Efforts to pass a non-discrimination law that protects LGBT workers dates back two decades to the 103rd Congress, when the then-Senate Labor and Human Resources Committee held the first hearing on the bill in 1994.
A version of the legislation has been introduced in every Congress except one since then, but it hasn’t gone much further than committee hearings. Although the House passed a bill in 2007 that stripped out protections for transgender workers, the measure later died in the Senate without action.
Perhaps nothing has hindered Congress from passing workplace discrimination legislation for LGBT employees more than the widespread misconception that such a law already exists.
“ENDA is a bill whose time is long overdue,” said Stacey Young, policy director of the National Gay and Lesbian Task Force. “The vast majority of Americans ... erroneously believe these protections are already in place.”
In reality, only 21 states and the District of Columbia have laws prohibiting discrimination in employment based on sexual orientation, according to a June report by the Movement Advancement Project. Transgender workers facing workplace discrimination may seek federal legal recourse by filing a complaint with the Equal Employment Opportunity Commission, but only 16 states and the District of Columbia explicitly prohibit discrimination based on gender identity or expression.
“We have been intentional in explaining the need for ENDA to people who live in places where there are city-level protections, state-level protections or corporate protections,” Young said, noting that 45 percent of the U.S. population is covered by state, city or corporate laws that protect LGBT workers from discrimination. “They don’t necessarily think about what would happen if they moved and those protections that they took for granted evaporated.”
Another hurdle for the bill as currently drafted is the inclusion of language that prohibits discrimination against “perceived” sexual orientation or gender identity, and “gender identity” in general. Opponents have argued that it creates an entirely new protected class that is often subjective.
“Attempting to legislate individual perceptions is truly uncharted territory, and it does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions,” said Rep. John Kline, R-Minn., the chairman of the Education and the Workforce Committee, during the last House hearing on the bill in 2009.
Religious and family-based organizations also oppose the bill over concerns that they may be forced to make hiring decisions not consistent with their faith and mission. While the legislation includes an exemption for those institutions, some still worry about how it would be applied.
The bill is gaining momentum in the Senate. It currently has 53 co-sponsors, including two Republicans: Sens. Mark S. Kirk of Illinois, one of the original co-sponsors, and Susan Collins of Maine. GOP Sens. Lisa Murkowski of Alaska and Orrin G. Hatch of Utah support the legislation but are not co-sponsors. During Wednesday’s committee vote, Kirk, Murkowski and Hatch were the only Republicans voting in favor.
Kirk and Collins said they expect more Republicans to support the proposal when Reid brings it to the floor. “We have a growing number of supporters for this legislation,” Kirk said. “The time has now come.”
“I’m optimistic that the bill will pass and that there will be bipartisan support,” Collins said.