ENDA: All marked up and headed for the floor

by on July 10, 2013  •  In Congress, Employment law, ENDA
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In an almost perfunctory proceeding, the Senate Health Education Labor and Pensions Committee voted today to send S. 815  - aka the Employment NonDiscrimination Act –  to the Senate floor for a vote by the full body. It was the first meaningful Congressional action on ENDA since 2007, when a version passed the Houe that, unlike this iteration, did not prohibit discrimination based on gender identity. S. 815 would establish a national ban on discrimination in the workplace based on sexual orientation or gender identity for entities with 15 or more employees, unless they are affiliated with a religious organization.

Prior to the hearing, the bill was amended somewhat from an earlier version.  According to the Blade, the amendments included an explicit statement that disparate impact claims are not allowed; that a plaintiff cannot recover for the same offense under both Title VII of the Civil Rights Act and ENDA; and that an employer can amend an existing poster notifying employees of the non-discrimination policy, rather than creating a separate poster.

Committee members voted 15 to 7  to support the bill. All Democrats voted yes, as did three Republicans: Orrin Hatch (Utah); co-sponsor Mark Kirk (Illinois) and Lisa Murkowski (Alaska). The entire proceeding took roughly 15 minutes. Many Republican members were not present (they voted by proxy). As often happens, when members believe they have nothing to gain by public debate when the outcome is preordained, they just skipped the event. The big change in public opinion is evident from the fact that none of the conservatives wanted to demogogue the issue.

Senator Hatch noted that he supported the bill because all religious institutions were completely exempt from coverage. The analogous religious exemption in Title VII allows such groups to discriminate based on religion, but does not permit them to discriminate on a separate ground, such as race or sex, even if their acts are based on a religious belief.

The senior Republican on the committee, Lamar Alexander (Tennessee), announced the Republicans’ intention to offer three amendments during debate the floor. Two were related to gender identity: insistence that “shared facilities” and “transition” be more explicitly defined before a lawsuit could proceed.  The third was difficult to understand, since Alexander was paraphrasing rather than reading precise language, but it was explained as a provision that would eliminate the right to file a lawsuit if the employer offered a “good reason” why the discriminatory act had occurred. Some reports indicate that other Republicans may also propose amendments.

You can watch the entire proceeding here. If anyone has access to the exact language that the Republicans intend to propose as amendments – especially the third one – please write into the comments section below and enlighten us all.

Committee Chair Tom Harkin told reporters that the bill may come to the Senate floor after the Labor Day recess. 


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