As the House prepares to take up the Employment Nondiscrimination Act on Wednesday, October 24, the White House announced its opposition to the bill, which would extend the same rights to gay, lesbian and bisexual people that exist for gender, race and ethnicity.
The measure prohibits employers from basing hiring, firing, promotion or compensation decisions on sexual orientation. Last week, the House Education and Labor Committee approved the bill, 27-21, mostly along party lines.
In its statement of policy, the White House criticized the bill for using “imprecise and subjective terms that would make interpretation, compliance and enforcement extremely difficult,” echoing concerns outlined by Republicans on the House committee who opposed the measure.
“For instance, the bill establishes liability for acting on ‘perceived’ sexual orientation, or ‘association’ with individuals of a particular sexual orientation,” the White House said. “If passed, [the bill] is virtually certain to encourage burdensome litigation beyond the cases that the bill is intended to reach.”
The administration also asserted that the bill would curb religious liberties because its exemptions for religious organizations are too weak. Other objections centered on the bill allowing the federal government to seek civil damages against state entities and on provisions that would “purport to give federal statutory significance to same-sex marriage rights under state law.”
Despite White House opposition, the bill is likely to win narrow House approval. That outcome was bolstered when Rep. Barney Frank, D-Massachusetts and the bill’s author, removed provisions from the original bill that would extend protections to transgender people.
A measure including that dimension would not have garnered enough support from conservative Democrats to achieve House approval. In failing to address transgender policy, however, the current bill will lose support from some liberals.
To assuage their resentment, a transgender amendment is likely to be offered during floor deliberations.
In some respects, corporations are ahead of this public policy debate. About 90 percent of Fortune 500 companies have inclusive employment policies that encompass sexual orientation. In addition, 46 big companies supported the original sexual orientation bill.
During last week’s committee action, Rep. George Miller, D-California and chairman of the House labor panel, praised large corporations such as General Mills, Cisco Systems, Kaiser Permanente, Microsoft, Citibank, Morgan Stanley and Time Warner for implementing inclusive employment policies that cover sexual orientation.
“While this is an encouraging trend, our entire workforce and our nation’s competitiveness will benefit from making sure that every state and all large workplaces are covered,” Miller said.
But the side of the aisle most often associated with big business is resisting the bill. “The legislation raises several complex questions about how it would impact employers, whether it would encroach on employee privacy, and how it comports with existing anti-discrimination statutes,” said Rep. Howard “Buck” McKeon, R-California and the labor panel’s highest-ranking Republican.
The U.S. Chamber of Commerce, the largest employer group in the nation, is neutral toward the bill. It does not take a position on gender identity.
Its concerns about the broader bill were addressed when language was removed that potentially would have allowed local governments to mandate that companies provide benefits for same-sex partners.
“Our approach has been to be sure that the bill provides appropriate protection without unintended consequences,” said Michael Eastman, the chamber’s executive director of labor law policy.
—Mark Schoeff Jr.