The lead sponsor of the Employment Non-Discrimination Act in the Senate is excited about the bill’s prospects upon reintroduction and anticipates committee action in May or June.
In an interview with the Washington Blade on Tuesday, Sen. Jeff Merkley (D-Ore.) talked about the future for ENDA, which he’s planning to introduce on Thursday. The bill is set to debut on the same day as the House version by gay Rep. Jared Polis (D-Colo.).
Merkley, who prior to being elected as U.S. senator was Oregon State House Speaker, said he’s “very excited” about leading the fight on ENDA for two reasons: it builds off the state LGBT non-discrimination legislation he helped usher into law in 2007, and it honors the legacy of the late Sen. Edward Kennedy, who previously championed ENDA.
“Part of the reason it’s exciting to me is I led the fight in Oregon for basic rights,” Merkley said. “It was a huge honor to have Sen. Kennedy ask me to carry the torch on this bill. And I want to fulfill the responsibility he gave me of getting the bill passed in the Senate. I think we’re going to be a lot of closer. We have a chance of getting this done, and getting it done this year.”
Merkley said he’s spoken with the Senate Health, Education, Labor & Pensions Committee Chair Tom Harkin (D-Iowa), who’s already pledged to have a panel vote on ENDA this year, and received assurances a markup would happen in the coming months.
“He was very publicly saying the moment he got the bill in his hands — as soon as it was introduced — that he wanted to move forward quickly,” Merkley said. “My understanding, to be confirmed obviously in conversations with him, is he’d like to have the markup in May or June.”
The Oregon senator affirmed the Senate version of the bill would have five original co-sponsors: himself, Harkin as well as lesbian Sen. Tammy Baldwin (D-Wis.) and Republican Sens. Susan Collins (Maine) and Mark Kirk (Ill.). On Friday, the legislation will be open to additional co-sponsors.
Merkley also confirmed that two areas that were previously under reconsideration with respect to ENDA — the religious exemption and no mention of disparate impact — would be unchanged upon reintroduction.
However, Merkley said ENDA would be different because other provisions were modified following conversations with stakeholders and with Republican partners.
Among the changes relates to shared facilities. The previous version of ENDA stated an employer wouldn’t be in violation of the law if it denied a transgender person access to dressing facilities in which being seen unclothed is unavoidable — provided that the company provides access to adequate facilities consistent with the employee’s gender identity. Merkley said the new version of ENDA won’t address the issue of shared facilities.
“We’re going to adopt the model that has been the dominant state model, which is simply not to have discussion on facilities in any of the sections of the bill, which is what the states have done and it’s worked very well,” Merkley said.
The Oregon senator is eager for a full Senate floor vote on ENDA once the bill is moved out of committee, saying, “I think it’s time for every senator to have to take a position on this.”
“We have senators who have been silent on where they stand,” Merkley said. “We have other senators who may have been recognizing they have been hesitant before, but really there’s a hugely compelling principle at stake here: that of equal opportunity to be a full participant in our economy. It’s only right and just that people not be discriminated against in employment.”
And Merkley was bullish about reaching the 60-vote threshold in the Senate to end a filibuster on the legislation in the wake of additional senators coming out in support of marriage equality.
“I think I was the ninth,” Merkley said. “Now there are over 50. That’s a huge transformation in four years. I can’t imagine that anyone who is supportive of marriage equality wouldn’t also fully be there on non-discrimination.”
All eyes will be one of those lawmakers in particular, Sen. Rob Portman (R-Ohio), who came out in favor of marriage equality after learning that his son is gay. Merkley said he’s spoken to Portman about ENDA, as well as other Republican senators, but wouldn’t divulge what the response was in these conversations.
“I’ve lobbied him and let him know I’m going to bring him back the details and work with him, and he acknowledged it,” Merkley said. “So, he’ll have to choose his own moment of what he says to the public.”
Asked whether ENDA stands a better chance at becoming law now than it did in the 112th Congress, Merkley replied, “Yes, society is way ahead of Congress. The attitudes in state after state are changing. Certainly the conversations regarding marriage equality have changed.”
As Merkley lobbies his colleagues on ENDA, the senator said he doesn’t think pressure from the White House would be useful to move forward with the legislation. Groups like Freedom to Work have been asking President Obama to call publicly for a floor vote and lobby senators on ENDA.
“I’m not sure that that’s helpful,” Merkley said. “We have the business community on board, we have commerce, we have the majority of Fortune 500 companies. I think people hearing from their home state businesses that have recognized that this is the right and good thing to do is a very powerful voice — home state interest groups as well.”
Still, Merkley said he continues to want to see administrative action against LGBT workplace discrimination in the form of an executive order barring it among federal contractors. The senator has been one of the leading lawmakers on Capitol Hill calling for the directive.
“I’ve been encouraging the administration to do what they can within their own world, which is of government contractors in employment discrimination among the contractors,” Merkley said. “I think discrimination is so abhorrent that it should be ended through any means available. I’ll keep encouraging them to do that, but maybe we can pass this bill and get it to the president and accomplish it for the entire working world at once.”
The White House continues to say in response to questions about the executive order that it prefers a legislative approach to address the issue of LGBT workplace discrimination. Merkley said he’s received no indications that the administration is reconsidering its position.
“My impression is they’re not moving quickly in that area,” Merkley said.