Discussion the Employment Non-Discrimination Act - Research Paper Example

? Employment Non-Discrimination Act/ ENDA Introduction The Employment Non-Discrimination Act (ENDA), a proposed bill in the United s Congress aims at ending all discrimination that are based on ‘gender identity’ and ‘sexual orientation,’ against all employees by the employers (non-religious or civilians) of an organisation with more than 15 employees. This proposed act, if enacted, would modify the 1964 Civil Rights Act- Title VII and add the terms "gender identity” and "sexual orientation" to the list of characters that are protected from all forms of discrimination by the employers.  The ENDA bill has been introduced in all the US Congress Sessions in various forms (except once in 1994), since the 1970s, (Committee Reports 110th Congress (2007-2008), House Report 110-406 - Part 1 - Employment Non-Discrimination Act Of 2007). In 2009, after the Democrats came into power with a majority, House Representative Barney Frank, has reintroduced the ENDA that includes only the transgender class. With the recent changes in the Congress, the ENDA bill has gained new momentum, especially with the backing of President Barack Obama (The White House, Civil Rights- Strengthen Anti-Discrimination Laws, 2010), there are every prospects for the bill being passed within the present President’s term and becoming a law. Discussion What is this policy? The Employment Non Discrimination Act (ENDA) is a federal bill that aims to stop all forms of bias or discrimination based on the sexual orientation of the employees, by the employer. The LGBT community in US has been demanding workplace protection right from the 1970s; however, it is only recently that the bill that accords protection to the LGBT sections has been presented in the Senate. Though the ENDA bill was presented in the Congress in 2009, it is still pending and is under scrutiny by the House Education and Labour Committee. What does it purport to accomplish and why has it been proposed? This bill “promotes the goal of embracing diversity in the workplace.  Proponents also argue that sexual orientation is protected under the U.S. Constitution's guarantees of equal protection and due process.  Without a federal statute, victims of discrimination are subject to a patchwork of state law protections that provide uneven and often insufficient protection, hence the need for a national standard in the form of ENDA” (Aden, The Employment Non-Discrimination Act, 2010). The advocates of this bill opine that homosexuality is a form of an individual’s personal identity, and not a “choice,” so the working people have a right to be judged according to their work performance, and not by their personal identities (American Psychological Association, 2011).  The APA in its various researches has reported that there exists significant bias against homosexuals within the U.S. workforce (ibid), thus making it necessary that a uniform law is made that would cover the entire country. The political actors supporting this bill are the Democrats, and the current US President in the White House, Barack Obama, is a staunch supporter of the cause and the bill. The opponents of this bill (the Conservatives, and religious groups), and various critics contend that ‘antidiscrimination laws’ like the ENDA tend to promote a lack of tolerance that are based on religious faith. Thus, it has been proposed that if such acts do not have any associated meaningful exceptions, specially made keeping in mind the different religious organizations and employers (with organisations that are faith based), that may have objections towards homosexuality from a religious point of view, then the passing act would have a negative effect. “Without strong exemptions, religious organizations will be required, as a condition of seeking workers to carry out their faith-based missions, to affirm conduct that is in diametric opposition to the moral principles of their faith” (ibid).  The opponents of this act contend that this bill is different from other ‘established statutory protections,’ like the bills that give protection from gender and race bias in workplace. The ENDA that provides legal safeguarding for ‘sexual orientation’ invariably comes into conflicts with the ‘Right to free exercise and expression of religion,’ and also the ‘Right to believe.’ According to certain religious beliefs homosexuality is not permitted and is considered as a sinful act, thus protecting homosexuality would be in defiance of these religions. As the US Supreme Court comments, as regards protecting certain exclusive segments of the society from antidiscrimination laws "is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular ideas" (Boy Scouts v. Dale, 2000), so it is easy to understand that the act would not be favoured by many general Americans. A look at the present situation would show us that many U.S. companies are already providing protection and equal benefits and equal rights to its LGBT employees, as reported by the Human Rights groups.  Using a tool known as the Corporate Equality Index, the human rights group has found that 260 U.S. companies could be awarded a 100% rating (Corporate Equality Index, 2010). Besides, many of these companies also send their employees to take part in the “Out & Equal Regional Summit,” which is a conference that aims at helping the LGBT employees integrate better within a workplace environment. The ENDA bill in its recent version that is still under consideration by the Congress makes provisions that would prevent the private owners of various organisations having more than 15 employees, from discriminating on the basis of an individual’s sexual orientation. Here the various religious organizations are accorded a special leave from this protection, akin to the principles as seen in the Civil Rights Act. Similarly, we find that non-profit organisations are also given leave from following this act. The various forms of the bill between the 103rd through 108th Congresses: Though the first bill that was based on the issue of bias based on the sexual orientation of an individual was introduced in the US Congress in 1974, the first bill that used the title "Employment Non-Discrimination Act" was brought in as late as 1994. The bill could not be passed in 1994, 1995, and also in 1996, where it missed being enacted by a difference of only one vote. During this time period, the various versions of the ENDA act that was brought in front of the Congresses (103rd to the 108th) however did not have any provisions for protecting the LGBT people from bias. Until the next 109th Congress session in 2007, the various ENDA versions (103rd to 108th) provided that this act would not "apply to a religious organization." During the 109th Congress session, ENDA did not come up for discussion. In the 110th Congress in 2007, there were presented two versions of the ENDA bill: The bill version H.R. 2015, which was introduced on 24th April 2007 by the House Representatives Chris Shays, Barney Frank, Deborah Pryce and  Tammy Baldwin includes a protection factor for the LGBT within the workplace environment. The bill version H.R. 3685, which was introduced by the House Representative Frank, on the 27th September 2007, and later passed by the Education and Labor Committee on the 18th October 2007 did not include any protection for the LGBT in US workplaces under its purview. On 7th November 2007, the Senate, with 235 votes in support of the bill and 84 against it, passed the bill version H.R. 3685. Both the bill versions accorded workplace protections in similar lines to those outlined in of the Civil Rights Act of 1964 under "Title VII," (Civil Rights Act of 1964 - CRA - Title VII, 2008), but was specifically aimed at protecting the LGBT workers (under HR 2015). The only difference between the new bills and the Civil Rights Act of 1964 under "Title VII,” is that, the new bills had a provision for dispensation as regards the issue of dress codes at the workplace. The bill version of H.R. 2015 has given certain provisions for the LGBT segment, and aimed to protect them from harassment and bias at the workplace and included a specific delineation for the concept of the term ‘gender identity,’ as well as providing a leave from workplace dress codes and locker rooms. The term ‘gender identity’ under this bill was defined as "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth" (Eleveld, 2007). Under the bill H.R. 3685, the term "religious organizations," for the first time was given a clear delineation which included organisations in the form of: (I) A society, institution, or association that was religious in nature (II) Educational institutions, or any form of learning institutions where: (i) The particular learning institution is partly or wholly owned or controlled supported by any religious organisation (ii) The curriculum of the educational institution aims at propagating a specific religion (Aden, The Employment Non-Discrimination Act, 2010). The H.R. 2015 ENDA Act provided, in section 6 states: (a) “In General - This Act shall not apply to any of the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief. (b) Certain Employees - For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship. (c) Conformity to Religious Tenets- Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution, or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act” (Aden, The Employment Non-Discrimination Act, 2010). After H.R. 2015 failed to pass the Senate, Frank proposed the, H.R. 3685, which only safeguarded bias on sexual orientation in workplaces, thus prompting some of the LGBT activist organizations to withdraw support from this bill. Here the various activists groups claimed that leaving out the transgender people from the bill would undermine the fundamental principles of ENDA, which was based on the notions of the American love for equality. In addition, lack of a gender identity within the bill would endanger the large gay population within the US workplaces. During the 111th Congress session, we find that The Washington Blade reporting that on 17th June 2009 House Rep. Barney Frank had announced his plans to again introduce the ENDA bill (H.R. 2981), which would make provisions to include the term ‘gender identity’ and there would be included 4 Republicans along with the original bill supporters, with the chief Republican supporter being the House Rep. Ileana Ros-Lehtinen (Eleveld, 2009). In this context, the House Rep. Tammy Baldwin speaks of ground reality in US regarding the status of the LGBT people, and states “that the bill held special significance for two reasons. There are people across the country who live in jurisdictions where there are no protections -- whose very jobs are at risk," she said. In 30 states people can be fired simply for being gay, while transgender people can be fired in 38 states” (ibid). On June 24, 2009, we find that House Rep. Barney Frank introduced the ENDA act version H.R. 3017 that he claimed, would act towards banning all kinds of bias based on ‘sexual orientation and gender identity.’ He further added "the 2009 Employment Non-discrimination Act (ENDA) has 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007” (ibid). The original co-sponsors of the ENDA act included the Republican Main Street Partnership members, Todd Platts, Mark Kirk, Judy Biggert, Mike Castle, and Leonard Lance (Bill Summary & Status 110th Congress (2007 - 2008), H.R.2015 Cosponsors). Earlier, we find that House Rep. Frank in June 2009 had introduced the bill version H.R. 2981 with the same objective. The latest version H.R. 3017 is presently pending under scrutiny before the House Education and Labor Committee, while another hearing was held before this Committee on 23rd September 2009, as regards passing the bill. On 3rd March 2010, it was seen that the latest ENDA version, H.R. 3017 had a support of 192 Democrats and 6 Republicans (a total of 198 co-sponsors) (Bill Summary & Status 111th Congress (2009 - 2010), H.R.3017 Cosponsors). The latest version of ENDA (S. 1584) was introduced on 5th August 2009 to the House of Senate by Sen. Jeff Merkley, which was inclusive of the term gender identity, and it had 38 original cosponsors as its chief supporters. In this regards Sen. Merkley commented in The Advocate that though he not yet consulted with others, “it is certainly possible that this could be passed by year’s end, though the [congressional] schedule is very crowded” (Harmon, and Garcia, 2009). As of 13th March 2010, S. 1584 was also under scrutiny and pending before the Health, Education, Labor, and Pensions (HELP) Committee. Conclusion ENDA act, which is under scrutiny, even with the strong support the current US president Barack Obama is a controversial act that would indeed be difficult for the US Congress and Senate to pass with the term ‘gender identity’ included within its jurisdictions. The Act would transcend into a grey zone, where there are many barriers to the safeguarding of the LGBT in the workplace environment. Religious institutions vehemently oppose this act saying that, religions dictates do not permit the existence of the concept of homosexuality, and the US Supreme Court has also specifically pointed out that “[I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission” (Corporation of Presiding Bishop v. Amos, 1987). Various non profit religious organisations would undoubtedly contend that the ENDA act would be a very difficult burden to bear, thus, creating a dilemma for the courts. There is no doubt whatsoever, that once the act is passed and enforced, there would be many litigations filed in various courts, all over US, and knowing this, it would indeed be very difficult for the Senate and the Congress to actually pass the bill. References Aden, S. (2010). The Employment Non-Discrimination Act. Retrieved from, http://www.fed-soc.org/publications/pubid.1808/pub_detail.asp American Psychological Association. (2011). Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective. Retrieved from http://www.apa.org/pi/lgbt/resources/employment-nondiscrimination.aspx# Bill Summary & Status 110th Congress (2007 - 2008). H.R.2015 Cosponsors. Retrieved from, http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR02015:@@@N Bill Summary & Status 111th Congress (2009 - 2010).   H.R.3017 Cosponsors. Retrieved from, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR03017:@@@P Boy Scouts v. Dale, 530 U.S. 640, 647-48 (2000). Committee Reports 110th Congress (2007-2008). House Report 110-406 - Part 1 – Employment Non-Discrimination Act of 2007. Retrieved from http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp110&sid=cp110RHAit&refer=&r_n=hr406p1.110&item=&sel=TOC_3501& Corporate Equality Index 2011. (2010). Retrieved from, http://www.hrc.org/cei2011/index.html Civil Rights Act of 1964 - CRA - Title VII - Equal Employment Opportunities - 42 US Code Chapter 21. (2008). Retrieved from, http://finduslaw.com/civil_rights_act_of_1964_cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21 Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336 (1987). Eleveld , K. (2007). ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity. Retrieved from http://www.advocate.com/article.aspx?id=41128 Eleveld , K. (2009). Frank Introduces Trans-Inclusive ENDA. Retrieved from, http://www.advocate.com/article.aspx?id=83319 Harmon, A., and Michelle Garcia. (2009). ENDA Possible by Year's End. Retrieved from http://www.advocate.com/News/Daily_News/2009/08/04/ENDA_Possible_By_Year_s_End The White House. (2010) Civil Rights- Strengthen Anti-Discrimination Laws. Retrieved from, http://www.whitehouse.gov/issues/civil-rights/ Read More