By Brandon Clay Román

In 29 states it is legal to fire someone solely because they are lesbian, gay, or bisexual.  In 34 states it is legal to fire someone solely for being transgender.  To the contrary, there are only 16 states, along with the District of Columbia, that prohibit discrimination based on sexual orientation and gender identity.  In an effort to address these issues of discrimination against the Lesbian, Gay, Bisexual, and Transgender (LGBT) community, two bills that eventually would combine to become the Employment Non-Discrimination Act (ENDA) were introduced in April 2011 to the 112th Congress. Representative Barney Frank (D-MA) introduced H.R. 1397 on April 6th, while Senator Jeff Merkley (D- OR) introduced S. 811 on April 13th.

The recent bills do not mark the first Congressional effort to pass legislation dealing with employment discrimination based on one’s sexual orientation and gender identity. In fact, the legislative path ENDA has followed has been mired by debate and controversy.  The original version of ENDA was introduced in 1994 to the 103rd Congress (S. 2238 and H.R. 4636).  Although the bills had many co-sponsors, no action was taken and ENDA was reintroduced in 1995 to the 104th Congress (S. 932 and H.R. 1863).  During the first floor vote in 1996, the Senate rejected ENDA by a narrow margin of 50-49.  Since this time, ENDA has been introduced multiple times, yet a full version of the bill has yet to be passed.

In 1998, President Clinton issued Executive Order 13087, which prohibited discrimination based on sexual orientation in the federal civilian workforce.  After the President issued this Executive Order, however, it was not until 2007 that Congress attempted to take another step forward in preventing employment discrimination.  For the first time, the 2007 version of ENDA included protections for gender identity.  Despite this proposed expansion of protections for the LGBT community, the version of the bill that was introduced only included protections for sexual orientation, excluding protections for transgender people.  During its first floor vote, the House passed the sexual orientation portion of ENDA by a margin of 235-184.  The Senate, however, did not take up the bill, thus this version of ENDA did not become law.

When the most recent version of ENDA was introduced in 2011 to the 112th Congress, stories like the one that follows were made central to the debate:

“Linda, an attorney, relocated to Virginia when her partner accepted a faculty position at a university there. In August 2000, Linda was invited for a second interview at a Virginia law firm. During the interview, Linda was asked why she was moving to Virginia, and she replied that her spouse had taken a position at a local university. The law firm asked Linda to come back for a final interview, which would include a dinner with all the partners and their spouses “to make sure we all got along.” At that point, Linda told one of the partners at the law firm that her spouse was a woman. Soon after, Linda was told that the firm would not hire a lesbian and she should not bother coming to the third interview.” See

In addition, the bill is being framed as one that closely models current civil rights laws, including Title VII of the Civil Rights Act of 1964 and the American Disabilities Act.  Still, there is some strong opposition to ENDA.  The arguments against ENDA arise mostly out of religious and moral exceptions to the bill.  Legislators opposed to the bill are concerned about the potential impact that such legislation could have on religious organizations and small businesses.  The current version of ENDA, however, addresses these concerns by providing exemptions for religious organizations and employers with fewer than fifteen employees.  Further, in an effort to avoid having a disparate impact, ENDA would not apply retroactively.

Despite these concessions, passing ENDA still leads to a heated debate between its defenders and opponents.  Given that this is an election year, a vote on ENDA seems unlikely this term; instead, the next Congress will most likely have to take up the bill again.  Whether these protections come from ENDA, a presidential order, or some other source, one thing is clear: something is needed to afford all Americans, particularly members of the LGBT community, basic employment protections against irrational discrimination.


2011 CONG US HR 1397April 6, 2011

2011 CONG US HR 1397April 6, 2011