Employment Non-Discrimination Act

The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.

ENDA has been introduced in every Congress since 1994 (except the 109th). Similar legislation has been introduced without passage since 1974. The bill gained its best chance at passing after the Democratic Party broke twelve years of Republican Congressional rule in the 2006 midterm elections. In 2007, gender identity protections were added to the legislation for the first time. Some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion and dropped it from the bill, which passed the House and then died in the Senate. President George W. Bush threatened to veto the measure. LGBT advocacy organizations and the LGBT community were divided over support of the modified bill.

In 2009, following Democratic gains in the 2008 elections, and after the divisiveness of the 2007 debate, Rep. Barney Frank introduced a transgender-inclusive version of ENDA. He introduced it again in 2011, and Sen. Jeff Merkley introduced it in the Senate. President Barack Obama supports the bill's passage.

Evidence of employment discrimination on the basis of sexual orientation and gender identity
In states that have anti-discrimination policies in place, LGB complaints are equivalent to the number of complaints filed based on sex and fewer than the number of complaints filed based on race.

The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government. Thirty percent of state and local LGBT employees live in California and New York. In comparison, LGB people make up only one half of one percent of state and local employees in Montana, North Dakota and Wyoming combined. This suggests that the need for policies to address discrimination may vary markedly from state to state. Surveys that seek to document discrimination on the basis of perceived sexual orientation and/or gender identity are often conducted with a pool of self identified LGBT people, making it difficult to ascertain the impact of this type of discrimination on non-LGBT individuals.

One source of evidence for hiring discrimination against openly gay men comes from a field experiment that sent two fictitious but realistic resumes to roughly 1,700 entry-level job openings. The two resumes were very similar in terms of the applicant's qualifications, but one resume for each opening mentioned that the applicant had been part of a gay organization in college. The results showed that applicants without the gay signal had an 11.5 percent chance of being called for an interview; openly gay applicants had only a 7.2 percent chance. The callback gap varied widely according to the location of the job. Most of the overall gap detected in the study was driven by the Southern and Midwestern states in the sample — Texas, Florida, and Ohio. The Western and Northeastern states in the sample (California, Nevada, Pennsylvania, and New York) had only small and statistically insignificant callback gaps.

Transgender people may experience higher rates of discrimination than the LGB population. A survey of transgender and gender non-conforming people conducted by the National Center for Transgender Equality found 90 percent of respondents experienced harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it. In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.

It is unclear whether LGBT individuals earn more or less than the general population. In a survey conducted by Harris Interactive, 38 percent of LGBT people report incomes less than $35,000, compared to 33 of all U.S. adults over age 18. Some organizations believe that no such gap exists, and that LGBT people may in fact have higher incomes than non-LGBT families. The American Family Association (AFA) argues that homosexuals as a class enjoy privileged, rather than disadvantaged, economic and cultural positions in society and that their household income is above average.

Provisions
The current version of the bill under consideration in Congress prohibits private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity. Religious organizations are provided an exception from this protection, similar to that found in the Civil Rights Act of 1964. Non-profit membership-only clubs, except labor unions, are similarly exempt.

All versions of the bill, irrespective of the military's changing policies with respect to service by open gays and lesbians, have provided an exclusion for the military as an employer of members of the armed forces, though not as an employer of civilians.

Since the 111th Congress, the legislation has included language to prevent any reading of the law as a modification of the federal definition of marriage established in the Defense of Marriage Act (1995). Since the 110th Congress, a related provision aimed at non-marital legal relations like civil unions and domestic partnerships prevents requiring an employer to treat unmarried and married couples similarly.

Legislative activity
On May 14, 1974, the fifth anniversary of the Stonewall Rebellion, Reps. Bella Abzug (D-NY) and Ed Koch (D-NY) introduced H.R. 14752, the "Gay Rights Bill", which would have added sexual orientation to the protected classes specified in the Civil Rights Act of 1964, prohibited discrimination in employment and access to public accommodations and facilities.

In the early 1990s, supporters of the legislation decided to focus on employment. Rep. Gerry Studds introduced the Employment Non-Discrimination Act on June 23, 1994. The legislation failed in 1994 and 1995. In 1996, the bill failed on a 49-50 vote in the Senate and was not voted on in the House. Its level of support in the Senate may have represented an attempt by some to compensate for their recent support of the Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same-sex marriages. These early versions of ENDA did not include provisions to protect transgender people from discrimination and ENDA was not introduced in the 109th Congress.

110th Congress
In the 110th United States Congress there were two versions of the bill, both of which provided employment protections similar to Title VII of the Civil Rights Act of 1964. Reps. Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce introduced H.R. 2015 on April 24, 2007. It included gender identity within its protections. It defined gender identity as "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." It allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."

When that bill died in committee, Frank introduced H.R. 3685 on September 27, 2007, which did not include gender identity and contained exemptions concerning employer dress codes. It was endorsed by the Education and Labor Committee on October 18 and the House of Representatives passed it on November 7, 2007, by a vote of 235 to 184, with 14 members not voting. Frank introduced a separate piece of legislation to prohibit discrimination in employment on the basis of gender identity.

Some LGBT activist organizations refused to support H.R. 3685 because of its failure to cover gender identity. An exception was the Human Rights Campaign, which received wide criticism from the LGBT community for supporting a non-inclusive ENDA. The LGBT activist organizations that refused to support H.R. 3685 argued that not including transgender people undermined the underlying principle of ENDA. They claimed that failure to include gender identity/expression weakened the protection for the portion of the gay population that most needed its protections: gender non-conforming gays, who they claimed are discriminated against in greater numbers than their gender-conforming compatriots. Others argued that this was ENDA's best chance of passing Congress in thirty years, that civil rights victories have historically been incremental, that concerns about the legislation's protections were unfounded, and that forgoing a chance to provide immediate workplace protections to millions of lesbians, gays and bisexuals was politically and morally wrong.

111th Congress
On June 24, 2009, Frank introduced H.R. 3017 to ban workplace discrimination based on sexual orientation and gender identity, with 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007." The lead Republican cosponsor was Rep. Ileana Ros-Lehtinen (R-FL). Republican Main Street Partnership members Mark Kirk (R-IL), Mike Castle (R-DE), Todd Russell Platts (R-PA), Judy Biggert (R-IL), and Leonard Lance (R-NJ) were among the original cosponsors. The bill was referred to the House Education and Labor Committee, which held a hearing on the legislation on September 23, 2009. At the end of the 111th Congress, H.R. 3017 had 203 cosponsors in the House.

On August 5, 2009, Sen. Jeff Merkley introduced ENDA legislation (S. 1584) that included gender identity, with 38 original cosponsors including Sens. Ted Kennedy (D-MA), Susan Collins (R-ME), Olympia Snowe (R-ME) and Chris Dodd (D-CT). Sen. Merkley said "It's certainly possible that this could be passed by year's end, though the (congressional) schedule is very crowded." As of March 13, 2010, S. 1584 had 45 co-sponsors and was pending before the Health, Education, Labor, and Pensions (HELP) Committee, which held a hearing on the legislation on November 5, 2009.

112th Congress
On April 6, 2011, Frank introduced an ENDA bill (H.R. 1397) in the House to ban workplace discrimination based on sexual orientation and gender identity.

On April 14, 2011, Sen. Jeff Merkley introduced an ENDA bill (S. 811) in the Senate. The bill had 39 original cosponsors. On June 19, 2012, the Senate Committee on Housing, Employment, Labor and Pensions held a hearing on the bill, which included the first testimony by a transgender witness.

Arguments in favor of ENDA
Most proponents of the law intend it to address cases where gay, lesbian, bisexual, and transgender employees have been discriminated against by their employers because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the United States Constitution's guarantees of equal protection and due process to all. Advocates argue that homosexuality is not a "choice" but a personal identity, a claim supported by the American Psychology Association (APA), and that all working people have a right to be judged by the quality of their work performance and not by completely unrelated factors. According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender. The APA also states that there is significant discrimination against homosexuals in the workforce. There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.

The Congressional Budget Office in 2002 estimated that the Equal Employment Opportunity Commission's complaint caseload would rise by 5 to 7% as a result of the proposed law. Assessments of the impact of comparable state policies also show a minimal impact on caseload. Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964, which has consistently been upheld by the courts.

Arguments in opposition to ENDA
Ed Vitagliano, director of research for the American Family Association (AFA), a conservative Christian organization, wrote in 2007 that there was "no real problem of discrimination against homosexuals." He expressed concern about the impact of anti-discrimination laws on religious organizations. He cited a lack of clarity around whether the narrow exemption would apply to support staff and lay employees in addition to churches and clergy. Consumer surveys show that self-identified gay individuals likely have higher incomes than the average US household, and ENDA opponents argue that many gay people hold positions of cultural influence as well.

Another conservative Christian group, the Traditional Values Coalition (TVC), claims that the legislation would have a negative impact on school children by eliminating schools' ability to avoid hiring against transgender teachers. The group claims that parents are not being adequately informed of the presence of transgender teachers in their children's classrooms. It argues that children should not be "subjected to a transgender man's bizarre sexual transformation", claiming that transgender individuals are "seriously mentally disturbed". The TVC argues that individuals cannot change their sex, even with surgery, and that it is impossible to transition from one sex to another.

Libertarians argue that laws against private sector discrimination are acts of coercion that infringe on employers' property rights and freedom of association.