The ABA reaffirmed its long tradition of actively opposing discrimination when it urged the Senate Committee on Health, Education, Labor & Pensions (HELP) last month to approve S. 811, the proposed Employment Non-Discrimination Act (ENDA).
“This legislation is urgently needed to protect lesbian, gay, bisexual and transgender (LBGT) employees from workplace discriminations,” ABA President Wm. T. (Bill) Robinson III wrote June 21 to committee Chair Tom Harkin (D-Iowa) and Ranking Member Michael B. Enzi (R-Wyo.). Robinson pointed out that despite the prevalence of discrimination against LGBT individuals, it remains legal in 29 states to fire someone because of his or her sexual orientation, and it is legal in 34 states to fire someone on the basis of gender identity.
“The ABA condemns such discrimination based on the association’s underlying commitment to the ideal of equal opportunity – that no person should be denied basic rights because of membership in a minority group,” Robinson wrote. “Employment, housing, and public accommodation decisions should be made only on the basis of individualized facts, not on the basis of presumptions arising from mere status.”
Robinson cited a 2007 report by the Williams Institute at UCLA that found that as many as 43 percent of lesbian, gay and bisexual employees have experienced discrimination in the workplace since the mid-1990s. In the largest survey of transgender people, 90 percent of the respondents reported having experienced harassment or mistreatment at work or had taken action to prevent it.
During a June 12 hearing on the legislation held by the HELP Committee, Samuel R. Bagenstos, professor of law at the University of Michigan Law School, testified that ENDA would extend to sexual orientation and gender identity discrimination the same basic legal structure that has applied to other forms of employment discrimination for nearly 50 years. He emphasized that the bill contains a number of limitations to sharply restrict the burdens it would impose on employers and would not provide a cause of action to challenge neutral employer practices that merely have a disparate impact on LGBT individuals.
M.V. Lee Badgett, research director of the UCLA Williams Institute as well as director of the Center for Public Policy and Administration at the University of Massachusetts Amherst, noted during the hearing that numerous studies from various academic disciplines suggest that LGBT workers will be healthier and more productive workers if they have legal protection from discrimination. She emphasized that many companies – including 86 percent of Fortune 500 companies – have voluntarily adopted nondiscrimination polices.
“Respected employees are productive and engaged employees,” according to Kenneth Charles, vice president for global diversity & inclusion for General Mills Inc. Charles, also testifying at the June 12 hearing, expressed his company’s support for ENDA and for any practice or public policy that encourages bringing diversity to the table.
The nondiscrimination policies at General Mills, he said, provide an environment where people of different backgrounds and lifestyles can grow and thrive.
“Discriminatory barriers to top talent just don’t make business sense,” he concluded.
Opponents of the legislation expressed concerns that the legislation’s religious exemption provisions, which would exempt any entity that is exempt from the religious discrimination provisions of Title VII of the Civil Rights Act of 1964, would be ineffective.
No further action has been scheduled on S. 811, which was sponsored by Sen. Jeff Merkley (D-Ore.) and 42 cosponsors. Rep. Barney Frank (D-Mass.) introduced identical legislation, H.R. 1397, in the House. That bill has garnered 165 co-sponsors.