WASHINGTON — The Hill took a sudden shift toward gay rights today as the Senate advanced a bill to prohibit workplace discrimination based on sexual orientation or gender identity.
But even if the timing came right in the middle of a budget battle and backlash over the failure of the Obamacare website, the Employment Non-Discrimination Act is not new to Congress. A version was last before the Senate in 1996, where the bill fell short of passage by just one vote.
This version, introduced in April by Sen. Jeff Merkley (D-Ore.), aims “to invoke congressional powers, including the powers to enforce the 14th Amendment to the Constitution, and to regulate interstate commerce pursuant to section 8 of article I of the Constitution, in order to prohibit employment discrimination on the bases of sexual orientation and gender identity.”
It would make it unlawful “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 or to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.”
In the religious protection section, it notes “this Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.”
Today ENDA passed the 60-vote threshold needed to advance to debate. The 61-30 vote included seven “ayes” from Republicans: Sens. Susan Collins (Maine), Kelly Ayotte (N.H.), Rob Portman (Ohio), Pat Toomey (Pa.), Dean Heller (Nev.), Mark Kirk (Ill.) and Orrin Hatch (Utah).
Final passage is expected later this week.
Among those speaking in favor of ENDA was Kirk, making his first floor speech since his January 2012 stroke.
“The Employment Non-Discrimination Act is about civil rights. In Illinois, we aspire to continue Abraham Lincoln’s legacy of fighting for liberty and human dignity. I measure myself against Senator Everett Dirksen, the Illinois fiscal conservative and social moderate whose passage of the Civil Rights Act in 1964 stood out as one of his best moments as a Republican leader,” Kirk said. “The fact that a majority of Fortune 500 companies already have taken steps to stop discrimination in the workplace highlights that our action is overdue.”
Senate Majority Leader Harry Reid (D-Nev.) said on the floor that “in 33 states, lesbian, gay, bisexual and transgender people can be fired or harassed just for being who they are.”
“West Virginia coal miner Sam Hall was terrorized by his coworkers for seven years because he was gay. Mr. Hall just wanted to make a living. But supervisors told him he would have to endure the persecution if he wanted to keep his job. West Virginia is one of 33 states with no protections against this type of oppression,” Reid said. “A patchwork of state laws that excludes tens of millions of American from basic protection from discrimination is simply not good enough.”
Democrats have been citing polls that indicate 4 out of 5 Americans believe such protections already exist under the law and 56 percent of Republican voters supporting ENDA.
White House press secretary Jay Carney said President Obama welcomed the “first step toward final passage” of ENDA.
“He has long supported an inclusive ENDA, which would establish lasting and comprehensive Federal protections against employment discrimination on the basis of sexual orientation or gender identity,” Carney said. “He thanks the lawmakers from both sides of the aisle who have stood up for America’s core values of fairness and equality, and looks forward to the Senate’s consideration of ENDA. He also encourages lawmakers to ensure that the legislation remains true to its goals as it is considered.”
This seems to allude to a fear of amendments proposed by those concerned about religious protections.
A handful of House Republicans have come out in support of ENDA thus far. In 2007, 35 Republicans backed a version of the bill.
House Speaker John Boehner (R-Ohio), though, may not bring it to the floor for a vote. “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” Boehner spokesman Michael Steel said in a statement.
A Boehner aide later stressed to the Huffington Post that the speaker’s position on ENDA is “not a new issue or a new position — it’s a longstanding position, and, frankly, not ‘news’ at all.”
“We have always believed this is covered by existing law,” the aide said.
The Family Research Council has dedicated an entire website to stopping ENDA, saying “ENDA is a ‘one size fits all’ solution to alleged discrimination that erases all marriage-based distinctions. It grants special rights to homosexuals while ignoring those of employers. The federal government should not force private businesses to abandon their moral principles.”
The FRC’s legislative arm claims the bill would “mandate the employment of homosexuals in inappropriate occupations” and “would approvingly bring private behavior considered immoral by many into the public square.”
Portman said that despite voting to move the bill forward, he had concerns “that ENDA could leave the door open for the government to discriminate” against religious groups.
“I am pleased that the bill’s authors have decided to allow a vote on my amendment to prevent retaliation against religious organizations. I am also pleased that the authors were willing to support my amendment to make other changes to the bill’s introductory section that highlight and explain the importance of religious liberty,” he said.
“In the workplace, people should be judged by their experience, qualifications, and job performance, not by their sexual orientation,” Portman added. “The basic purpose of ENDA is to help create a level playing field and ensure that employment opportunities are available to all.”