Employment Non-Discrimination Act Is Proposed to U.S. Congress Summary

  • Last updated on November 11, 2022

The Employment Non-Discrimination Act, still pending, would add the category of “sexual orientation” to antidiscrimination employment regulations of the U.S. government. Whereas early attempts to pass the act focused on amending the 1964 Civil Rights Act, later efforts targeted employment guidelines in a stand-alone measure. President Bill Clinton, in a partial victory for GLBT rights, issued an executive order in 1998 prohibiting discrimination based on sexual orientation in federal civilian employment.

Summary of Event

The proposed Employment Non-Discrimination Act (ENDA) would extend federal protection to gays and lesbians under a legal framework similar to Title VII of the Civil Rights Act of 1964. Civil Rights Act (1964) As of 2006, sixteen states and the District of Columbia have passed antidiscrimination measures based on sexual orientation in employment. Additionally, as of 2004, eighteen states have executive orders and eighty-seven counties or cities prohibit discrimination based on sexual orientation. There is no federal law, however, that protects lesbians and gays. [kw]Employment Non-Discrimination Act Is Proposed to U.S. Congress (1994) [kw]Non-Discrimination Act Is Proposed to U.S. Congress, Employment (1994) [kw]U.S. Congress, Employment Non-Discrimination Act Is Proposed to (1994) [kw]Congress, Employment Non-Discrimination Act Is Proposed to U.S. (1994) Employment Non-Discrimination Act (proposed 1994) Civil rights;U.S. government and[US government] Discrimination;and U.S. government[US government] [c]Civil rights;1994: Employment Non-Discrimination Act Is Proposed to U.S. Congress[2350] [c]Government and politics;1994: Employment Non-Discrimination Act Is Proposed to U.S. Congress[2350] [c]Laws, acts, and legal history;1994: Employment Non-Discrimination Act Is Proposed to U.S. Congress[2350] Kennedy, Edward M. Clinton, Bill

The earliest versions of ENDA date from between 1975 and 1993. These legislative proposals would have amended Title VII of the Civil Rights Act, adding sexual orientation to classes of prohibited discrimination. The attempts met with political rancor and failure. In 1994, a new approach had been taken, proposing a stand-alone regulation against discrimination in employment. The revised version was on the surface similar to the original versions of the bill forbidding discrimination based on sexual orientation regarding hiring, firing, employment, and workplace practices.

The stripped-down version of ENDA introduced to Congress in 1994 made a dramatic shift in achieving lesbian and gay rights. Previous attempts by activists and supporters to win civil rights protection under Title VII had failed. The bill would prohibit discrimination only in workplaces with more than fifteen employees, and it would exempt certain workplaces or organizations, such as religious organizations.

The chief sponsor of ENDA in 1994 had been Senator Edward M. Kennedy (D-MA), who chaired the Senate Committee on Labor and Human Resources. He was joined by 146 congressional cosponsors: 30 senators and 116 representatives. Democrats accounted for 116 of the sponsors.

Kennedy stated the bill was narrowly proscribed and crafted to avoid unneeded controversy. The issue was not the granting of special rights; instead, it was about righting senseless wrongs. Kennedy declared, “Federal law rightly prohibits job discrimination because of race, gender, religion, and national origin, age, and disability.” He continued, “We now seek to take the next step on this journey of justice by banning discrimination based on sexual orientation.”

ENDA would prohibit employers with more than fifteen workers from using an employee’s sexual orientation as a deciding factor in employment decisions, maintaining that sexual orientation has no relevancy in terms of contributions to the economic demands of society. Therefore, a person’s sexual orientation would not affect the economic success of business. The bill carried provisions for meaningful and effective remedies for proven discrimination, including rehiring and punitive damages.

Under proposed ENDA guidelines, employers also could not implement affirmative action programs, or utilize quota or goal systems, based on sexual orientation. Religious organizations have been exempted from ENDA regulations, but not church-operated businesses. The antidiscrimination measure would not apply to gays and lesbians in the military, however.

The new language helped bring the bill to a vote in Congress in 1996. The bill was nearly successful because it came to a vote at the same time as the highly controversial Defense of Marriage Act (1996), Defense of Marriage Act (1996) or DOMA, which banned federal recognition of same-gender marriages. Kennedy and lesbian and gay lobbyists agreed to bring both bills to a vote at the same time. They had hoped that doing this would make ENDA appear more palatable.

The approach nearly worked. While DOMA was approved by the Senate 85-14, ENDA lost 50-49. Senator David Pryor (D-AR) was absent from voting, attending to his son, who was undergoing surgery for cancer. Had Pryor been present to cast his intended vote for support, Vice President Al Gore would have returned from the campaign trail to cast the tie-breaking vote in favor of passage.

Because the act was just one vote shy of passing, gay and lesbian lobbyists declared that no longer was it the case of will sexual-orientation discrimination in employment be illegal, but when. Ensuing sessions of Congress with Republican-led majorities, however, were less likely to approve the act.

Support for ENDA comes from a diverse array of civil rights, political, business, and labor organizations. It has received endorsements from corporations Corporations, and domestic partnership benefits such as Xerox, Harley-Davidson, AT&T, RJR Nabisco, and many others. It has received broad acceptance from organized labor groups and support from some religious groups.

Congress members opposed to the measure believe that the act would provide special legal status to lesbians and gays, and they believe the issue to be a moral one. Conservative groups such as the Family Research Council Family Research Council state that ENDA cannot be compared to civil rights legislation because the act would protect a sexual behavior rather than a nonbehavioral characteristic such as race or gender. Furthermore, they have argued that gays and lesbians have higher annual incomes and occupy greater percentages of professional and managerial positions. Because of this, they argue, lesbians and gays are not being “held back” by employment discrimination.

Significance

Since 1996, modified versions of ENDA have been introduced into successive sessions of Congress. The bill has languished in committee because of a lack of support from Republican and conservative members of Congress. Republican leadership did not want to bring the legislation to floor vote. President Bill Clinton expressed support for the passage of ENDA, and he issued Executive Order 13087 on May 28, 1998, which banned discrimination against lesbians and gays (specifically, it now includes “sexual orientation” as a protected status) in federal civilian employment. President George W. Bush Bush, George W. has not rescinded Clinton’s executive order, but prospects for the passage of ENDA have diminished.

In June, 2005, Representatives Henry Waxman Waxman, Henry (D-CA), Chris Shays Shays, Chris (R-CT), and others introduced the Clarification of Federal Employment Protections Act Clarification of Federal Employment Protections Act (proposed 2005) to Congress, legislation that simply asks for affirmation “that Federal employees are protected from discrimination on the basis of sexual orientation and to repudiate any assertion to the contrary.” The House Government Reform Committee passed the act in September; a Senate committee hearing was pending as of early 2006.

Aside from the discriminatory aspect of firing lesbians and gays from their jobs, or keeping them from being employed in the first place, there are economic reasons why the act should be passed. According to research done by the National Commission on Employment Policy, an estimated 42,000 gay and lesbian workers are dismissed every year in the United States. This, in turn, equals a loss of more than $47 million annually in training expenditures and unemployment payments. Meanwhile, discrimination in the American workplace against gays and lesbians is not uncommon. Also, a survey conducted in 2000 found that 83 percent of Americans believe lesbians and gays should be protected against discrimination in employment. ENDA would provide a comprehensive, uniform, federal standard for protections against sexual-orientation discrimination. Employment Non-Discrimination Act (proposed 1994) Civil rights;U.S. government and[US government] Discrimination;and U.S. government[US government]

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Bull, Christopher. “No ENDA in Sight.” The Advocate, May 13, 1997, 40.
  • citation-type="booksimple"

    xlink:type="simple">Human Rights Campaign Foundation. The State of the Workplace for Gay, Lesbian, Bisexual, and Transgender Americans, 2005-2006. http://www.hrc.org.
  • citation-type="booksimple"

    xlink:type="simple">Jasiunas, J. Banning. “Is ENDA the Answer? Can a ’Separate but Equal’ Federal Statute Adequately Protect Gays and Lesbians from Employment Discrimination?” Ohio State Law Journal 61 (2000): 1529.
  • citation-type="booksimple"

    xlink:type="simple">Kovach, Kenneth. “Non-Discrimination ENDA Gains Support.” HR Focus 72, no. 7 (July, 1995): 15.
  • citation-type="booksimple"

    xlink:type="simple">_______. “Proposal Would Expand Civil Rights Legislation.” Employment Relations Today 22, no. 3 (Autumn, 1995): 9.
  • citation-type="booksimple"

    xlink:type="simple">Rimmerman, Craig. From Identity to Politics: The Lesbian and Gay Movements in the United States. Philadelphia: Temple University Press, 2002.

April 27, 1953: U.S. President Eisenhower Prohibits Federal Employment of Lesbians and Gays

1972-1973: Local Governments Pass Antidiscrimination Laws

June 27, 1974: Abzug and Koch Attempt to Amend the Civil Rights Act of 1964

July 3, 1975: U.S. Civil Service Commission Prohibits Discrimination Against Federal Employees

1978: Lesbian and Gay Workplace Movement Is Founded

June 2, 1980: Canadian Gay Postal Workers Secure Union Protections

December 4, 1984: Berkeley Extends Benefits to Domestic Partners of City Employees

November 8, 1988: Oregon Repeals Ban on Antigay Job Discrimination

May 1, 1989: U.S. Supreme Court Rules Gender-Role Stereotyping Is Discriminatory

July 26, 1990: Americans with Disabilities Act Becomes Law

September 29, 1991: California Governor Wilson Vetoes Antidiscrimination Bill

September 23, 1992: Massachusetts Grants Family Rights to Gay and Lesbian State Workers

April 2, 1998: Canadian Supreme Court Reverses Gay Academic’s Firing

July, 2003: Singapore Lifts Ban on Hiring Lesbian and Gay Employees

July, 2003: Wal-Mart Adds Lesbians and Gays to Its Antidiscrimination Policy

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