Prohibiting Employment Discrimination Based on Sexual Orientation: Why A Federal Law is Needed
Leadership Conference on Civil Rights - August 1, 2001
The Employment Non-Discrimination Act (ENDA) is a proposed federal statute that prohibits employers from using an individual's sexual orientation as a basis for employment decisions, including hiring, firing, promotion, compensation, and other terms and conditions of employment. Like other federal anti-discrimination laws, ENDA provides a response to the need for comprehensive, uniform protections for employees who are subjected to discrimination based on a characteristic that has no bearing on the employee's ability to work.
The federal government has a long tradition of commitment to ensuring equal opportunities in the workplace. This commitment is manifest in the scope of protections that Congress has already extended through its passage of laws such as Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, and, most recently, the American with Disabilities Act of 1990. In passing these laws, Congress provided remedies for individuals who experienced discrimination in private employment because of, among other things, their race, religion, gender, pregnancy, age, or disability. The protections afforded by such statues exist because of Congress' recognition that there is a profound federal interest in achieving equal opportunities for all people.
Congress has often acted to pass such federal laws, even when some or all of the states have also prohibited racial discrimination. For example, several states had some form of civil rights law prohibiting racial discrimination in 1964. Yet Congress recognized the need for federal protection because of the large number of states that offered no protection against racial discrimination.
Even when all the states have had some form of anti-discrimination laws, Congress has correctly noted the need for a uniform, comprehensive federal law. For example, in 1990, every state had some version of a law prohibiting discrimination based on a person's disability. But those laws provided only a patchwork of protection because of gaps in their substantive coverage or weaknesses in their enforcement mechanisms. Congress enacted the Americans with Disabilities Act (ADA) expressly "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." The ADA provided uniform, comprehensive substantive protection ? fixing some of the substantive gaps in state laws ? and sent a clear message from Congress that discrimination based on disability would not be countenanced in this country.
The passage of ENDA would provide a similar response to discrimination previously unaddressed at the federal level. Only eleven states and the District of Columbia currently prohibit discrimination based on sexual orientation. Like the action of Congress in 1964, passage of ENDA would extend protection to those who live in states and localities that provide no protection against discrimination based on sexual orientation. Moreover, even if all 50 states had some form of anti-discrimination protection based on sexual orientation, Congress should still act for the same reasons it acted in passing the ADA. State laws invariably result in a patchwork of protections ? both substantively and with regard to enforcement. A federal law would provide uniform and comprehensive protection against discrimination and would send the message that such discrimination is un-American and unfair.
Civil rights have traditionally been considered a matter of national interest. As Congress understood over 100 years ago, when it passed the first civil rights laws against discrimination, uniform standards are needed to reinforce our national commitment to equality. ENDA provides an opportunity to establish that equality for all individuals regardless of their sexual orientation.
