In the span of a short few years, the LGBT community has made tremendous strides that for decades seemed out of reach — ranging from “Don’t Ask, Don’t Tell” repeal to the advancement of marriage equality.
But even though it was initially a high priority for the LGBT community, passage of employment non-discrimination protections remains as elusive as ever — 40 years to the day that the late Rep. Bella Abzug introduced the first bill to advance those protections in the U.S. House.
Nonetheless, LGBT advocates working on passage of the Employment Non-Discrimination Act say enactment of the legislation is within reach amid other victories on marriage and gays in the military.
Christian Berle, legislative director for Freedom to Work, said the key to passing ENDA at this time is building Republican support for the legislation in the GOP-controlled House. The legislation has seven Republican co-sponsors: Reps. Ileana Ros-Lehtinen (Fla.), Charlie Dent (Pa.), Richard Hanna (N.Y.), Jon Runyan (N.J.), Mike Coffman (Colo.), Michael Grimm (N.Y.) and Chris Gibson (N.Y.).
“Freedom to Work has done lobby visits with more than 100 House Republican offices since the bipartisan Senate victory last year, and we’re finding open minds with Republican members of Congress and their staff in a way we would not have during ENDA’s early years,” Berle said. “I get the sense Republican Leadership is no longer actively whipping rank-and-file Republicans against ENDA, which is a change from decades past.”
Berle espoused the view expressed by so many other ENDA supporters — the White House, House Minority Leader Nancy Pelosi (D-Calif.), the Human Rights Campaign — that if the legislation were allowed to come to a vote now, it would have sufficient support to pass. House Speaker John Boehner (R-Ohio) has said he opposes ENDA when asked if it’ll come up for a vote.
But former Rep. Barney Frank, who was chief sponsor of ENDA before he retired, insisted that it would take a Democratic majority in both the House and the Senate — as well as a Democratic president — for the bill to become law.
Frank was also dismissive of the number of Republican co-sponsors of ENDA, saying it wouldn’t be enough to convince House Speaker John Boehner (R-Ohio) to move the bill forward.
“This is a fantasy that there can be Republican pressure on him to bring it up,” Frank said. “The last time it came up, we did get something like 20-something on passage, but only eight on the committee motion, which would have killed the bill…The Republicans are dead set against this.”
Frank asserted he’s heard that Republicans are telling Boehner not to bring up the legislation because “it’s a tough issue” for Republicans facing competition from more conservative opponents in their primaries. Frank said he’s unable to identify which Republicans are telling this to House leadership, but said it’s a common practice among lawmakers on Capitol Hill.
“It’s one of those things where they have to choose between alienating voters in the primary, or alienating them in November,” Frank said.
Nonetheless, ENDA has seen significant movement over the course of this Congress alone. Last year, the Senate voted 63-32 on a bipartisan basis to approve the legislation, marking the first time either chamber of Congress passed the bill with transgender protections.
Sen. Jeff Merkley (D-Ore.), chief sponsor of ENDA in the Senate, reflected on the progress the legislation has made in a statement as he considered the bill’s introduction 40 years ago.
“Forty years ago, Bella Abzug launched a courageous movement for equality and opportunity in Congress with the introduction of the Equality Act,” Merkley said. “Few would have anticipated that it would be two decades before the Employment Non-Discrimination Act was introduced in the Senate, and that it would be another 19 years before the Senate approved the Act. Last year, when the Senate voted to approve ENDA by a bipartisan, two-to-one margin, it was an emphatic declaration that it is way past time to end employment discrimination.”
Merkley also turned up pressure on the House Republicans, saying American citizens “who care about equality and opportunity” should encourage the U.S. House to immediately take up and pass this bill.
Just last week, the Human Rights Campaign Foundation published a study, titled “The Cost of the Closet and the Rewards of Inclusion,” that found 53 percent of LGBT employees nationwide are closeted on the job. Additionally, the study found one-fifth of LGBT workers have looked for a new job specifically because the current job environment wasn’t LGBT friendly, but 26 percent of LGBT workers have stayed in a job because the environment was accepting.
But there is a faction of the LGBT community that is unhappy with ENDA because the religious exemption is broader in ENDA than it is for other groups under current law. Others are unhappy with the bill because it pertains only to employment, unlike the bill that Abzug introduced 40 years ago, which covered housing and public accommodations.
Gay blogger Joe Jervis published an email on Tuesday from Matt Foreman, former head of the National Gay & Lesbian Task Force, who said, “It’s time to pull the plug on this essentially lifeless corpse and demand full equality under the federal civil rights statutes.”
Andrew Miller, a member of the grassroots group Queer Nation NY, was among those expressing dissatisfaction with the current version of ENDA because of its religious exemption and limited scope.
“The LGBT community deserves a comprehensive civil rights law, by the way, just like the ones that Chad [Griffin] and HRC are advocating for in Arkansas and Mississippi and Alabama,” Miller said. “It doesn’t make sense to us that they would advocate for comprehensive civil rights at the state level, but try to enact this piecemeal at the federal level.”
Miller said he believes the 64 senators who voted for ENDA and the more than 200 co-sponsors of the legislation in the House would also support a bill that includes housing and public accommodations, so he was baffled as to why HRC was pushing a more limited bill.
Fred Sainz, vice president of communications for HRC, paid tribute to the bill that Abzug introduced, calling her “a visionary leader,” but noted the current version of ENDA would provide crucial protections for LGBT people.
“No bill is perfect,” Sainz said. “And no bill encompasses every step that needs to be taken. However, House passage of ENDA would provide crucial protections for the millions of Americans who live in states like Alabama and Arkansas, Nebraska and North Carolina where there are no explicit state laws preventing them from being fired based on their sexual orientation or gender identity.”
Some LGBT advocates have said ENDA is more appropriate than amending Title VII. Other civil rights groups are wary of amending civil rights laws to include LGBT people because it would make Title VII seem too easy to change. Moreover, ENDA is purposely structured differently than Title VII to prohibit disparate impact claims, which if allowed for LGBT people could require companies to keep information on which employees are LGBT and which are not.
But as ENDA continues to languish in Congress, LGBT advocates are seeking out other means to protect the LGBT community from discrimination, such as via an executive order from President Obama.
After initially hesitating on the order, then backing it by signing a letter with other House members calling for the directive, then opposing it in an interview with the Huffington Post’s Michelangelo Signorile, Frank told the Washington Blade he thinks it’s time for Obama to sign the directive now that it’s clear Democrats won’t take back control of the House.
“I think he should do that,” Frank said. “The problem before was that I was worried about signing too many executive order. Signing this executive order isn’t going to have any negative impact. There was a time when, I think, he had to worry about signing executive orders. They’re already as mad at him as they can be over executive orders.”
With strong public support for ENDA, those pushing for the legislation continue to see a path forward. A poll published in September by TargetPoint Consulting found that 68 percent of voters support the bill (although a whopping 8 in 10 voters already believe the bill is law).
Rea Carey, executive director of the National Gay & Lesbian Task Force, said the support ENDA enjoys demonstrates that non-discrimationation is another example of the public embracing an idea the government has yet to achieve.
“ENDA has been around almost as long as the National Gay and Lesbian Task Force,” Carey said. “Forty years after it was introduced, the idea behind the legislation — that all LGBTQ people should be protected from discrimination at work — is so popular that most Americans think that it is already the law. So ENDA is a great example of where the public is way ahead of most of our lawmakers, especially those in the House who aren’t moving anything forward right now — even measures like this that would be well received by the public.”