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Harkin Promises Approval of Sexual Orientation Discrimination Legislation in 2010

November 6, 2009
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A pivotal senator on employment issues predicted congressional approval in 2010 of legislation that would ban workplace discrimination based on sexual orientation.

Although health care is dominating this year’s legislative calendar, Sen. Tom Harkin, D-Iowa and chairman of the Senate Health, Education, Labor and Pensions Committee, promised an Obama administration official at a hearing Thursday, November 5, that the Employment Non-Discrimination Act would get to President Barack Obama’s desk.

“We’re going to move this bill next year,” Harkin said to Tom Perez, assistant attorney general for civil rights. “I’ll see you at the bill signing.”

The measure would prohibit basing hiring, firing, promotion and compensation decisions on actual or perceived sexual orientation or gender identity.

Supporters assert that a federal bill is required because only 29 states have laws protecting gays and lesbians at a business operation.

The private sector is given generally high marks for recruiting and promoting people of all sexual orientations. Some in the business community, however, have raised concerns about the details of gender identity compliance.

Prospects for the bill’s passage are good because the Senate measure has 42 bipartisan co-sponsors—enough to overcome a filibuster.

A similar House bill has 189 co-sponsors. The House approved a version in the previous Congress that did not address transgender workers.

Now bill advocates are confident that they have enough support for gender identity, especially with a president who is poised to sign the bill.

“The Obama administration believes that ENDA must be the next step in the unfinished business of America, which is civil rights,” Perez said.

Employers are credited with being a step ahead of Congress on inclusive work environments. About 87 percent of Fortune 500 companies have sexual orientation policies and more than a third include gender identity.

Nike Inc., the giant athletic equipment maker, is one of 80 companies in the Business Coalition for Workplace Fairness, which supports the anti-discrimination bill.

“Our ability to continually innovate and positively influence as a global corporate citizen hinges on our ability to welcome diverse perspectives and ideas and to make an investment in all of our employees,” Virginia Nguyen, a member of the Nike diversity and inclusion team, said at the hearing.

But the Society for Human Resource Management and other business groups are cautious about ENDA because of what they see as ambiguous gender identity provisions.

Camille Olson, a partner at Seyfarth Shaw in Chicago, told the Senate panel that the bill is unclear about whether or how a company must modify restrooms, showers and other shared facilities for transgender employees.

Nike has not experienced accommodation problems, according to Nguyen. Workers use facilities that correspond to their gender identity, not their birth gender, and there are “private areas” in restrooms and locker rooms.

In an interview, Olson said that members of Congress are listening to her concerns.

“The philosophy that I’ve heard expressed by people who are involved is one of adding more clarity so that if [the bill] is implemented, we’re not wasting resources on questions about what does it mean,” Olson said.

—Mark Schoeff Jr.

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