After nearly a month of recess, Congress returned to Washington and did what most people doubted was within their capacity: began discussing critical issues. In the aftermath of the deployment of chemical weapons in Syria, Congress and the White House have been frantically, and publicly, searching for the “correct” course of action. Meanwhile, newly released documents chronicling the National Security Agency and its domestic surveillance policies are fanning what had previously been considered the dying embers of the Edward Snowden and Bradley Manning stories. The GOP has even found the time to prepare an assault on the tax subsidies for qualified unions under the Affordable Care Act. As a person who slaved away in Washington for the last three months, I can safely say that Congress has returned from recess in a fighting form. However, it is what Congress has failed to recommit itself to after their vacation that seriously troubles me.
On June 26 of this year, politicians and pundits on both sides heralded the actions of the Supreme Court as a major change in America’s position on gay marriage. Upon hearing the news that the Defense of Marriage Act was repealed and that Proposition 8 was struck down to lower courts (thus allowing California Governor Jerry Brown to order the resumption of same-sex marriage ceremonies just days later), many LGBTQ advocates rejoiced for two reasons. One, because the decisions guaranteed that same-sex couples gained recognition on the federal level and received those benefits granted to same-sex couples. But more importantly, advocates saw the decision as an indicator that the social and governmental climate around issues of sexual orientation were shifting, thus leaving the possibility for even more profound changes in the future.
One of the critical pieces of legislation that had gained significant ground due to the headwind of the June 26th decision was the latest iteration of the Employment Non-Discrimination Act (ENDA). Presented this year on April 25 by Senator Jeff Merkley (D-OR) and Congressman Jared Polis (D-CO), the bills largely languished in their respective subcommittees. Using past as prologue, few should be surprised that ENDA failed to be a priority for either subcommittee. The first attempt to pass a version of this bill was in 1994; attempts have been made in all but one term of Congress since then. It bares mention that no version of the Employment Non-Discrimination Act even made it to the floor of Congress until 2007, when it died in the Senate after House approval.
Just as the Congresses rejecting the various versions of ENDA have changed, so too has the bill itself. Initially, the Employment Non-Discrimination Act mandated that no employer or potential employer may impose different standards or discriminate against an employee based on sexual orientation. It also prevented the adoption of a quota or preferential hiring system that dealt with sexual orientation. Exemptions to these regulations were made for religious and military institutions. The bill, like the all those proposed prior to 2009, made no mention of gender identity or perceived sexual orientation.
While the latest form of ENDA maintains the exemption of religiously affiliated groups based on Title VII of the Civil Rights Act of 1964, this bill shows the movement’s tremendous growth in purview. Now the bill would protect employees from discrimination based on perceived or actual sexual orientation and gender identity. The bill would make it unlawful for employers of over 15 individuals to “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual because of such individual’s actual or perceived sexual orientation or gender identity.”
This draft of ENDA also makes significant strides in its discussion about individuals undergoing transition. The bill proposes that employers judge an employee’s dress and grooming standards applying to the gender that the employee associates with, has transitioned to, or is transitioning to, so long as the employee notifies their employer of said transition. These two provisions, along with many others prohibiting quotas, would be enforced with the same weight as title VII of the Civil Rights Act of 1964.
With a more progressive bent and the full weight of history against it, there appeared to be little hope for the bill when it was originally introduced. However, within days of the Court’s decisions ENDA found itself with 53 cosponsors. Moreover, the Senate-side versions of the bill, S. 815, no longer languished within the confines of the Senate Committee on Health, Education, Labor, and Pensions.
After other drafts of the bill died in the same subcommittee year after year, on July 10, ENDA passed the committee and was officially referred to the Senate floor. The details of its passage require explanation, as they are extremely indicative of why Congress must act now to pass this legislation. The 2013 version of ENDA passed by a vote of 15-7, with bipartisan support; three of the supporting votes came from Republican committee members.
Not only has this version of ENDA received bipartisan support in the Senate Committee, according to polling it also popular support. In a poll conducted by the Center for American Progress, 73 percent of Americans support protecting LGBT individuals from workplace discrimination, as well as 63 percent of small business owners. The poll suggests that 81 percent of Democrats, 66 percent of Republicans, and 74 percent of independents support workplace nondiscrimination laws that protect LGBT individuals.
The passage of The Employment Non-Discrimination Act would fundamentally change how members of the LGBTQ community are included into the workforce, and, by extension, the overall workplace dynamic. Under current regulations, 29 states fail to protect workers from being fired based on their sexual orientation, while 34 states have no legal protections for transgender individuals in the workplace. This bill has the potential to change the current employment opportunities of LGBTQ individuals, as well as set a more accepting precedent that future generation can expand upon. Additionally, unlike those criticisms frequently focused on the campaigning for same-sex marriage legislation, ENDA has the potential to improve a more diverse group of people; instead of only helping those with the means and inclination to get married, ENDA seeks to improve the prospects and working conditions of all members of the LGBTQ community.
Ian Thompson, a member of the legislative team for the American Civil Liberties Union, told the Huffington Post, “Advocates have been working for nearly 40 years to pass these basic protections to ensure that all American workers, who stand side-by-side in the workplace and contribute with equal measure in their jobs, will stand on the same equal footing under the law.”
Based on all the evidence, it would seem that Congress would not forget the new ENDA when it returned to Washington after Labor Day, and yet it seems it has. The Senate vote on ENDA was tentatively set for early September, a time that is quickly passing Congress by. While I acknowledge that the concerns about our national security and the tragic and senseless violence in Syria are important issues for Congress to deal with, the fate of The Employment Non-Discrimination Act of 2013 is also critical for our nation. Moreover, it is our job as citizens to ensure that this life-improving piece of legislation does not, after all of the momentum and history behind it, suffer the same crushing fate as its predecessors.
—Bethan Johnson ’15 is an English and History double major.