The Push for ENDA Continues
The date is nearing for the Supreme Court to hand down its rulings on the Defense of Marriage Act and the Proposition 8 cases, and anticipation of a win for gay rights and federal recognition of same-sex relationships is believed to be on the horizon. Given the changing tide of public opinion in favor of same-sex marriage and in support of general equality, it would seem an appropriate time to tackle another area of day-to-day life that has been rife with discrimination for LGBTQ individuals for decades: the workplace.
The Employment Non-Discrimination Act was reintroduced in the 113th Congress in late April. Representatives Jared Polis, the openly gay Colorado Democrat, and Ileana Ros-Lehtinen, a Republican from Florida, brought the bill to the House. Democratic Senator Jeff Merkley of Oregon, and Senators Tammy Baldwin (D-WI), Susan Collins (R-ME) and Tom Harkin (D-IA) introduced the Senate version.
"The issue is one of fairness," said Congressman John Tierney (D) of the sixth Congressional District of Massachusetts. "LGBT people should have the same rights as others."
Proponents say anti-discrimination laws already are in place to protect people based on gender, religion, race and disability, thanks to Title VII of the Civil Rights Act of 1964, and want to extend the protection to cover sexual orientation and gender identity. They say this step is a logical move and one that would benefit both employers and LGBTQ employees.
"Employers can now recruit the best and brightest talent and people will feel safe in the workplace and able to be themselves. Literally no one loses," said Adam McQuade of GLAAD. He believes that the problem with getting ENDA passed is that people aren't hearing the full story about workplace discrimination.
"In 29 states it's legal to fire people based on sexual orientation. But you don't hear the story about people in those 29 states who have to hide, lie and stay closeted," said McQuade.
"Passing this as law is really important," agrees Mara Keisman, Executive Director of the National Center for Transgender Equality. "We need the law, we need the remedy, we need the ability for people to feel free about who they are."
Data from The Williams Institute on Sexual Orientation Law and Public Policy indicates that 15-43 percent of LGBT workers have experienced some form of discrimination on the job, while 12-30 percent of straight workers reported witnessing discrimination in the workforce based on sexual orientation. The figures are worse for transgender or gender variant people.
The National Transgender Discrimination Survey, which used responses from 6,450 participants, found that 90 percent of transgender or gender variant individuals reported being harassed or discriminated against at work. The unemployment rate for transgender individuals is double that of the general population, and for trans people of color it is four times the rate of the general population.
"This bill is not just needed to prevent people from being fired. It is needed to stop being scared, stop lying to coworkers, stop hiding and be free to be themselves," said McQuade. "And having protections for gender identity is absolutely crucial to having this bill passed."
The most recent public opinion polls by the Center for American Progress show that a vast majority of Americans (73 percent), despite party affiliation, age and religion, are in support of equality in the workplace and anti-discrimination protections for LGBT people. Additionally, almost 90 percent wrongly believe that universal protections already exist for LGBTQ people in the workplace.
This sentiment for equality is echoed in the fact that 88 percent of fortune 500 companies have now adopted their own inclusive non-discrimination policies to prevent LGBTQ inequity.
"It’s great that employers have stepped up," said Scott Squillace, Esq., of Boston-based Squillace & Associates. "But what’s the enforcement if they don’t follow that policy?"
"We have a long tradition of regulating labor and the workforce nationally and there is a long-standing basis in our law of protecting people."
But despite these vital cultural principles, there are still opponents of ENDA who are working hard to ensure it is dead on arrival. And with the division and fierce partisanship in Washington, there could be dire consequences.
"Right now because of the makeup of the House it has no chance there," said McQuade.
Though this may be a cynical view, it does seem to be the general consensus. In fact GovTrack.org, the government-transparency website, gives ENDA only a 3% chance of getting past Congressional Committee and on the floor for a vote, and a 0% chance of passing into law.
Opponents of the measure have been pushing to stop the equality-ensuring act from passing and have been successful, if you look at the House and their lack of response to this bill. Arguments have ranged from religion to the lack of necessity of protection for LGBTQ workers, to the assertion that being gay or transgender is not an immutable characteristic but rather a choice.
FightENDA.org claims that ENDA "grants special rights to homosexuals while ignoring those of employers." And the Family Policy Network says, "First and foremost, non-discrimination policies should be based on immutable or unobtrusive characteristics like gender or religion."
It is worth noting that ENDA has an exemption for religious organizations, schools, and corporations that is fairly broad. There is also an exemption for small businesses with less than 15 employees.
"The religion argument is pushing a hot button to get fear and panic so people oppose it," said Squillace. "And ENDA doesn’t force people to do anything. Employers still can hire and fire whoever they want, they just can’t discriminate."
Activists and pro-equality politicians are using all their muster to educate the public about the workplace discrimination faced by so many LGBTQ people around the country. Many hope that this heightened awareness will have a ripple effect in politics and the demand for equal rights. Congressman Tierney’s camp has circulated a petition to get Speaker Boehner to hold a vote on ENDA and the Center for Trans Equality will be holding a Lobby Day on June 17 to press this issue. High-profile politicians like Senate Majority Leader Harry Reid are coming out in support of ENDA, as well.
"While we’re not likely to see action in the House, we’re more likely to see action in Senate," said Keisling. "We need the vote in the Senate. More advancement in either chamber makes it easier to advance in the future."
"It’s hard," said Squillace. "It’s part of a macro Civil Rights movement and it’s a never ending battle. Some brave souls take on inequality and gain incremental wins."
To learn more about the Center for Transgender Equality Lobby Day, visit www.transequality.org