The Leadership Conference on Civil and Human Rights

Volume 9 Number 1

EMPLOYMENT NON-DISCRIMINATION ACT

After a near victory in the United States Senate in the 104th Congress, supporters of the Employment Non-Discrimination Act, a bill which would prohibit employment discrimination on the basis of sexual orientation, are optimistic about the possibility of enacting the anti-discrimination legislation in the 105th Congress. Winnie Stachelberg, Legislative Director of the Human Rights Campaign, noted, "The prospects for ENDA have improved markedly compared to two years ago...we begin the 105th Congress with 47 confirmed ENDA votes in the Senate" and "close to 150 votes for ENDA" in the House.

Still, supporters of the measure admit they face an uphill struggle to enact the legislation as simply getting a vote on the measure will prove difficult. During the 104th Congress, backers of the bill seized upon the opportunity presented by the Defense of Marriage Act to force a vote on the bill. Whether a similar "window of opportunity" will present itself in the 105th Congress remains to be seen. Also unclear as we went to press was whether an identical version of the bill would be introduced or wh ether minor technical changes would be made. Senators James Jeffords (R-VT) and Edward Kennedy (D-MA) are expected to introduce the legislation in the Senate however, it was unclear who will introduce the measure in the House.

A detailed legislative history of ENDA in the 104th Congress follows.

ENDA IN THE 104TH CONGRESS

In what civil rights leaders are proclaiming as a symbolic first step towards emancipating gay and lesbian Americans from legal discrimination, the Senate voted on ENDA on September 10, 1996. Although the measure was defeated, 49-50, the surprisingly narrow margin was regarded as a major victory by the bill's supporters.

"Few American people thought we would come this far, this fast," said Senator Edward Kennedy at a press conference following the vote. Senator Kennedy, who authored the anti-discrimination bill, assured its supporters that the vote was "really a victor y," adding, "I'm absolutely convinced this bill will be a first order of business in the next Congress."

Contributing to the significance of the near-victory was the presence of major civil rights leaders in the reception room just off the Senate floor at the time of the vote. AFL-CIO President, John Sweeney; President of the National Organization for Women , Patricia Ireland; and Dorothy I. Height, President of the National Conference of Negro Women and Chair of the Leadership Conference on Civil Rights were among the many civil rights advocates present for the vote. Their presence symbolized that freeing gays and lesbians from employment discrimination is widely accepted within the civil rights community as an unfinished battle in the historic struggle for equality before the law for all Americans.

Senator Kennedy explicitly noted the connection between the current fight to end workplace discrimination against homosexuals and past campaigns for African Americans when he read excerpts from a letter written to senators by Coretta Scott King which stat ed, "Lesbians and gays supported the African-American freedom struggle. None of us who achieved that freedom should turn our back on this next phase of the movement for freedom and dignity."

ENDA prohibits discrimination on the basis of an individual's sexual orientation in hiring, firing, promotions, compensation, and other employment decisions. Polls show that over 80 percent of Americans believe job discrimination based on sexual orientat ion is unfair, yet no federal law currently protects individuals from this kind of discrimination. In forty-one states across America, it is perfectly legal for individuals to be fired simply for being gay or lesbian.

The Senate vote was even closer than the 49-50 margin indicates. The only senator not voting was Senator David Pryor (D-AR) who was at the bedside of his seriously ill son. Senator Pryor had previously pledged his support for the bill. Had he voted in the affirmative, Vice President Al Gore, who was in Pennsylvania on the day of the vote, was poised to fly back to Washington to cast the tie-breaking vote in favor of ENDA. President Clinton and Vice President Gore were on the telephone lobbying undecid ed Senators right up to the floor vote. Even if the Senate had approved the measure, the likelihood of enacting ENDA into law was bleak as the bill faced formidable opposition in the House.

When ENDA was introduced in June of 1994, its supporters thought it was unlikely the bill would be considered in the Republican-controlled 104th Congress. However, when the Senate scheduled a vote on the anti-gay marriage bill known as the Defense of Mar riage Act (DOMA), civil rights leaders strategized that offering ENDA as an amendment would likely decrease the chances of passing DOMA significantly.

This strategy abruptly changed when Senate Majority Leader Trent Lott (R-MS) and Senator Kennedy exchanged procedural threats which hampered Senator Kennedy's ability to propose ENDA as an amendment to DOMA. Enraged at the Republicans' attempt to thwart the anti-discrimination bill, Senator Kennedy threatened to attach ENDA to every appropriations bill, effectively deadlocking the Senate through the end of the fiscal year. Facing a situation which would bring the Senate to a virtual standstill, Senator Lott agreed to a compromise giving Republicans a freestanding vote on DOMA and S enator Kennedy a freestanding vote on ENDA.

The compromise worked to the advantage of ENDA's supporters as many senators supportive of ENDA indicated they would be reluctant to vote for it as an amendment to DOMA. Speaking to the compromise that was worked out, Sen. Kennedy said, "This is the best way to do it. We didn't want it on DOMA, we wanted it as a freestanding bill. This is the way we wanted it." In the end, eight Republicans joined forty-one Democrats in voting for ENDA.

Opponents of the legislation argued ENDA would result in unnecessary lawsuits filed by employees against employers and that employers should have the right to refuse an applicant or dismiss an employee based on sexual activity. In the debate on the Senat e floor, opponents also suggested that religious values in the United States would be compromised if the bill were enacted despite the fact that ENDA explicitly exempts all religious corporations, associations, societies, and religiously affiliated educat ional institutions from its provisions.

Impassioned speeches were made by both supporters and opponents of ENDA on the Senate floor prior to the vote. Recognizing the critical importance of the vote, Senator Carol Moseley-Braun (D-IL) stated, "Americans should not be held back by conditions th at have nothing to do with merit, or talents and abilities . . . if there is any objective that should command complete American consensus, it is ensuring that every American has the chance to succeed -- and that, in the final analysis, is what this bill is about." Senator James Jeffords (R-VT), a lead sponsor of the measure in the Senate, noted, "...the feeling is when someone wants to work someplace, they ought to be able to get a job."

Majority Leader Trent Lott (R-MS) in his opposition to ENDA stated that a vote for ENDA would amount to the Federal Government endorsing a homosexual lifestyle. "Under ENDA, the antidiscrimination apparatus of the Federal Government...would treat sexual orientation like race. It would scrutinize employment practices, require remedial hiring or promotion, and treat negative attitudes in this area as workplace harassment."