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| Tom Perez, the assistant attorney general for the U.S. Justice Department's civil rights division, called the passage of ENDA "a top legislative priority for the Obama administration." (Blade photo by Michael Key) | |
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By CHRIS JOHNSON, Washington Blade
Nov 5 2009, 7:17 PM |
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A Senate hearing Thursday for the Employment Non-Discrimination Act alternated between tales of discrimination and wrangling over the bill's exemptions for religious groups.
The Senate Health, Education, Labor & Pensions Committee heard testimony on the bill that would bar job bias throughout the country against LGBT people in the workforce. It was the first Senate hearing on ENDA since 2002.
Sen. Jeff Merkley (D-Ore.), the sponsor of the legislation in the Senate, said during the hearing that ENDA is necessary to ensure equal opportunity for all Americans in the workforce.
"We are on the path to one of those struggles for human progress, for a struggle to have full equality under the law — full equal opportunity," he said. "There can never be equal opportunity as long we do not have equal opportunity for employment. Discrimination is simply wrong."
The bill, which has 42 co-sponsors, would bar discrimination in the public workforce based on sexual orientation and gender identity. Exempt from the bill are religious institutions, the U.S. armed forces, veterans' groups and businesses with fewer than 15 employees.
Sen. Tom Harkin (D-Iowa), chair of the committee, said ENDA was important to ensure "equal treatment for all," and noted the success many states and businesses have seen in adopting similar practices.
Twelve states have enacted laws barring discrimination in the workforce based on sexual orientation and gender identity, and another nine states bar discrimination on sexual orientation alone. Among businesses, 87 percent of Fortune 500 companies have non-discrimination policies for gays, while 41 percent have such policies for gays and transgender people.
"While these states and businesses provide important protections and should be commended, the harsh reality is that employers in most states in this country can still fire, refuse to hire or otherwise discriminate against individuals because of their sexual orientation or gender identity — and, shockingly, they can do so within the law," Harkin said.
Representing the Obama administration's support for ENDA was Tom Perez, the recently Senate-confirmed assistant attorney general for the U.S. Justice Department's civil rights division. Perez called the passage of ENDA "a top legislative priority for the Obama administration."
"We have come too far in our struggle for equal justice under the law to remain silent or stoic when our LGBT brothers and sisters are still being mistreated and ostracized for reasons that have absolutely nothing to do with their skills or abilities, and everything to do with myths, stereotypes, fear of the unknown and prejudice," he said.
Perez said he often, as a Justice Department worker, has had the "horrible feeling" of telling LGBT people who've been discriminated against in their jobs that they have no recourse of action under the law.
Harkin said during the hearing that he's expecting to move the legislation out of committee sometime next year.
At a press conference before the hearing, Merkley said he's expecting the Senate to act on the legislation in the spring.
In the House, Rep. Barney Frank (D-Mass.), who's gay, is the sponsor of companion legislation, which has 189 co-sponsors. The House Education & Labor Committee held a hearing on the legislation in September. A markup is expected soon, but not yet scheduled.
Mara Keisling, executive director of the National Center for Transgender Equality, told the Blade after the hearing that the event was "absolutely" effective in building momentum to pass ENDA.
"Compared to the hearing in 2002, the language was more inclusive, obviously the bill is more inclusive, and the senators get the issue better," she said. "This is part of the momentum that's building to get this to the president's desk."
No Republican committee member attended the hearing. Michael Mahaffey, spokesperson for Sen. Mike Enzi (R-Wyo.), ranking member of the committee, said Enzi was unable to attend "due to scheduling conflicts," but would review submitted written testimony. Mahaffey noted that he couldn't speak for other GOP senators on the panel.
Keisling she said wished Republican lawmakers had attended, noting usually at least one or two GOP lawmakers attend hearings related to LGBT issues.
"I think I'd be pretty angry if I was one of the Republican witnesses and there were no Republican senators asking me questions from that side of aisle," she said. "But for whatever reason, they felt they didn't need to learn."
The Democrats at the hearing were supportive of the legislation. Sen. Al Franken (D-Minn.) said the importance of passing ENDA for LGBT people became apparent to him as reviewing witness testimony the previous night.
"You can be a hard worker, you can show up on time, get exemplary performance reviews, but your boss discovers or suspects that you're gay or transgendered — they can fire you and there's nothing you can do about it," he said.
Franken said his kids grew up reading in history books about a time when firing or refusing to hire blacks and women was legal.
"I hope that my future grandkids will only read about when it was legal to fire someone because they're gay or transgender," he said. "I don't want them to actually to see it. I want them to ask me, 'What were people thinking?'"
Sen. Bob Casey (D-Pa.) said the "fundamental argument" for the passage of ENDA is "basic justice," but added the legislation also would help with business development throughout the country.
"We've seen that, I believe, in our history when we've passed civil rights legislation," he said. "Even in the midst of tremendous opposition and conflict about it, we know what civil rights legislation has done to economically empower the South."
Also absent from the hearing were any transgender people on the witness panels. The witness representing discrimination faced by LGBT people was Michael Carney, who's gay and a police officer for the Springfield Police Department in Massachusetts.
Carney said he lived in the closet during his first seven years on the force, but suffered severe mental anguish, and resigned in 1989 as an officer. After coming out, he reapplied for a position in the force, but was repeatedly denied a job. He filed a lawsuit with the state of and was reinstated in the force in 1994.
"I'm a good cop, but I lost two-and-a-half years of my life fighting to get my job because I'm gay," he said.
While no transgender witnesses were on the panel, two transgender people appeared at the press conference prior to the hearing.
One of the speakers, Earline Budd, a transgender D.C. resident, said she faced pressure in her job in the 1980s after the Washington Post published an article describing her as transgender.
"Once the agency representatives reviewed the article and it circulated throughout the agency … my supervisor and I were both called to the board room to meet with the board of directors," she said. "Shortly thereafter, I decided to resign my position, which carried a reasonable salary. I became homeless and ultimately contracted HIV."
Budd didn't identify the employer during the conference, but said the company "today serves a leader in the fight for transgender people." Now an employee at Transgender Health Empowerment, Budd said there's still a need for ENDA for transgender people.
"Many of the transgender women say they can't get a job because of the widespread discrimination by employers, and survival is solicitation and shoplifting," she said.
Keisling said the lack of transgender witnesses at the hearing was "of concern" and that she had recommended otherwise, but still felt the hearing was productive.
"We have a lot of education to do and this would have been a really good opportunity to do that, but some of the senators did include stories of transgender discrimination," she said. "And that's less and less mysterious to even the most anti-LGBT equality senators."
Historically, the inclusion of transgender people in ENDA has been a sensitive issue. Frank came under fire in 2007 when he moved a version of ENDA stripped of gender identity protections. At the time, he said there were insufficient votes to pass more an inclusive bill.
But the situation appears different this year. Asked during the press conference whether there was discussion about removing gender identity language, Merkley replied succinctly, "No."
One concern addressed during the hearing was whether the enactment of ENDA would lead to a flood of discrimination lawsuits. Illinois Attorney General Lisa Madigan said her state has had a minimal amount of lawsuits since it amended its Human Rights Act in 2005 to protect LGBT people in the workforce.
Madigan said before the state law went into effect, Illinois expected roughly 10 percent of discrimination charges with its Department of Human Rights to be based on job bias against gays. Instead, since fiscal year 2006, between 2.06 and 3.79 percent of charges involve sexual orientation discrimination.
"The state has not been overwhelmed with the number of charges based upon sexual orientation filed with the Illinois Department of Human Rights," Madigan said in her testimony.
The bill's religious exemptions also were discussed at length. Craig Parshall, senior vice president and general counsel of the National Religious Broadcasters, argued that ENDA's religious exemptions were insufficient, and in some circumstances, businesses like Christian bookstores could be liable if they declined to hire an LGBT employee.
"We urge this committee not to jettison the rights of people of faith, turn them into lesser privileges, or reduce them to a mere miniature of the concept that our founders held," he said.
But Helen Norton, an associate law professor at the University of Colorado, disputed the notion that religious exemptions in ENDA weren't strong enough.
"With all due respect, Mr. Parshall is creating a problem that does not exist," she said. "The effect of ENDA, once it becomes enacted, means if a plaintiffs files a sexual orientation or gender identity discrimination claim against an institution that falls within that exemption — that plaintiff will lose on a motion to dismiss."
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