March 21, 2013 | by Chris Johnson
ENDA under review prior to April reintroduction
Jared Polis, Colorado, United States House of Representatives, Democratic Party, gay news, Washington Blade

Rep. Jared Polis (D-Colo.) acknowledged a review process is underway for ENDA. (Washington Blade photo by Michael Key)

A long-standing piece of pro-LGBT legislation is under review and may be redrafted prior to its expected introduction in the U.S. House next month.

In an interview with the Washington Blade on Wednesday, Rep. Jared Polis (D-Colo.), the senior openly gay member of the U.S. House, announced that he plans to introduce in April the Employment Non-Discrimination Act, a measure that would bar workplace discrimination against LGBT people.

“I’ll be the lead author of ENDA, which we are at least planning to reintroduce in April,” Polis said.

Multiple sources familiar with ENDA say the legislation is being reconsidered before its reintroduction in the 113th Congress, and maintain no final decisions on the bill have been made.

It’s unclear what the nature of the changes might be, but one source familiar with ENDA told the Washington Blade the bill is being reconsidered with respect to religious exemption and disparate impact to make the legislation’s protections stronger for LGBT workers than previously written. The changes are being considered under the assumption the legislation won’t pass anyway with Republicans in control of the U.S. House.

ENDA has previously included a strong religious exemption. In the most recent version of the bill, Section 6 provided an exemption for religious organizations and businesses that were also exempt under Title VII of the Civil Rights Acts of 1964.

The legislation also avoided the issue of disparate impact. Under that doctrine, which is found under Title VII, a violation of the law may be found if an employer has a practice that discriminates against workers, even though it doesn’t seem discriminatory on its face.

For example, a company that says it won’t hire anyone for a job who’s shorter than 5’10″ could be found in violation of the law on the basis of gender discrimination because most women aren’t that tall. It’s unclear how disparate impact would apply to LGBT people.

Polis declined to identify any specific changes being contemplated to ENDA, but acknowledged a review process is underway.

“We’re going through ENDA now and have been working with many of the advocacy groups and my staff, and the [LGBT] Equality Caucus staff to make sure that concerns are addressed, and we’re going through that now,” Polis said.

In response to a follow-up question about whether changes would be made with respect to the religious exemption or disparate impact, Polis reiterated that a review process is happening.

“There haven’t been any decisions made yet about that,” Polis said. “We’re listening. We’re listening to folks in the equality community, and there are many different ideas on how to improve ENDA and we’re evaluating them and seeing where we have consensus.”

There may be other ways in which the bill is being reconsidered but no sources specifically identified any such changes to the Blade.

One possible change may be the way ENDA applies to small businesses. Under previous versions of the bill, the law would only apply to employers with 15 or more employees. Companies with fewer employees would be free to discriminate under federal law even if ENDA were passed.

LGBT advocacy groups that work on ENDA responded to the Blade’s inquiries on whether changes would be made to the bill by confirming the review process is underway.

Fred Sainz, vice president of communications for the Human Rights Campaign, said all pro-LGBT legislation is reviewed prior to reintroduction at the start of a new Congress.

“Every Congress, legislation is reviewed with an eye toward making any needed changes or improvements,” Sainz said. “The goal is always to better the lives of LGBT people. This process is underway with every piece of legislation.”

Ian Thompson, legislative representative for the American Civil Liberties Union, also acknowledged the review process and said he welcomes changes that would provide stronger protections for LGBT people.

“Prior to reintroduction in any Congress, legislation should always be reviewed in light of political and legal developments that may necessitate changes,” Thompson said. “I am firmly of the belief that this should always be done with an eye toward securing the strongest possible protections for LGBT people.”

Tico Almeida, president of Freedom to Work, declined to comment.

Lesbian Sen. Tammy Baldwin (D-Wis.) told SiriusXM Out Q’s Michelangelo Signorile in an interview this week that stakeholders are working the bill by “getting it in final form.”

“Right now the author of the legislation is engaged in negotiations to put finishing touches on the version of the bill that will be introduced, perhaps right after the break for Easter and Passover,” Baldwin said.

It’s not yet clear whether the final language for ENDA  in the House version of the bill sponsored by Polis and the Senate bill that Sen. Jeff Merkley (D-Ore.) has previously sponsored would be identical. Polis suggested the two versions of the bill may be different when asked if his introduction of ENDA would be concurrent with Merkley’s introduction of the bill.

“No decision made in terms of that,” Polis said. “Those are also [decisions] to be made in terms of do you do it on the same day, and do you do different versions or the same version. There are always all those decisions to be made around timing of bills.”

Jamal Raad, a Merkley spokesperson, said a bipartisan group of lawmakers is at work on ENDA prior to its reintroduction, identifying Sen. Mark Kirk (R-Ill.), who’s been an original co-sponsor in the past.

“We are currently working with Senator Kirk’s team and stakeholders, and hope to reintroduce soon,” Raad said.

Asked if any changes would be made to ENDA, Raad replied, “We are reviewing the language with cosponsors and stakeholders, but no decision has been made.”

Stakeholders affirmed that they’re committed to ensuring the bill includes protections based on gender identity and expression. Polis maintained he wants an inclusive bill.

“I’m firmly committed to ensuring this is an inclusive bill and will address the issue of discrimination in the transgender community,” Polis said.

Asked to clarify whether the gender identity protections would be modified in any way, Polis said a listening process is underway without identifying any change in particular.

“We are in the process of listening to folks in the equality community — both the transgender community as well as the gay community,” Polis said. “We’ve gotten a lot of good input into improving the bill. We’re trying to see where we can forge consensus, and again, no decisions have been made about the final language.”

In 2007, former Rep. Barney Frank (D-Mass.) invoked the ire of many in the LGBT community when he advanced a version of ENDA without the gender identity protections, saying the votes weren’t present to pass a transgender-inclusive bill. Frank later came to believe ENDA must be passed with gender identity protections.

 

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

13 Comments
  • It's about damn time! This bill hasn't got a snowball's chance in hell of passing; however, it starts a discussion about a serious problem and gets people thinking about the reality of discrimination that many LG and especially Trans people face on a regular basis. Even if it never gets a vote and dies in committee, it starts the dialogue.

  • It’s about damn time! This bill hasn’t got a snowball’s chance in Hell of passing; however, it starts a discussion about a serious problem and gets people thinking about the reality of discrimination that many LG and especially Trans people face on a regular basis. Even if it never gets a vote and dies in committee, it starts the dialogue, which is progress.

  • If this bill is to be introduced as a symbolic gesture then they should just change it so it adds gender identity to the Civil Rights Act of 1964 and be done with it. ENDA is far too limited and gives away too much to the haters.

  • I'll never understand why Rethuglican, conservative, right-wing, religious fanatics think they can force other normal people to accept their deviant views and lifestyle. They love to tell other people how to live their lives, while their own lives are in shambles. The Christian (esp. Catholic, Mormon, Evangelical, and Southern Baptist) Taliban in this country are going to face a violent wake up call soon if they keep trying to spread their hatred, intolerant views, and intolerant actions on normal Americans. And it is patently unfair that gays and their loved ones should be devastated by discriminatory actions, while the bigots and their families go about enjoying their lives as if nothing is wrong. It's time to start making bigots pay for the discriminatory actions they take. When they have to pay a price, they might start to rethink their actions. Anyone reading this should take WHATEVER ACTIONS POSSIBLE to harm any of the bigoted legislators, or their loved ones, to make them pay for the harm they are doing to the people they discriminate against.

    • Steve from Texas

      “The Christian (esp. Catholic, Mormon, Evangelical, and Southern Baptist) in this country are going to face a violent wake up call soon”

      Violent wake up call……….sounds to me that you are a violent hater yourself. Just because people of faith disagree with your “alternative” livestyle which is not “normal” you claim they are “haters” and you use such hateful words like

      “Rethuglican, conservative, right-wing, religious fanatics”
      “Taliban”
      “bigots and their families”

      “When they have to pay a price, they might start to rethink their actions”
      the same can go for you as well, Cameron Robert

      Really, this isn’t about gay rights. The left doesn’t give a damn about gay rights. The left hasn’t done anything for the gay community except to offer it lip service and inaction. While leftist groups fight for “marriage equality” the Obama administration makes marriage an economic hit with horrible policy. You got bait and switched, leftists!
      No, the left cares nothing for gay rights, but they’ll pretend to if they can use the bloc as a wedge to pry the populace from the influence of the church. Why? because it’s easier to convince people that their civil liberties fall under the dominion of man, of government, if the church is portrayed as inept and anachronistic. This is the entire goal. Once man, sinful, awful man controls your rights, your existence as an individual ends and your life as a statist serf begins.

  • I'll be surprised if Boehner allows this bill to proceed. If he did, it would send a positive message to the LGBT community. If he doesn't, then he is a lost cause. This bill is a pretty minimal thing and not really controversial anymore except with religious fundamentalists. If Boehner balks, we should try to get 218 members to vote on a discharge petition to bring ENDA to the floor. At least that would put people on the record as to who are our friends and enemies. There are at least some Republicans (especially those in suburban districts) who would not want their name associated with a defense of discrimination.

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