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Sexual Orientation Bias Bill Starts Moving Again

September 24, 2009
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A bill that would ban workplace discrimination based on sexual orientation has once again begun a legislative journey, this time carrying a controversial provision on gender identity that was dropped by the wayside in a previous Congress.

The Employment Non-Discrimination Act prohibits businesses with 15 or more employees and government agencies from using sexual orientation or gender identity to make employment decisions.

In 2007, the House approved the bill after the gender identity portion was excised. The amended measure also gained the support of the Society for Human Resource Management.

Rep. Barney Frank, D-Massachusetts and a champion of the measure, took out the gender identity provision in the previous iteration of the bill because otherwise he didn’t have the votes to get it through the House.

“I hope we will now,” he said at a Wednesday, September 23, hearing of the House Education and Labor Committee.

Democrats in the House strengthened their hand in the last election. They now have a commanding 256-177 majority. On the Senate side, there are 59 Democrats, pending the replacement of the late Sen. Edward Kennedy in Massachusetts.

When they reach 60, Senate Democrats will be able to overcome Republican filibusters. In 2007, Republicans had enough senators to block the sexual discrimination bill. In addition, President George W. Bush threatened to veto it. President Barack Obama has vowed to sign the measure if it gets to his desk.

Supporters say the bill would end the fear that people have of being fired because of their sexual orientation. They point to the fact that 38 states do not have laws banning such discrimination.

But the business community is leery of how the gender identity protection would be implemented in the workplace.

Camille Olson, a partner at Seyfarth Shaw in Chicago, testified that the bill is ambiguous about standards that companies with transgender workers must meet for “shared facilities,” which could include dressing rooms and restrooms. She also said that it is unclear whether companies would have to modify offices and production centers.

SHRM has not taken a position on this year’s version of the bill because it is trying to figure out what the impact will be on HR professionals.

“The inclusion of gender identity makes the legislation more complicated for everyone,” said Michael Layman, SHRM manager for labor and employment. “Any sort of employment discrimination law can lead to consequences that affect how business operates on a practical, day-to-day basis.”

Layman and others in the business community emphasize that employers have a strong record on sexual orientation diversity.

The Corporate Equality Index 2010, sponsored by the Human Rights Campaign, says that 434 of the Fortune 500 companies have implemented nondiscrimination policies that include sexual orientation. Those policies extend to gender identity for 207 companies.

But advocates for the bill said that they are trying to help millions of gay, lesbian and transgender people who don’t work for the nation’s largest companies.

In her testimony, Rep. Tammy Baldwin, D-Wisconsin, cited a recent study by the American Civil Liberties Union that shows that one in four homosexual employees experiences discrimination on a weekly basis.

“They are harassed. They are fired. Or they are passed over,” she said.

Rep. George Miller, D-California and chair of the House labor committee, called a ban on sexual discrimination imperative for improving U.S. workplaces.

“If we do nothing, untold numbers of American workers will continue to go to work with the legitimate fear that they could be fired for nothing more than who they love or their gender identity,” Miller said.

The ranking Republican on the panel, Rep. John Kline of Minnesota, warned that the bill “creates an entirely new protected class that is vaguely defined and often subjective” and would lead to an “explosion in litigation.”

But Stuart Ishimaru, acting chairman of the Equal Employment Opportunity Commission, downplayed the fear that courts would be clogged with sexual orientation suits. He said that has not been the case in states that ban such discrimination and he expects the same result at the federal level.

“We don’t believe that the numbers will be extraordinary,” Ishimaru said.

—Mark Schoeff Jr. 

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