Employment Non-Discrimination Act introduced in the House of Representatives

Lead sponsor Barney Frank has introduced the new version of the Employment Non-Discrimination Act in the House of Representatives.  It is numbered HR 2981.  Ten co-sponsors are listed.  Anybody who wants a copy of the bill and doesn't want to search for it on-line, feel free to email me at arthur.leonard@nyls.edu and I'll shoot out the pdf file to you.

From a cursory examination, it appears to me that this is very much the minimalist employment discrimination bill we've been seeing more or less the same since 1993, the big difference being the inclusion of gender identity together with sexual orientation as prohibited grounds for discrimination.  The bill would outlaw disparate treatment on those bases, expressly eschewing any coverage for disparate impact cases.  Special provisions have been included dealing with issues such as restroom usage and dress requirements.  Employers are required to provide adequate restroom facilities for all employees, but not necessarily to allow preoperative transgendered individuals to use the restroom of their choice.  On the other hand, the bill states that it does not impose requirements on employers to construct new facilities.  It also eschews any affirmative action or quotas, and avoids the employee benefits issue by incorporating by reference the Defense of Marriage Act.

This minimalist approach dates from 1993, when the furious debates over the military policy -- which included many members of Congress stating that they opposed sexual orientation discrimination in the workplace, but were opposed to allowing openly gay people to serve in the military -- inspired a drastic revision of prior gay rights bills to focus narrowly on workplace disparate treatment in order to come up with a bill that might catch the votes of such individuals and their fellow-travelers.  In so doing, the bar for a national "gay rights" bill was drastically lowered, as prior bills had covered the full gamut of civil rights (workplace, housing, public accommodations, government services) and had extended to disparate impact as well as disparate treatment cases.  A bill along those lines suffered a narrow defeat in the Senate in 1996 when presented as part of a deal to bring the Defense of Marriage Act to a vote in that chamber without amendments. 

There is some question in my mind whether the bar having been lowered in 1993 in an unsuccessful attempt to capitalize on the potential support signalled by statements during the DADT debate, it was a good idea to keep the bar lowered in that fashion.  On the other hand, there is a pragmatic argument to be made that one is most likely to make progress by making incremental steps, and the current version of ENDA is more likely to win enactment than a broader bill.  It can provide the basis for future amendments to extend protection further, a step at a time.   Lead sponsor Barney Frank is a consummate legislative strategist and practitioner of the art of the achievable, so any complaints we might have about this bill -- such as the incorporation of DOMA to avoid the issue of employee benefits for same-sex couples -- should be weighed against the likelihood that including benefits in this bill instead of a stand-alone bill might well sink this one, especially in the midst of a recession when many employers are hurting and are about to be saddled with new financial obligations if the health insurance reform proposals go through.

On balance, HR 2981 is worth supporting.  The major LGBT organizations have issued calls for people to contact their members of Congress urging co-sponsorship.  I was surprised to see my Representative, Jerry Nadler, not listed, so I'll certainly be doing that.  At this writing, I don't know whether a companion bill has been introduced in the Senate....