The Employment Non-Discrimination Act is set to be introduced in both chambers of Congress on Thursday, according to multiple sources, but without major changes that were previously under consideration.
The bill will be reintroduced in the House by Rep. Jared Polis (D-Colo.), the most senior openly gay member of the chamber, who’s taking over the legislation now that former Rep. Barney Frank has retired. In the Senate, the legislation will be reintroduced by Sen. Jeff Merkley (D-Ore.). The lawmakers’ offices confirmed they would introduce ENDA concurrently on Thursday.
The Senate version of the bill will have five original sponsors: Merkley and lesbian Sen. Tammy Baldwin (D-Wis.) will be two Democrats, Sens. Mark Kirk (R-Ill.) and Susan Collins (R-Maine) will be two Republicans and Senate Health, Education, Labor and Pensions Committee Chair Tom Harkin (D-Iowa) will round out the quintet.
The number of original co-sponsors in the House remains to be seen. Conchita Cruz, a Polis spokesperson, said many House members have told her boss “they want to make sure that they are included” as original co-sponsors.
Tico Almeida, president of Freedom to Work, said his organization will push for a committee vote and movement on the Senate floor for ENDA “as soon as possible.”
“ENDA had a recent committee hearing where not a single Republican senator bothered to show up to express any opposition or even ask questions about the drafting of the bill, so I think Chairman Harkin should schedule the committee vote on ENDA as soon as possible in May or June,” Almeida said. “It would be great to have ENDA teed up to go to the Senate floor in July.”
Harkin, whose committee has jurisdiction over ENDA, has already pledged to mark up the legislation this year. The office of Senate Majority Leader Harry Reid (D-Nev.) has said Democratic leadership “looks forward to working with” Harkin to set up a floor vote on the bill.
Almeida said the time period immediately after Supreme Court decisions are expected on California’s Proposition 8 and the Defense of Marriage Act would make July an excellent opportunity for a floor vote on ENDA, which would ban anti-LGBT employment discrimination.
“After the Supreme Court rules in the Windsor marriage case, many right-wingers are going to denounce marriage equality for same-sex couples, but claim that they don’t believe in discrimination against LGBT Americans,” Almeida said. “That’s the time when we should call some of those bluffs by putting ENDA on the Senate floor and letting all 100 senators go on the record about whether hardworking Americans should get fired just because of who they are or who they love.”
One question about the bill was whether ENDA would be changed upon reintroduction. LGBT advocates had previously told the Washington Blade the legislation has been under review prior to reintroduction in the 113th Congress.
Two areas that were said to be under review were the religious exemption as well as the area of disparate impact, which ENDA hadn’t previously addressed. However, multiple sources familiar with ENDA said these changes were ultimately not made to the bill.
Jamal Raad, a Merkley spokesperson, said “there will be a few changes to update the language” on ENDA, but said he couldn’t provide actual legislative text until reintroduction on Thursday.
Almeida said another change he’s seeking for ENDA as it progresses through the legislative process is an update to the bill in the aftermath of the Supreme Court ruling in Gross v. FBL Financial. That 2009 decision raised the bar for the standard of proof in making certain employment discrimination claims.
“If this legal loophole does not get fixed before ENDA becomes law, there will be gay and transgender victims of discrimination with meritorious cases who are denied justice because of the unequal standard that the conservative activists on the Supreme Court created a few years ago,” Almeida said. “Gay and transgender plaintiffs deserve to have the same standard of proof applied to their cases as plaintiffs alleging racial or religious discrimination under Title VII of the Civil Rights Act.”
Almeida said the fix would be along the lines of the bipartisan legislation introduced by Harkin and Sen. Charles Grassley (R-Iowa) known as the Protecting Older Workers Against Discrimination Act. That bill hasn’t yet been reintroduced in the 113th Congress.
“Especially since Chairman Harkin is the author of the bi-partisan legislation to address the Gross case, I’m hoping that he and the committee staff will close this loophole when ENDA goes to mark-up,” Almeida said.
As ENDA advances, many eyes will be on the U.S. senators who’ve recently come out for marriage equality, but haven’t yet articulated a position on the legislation.
Those who’ve come to support marriage equality, but didn’t co-sponsor ENDA in the previous Congress are Sens. Jon Tester (D-Mont.), John Rockefeller (D-W.Va.), Max Baucus (D-Mont.), Bill Nelson (D-Fla.), Tim Johnson (D-S.D.) — and most notably Sen. Rob Portman (R-Ohio). Also in question among the U.S. senators who support marriage equality is Sen. Heidi Heitkamp (D-N.D.), who’s new to Congress.
Eyes also will be Sen. Lisa Murkowski (R-Alaska), who voted for “Don’t Ask, Don’t Tell” repeal and recently said she’s “evolving” on the issue of marriage equality.
Reid also wasn’t a co-sponsor in the previous Congress, but he typically doesn’t co-sponsor bills because of his leadership position.
Freshmen senators who were formerly U.S. House members — Sens. Joe Donnelly (D-Ind.), Mazie Hirono (D-Hawaii), Martin Heinrich (D-N.M.) and Chris Murphy (D-Conn.) — were co-sponsors of ENDA in the lower chamber of Congress, so would likely support the bill again in the Senate. Sen. Tim Kaine (D-Va.) has said he supports ENDA and Sen. Angus King (I-Maine) signed an LGBT non-discrimination bill into law as governor of the state in 1998.
Other freshman Democrats — Sens. Mo Cowan (D-Mass.), Brian Schatz (D-Hawaii) and Elizabeth Warren (D-Mass.) — signed a letter in February identifying themselves as ENDA supporters.
NOTE: An earlier version of this article neglected to include Sen. Martin Heinrich as among the freshmen Senate Democrats who supported ENDA as U.S. House members. He also signed the letter identifying himself as an ENDA supporter. Whitney Potter, a Heinrich spokesperson, said the senator intends to support ENDA as a U.S. senator.