ENDA Promises to Ban Employment Discrimination for Gays

August 1, 1995
A recent review of 20 surveys conducted across the country between 1980 and 1994 shows that between 16% and 44% of gay and lesbian respondents felt that they faced some kind of discrimination in employment, generally in the areas of hiring, firing, harassment, evaluation or promotion (U.S. Newswire). In a 1987 Wall Street Journal poll of Fortune 500 chief executives, 66% of the CEOs indicated that they would hesitate to give a management job to a homosexual person.

Do the gays and lesbians suffering this discrimination have legal recourse? No. Currently, it's perfectly legal to fire, demote or refuse to hire a person based on nothing more than his or her sexual orientation—there is no Federal law that prohibits discrimination against individuals in the workplace based on sexual orientation.

The Employment Non-Discrimination Act (ENDA—Senate 2238, House 4636), currently being debated by the U.S. Congress, would give gays, bisexuals and lesbians legal recourse to fight against employment— and workplace-related discrimination.

Here's a brief run-down of the Act's contents:

  • The core of ENDA prohibits an employer with 15 or more employees from using an individual's sexual orientation in making employment decisions, stressing that sexual orientation has no bearing on one's ability to contribute to the economic needs of society.
  • The bill also provides for meaningful and effective remedies for such discrimination, including reinstatement and punitive damages.
  • Section three of the bill protects against discrimination based on the sexual orientation of one's associates, while section four states that application of ENDA does not cover domestic-partner benefits.
  • Under ENDA, employers are expressly forbidden from implementing affirmative action programs or using quota or goal systems based on sexual orientation.
  • ENDA exempts religious organizations from the bill completely. However, church-run businesses are subject to ENDA regulations.
  • The bill doesn't affect current law on homosexuals and bisexuals in the military—that issue is being dealt with by other acts of Congress.
  • The requirement of filing claims with the Equal Employment Opportunity Commission (EEOC), the right of an individual to bring a private suit and the ability of an individual to receive injunctive relief and damages, up to the limits authorized by Title VII, are incorporated in Section nine. States can't claim immunity under the 11th Amendment of the Constitution.
  • Section 17 deals with what many consider a troublesome issue. It states that the Act shall take effect 60 days after the date of enactment. This gives the employer the opportunity to purge the organization's ranks of all homosexual employees. The concern here, however, is likely unwarranted, because many homosexuals will certainly stay "in the closet" for the 60 days until the Act takes effect.

A diverse network of groups supports ENDA.
Support for ENDA comes from a broad range of political, business, labor and civil rights groups.

  • Political support begins with ENDA's chief sponsor, Senator Edward Kennedy (D-Mass.), Chairperson of the Senate Committee on Labor and Human Resources. At present, Senator Kennedy is joined by 146 Congressional co-sponsors, with 30 Senators and 116 Representatives officially lending their support to the bill. Of the 146 sponsors, 136 are Democrats, nine are Republicans and one is Independent, showing the partisan political nature of the bill's support—a potential stumbling block to ENDA's enactment.
  • In addition, President Clinton has stated that should Congress pass ENDA, he will sign it into law. Thus, even though the President is not actively campaigning for ENDA, his declared agreement with the aims of the bill is a major source of support for the bill's sponsors.
  • ENDA has received endorsements from major corporations, including Xerox, Bankers Trust, Harley Davidson, Honeywell, Merrill Lynch, Microsoft, Dow Jones, RJR Nabisco and AT&T.
  • The ENDA bill has drawn almost universal support from organized labor, including the AFL-CIO, the Amalgamated Clothing and Textile Workers, American Federation of Teachers, American Association of Nurses, American Federation of State, County & Municipal Employees and the International Association of Fire Fighters (Human Rights Campaign Fund).
  • Many civil rights groups are in favor of ENDA, including the Leadership Conference on Civil Rights, U.S. Civil Rights Commission, Women's Legal Defense Fund, NOW Legal Defense & Education Fund, and Japanese American Citizens League. Particularly vocal are gay and lesbian groups, led by the Human Rights Campaign Fund, Lambda Legal Defense Fund, and the National Gay & Lesbian Task Force.
  • There has also been a somewhat surprising amount of support from religious groups, including the National Council of Churches, Anti-Defamation League, Disciples of Christ, Episcopal Church, Evangelical Lutheran Church, Union of American Hebrew Congregations, Unitarian Universalist Church and the United Methodist Church.

ENDA is backed by compelling arguments.
Senator Kennedy places the ENDA bill in the context of other Civil Rights legislation. During the Senate hearing on the bill, his opening comments focused on removing sexual orientation as a basis for job discrimination, in the same way that race, gender, religion, national origin, age and disabilities have been dealt with by previous legislation. The argument goes that because there's no evidence that sexual orientation has any significant relationship to job performance, it should be removed as a basis for negative selection decisions.

There also is an argument for consistency. Although certain cities, towns and counties have tried to deal with sexual-orientation discrimination, they all vary in the degree to which protection is offered and how an individual pursues a claim. If ENDA is enacted, it would mean that all workers would be subject to the same federal protection.

There also are two compelling economic reasons to outlaw discrimination based on sexual orientation. First, as businesses face greater competition, both domestically and globally, companies will have to ensure that they're recruiting the most qualified candidates available. In a sense, it's self-defeating for a company to deliberately cut itself off from a particular talent pool just because of misgivings about that group's lifestyle.

The second economic argument is based on the National Commission on Employment Policy's (NCEP) attempts to quantify the costs of discrimination on taxpayers, consumers and corporations. Taxpayers and corporations bear the cost for discrimination in that an estimated 42,000 gay workers are dismissed each year due to sexual orientation. This translates into a $47 million loss, in terms of training expenditures and unemployment benefits.

Groups against ENDA have their own arguments.
Opponents to ENDA aren't as numerous as the bill's proponents. In addition to Richard Epstein, author of "Forbidden Grounds: The Case Against Employment Discrimination," its most vocal adversaries include the Family Research Group, a conservative Washington think tank, and Joseph Broadus, a George Mason University law professor.

Epstein contends that civil rights laws in general are counterproductive. When a minority group is allowed to promote an agenda, he portends, it behaves as badly as the majority group that's supposedly discriminating against it.

Of course, some groups raise moral arguments also. Robert Knight of the Family Research Council and Broadus of George Mason University argue that ENDA would force employers to act against their consciences. Knight also notes that the religious exemption doesn't apply to church-run, for-profit businesses. Knight speaks for many individuals when he states that if the bill becomes law, for the first time in history Americans will be told that they must hire people they believe to be committing immoral acts precisely because they commit those acts. This interferes with freedom of association, freedom of speech and freedom of religion, he says.

Although there are many religious groups who favor the bill, there are many more who feel it would threaten the basic values they are trying to impart. As mentioned earlier, church-run businesses—such as children's summer camps, the Boy Scouts, bookstores, publishing houses, and television and radio stations—with 15 or more employees would have to comply with the legislation. This means that the message that religious institutions connected with these businesses send to their members regarding their position on homosexuality and bisexuality would be weakened.

ENDA's opponents also have their legal arguments. For one thing, many worry that a strict application of the act would end up creating informal quotas. In addition, many object to correlations drawn between ENDA and Title VII of the Civil Rights Act, believing that no one is born gay, that it's a lifestyle decision. Because this is an overt choice they made, there's no need to protect them from employment discrimination.

Opponents also cite recent education and employment figures to argue that the Act will result in special privileges for an elite group. The data show that homosexuals have above-average levels of education and income. Forty nine percent of homosexuals hold managerial or professional positions compared with 18% for the general population, and the average income for gay individuals is $36,000 per capita yearly versus $12,287 for the overall population.

ENDA teeters on the line of passage.
Will ENDA become law? It's difficult to say. Seventy-six percent of Americans support equal employment rights for homosexuals, according to the Human Rights Campaign Fund. However, despite this undercurrent of approval, the change in the composition of Congress would argue against its passage in the current session.

ENDA will, however, come to pass, just as other fair-employment legislation has before it. As in the case of earlier legislation in the area of employment discrimination, it will undergo an intense public and Congressional debate. The legislation will be rewritten and amended many times. Eventually its time will come and sexual orientation, for better or worse, will be added to the growing list of criteria removed from consideration in employment decisions.

The passage of ENDA would begin, but certainly not conclude, the process of protecting homosexuals from discrimination in the workplace. Legislation is only one tool for realizing change in society. Ultimately, perceptions and attitudes will have to be altered to achieve ENDA's aims. The passage of this legislation is a necessary first step.

Personnel Journal, August 1995, Vol. 74, No. 8, pp. 48-49.