Sponsors Seek More Democratic Support for Sexual Orientation Bill

So far in the Democratic-controlled Congress, employment-law bills roll through the House and then get stuck in the Senate, where Republicans have a large enough minority to block legislation.

But a measure that would ban workplace discrimination based on sexual orientation is being held up because it lacks enough support in the House.

The Employment Nondiscrimination Act (ENDA) received a hearing in the House Education and Labor Committee in September. On Tuesday, October 2, the panel was scheduled to vote on the bill.

That action, and consideration on the House floor, has been postponed because sponsors have not yet brought enough of their Democratic colleagues on board.

In addition, a few Republicans have co-sponsored the bill, which would prohibit workplace discrimination against gay, lesbian, bisexual and transgender people. It also would protect those who have changed their gender identity.

That provision may be causing misgivings among Democrats seeking re-election in conservative districts next year. It also prompts fears among employment lawyers that it will subject businesses to new kinds of lawsuits.

Rep. Barney Frank, D-Massachusetts and author of the original bill, introduced a streamlined version September 27 that removed the gender identity provision. The issue was addressed in separate legislation.

“We did not believe the votes were there for a gender-identity ENDA bill,” says Steve Adamske, Frank’s spokesman.

On September 28, House Speaker Nancy Pelosi issued a statement saying she supported including gender identity but that “the new ENDA legislation proposed by Congressman Frank has the best prospects for success on the House floor.”

That spurred a backlash by many gay, lesbian, bisexual and transgender groups. So, on Monday, October 1, Pelosi, Frank and Reps. Tammy Baldwin, D-Wisconsin, and George Miller, D-California and chairman of the House labor committee, issued a statement saying the October 2 committee vote is postponed until later this month.

“This schedule will allow proponents of the legislation to continue their discussion with members in the interest of passing the broadest possible bill,” they said.

The business community, however, prefers the streamlined approach. Michael Eastman, executive director of labor law policy at the U.S. Chamber of Commerce, stressed that his organization has not taken a position on gender identity.

And it’s not necessarily endorsing the alternative version. “We plan to be neutral on the narrower bill,” he says.

But the new version assuages business concerns about the original bill, including its potential to erode federal employment-law pre-emption, broaden whistle-blower protections and foster disparate-impact lawsuits, according to Eastman.

“We feel comfortable that the narrower bill would limit opportunities for frivolous litigation and difficult implementation,” he says.

Rather than flatly opposing the legislation at the outset, the chamber is trying to help shape it. One reason the group is taking a cautious approach may be that 46 large companies, including such corporations as Cisco Systems, Coca-Cola, Marriott International, BP America and NCR, are backing the bill. Along with the vast majority of the Fortune 500, they already have inclusive employment practices in place.

But during a House hearing on the legislation in early September, the first business community opposition started to emerge. Employment lawyers raised concerns that it would create a new protected class for gender identity.

Mark Fahleson, an employment lawyer with the firm of Rembolt Ludtke in Lincoln, Nebraska, asserted that the definition was vague and too broad, allowing employees to declare a change in their gender identity at will without giving the employer advance notice to prepare for such a change in the workplace. The bill requires that companies provide shower or dressing facilities to accommodate actual or perceived gender.

Even though most major employers welcome homosexuals, they are doing so through voluntary policies. A statute would codify a particular approach for companies to follow and would burden small firms that don’t have the HR and legal staffs to manage compliance, according to Fahleson.

“This would put into law definitions and procedures and remedial schemes that include litigation,” Fahleson says.

Advocates, however, stress that the measure simply extends to homosexuals the same protections that have been put in place for women, minorities and ethnic groups the past 40 years. Currently, an employee can be fired for sexual orientation in 31 states and for gender identity in 39.

Food giant General Mills is one of the large corporations going to bat for the measure. It argues that companies can’t exclude any groups in the search for outstanding employees.

“A culture of respect and inclusiveness is important for retaining top talent and recruiting new stars,” Kelly Baker, vice president for diversity at the company, said at the House hearing. “We believe fundamentally that diversity drives creativity and innovation and links to our success.”

The company is not supporting the anti-discrimination bill as a way directly to improve its bottom line. Rather, it takes an altruistic, perhaps even patriotic, approach.

“It’s the right thing to do for American citizens,” Baker says.
Such sentiment bolsters the confidence of the measure’s sponsors. “One way or the other, we’re going to pass an historic ENDA this Congress,” Adamske says.