contributes
funding to State programs or activities, those funds
necessarily contribute to the employment conditions of State
workers. Because Congress is concerned with the eradication of
discrimination based on sexual orientation in the State
workplace, and because Congress may therefore refuse to provide
funding to State programs or activities which do not comply
fully with the provisions of ENDA and agree to subject
themselves to the potential for private suit in order to
enforce ENDA, the required nexus between conditions and
purposes of the expenditure is established. Stated differently,
Congress is under no obligation to fund the operations of State
programs and activities which are unwilling to comply with, and
remain open to the potential for private enforcement of, the
Employment Non-Discrimination Act.
v. The Condition Placed on the Receipt of Funding Is Not
Unconstitutional
Finally, this conditioning of the receipt of Federal funds
upon a State's agreement to remain open to private suits for
damages does not violate any provision of the Constitution.
b. Fourteenth Amendment.--In enacting ENDA, Congress is
invoking Section Five of the Fourteenth Amendment as a separate
source of constitutional authority for remedying and preventing
sexual orientation discrimination in State workplaces. Section
13 of ENDA clearly abrogates States' Eleventh Amendment
immunity to private causes of action for damages. The
invocation of the Fourteenth Amendment follows a long-standing
practice by Congress of relying on the Fourteenth Amendment
when enacting civil rights statutes.
The Supreme Court has held that Congress has the power to
abrogate States' sovereign immunity to private suits when it
properly exercises its enforcement powers under Section Five of
the Fourteenth Amendment or under other amendments added to the
Constitution after ratification of the Eleventh Amendment. Bd.
of Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001);
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S.
627 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44
(1996). For example, it is well-established that Title VII
allows for private suits for damages against State governments
and the officials of State governments in their official
capacities. Fitzpatrick v. Bitzer, 427 U.S. 455 (1976).
Congress finds that it has similar authority under Section Five
of the Fourteenth Amendment to abrogate State immunity for
sexual orientation discrimination claims for damages brought by
private persons against States.
Congress always has the authority to abrogate State
immunity to private suits for damages when the Federal statute
remedies and prevents little or no more discriminatory conduct
by States than the Constitution itself prohibits. Recent
Supreme Court decisions applying the Eleventh Amendment do not
contradict this principle. E.g., Garrett, 121 S. Ct. at 963
(stating that ``Section Five legislation reaching beyond the
scope of Section One's [of the Fourteenth Amendment] actual
guarantees must exhibit `congruence and proportionality between
the injury to be prevented or remedied and the means adopted to
that end.' '') (emphasis added); Kimel, 528 U.S. at 91 (holding
that lack of legislative findings ``is not determinative of the
Section Five inquiry''). The Justice Department has
successfully defended numerous Federal statutes against
Eleventh Amendment defenses, including the Religious Land Use
and Institutionalized Persons Act, the religious accommodation
provision of Title VII, and the Equal Pay Act, as prohibiting
little or no more discriminatory conduct by States than the
Constitution itself prohibits. In the reported decisions, every
Federal appellate court that has decided the constitutionality
of the Equal Pay Act, and every Federal court that has decided
the constitutionality of the Religious Land Use and
Institutionalized Persons Act and the religious accommodation
provision of Title VII, has found that Congress properly
exercised its Fourteenth Amendment authority, regardless of
whether Congress had received evidence of a pattern of
unconstitutional conduct by States. E.g., Cherry v. Univ. of
Wis. Sys. Bd. of Regents, 265 F. 3d 541, 549-53 (7th Cir. 2001)
(Equal Pay Act); Siler-Khodr v. Univ. of Texas Health Science
Center San Antonio, 261 F. 3d 542, 550-51 (5th Cir. 2001)
(Equal Pay Act); Kovacevich v. Kent State Univ., 224 F. 3d 806,
820 n.6 (6th Cir. 2000) (Equal Pay Act); Freedom Baptist Church
of Delaware County v. Tp. of Middletown, 204 F. Supp. 2d 857,
874 (E.D. Pa. 2002) (Religious Land Use and Institutionalized
Persons Act); Holmes v. Marion County Office of Family and
Children, 184 F. Supp. 2d 828, 835-36 (S.D. Ind. 2002)
(religious accommodation provision of Title VII of the Civil
Rights Act of 1964).
Congress finds that ENDA remedies and prevents little or no
more discriminatory conduct by States than the Constitution
itself prohibits. Although the Supreme Court has not
definitively held whether government classifications based on
sexual orientation should be subject to rational basis or to
some level of heightened scrutiny, see Chai R. Feldblum, The
Pursuit of Social and Political Equality: Sexual Orientation,
Morality and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237
(1996), the Court recently indicated that classifications based
on sexual orientation may be unconstitutional even when
afforded the most generous standard of review, the rational
basis standard of review, when those classifications fail to
serve a legitimate governmental purpose. Romer v. Evans, 116 S.
Ct. 1620 (1996).
The intentional sexual orientation discrimination in the
State workplace prohibited by ENDA is never justified by a
legitimate State interest. As a Federal court recently held,
``harassment in the public workplace against homosexuals based
on their sexual orientation constitute[s] an Equal Protection
violation.'' Quinn v. Nassau Co. Police Dep't, 53 F. Supp. 2d
237, 256-57 (E.D.N.Y. 1999). As a statute that prohibits only
intentional sexual orientation discrimination in the State
workplace, ENDA tracks constitutional prohibitions against
State-sponsored sexual orientation discrimination. Thus,
Congress has the Fourteenth Amendment authority to apply ENDA
to the States.
The Supreme Court has decided several recent cases in which
it found that a Federal statute created a private right of
action against a State for a broad swath of what the Court
considered constitutional conduct. E.g., Garrett, 121 S. Ct.
955; Kimel, 528 U.S. 62. In those cases, the Court found that
Congress did not properly rely on its Fourteenth Amendment
authority in applying those statutes to the States in
abrogation of their Eleventh Amendment immunity, because the
remedy of allowing a private cause of action for damages
against States was a disproportional and incongruent remedy to
the problem addressed by the statute. Id. In Garrett, the Court
held that when a Federal statute prohibits a broad swath of
constitutional conduct by States, a substantial record of
unconstitutional conduct by States may be required to show that
the statute's prophylactic prohibitions against constitutional
discriminatory conduct by States are proportional and congruent
to the need to prevent unconstitutional conduct. Garrett, 121
S. Ct. 955.
Although Congress finds that ENDA prohibits little or no
constitutional conduct by States, it also finds that States
have engaged in a long-standing pattern of unconstitutional
conduct based on sexual orientation in the workplace. See
generally Section IV-A and IV-B, describing the history of
sexual orientation discrimination in both public and private
employment contexts. Congressional abrogation of States'
immunity to private suit under Title VII has been considered a
valid exercise of congressional power under Section Five of the
Fourteenth Amendment for over three decades. See Fitzpatrick v.
Bitzer, 427 U.S. 455 (1976). Sexual orientation discrimination,
unlike discrimination based on race, sex, national origin and
religion, has gone without a remedy under Federal law, creating
a situation in which all Americans are vulnerable. The lack of
a Federal cause of action for sexual orientation discrimination
in the workplace creates a situation in which State employees
who are victims of sexual orientation discrimination have in
general had few opportunities to bring claims against their
employers for unconstitutional discrimination.
Congress finds that sexual orientation discrimination in
State employment continues to occur throughout the country, at
almost all levels of State government service, and in varying
levels of severity. Examples of States discriminating on the
basis of sexual orientation in employment abound, and affect
employees in law enforcement, academia, and many other fields
of employment. The following are just two examples of the many
cases in which State employees suffered discrimination based on
sexual orientation in State workplaces.
James Shermer worked as a building tradesman for
the Illinois Department of Transportation. John Tress, a plant
maintenance engineer, supervised Shermer between May and August
1993. In front of Shermer and his co-workers, Tress repeatedly
made offensive remarks, suggesting Shermer enjoyed having sex
with men. In 1995, Shermer filed suit against the department
under Title VII of the Civil Rights Act of 1964, claiming that
Tress' conduct created a hostile work environment. Both the
U.S. District Court and U.S. Court of Appeals found against
Shermer, arguing that the harassment was based on sexual
orientation and not prohibited by State law or Title VII.
Thomas Figenshu worked as an officer with the
California Highway Patrol from 1983 to 1993. After he was
promoted to sergeant and transferred to West Los Angeles in
1988, co-workers began to harass him. Anti-gay pornographic
cartoons were taped to his mailbox. A ticket for ``sex with
dead animals'' was left on his windshield. He found urine on
his clothes in his locker. Figenshu was commonly the object of
anti-gay slurs. After Figenshu complained, an officer was
reprimanded and another suspended, but the harassment
continued. To remove himself from the hostile work environment,
Figenshu resigned in 1993, and brought a successful suit under
California law.
G. STATE AND LOCAL GOVENMENTS ACT ON EVIDENCE OF SEXUAL ORIENTATION
DISCRIMINATION IN PUBLIC EMPLOYMENT
The fact that sexual orientation discrimination is
widespread in State employment and municipal employment is also
apparent from the numerous State governments and agencies who
have recognized the problem of sexual orientation
discrimination in the State workplace and taken affirmative
steps to address it. Twenty-two States, the District of
Columbia and 243 State and local governments and quasi-
governmental agencies across the country prohibit workplace
discrimination based on sexual orientation for their public
employees. It is reasonable to believe that these policies were
enacted not in a vacuum, but instead represent rational State
responses to a pattern of sexual orientation discrimination--a
discrimination the State clearly found to be irrational and
therefore to be prohibited.
The American Federation of State, County and Municipal
Employees (AFSCME) represents 1.3 million State, county and
municipal employees around the country and has made clear to
Congress its position that ENDA is necessary to address the
widespread problem of sexual orientation discrimination in the
State workplace, and to fill the gaps in Federal workplace
discrimination law left by Title VII's inapplicability to
sexual orientation discrimination. As a union organized solely
for the representation of public employees, AFSCME is perhaps
one of the best situated organizations in the country to attest
to the presence of sexual orientation discrimination in State
employment. AFSCME has passed two Resolutions in support of the
Employment Non-Discrimination Act and has written the Chairman
of this Committee as recently as April 2002, to express its
strong support for ENDA as a necessary response to ``the
millions of hard working Americans [who] are not hired or . . .
find themselves subject to firing, lack of promotions and other
unfair treatment, simply because of their sexual preference.''
\6\
---------------------------------------------------------------------------
\6\ AFSCME letter to The Honorable Edward Kennedy, Chairman,
Health, Education, Labor & Pensions Committee, April 23, 2002.
---------------------------------------------------------------------------
In short, Congress intends to invoke two sources of
constitutional authority in making ENDA enforceable against
States: the Spending Power and Section Five of the Fourteenth
Amendment. The Spending Power provides the clearest authority
for Congress to condition the receipt of Federal funding in
programs and activities as defined by 42 U.S.C. 2000d-4a
(2002). States that wish to obtain Federal funds for their
programs or activities must comply with the reasonable,
constitutional conditions placed on receipt of such funds.
Further, Section Five of the Fourteenth Amendment clearly gives
Congress the power to remedy sexual orientation discrimination
in employment through the abrogation of States' immunity to
private suits for damages under ENDA. Abrogation of States'
immunity to private suits for damages is a congruent and
proportional response to the pattern of unconstitutional
conduct by States that discriminate in employment based on
sexual orientation.
X. Explanation of the Legislation
A. THE ACT IS BASED ON TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
The purpose of the Employment Non-Discrimination Act is
straight-forward and simple: to prohibit intentional
discrimination based on sexual orientation in employment. ENDA
will add sexual orientation to the Federal list of prohibited
bases for employment discrimination, which currently consists
of race, sex, national origin, religion, age and disability. In
doing so, ENDA extends fair employment guarantees to thousands
of Americans who face employment discrimination based on sexual
orientation, in the same way that Title VII, the Age
Discrimination in Employment Act, and the Americans with
Disabilities Act prohibit other common forms of employment
discrimination. In sum, ENDA is a guarantor of equal rights; it
in no way creates special rights.
ENDA is narrowly crafted to address sexual orientation
discrimination in employment, and to ensure that sexual
orientation becomes exactly what it should be in the American
workplace--a non-issue. Employment decisions should be made on
individual merit and performance, not extraneous, irrelevant
factors such as sexual orientation. Like other personal
qualities such as race and sex, sexual orientation is
irrelevant to an individual's ability to do his or her job.
Sexual orientation only becomes a factor in employment when
people's biases and prejudices determine employment actions
such as hiring and firing. Just as it is unacceptable to fire
or refuse to hire a person based on his or her race or sex, for
example, it is unacceptable to base employment decisions on an
employee's or applicant's sexual orientation. Federal law
should reflect this.
Title VII serves as the model for the Employment Non-
Discrimination Act, and it is the intent of this committee
that, except as indicated in the act, ENDA be read as
consistent with Title VII to the greatest extent possible. Just
as Title VII does with respect to race, religion, national
origin and religion, ENDA prohibits employers, employment
agencies, and labor unions from making employment decisions
such as hiring, firing, promotion and compensation on the basis
of sexual orientation. Because the purposes of Title VII and
ENDA are consistent, and because the Committee wishes to
provide courts construing ENDA with the benefit of the well-
established jurisprudence of Title VII, much of ENDA's language
comes directly from Title VII.
Nonetheless, there are several ways in which ENDA differs
from Title VII. Some of these differences stem from the
Committee's intent to codify certain aspects of Title VII
jurisprudence that should be imported into courts'
interpretation of ENDA, and others stem from an intent to treat
sexual orientation discrimination somewhat differently from
other forms of employment discrimination under Federal law.
Title VII has been interpreted by courts to prohibit
associative discrimination in employment, that is,
discrimination against a person based on the race, sex,
national origin or religion of the persons with whom the
employee associates. ENDA makes the prohibition on associative
discrimination explicit in Section 4(e). It is the intent of
the committee that this provision be construed consistent with
the associative discrimination jurisprudence developed under
Title VII.
Title VII and other Federal laws, including the Americans
with Disabilities Act, have been interpreted to prohibit
discrimination based on the perceived characteristics of an
employee or applicant for employment, without regard to whether
that perception is correct. The discriminatory intent of an
employer is the evil to be remedied by Federal civil rights
legislation, therefore even absent explicit language regarding
``perceive'' characteristics or characteristics individuals may
be ``regarded as'' having, courts have often interpreted civil
rights statutes as encompassing discrimination based on
perceived characteristics. The definition of sexual orientation
in ENDA adopts this reasoning, by defining sexual orientation
as ``homosexuality, bisexuality, or heterosexuality, whether
the orientation is real or perceived.''
Section 11(a) addresses employer rules and policies, and no
correlate for this provision exists in the language of Title
VII. This provision is intended to reinforce existing law with
respect to employers' prerogative to regulate employee conduct,
and merely states that such regulation shall be done in a way
that is sexual orientation-neutral.
The small number of limited differences between Title VII
and ENDA are intended to treat sexual orientation
discrimination in employment differently from the way
employment discrimination based on race, sex, national origin
and religion is treated under Title VII.
Unlike Title VII, which provides for disparate impact
claims, ENDA only provides redress for intentional
discrimination. That is, only disparate treatment claims may be
brought under ENDA. While evidence of disparate impact may be
introduced in a proceeding to support a claim of disparate
treatment, as ENDA clearly states under Section 4(f), there is
no cause of action under ENDA for disparate impact.
ENDA also differs from Title VII by not requiring employers
to provide domestic partnership benefits to employees. While
Federal law has made clear that the provision of employment
benefits in a discriminatory manner based on sex is
impermissible,\7\ ENDA's Section 6 clearly states that the act
does not apply to the provision of employee benefits. Employers
nonetheless remain free to provide such benefits.
---------------------------------------------------------------------------
\7\ See Califano v. Westcott 443 U.S. 76, 99 S. Ct. 2655 (1979);
Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld,
U.S. 636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973).
---------------------------------------------------------------------------
Section 7 of ENDA differs from Title VII by prohibiting the
collection of statistics on sexual orientation by the EEOC. The
privacy concerns inherent in the collection of information
about individuals' sexual orientation by a government agency
make the collection of such statistics at best impracticable,
and at worst, impermissibly invasive.
Finally, ENDA differs from Title VII with respect to the
availability of affirmative action as a remedy. ENDA's Section
8 makes clear that employers may not adopt quotas or give
preferential treatment to individuals on the basis of sexual
orientation and it prohibits orders or consent decrees that
include quotas or preferential treatment for those protected
under the act. Section 12(d) explicitly precludes the
institution of affirmative action as a remedy under the act.
Finally, ENDA differs from Title VII in the breadth of its
religious organization exemption. Section 9 of ENDA exempts
religious organizations, including religious corporations,
associations, or societies, or educational institutions
substantially owned, managed, controlled or supported by
religious organizations or whose curriculum is directed to the
propagation of a religion. The range of organizations covered
by ENDA's definition of ``religious organization'' comes
directly from Title VII. However, under Title VII, the scope of
the religious organization exemption only permits religious
organizations to discriminate on the basis of religion.\8\ It
does not permit religious organizations to discriminate in non-
clergy positions on the basis of race, sex or national origin.
By contrast, ENDA provides entities that qualify as religious
organizations a complete exemption from the statute.
---------------------------------------------------------------------------
\8\ Note that the Free Exercise Clause also allows religious
organizations to discriminate on any basis in the selection of clergy.
McClure v. Salvation Army, 460 F. 2d 553 (5th Cir. 1972).
---------------------------------------------------------------------------
The differences between Title VII and ENDA outlined in this
committee report are the only differences intended to be found
between ENDA and Title VII as it is currently interpreted by
the courts. The fact that ENDA in some respects provides less
protection from employment discrimination based on sexual
orientation than Federal law provides for other forms of
employment discrimination is by no means a statement that anti-
gay discrimination or other forms of sexual orientation
discrimination are any less abominable than other forms of
federally prohibited discrimination. Instead, ENDA's deviations
from Title VII are meant to acknowledge particular challenges
inherent in addressing discrimination against American workers
based on their sexual orientation, and to narrowly tailor
legislation to address this problem. Privacy and religious
freedom concerns are carefully balanced against concerns
regarding equal protection and fairness. While the committee
expects courts to acknowledge the technical differences in the
way ENDA addresses sexual orientation versus the way other
Federal laws treat discrimination based on race, sex, national
origin, religion, age and disability as outlined above, the
committee expects that in all other ways ENDA should be
interpreted consistent with Title VII and its companion
legislation in the larger body of Federal civil rights
legislation, the Age Discrimination in Employment Act, and the
Americans with Disabilities Act.
B. EXPLANATION OF DEFINITIONS
1. Most definitions are taken from Title VII
The definitions provided under Section 3 of ENDA come
almost exclusively from Title VII, thereby providing courts
with the benefit of over three decades of experience. Courts
understand these definitions, as do employers, giving ENDA a
level of predictability and clarity uncommon in new Federal
legislation.
The definitions of ``employee,'' ``employer,'' ``employment
agency,'' ``labor organization,'' ``person'' and ``State'' are
all cross-referenced to the relevant Title VII definitions.
These terms in ENDA should be interpreted consistent with Title
VII.
The ``Commission'' is clearly defined in Section 3(1) to
mean the Equal Employment Opportunity Commission.
The term ``covered entity'' does not appear in Title VII,
and instead comes from the Americans with Disabilities Act.
``Covered entity'' is a term used to encompass all employing
entities covered by the act, including employers, employment
agencies, labor organizations and joint labor-management
committees. ENDA's definition of ``covered entity'' mirrors
precisely the definition of ``covered entity'' found at Section
12111(2) of the Americans with Disabilities Act.
The definition of the term ``religious organization'' in
ENDA is a combination of two provisions of Title VII and is
meant to be read consistent with Title VII. The language of
ENDA's Section 8 represents a combination of the language of
Title VII Section 702(a), which provides an exemption for
religious corporations, associations, educational institutions,
or societies, and Section 703(e)(2), which exempts schools,
colleges, universities or educational institutions which are
``in whole or in substantial part, owned, supported,
controlled, or managed by a particular religion . . . or
directed toward the propagation of a particular religion.''
The definition of sexual orientation is written to include
``homosexuality, bisexuality, or heterosexuality, whether the
orientation is real or perceived.''
2. The definition of ``Sexual Orientation'' is clear and well
understood.
The definition of sexual orientation under federal law is
clear, and the terms homosexuality, bisexuality, and
heterosexuality are well understood in the courts and by the
American people.\9\ Furthermore, laws like ENDA exist in 12
States, the District of Columbia and over 200 municipalities in
this country, and the definition of sexual orientation has
never presented a court with any difficulty.
---------------------------------------------------------------------------
\9\ See Hyman v. City of Louisville, 132 F. Supp. 2nd 528, 545-47
(W.D.KY 2001) (The definition of ``sexual orientation'' is consistent
with the meaning attributed to the term by common usage).
---------------------------------------------------------------------------
The use of the term ``perceived'' in ENDA's definition of
``sexual orientation'' represents an effort to address
employment discrimination directed at individuals because of
their presumed sexual orientation, whether or not that
presumption is correct. It ensures that ENDA's prohibitions
reach all discriminatory actions of an employer, regardless of
whether the assumptions upon which the employer bases his
discrimination are accurate. The use of the term ``perceived''
or a similar modifier is seen in the civil rights laws of many
States, emphasizing the importance of the subjective intent of
an employer in determining whether inappropriate discrimination
has occurred.\10\
---------------------------------------------------------------------------
\10\ Minn Stat. Sec. 363.01 (2001), defining sexual orientation as
``having or being perceived to have an emotional, physical, or sexual
attachment to another person without regard to the sex of that person .
. . or having or being perceived as having an orientation for such
attachment;'' R.S.A. 354-A:2 (2001), defining sexual orientation for
the purposes of New Hampshire law as ``having or being perceived as
having an orientation for heterosexuality, bisexuality or
homosexuality;'' N.J. Stat Sec. 10:5-3 (2001), defining ``affectional
or sexual orientation'' as ``male or female heterosexuality,
homosexuality or bisexuality by inclination, practice, identity or
expression, having a history thereof or being perceived, presumed or
identified by others as having such an orientation;'' Nev. Rev. Stat.
Ann Sec. 281.370 (2001), defining sexual orientation as ``having or
being perceived as having an orientation for heterosexuality,
homosexuality or bisexuality;'' R.I. Gen. Laws Sec. 28-5-6 (2001),
defining sexual orientation as ``having or being perceived as having an
orientation for heterosexuality, bisexuality, or homosexuality;'' Wis.
Stat. Sec. 111.32 (2001), defining sexual orientation as ``having a
preference for heterosexuality, homosexuality, or bisexuality, having a
history of such a preference, or being identified with such a
preference;'' Md. Ann. Code art. 49B Sec. 5 (2001), defining sexual
orientation as ``the identification of an individual as to male or
female homosexuality, heterosexuality, or bisexuality;'' Conn. Gen.
Stat. Sec. 46a-81a (2001), defining sexual orientation as ``having a
preference or being identified with such preference;'' Mass. Ann. Laws
ch. 151B, Sec. 3 (2002), defining sexual orientation as ``having an
orientation for or being identified as having an orientation for
heterosexuality, bisexuality, or homosexuality.''
---------------------------------------------------------------------------
This Federal interest in addressing subjective intent in
employment discrimination is also reflected in other Federal
laws. For example, the Americans with Disabilities Act
prohibits discrimination against the disabled and those who are
``regarded as'' having a disability. Courts have also read
prohibitions on discrimination based on perceived
characteristics into statutes where this language does not
exist, because such a reading supports the spirit in which
Congress promulgates civil rights laws. Even without such
explicit language, courts regularly interpret civil rights
statutes as encompassing discrimination based on perceived
characteristics. Title VII has been interpreted to encompass
discrimination based on perceived race and national origin,
without regard to whether the perception upon which the
employer based his discrimination was correct.\11\
---------------------------------------------------------------------------
\11\ EEOC v. Shoney's, 1994 U.S. App. LEXIS 16876.
---------------------------------------------------------------------------
In summary, the definition of sexual orientation is
intended to be narrowly construed to include heterosexuality,
bisexuality, and homosexuality, whether real or perceived. The
use of the term ``real or perceived'' in ENDA is consistent
with the statutory definitions of sexual orientation found in
many State laws, and represents an effort to discourage
inappropriate discrimination, regardless of the accuracy of the
assumptions upon which the discrimination is based.
C. THE ``DISCRIMINATION PROHIBITED'' SECTION
Section 4 is at the core of the act and describes the
discrimination prohibited by ENDA. Subsections 4(a)-(d) are
taken directly from Title VII subsections 703(a)-(d), and have
the benefit of over 30 years of judicial interpretation.
Employers and courts alike understand this language and its
requirements.
ENDA prohibits employers (including government employers),
employment agencies, labor organizations, and joint labor-
management committees from engaging in intentional
discrimination in employment on the basis of sexual
orientation. This discrimination includes but is not limited to
discrimination in hiring, firing, compensation and other terms,
conditions, or privileges of employment or union membership.
Employers also may not limit, segregate or classify their
employees or applicants for employment so as to disadvantage
certain employees based on their sexual orientation.
Subsection 4(e)'s prohibition on associative discrimination
is meant to prohibit such discrimination to the same extent as
Title VII does. Courts have read a prohibition on associative
discrimination into Title VII, and in the Americans with
Disabilities Act, this prohibition is explicit in Section
102(b)(4). ENDA makes the prohibition on associative
discrimination explicit just as the ADA does, and associative
discrimination is meant to be actionable to the same extent as
it is under Title VII. Discrimination against an employee
because he or she has a lesbian daughter, or because he or she
has a gay friend, for example, should be prohibited in the same
manner that it would be unlawful under Title VII to
discriminate against an employee because of the race of her
spouse.
Finally, subsection 4(f) clarifies that ENDA does not
provide a cause of action for disparate impact discrimination
as Title VII does. ENDA only provides a remedy for disparate
treatment. While evidence of disparate impact may be used to
support a claim of disparate treatment, there is no cause of
action under ENDA for disparate impact discrimination.
D. RETALIATION AGAINST THOSE WHO EXERCISE THEIR RIGHTS UNDER THE ACT IS
PROHIBITED
Section 5 makes it an unlawful employment practice for a
covered entity to discriminate against those who exercise their
rights under ENDA, or participate in any manner in an
investigation, proceeding, or hearing under ENDA. Section 5 was
amended at the April 24, 2002 committee business meeting to
mirror Section 704 of Title VII as precisely as possible,
creating greater uniformity throughout federal civil rights
law.
Prior to April 2002, a subsection (b) was also included in
this section of the bill. That subsection was modeled on
Section 503(b) of the Americans with Disabilities Act, and
prohibited a person from coercing, intimidating, threatening,
or interfering with any individual in the exercise of his or
her rights under the Act. However, given the relative paucity
of case law interpreting that provision of the ADA, the
committee approved an amendment, offered by Senator Collins, to
remove subsection (b) and change the language of this Section
to mirror Section 704 of Title VII, which has the benefit of
over thirty years of judicial interpretation.
The elimination of subsection (b) was not intended to
narrow the scope of ENDA's prohibition on retaliation in any
way. The amendment was instead designed to create uniformity
with Title VII, the primary Federal law upon which ENDA is
modeled, and to allow courts to draw from the well-established
jurisprudence of Title VII when adjudicating retaliation claims
under ENDA.
E. THE ACT DOES NOT REQUIRE EMPLOYERS TO PROVIDE DOMESTIC PARTNERSHIP
BENEFITS
Section 6 of ENDA explicitly states that ENDA ``does not
apply to the provision of employee benefits to an individual
for the benefit of the domestic partner of such individual.''
The language of ENDA could not be more clear on this point:
ENDA does not require employers to provide domestic partner
benefits. Employers remain free to provide these benefits,
however ENDA does not require the provision of domestic partner
benefits.
Employers across the country are discovering that the
provision of domestic partnership benefits make good business
sense. Over 4,300 employers, including corporations,
universities, and State and local governments across the
country offer such benefits to their employees. Fully, 59
percent of Fortune 500 companies offer domestic partner
benefits to their employees.
Given these statistics, it seems likely that domestic
partnership benefits will become the rule, rather than the
exception, for American employers. However, ENDA leaves
employers free to make decisions about whether and to what
extent to provide domestic partnership benefits to their
employees without pressure from Congress.
During the April 2002 committee meeting, a member of the
committee expressed concern that ENDA could conflict with
Federal regimes governing employment benefits. Section 6 makes
clear, however, that no such conflict is presented by ENDA.
Eligibility for many Federal employment benefits is based
upon spousal status, and the Defense of Marriage Act \12\
currently precludes the recognition of same-sex spouses for the
purposes of Federal law. ENDA has no effect on the
administration of pre-existing workers' compensation benefit
programs, the FMLA, or other Federal benefits programs, and
would not create a cause of action allowing employees to sue
for alleged violations of these benefit systems.
---------------------------------------------------------------------------
\12\ 1 USCS Sec. 7 (2002).
---------------------------------------------------------------------------
6. The Act Specifically Prohibits the Collection of Statistics and Does
Not Require Employers or Unions to Collect Statistics
ENDA expressly prohibits the EEOC from collecting
statistics on sexual orientation and from requiring covered
entities to collect such statistics. Collection of such
information would violate the privacy rights of workers and is
not necessary to support an intentional discrimination action
brought under the act.
This provision reflects current EEOC practice and decisions
with regard to employers' collecting statistics on the
religious affiliations of their employees. The only statistics
that the EEOC requires employers with over 100 employees to
maintain are statistics regarding the gender and race breakdown
in the workplace. The EEOC has never required the collection of
statistics regarding an employee's religion--a characteristic
which, like sexual orientation, is not apparent on its face and
can be determined mainly through making inquiries of applicants
and employees. Nor has the EEOC found that presenting such
statistics after a charge of discrimination is particularly
useful in defending against a claim of intentional
discrimination. To the contrary, the EEOC has looked with some
significant suspicion on employers who have attempted to
maintain records of employees' religious affiliations.\13\
While it is unlikely that the EEOC would have ever added sexual
orientation to the reporting form used by employers or
otherwise required the collection of statistics on sexual
orientation, this section addresses this concern by explicitly
prohibiting such an action.
---------------------------------------------------------------------------
\13\ See EEOC Dec. No. 76-95, 1976 EEOC Lexis 23; EEOC Dec. No. 71-
1469, 1971 EEOC Lexis 49.
---------------------------------------------------------------------------
Some query was whether the act would prevent employers from
asking about the sexual orientation of their employees as part
of a defense strategy to counter a sexual orientation
discrimination lawsuit--particularly, to gather evidence of
other employees of the same sexual orientation who did not
experience discrimination. For example, if a lesbian employee
brought a suit against her employer alleging she suffered
discrimination based on sexual orientation, her employer might
wish, as part of its defense strategy, to highlight the
positive treatment of other lesbian employees in the company.
In doing so, the employer may ask employees believed to be
lesbian to testify on the employer's behalf.
Section 7 does not prohibit an employer from asking such
employees to testify, make statements, or otherwise support the
employer's defense. Under current law, an employer may ask
employees to voluntarily attest to their experiences regarding
a lack of sexual orientation discrimination in the workplace,
and ENDA would not change this. The only way such a question or
request would violate ENDA would be if information regarding
employees' sexual orientation elicited through such a request
or survey resulted in sexual orientation discrimination.
Situations analogous to this one occur in the litigation of
disability discrimination cases and other sensitive cases where
medical information is pertinent to a defense. In particular,
cases of discrimination brought against healthcare providers
accused of denying care to HIV positive persons create
situations in which the defense strategy would include the
disclosure of third parties' private medical information. In
such cases, courts can be expected to issue protective orders
allowing for affidavits to be submitted under pseudonyms, or
for relevant documentation to be submitted with names or other
identifying information redacted. Courts would be at liberty to
employ similar measures to protect employee privacy where the
sexual orientation of employees not parties to the suit may be
relevant to the defense.
G. QUOTAS AND PREFERENTIAL TREATMENT ARE PROHIBITED
ENDA's section 8 is included to clearly delineate the
limits of the act's remedial powers. Subsection 8(a) and 8(b)
prohibit employers from adopting quotas or giving preferential
treatment to an individual on the basis of sexual orientation,
primarily because such policies are not practical remedies for
sexual orientation employment discrimination. As with the
prohibition on affirmative action in section 12(d), ENDA
recognizes that some policies and practices traditionally used
to provide redress in cases of employment discrimination on the
basis of race or gender are impractical and ultimately
unworkable remedies for employment discrimination on the basis
of sexual orientation. Subsection 8(c) further clarifies the
limits of such remedial actions by prohibiting the inclusion of
a quota or preferential treatment as part of any order or
consent decree entered for a violation of the act.
H. THE ACT'S RELIGIOUS EXEMPTION IS VERY BROAD
Section 9 of ENDA provides that ``this act shall not apply
to a religious organization.'' The scope of this exemption is
very broad, providing that any entity that constitutes a
``religious organization'' under ENDA is completely exempted
from coverage under the act.
The definition of ``religious organization'' in Section 3
of the act mirrors the definition of ``religious organization''
used by courts interpreting Title VII. During the debate over
the Civil Rights Act of 1964, some members of Congress
expressed concerns that the legislation would trample the
personal religious beliefs of employers. Therefore, the final
statute, as enacted, contained two provisions exempting
religious employers from coverage--Sec. 702(a) (a general
exemption) and Sec. 703(e) (an exemption for religiously-
affiliated educational institutions). Prior to 1972, Sec. 702
only exempted the religious activities of employees of
religious employers. The statute was then amended to exempt all
activities of employees of religious organizations. However,
religious organizations are not permitted to discriminate on
the basis of race, color, sex, or national origin in secular
employment positions.
Although Title VII does not define the term ``religious
organization,'' Federal courts have addressed the issue of
defining a ``religious organization'' many times. According to
the courts, religious organizations are religious corporations,
associations, or societies, and educational institutions
substantially owned, managed, controlled or supported by
religious organizations or whose curriculum is directed to the
propagation of a religion. Organizations as diverse as a
retirement home operated by Presbyterian Ministries; \14\ a
newspaper published by the First Church of Christ, Scientist;
\15\ Christian elementary schools and universities; \16\ and a
non-profit medical center operated and controlled by the
Seventh Day Adventist faith \17\ have been found to be
religious organizations under Title VII.
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\14\ See EEOC v. Presbyterian Ministeries, 788 F. Supp. 1154 (W.D.
Wash. 1992).
\15\ See Feldstein v. Christian Science Monitor, 555 F. Supp. 974
(D. Mass. 1983).
\16\ See Ganzy v. Allen Christian School, 1997 U.S. Dist. LEXIS
20938 (E.D.N.Y.), Killinger v. Samford University, 113 F. 3d 196 (11th
Cir. 1997), Little Wuerl, 929 F. 2d 944(3rd Cir. 1991).
\17\ See Young v. Shawnee Mission Med. Ctr, 1988 U.S. Dist. LEXIS
12248 (D. Ks. 1988).
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The range of organizations exempted from ENDA under this
provision is the same as those religious organizations already
exempted from Title VII of the Civil Rights Act of 1964. In an
effort to simplify the legislative language of the act, the
religious organizations protected by the exemptions in Title
VII's Sec. 702 and Sec. 703 are combined in the act's
definition of ``religious organization.'' The scope of ENDA's
exemption is significantly broader than the scope of the Title
VII exemption. While religious organizations are exempt from
religious discrimination prohibitions in non-clergy positions
under Title VII, they remain subject to prohibitions on race,
sex, and national origin discrimination. By contrast, ENDA
exempts religious organizations completely, thus exempting them
entirely from the prohibition on discrimination based on sexual
orientation.
Despite the act's broad religious exemption, some have
expressed concern that the religious beliefs of employers and
employees are not sufficiently protected. They argue that those
whose religion dictates that homosexuality is wrong will be
forced to hire or work with gay men and lesbians. Similar
arguments are not new to the civil rights debate, but our
nation's civil rights laws require those who participate in
commercial activity to adhere to our broad principles of
fairness and equality.
For example, during debate on the Civil Rights Act of 1964,
one Senator said,
And yet, here we have a law proposed which would
attempt to deny to millions of employers and employees
any freedom to speak or to act on the basis of their
religious convictions or their deep-rooted preferences
for associating or not associating with certain
classifications of people . . .
It may be immoral for a man to have a prejudice
against persons of a particular race, color, or
religion just because he has found it particularly
difficult to associate without discordant mutual
misunderstandings with many persons of that particular
race, color, or religion. But what is left of
individual liberty if a man or woman cannot choose
associates in work or in play on that basis of either
reason or prejudice, which are often indistinguishable?
Where was Congress ever given the power to establish a
state or morality to be enforced in the private
selection of private associates for work or play? \18\
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\18\ Congressional Record, Volume 110, p. 7778.
Although several members of Congress made similar
arguments, they were rejected by Congress. The Civil Rights Act
of 1964--with the exception of the narrow religious exemption
described above--prohibits discrimination based on race,
ethnicity, gender, or religion irregardless of personal
beliefs. Similarly, excepting religious organizations, ENDA
prohibits discrimination based on sexual orientation. The
principle set forth in 1964 remains true in 2002.
I. THE ACT DOES NOT AFFECT THE RELATIONSHIP BETWEEN THE FEDERAL
GOVERNMENT AND THE ARMED FORCES OR VETERANS PREFERENCES
ENDA does not apply to the relationship between the U.S.
government and uniformed members of the Armed Forces.
Therefore, ENDA will not affect current law on gay men,
lesbians, and bisexuals in the military or the associated
``Don't Ask, Don't Tell'' policy. In a provision taken from
Title VII, Section 10 further provides the bill does not repeal
or modify any other law that gives special preferences to
veterans.
J. THE ACT DOES NOT AFFECT AN EMPLOYER'S RIGHT TO ESTABLISH AND
IMPLEMENT UNIFORM RULES AND POLICIES OR A VOLUNTARY, NON-PROFIT
MEMBERSHIP GROUP'S RIGHT TO FREEDOM OF ASSOCATION
Section 11 was not in the original version of ENDA as
introduced in the Senate in 104th Congress but was added
immediately prior to the Senate consideration of the bill in
September 1996, to address concerns raised by some that the
legislation would prohibit employers from implementing and
enforcing their own rules and policies, including those which
govern the conduct of employees.
In July of 1996, the media reported that a high school
teacher in Loudoun County, Virginia, was engaged in the
production of sexually-explicit adult movies. The teacher
resigned before Loudoun County school officials could take any
disciplinary action against him. Prior to the Senate debate in
1996, concerns were raised that ENDA would prohibit any
disciplinary action in similar situations. Those concerns were
based on the erroneous assertion that disciplinary action would
be considered discrimination on the basis of sexual
orientation.
To clarify the intent of the bill, the sponsors of the act
added a section before the Senate vote to ensure that employers
retained the same right to enforce employer rules and policies
under ENDA that they currently have under Title VII. However,
the provision's emphasis on ``nonprivate'' employee conduct
raised further concerns by a number of business groups that
this language might prevent employers from enforcing policies
such as anti-harassment policies. Questions were also raised
about the meaning of the term, ``non-private''.
During the February 27, 2002, hearing on the act, Robert
Berman, Director, Human Resources and Vice President, Eastman
Kodak Company--a strong supporter of ENDA--raised the concern
that the use of ``nonprivate'' in the original language of
section 11(a) might ``significantly impair'' a company's
ability to take prompt remedial action to end harassment that
takes place in a private setting, away from a company office or
plant, but which happened while the employee was engaged in
company-related business or at a company-sponsored event.
In mark-up, Senator Collins offered an amendment to clarify
the intention of section 11(a), to ensure that, like Title VII,
ENDA allows employers to implement and enforce rules and
policies governing employee conduct, as along as such rules and
policies are enforced uniformly, without regard to an
employee's sexual orientation.
Section 11(b) was added to the bill to acknowledge that the
act has no effect on the right of freedom of association for
nonprofit, voluntary membership groups, such as the Boy Scouts
of America.
K. WITH ONE EXECPTION, THE REMEDIES ARE COMPARABLE TO THOSE AVAILABLE
UNDER TITLE VII
ENDA adopts the enforcement mechanisms of Title VII, as
amended by the Civil Rights Act of 1991, with the exception of
prohibiting the use of affirmative action (prohibited by
section 12(d)).
The requirement of filing claims with the EEOC, the ability
of an individual to bring a private right of action in court,
and the ability of an individual to receive injunctive relief
and damages, up to the limits authorized by Title VII (as
amended), are all incorporated by reference in ENDA.
The remedy of affirmative action available under Title VII
is explicitly made unavailable under ENDA through section
12(d). This subsection was added to emphasize that this
legislation is not about affirmative action or special rights
for rights gay and lesbian people. This bill is about fairness
in the workplace and allowing all Americans the freedom to work
without fear of discrimination based on sexual orientation.
L. THE ACT ENSURES THAT AN INDIVIDUAL HAS REMEDIES AGAINST STATES AND
THE UNITED STATES
Section 13 ensures that an individual can sue a State or an
official of a State in his or her official capacity. In several
recent cases, the Supreme Court has indicated that Congress may
use its Spending Clause powers to condition the receipt of
Federal funds upon waiver of Eleventh Amendment immunity to
suit under certain Federal regulatory and statutory schemes.
See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav.
Bank, 527 U.S. 627 (1999); South Dakota v. Dole, 483 U.S. 203
(1987). The Court has also held, however, that there are
limitations to Congress' authority.
Five restrictions are generally associated with the use of
Congress' spending power, and the act falls within the
parameters of those restrictions. First, the act does not place
conditions upon the receipt of Federal funds that are ``so
coercive as to pass the point at which `pressure turns into
compulsion,' '' South Dakota v. Dole, 483 U.S. 203, 211 (1987).
States have been subject to private suits under Title VII since
shortly after the statute's enactment, and the resources
required to defend a suit under ENDA should generally be no
different from those required to defend a Title VII suit
brought by the EEOC on behalf of an injured employee.
Second, the plain language of the Spending Clause indicates
that the use of the spending power must be aimed at ``the
general welfare'' of the country, that is, it must have a
``general public purpose.'' South Dakota v. Dole, 483 U.S. 203,
207 (1987); Helvering v. Davis, 301 U.S. 619, 640-41 (1937).
Extensive evidence supports the contention that discrimination
based on sexual orientation is a pressing problem in both
public and private workplaces. Without question, the prevention
of discrimination based on sexual orientation by State
employers is a legitimate national interest, meaning that the
spending at issue in the case of the act falls well within the
rubric of ``the general welfare.''
Third, the act clearly reflects congressional intent to
condition States' receipt of funding on compliance with certain
regulations. Congress' intent is ``unambiguous'' in the
language of the statute, and a State may make an informed
choice as to whether to adhere to the conditions upon which the
receipt of funds are contingent. See South Dakota v. Dole, 483
U.S. 203, 207 (1987); Pennhurst State Sch. & Hosp. v.
Halderman, 451 U.S. 1, 17 (1981). Specifically, States
accepting Federal funds for qualifying programs or activities
shall, as a condition upon the receipt of those funds, waive
their immunity to private suit by employees of those qualifying
programs or activities to enforce the act.
Fourth, as required, the ``condition imposed [on Federal
funds is] reasonably related to the purpose for which the funds
are expended.'' South Dakota v. Dole, 483 U.S. 203, 207, 213
(1987). In this instance, the act could not be more clear.
Congress is concerned with the eradication of discrimination
based on sexual orientation in the State workplace and may
therefore refuse to provide funding to State programs or
activities which do not comply fully with the provisions of the
act and agree to subject themselves to the potential for
private suit in order to enforce it.
Fifth, the condition upon the receipt of Federal funds in
the act is not barred by any provision of the Constitution.
Because the basis for the waiver of 11th Amendment immunity in
this case is the Spending Clause, compliance with the
limitations upon the spending power indicated above is
sufficient basis for the constitutionality of the act.
Finally, section 13 also sets forth that in an action
against a State, State official, or the United States, remedies
similar to those available under Title VII--with the exception
of punitive damages and limited compensatory damages--are
available.
XI. MINORITY VIEWS OF SENATORS GREGG, FRIST, ENZI, HUTCHINSON, BOND,
AND SESSIONS ON S. 1284
The Employment Non-Discrimination Act (ENDA) attempts to
pattern itself after other Federal nondiscrimination statutes,
and has been revised to address some longstanding questions
raised about the legislation. However, even with these
revisions, including the adoption of two amendments introduced
by Senator Collins during the committee mark-up, this
legislation remains overly-broad and unclear in many respects,
specifically, with regard to its effect on individual,
constitutional and States' rights. As a result, we cannot
support the legislation in its present form.
First, as currently drafted, ENDA may endanger the First
amendment rights of many employers to make hiring decisions
based upon religious criteria--a right that has been reiterated
in federal civil rights law and upheld by the United States
Supreme Court.
Second, ENDA may chill the rights of individuals to engage
in constitutionally protected speech in the workplace when that
speech involves beliefs and opinions contrary to certain
lifestyle decisions and practices protected in the Act.
Third, because ENDA includes an overly-broad definition of
sexual orientation which includes ``perception'' that the
plaintiff is homosexual or bisexual or ``association'' with
others who are or who are ``perceived'' to be homosexual or
bisexual, employers will be subject to a virtual litigation
bonanza. Forced to defend themselves in countless lawsuits by
proving a negative, many employers will have no practical
choice but to settle cases out of court to avoid potentially
costly and lengthy court battles.
Fourth, an examination of the 13 laws passed by the States
on this issue reveals a diverse collection of policies and
remedies that are tailored to the needs and sensitivities of
the various States, some of which have been reflected to ENDA,
many others of which have not. Yet ENDA would very likely
conflict with and preempt certain State laws, which is
troublesome.
For example, many have questioned whether the phrase
``sexual orientation'' could be interpreted to include behavior
or conduct that constitutes a criminal act. Of the 13 state
nondiscrimination laws related to sexual orientation, eight
contain provisions ensuring that criminal conduct is not
protected.
Connecticut law, for example, excludes behavior with
constitutes a criminal offense, Hawaii law ensures that
``sexual orientation'' shall not be construed to protect
conduct otherwise proscribed by law. Massachusetts law says
that ``sexual orientation'' ``shall not include persons whose
sexual orientation involves minor children as the sex object,''
and also specifically excludes pedophilia from coverage.
Minnesota law says that ``sexual orientation'' does not include
a physical or sexual attachment to children by an adult.'' New
Hampshire law's definition of ``sexual orientation'' does not
render lawful any conduct prohibited by the criminal laws of
this State. New Jersey law says that it shall not be construed
to prevent or preclude daycare centers from refusing to employ
known or suspected child molesters. Rhode Island law says it
definition of sexual orientation does not render lawful any
conduct prohibited by its State criminal laws. And finally,
Vermont law states that ``sexual orientation'' shall not be
construed to protect conduct otherwise proscribed by law.
Given that States facing this issue have made clear that
``sexual orientation'' shall not include criminal behavior, it
is puzzling that the Federal ENDA legislation would not contain
a similar clarification, making its preemption of State law
particularly troubling.
In sum, the Employment Non-Discrimination Act as passed by
this Committee leaves us with too many questions and concerns
to be able to support the legislation.
Judd Gregg.
Bill Frist.
Michael B. Enzi.
Tim Hutchinson.
Christopher S. Bond.
Jeff Sessions.