Passage of long sought federal legislation to bar discrimination against LGBT workers in the lame duck session is unlikely despite hopes the bill would pass before the year is out, according to Capitol Hill sources familiar with the bill.
The Employment Non-Discrimination Act passed last year in the Democratic-controlled Senate on a bipartisan basis by a 64-32 vote, but the Republican House never brought up the bill. A successful vote in that chamber would be all that’s necessary to deliver the bill to President Obama’s desk for his signature.
Hopes persisted the measure would move forward when the dust settled after Election Day, perhaps as a floor amendment in the Senate to the fiscal year 2015 defense authorization bill, but now that Republican gains flipped control of the chamber, even that method of getting ENDA to President Obama seems unlikely to succeed.
Two Senate aides familiar with the defense authorization bill, who spoke on condition of anonymity, told the Washington Blade that it’s unlikely the Senate will allow any floor amendments to the legislation — let alone pro-LGBT legislation that would prohibit employers from discriminating on the basis of sexual orientation and gender identity.
The idea of passing ENDA as an amendment to the defense authorization bill, a tactic that was employed in 2009 to pass the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act, was endorsed by Rep. Ileana Ros-Lehtinen (R-Fla.), an original co-sponsor of ENDA in the House, and pushed by the LGBT group Freedom to Work.
The office of outgoing Senate Majority Leader Harry Reid (D-Nev.) didn’t respond to multiple requests to comment on whether an ENDA amendment would be an option for the defense bill.
Rep. Mark Pocan (D-Wis.), who’s gay and one of the co-chairs of the LGBT Equality Caucus, said in an interview with the Washington Blade on Friday passage of ENDA as an amendment in the Senate to the defense authorization bill would be “definitely a path that I’d be supportive of,” but at the same time referred to the efforts as nothing but a rumor.
“I think it’s going to be hard,” Pocan said. “For most of the legislation, they’re going to wait until January when they have a Republican House and a Republican Senate. So, I think the lame duck session could be more lame than usual perhaps because of that, and I would be really surprised if much of substance especially around LGBT issues moves.”
The House already passed a $594 billion version of the defense authorization bill in May, so including ENDA as part of the larger legislation would require the Democratic-controlled Senate to attach the bill as an amendment on the floor. Focus would then move to the conference committee to see if the provision remains in place after it hashes out compromise legislation.
Ian Thompson, legislative representative for the American Civil Liberties Union, had a similarly dim view of prospects for ENDA passage in the lame duck session of Congress.
“I think there is no appetite among House Republicans to do so, particularly after their electoral gains earlier this month,” Thompson said. “In addition, I do not think we’ll see very many — if any — unrelated riders on the defense authorization bill this year. If anything, debate on that bill could become bogged down over demands for a vote on authorizing the use of force against ISIL.”
Any attempt to move the Senate-passed version of ENDA would likely be complicated by opposition from groups that have dropped support from the bill because of its religious exemption, such as the National LGBTQ Task Force and the ACLU. The language in the Senate-passed version of ENDA would allow religious-affiliated organizations to discriminate against LGBT workers in non-ministerial positions, unlike protections for other groups under Title VII of the Civil Rights Act of 1964.
Jerame Davis, executive director of the LGBT labor group Pride at Work, said the Senate would need to pass a version of ENDA with a narrower religious exemption as part of the defense authorization bill for his organization to support the measure.
“It’s not clear what language would be used in such a scenario,” Davis said. “Pride at Work would support language that is fully inclusive of both sexual orientation and gender identity and expression and that also contains no religious exemptions beyond what is already included in Title VII of the Civil Rights Act.”
That’s a tall order to fill given that lawmakers deemed the more expansive religious exemption necessary to obtain support from Republicans and conservative Democrats to meet the 60-vote threshold to overcome a filibuster in the Senate.
Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said his boss “supports adding the revised Polis bill” to the defense authorization bill in the Senate. Pelosi has affirmed the Senate-passed version of ENDA is better than nothing; Hammill said her position on that version of the legislation is unchanged.
“This legislation would pass in a heartbeat on its own in the House if Speaker Boehner would only allow a vote,” Hammill added.
With the defense authorization bill likely off the table as a means to pass ENDA, LGBT advocates who continue to support the Senate-passed bill nonetheless continue to push forward and lobby in hopes of a vote on standalone legislation in the House.
House Speaker John Boehner (R-Ohio) has said when asked if he’d bring up the legislation for a vote that he sees “no basis or no need” for the legislation because he believes workers are already protected and ENDA would lead to extraneous lawsuits — much to the consternation of LGBT advocates who say that information is inaccurate. At a meeting early this year with the LGBT Equality Caucus, Boehner said there’s “no way” the bill would come up for a vote during this session of Congress, according to Rep. Mark Takano (D-Calif.).
Michael Steele, a Boehner spokesperson, deferred on the possibility of an ENDA vote during lame duck to the office of House Majority Leader Kevin McCarthy (R-Calif.), which didn’t respond to a request for comment.
Nonetheless, a meeting between Log Cabin Republicans and Freedom to Work took place last week with Boehner’s staff in which ENDA was a topic, according to participants in the meeting.
Christian Berle, legislative director for Freedom to Work, said the meeting was part of the group’s efforts to meet with staff from each Republican office on ENDA.
“We have held numerous meetings with Speaker Boehner’s office and other members of Republican leadership, making the case that Congress should advance LGBT workplace protections,” Berle said. “We look forward to working closely with our allies, including Representatives Charlie Dent, Chris Gibson and Ileana Ros-Lehtinen to utilize every opportunity to bring ENDA up for a vote.”
Gregory Angelo, Log Cabin’s executive director, confirmed a meeting took place, but declined to comment further. Boehner’s office didn’t respond to a request for comment on the meeting.
Fred Sainz, vice president of communications for the Human Rights Campaign, also wasn’t willing to throw in the towel on ENDA.
“ENDA can still pass this year,” Sainz said. “All it takes is the House Republican leadership giving the green light. It’s not too late.”
Steve Elmendorf, a gay Democratic lobbyist, was succinct in his assessment of whether ENDA would pass this Congress. Asked if he sees a path toward passage, Elemendorf replied, “No.”
“There’s no chance for much of anything in the lame duck,” Elemendorf added. “Because it’s a shift in control and the president’s in all likelihood going to do this immigration executive order, the Republicans are not interested in doing much of anything in the lame duck. They don’t want to do an omnibus spending bill, they probably won’t do DOD. They’re going to pass a three-month [continuing resolution] in all likelihood and go home.”
Another option for passing ENDA is the discharge petition that has been filed for the legislation by Rep. Jared Polis (D-Colo.), which would require signatures from 218 House members to force a vote on the House floor.
Pride at Work’s Davis said the discharge petition is the best option to pass ENDA in the remaining days of the 113th Congress.
“The best solution would be for the House to adopt Congressman Jared Polis’ discharge petition, which not only forces the Senate-passed version of ENDA to the floor of the House for a vote, but also amends the Senate bill to remove the overly broad religious exemptions that have caused so much controversy,” Davis said.
The version of ENDA associated with the discharge petition has a religious exemption along the lines of Title VII of the Civil Rights Act of 1964. But the maneuver apparently stalled out after it was signed by only 190 House members — all Democrats. Republican supporters of ENDA have vowed not to sign the petition, including Ros-Lehtinen, who said through a spokesperson it’s a “partisan political tool.”
Among the ENDA supporters who haven’t signed the petition is Rep. Linda Sanchez (D-Calif.), even though a spokesperson said she’d sign it after lawmakers return from August recess.
With ENDA passage doubtful in lame duck and even more difficult in the next two years with Republican control of both chambers of Congress, LGBT advocates may have to look elsewhere for added LGBT non-discrimation workplace protections.
Those arenas include state legislatures and the courts, which have yet to determine that existing civil rights law under Title VII applies to workplace discrimination on the basis of sexual orientation as they and the U.S. Equal Employment Opportunity Commission have explicitly done for gender-identity discrimination. In July, President Obama signed an executive order barring LGBT workplace discrimination among federal contractors that is expected to take effect early next year.
Despite Republicans winning control of both chambers of Congress, Pocan was nonetheless unwilling to rule out passage next year, saying “there’s some promise” for ENDA.
“I certainly don’t want to see us flip back at all, but I think having…two major candidates who were out Republican hopefully means they’re willing to be a bit more inclusive and not just when they think they can pick up seats, but because they actually believe it,” Pocan said.
Much of the attention previously on ENDA will probably be refocused on a comprehensive bill expected to be introduced for the first time in the next Congress and include protections in employment, housing, federal programs, credit, education and public accommodations. It’s possible another version of ENDA with a more expansive religious exemption could be introduced alongside it by Republican lawmakers.
Elemendorf said more discussion is going to have to take place within the LGBT community over ENDA when Republicans control both chambers of Congress.
“You need to introduce a bill and you need to figure out what bill gets you the potential for a bipartisan vote,” Elemendorf said. “But I think it’s still too early to figure that out. This still happened two weeks ago.”
UPDATE: The article has been updated with an additional comment from a Pelosi spokesperson reaffirming her view that the Senate-passed version of ENDA is better than nothing.