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Friday, June 26, 2009

H.R. 3017, The Employment Non-Discrimination Act of 2009

H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), was introduced in the U.S. House of Representatives yesterday with 117 original co-sponsors. This bill would prohibit job discrimination across the United States that is motivated by sexual orientation or gender identity. It will significantly affect employers and employees in regard to these non-job-related criteria. The prospects for the bill’s passage in the House are considered very good, since 218 Representatives are neede for passage, and there are about 194 Representatives in favor as of the time of this writing. That leaves a gap of about 25 votes. However, with 95 of the Representatives yet to make their views known, 52 of which are Democrats, it is likely that work by advocates between now and the vote expected in the Fall, that those 25 votes will be secured.

According to Mara Keisling, head of the National Center for Transgender Equality, this bill has twice as many co-sponsors as the last time a bill was introduced on this subject in 2007. The Senate is considered a bit more difficult because of the fact that Senate constituencies are state-wide, and often include large groups of liberal, conservative and swing voters. However, with 59 Democrats in the Senate (60, if and when Al Franken of Minnesota is seated.), political observers suggest that it is probable the Senate will give it the green light. President Obama has stated that he will sign it.

Again, Social Networking in a Political Context
The campaign for ENDA is showing once again the potential of social networking in a political context, as it did during the 2008 election of President Obama. The Facebook campaign for “Inclusive ENDA” has over 2500 members, and uses introduces more refined political tools to a wider audience, such as a spreadsheet listing all U.S. Representatives and their positions available for public viewing. There is also quite a vigorous stream of Twitter traffic on the subject, which can be found by searching for #ENDA on Twitter. In fact, people are using Twitter to directly urge support for the bill to their U.S. Representatives who have a presence on Twitter. These and other sophisticated technologies are being used to allows the electorate to connect more directly with the legislators who will vote on the bill. For example, the Facebook group provides a service that allows those interested in passage of the bill to sign up for meetings scheduled with their U.S. Representatives in their local districts in August. The National Task Force, an LGBT group, is also providing a form that allows constituents to send a letter with the press of a button to their Representative. The ACLU has a similar form. The Task Force is also urging constituents to meet with their Representatives, providing contact information for Representatives’ district offices, along with sample meeting request letters, and other talking points and resources for those meetings in The Task Force ENDA Grassroots Toolkit, PFLAG's Bringing the Message Home, and a Visit Report Form to communicate with national organizers.

The Latest In A Long Series
Since 1975, 12 states and over 100 localities have enacted lesbian, gay, bisexual and transgender (LGBT)-inclusive employment nondiscrimination statutes and ordinances, now covering nearly 40 percent of Americans. As of February 2009, 85% of the 500 companies had implemented non-discrimination policies that include sexual orientation, and more than one-third had policies that include gender identity. The passage of ENDA would provide a federal standard instead of the current patchwork quilt of protections that vary from jurisdiction to jurisdiction. ENDA will provide for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Just as in Title VII, the bill specifically provides for a religious exemption, and does not apply to small businesses or the military. The full text of the bill can be viewed at the Library of Congress website. PFLAG (Parents and Friends of Lesbians and Gays), a national organization advocating for the bill, notes that, according to numerous surveys, over 60% of likely voters in the U.S. support an inclusive federal employment non-discrimination law. PFLAG also says that polling data from 2006 shows that voters are more likely to support a candidate who votes for an LGBT anti-discrimination law than they are to vote against such a candidate. PFLAG recommends that in preparation for the potential passage of ENDA, U.S. employers should review their nondiscrimination and non-harassment procedures and make sure they extend to their LGBT employees. so employers may consider redefining their workplace fairness procedures so that they meet the same high standards. It also suggests a review of bereavement leave policies, non-FMLA leave of absence policies, and employment of relatives policies, among others, to ensure that they provide similar provisions and protections for LGBT employees. More than 60 companies have joined the Human Rights Campaign’s Business Coalition for Workplace Fairness, a group of leading U.S. employers that support the Employment Non-Discrimination Act. The bill is also supported by many civil rights organizations that are not LGBT organizations, such as the National Black Justice Coalition. "This long-awaited legislation would call on members of congress to take a meaningful stand to end workplace discrimination" remarked Interim Executive Director Dr. Sylvia Rhue. "NBJC is working with congressional leaders to push for significant progress towards ending homophobia-based harassment and bigotry." The House Committee on Labor plans to hold hearings on the bill in July. Hearings were also held during the last iteration of the bill in 2007, specifically on the aspect of the bill relating to gender identity. These hearings can be viewed on YouTube, and provide useful insight into the need for gender identity protections.

The Path from Here
As noted above, there are 52 Democrats in the House in 24 states who are undecided on ENDA. There are also a number of Republicans who are undecided, but political observers suggest that these Democrats are the key to passage in the House. Advocates and opponents will be looking to these Members of Congress to decide whether the bill will be sent on to the Senate in the Fall. After the bill is voted on in the House, it will be introduced in the Senate. When the bill reaches the floor of the Senate and is approved by a majority of the Senate, it will go to President Obama for signature. President Obama has indicated that he would sign such a bill.

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