ENDA – how the hearing went

by on September 24, 2009  •  In Congress, Employment law, ENDA

To cut to the chase: yesterday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. Special cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears.

The Committee staff did a superb job of preparing the Democratic members for the discussion. There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor.

A few comments on the two Republican witnesses:

> Virtually all of the discussion on possible problems with the bill centered on the testimony given by Camille Olson,a management side attorney with Seyfarth Shaw and a member of the policy subcommittee on equal employment opportunity of the Chamber of Commerce. In other words, she was representing employers. Her testimony was neither in support of or in opposition to ENDA, but was focused on raising potential objections to specific provisions in the bill. The main point of her testimony was that there is "ambiguity and uncertainty" in the bill at multiple points. Her issues included: whether ENDA will duplicate Title VII's cause of action for sex stereotyping, what changes employers will have to make regarding restroom use policies in order to avoid discriminating based on gender identity, whether ENDA will generate more attorneys fees awards for plaintiffs than Title VII does, and whether the explicit limitation of ENDA to disparate treatment claims really means that disparate impact claims are excluded. Acting EEOC Chair Stuart Ishimaru, testifying on behalf of the Obama administration, answered the last point by saying that, yes, there really is an exclusion, and I would direct the EEOC to not pursue any claims brought to it which fall into the category of disparate impact theories. But the other points generated a fair amount of discussion, and may show up in later phases of the legislative consideration of ENDA.

> The second witness sponsored by the R members was Craig Parshall, general counsel for the National Religious Broadcasters. He and Olson pretty much embodied the two wings of the Republican Party – the religious/social conservative wing and the business wing. By contrast to Olson, Parshall's testimony did not get much take-up or generate much discussion. This may be a result of so few Rs being there to pick up those themes. The tone of the committee and floor debates could well be very different from the tone of the hearing.  But it also struck me as perhaps auguring a new general attitude toward ENDA, of – more or less – morality, schmorality, let's keep our eyes on what's really important: insuring that this law doesn't cost employers too much.


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