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# Legislative Bulletin.................................................November 6, 2007

**Contents:**

**H.R. 3685**---Employment Non-Discrimination Act of 2007

H.R. 3685---Employment Non-Discrimination Act of 2007

(*Franks, D-MA*)

**[Order of Business]{.underline}**: H.R. 3685 is scheduled to be
considered on Tuesday, November 6, 2007, subject to a structured rule
([H.Res.
793](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=3115))
that allows for ten or twenty minutes of debate on three amendments made
in order. The rule would waive all points of order against consideration
of the bill---except those for PAYGO and earmarks---and would waive all
points of order against the bill itself---except that for earmarks. The
rule would make in order one motion to recommit (with or without
instructions).

**[Summary]{.underline}**: H.R. 3685, the Employment Non-Discrimination
Act (ENDA), would prohibit employment discrimination against an
individual on the basis of actual or *perceived* sexual orientation by a
covered entity (see definitions). For more details on what the bill
would do, see the "Detailed Summary" and "Conservative Concerns"
sections below.

**[Detailed Summary of H.R. 3685]{.underline}**:

-   **Purpose.** ENDA makes "sexual orientation" a protected class
    status by providing a "comprehensive" federal prohibition of
    employment discrimination based on an individual's sexual
    orientation. Furthermore, ENDA is designed to provide "meaningful
    and effective" remedies for such employment discrimination, and
    explicitly invokes "congressional powers, including the powers to
    enforce the 14^th^ amendment to the Constitution, and to regulate
    interstate commerce and provide for the general welfare pursuant to
    section 8 or article I of the Constitution, in order to prohibit
    employment discrimination on the basis of sexual orientation."

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-   **Definitions.** H.R. 3685 defines a covered entity as an employer,
    employment agency, labor organization or joint labor-management
    committee. Employee is defined as any Presidential appointee, state
    employee, employee who falls under the Congressional Accountability
    Act of 1995 (this includes congressional staff), or any employee who
    falls under the Civil Rights Act of 1964. Makes an exception for an
    individual who is a volunteer and receives no compensation; yet H.R.
    3685 fails to define compensation, raising concerns among some that
    organizations, such as the boy scouts, would not be exempt from
    ENDA.

> H.R. 3685 defines employer as an individual with at least 15
> employees, an individual who qualifies as an employer under the
> Government Employee Rights Act of 1991, an employing office as defined
> by the Congressional Accountability Act of 1995 (i.e. a Congressional
> office), or any employer to whom the Civil Rights Act of 1964 applies.
>
> H.R. 3685 provides the following definition for religious
> organization, and provides exemptions for the following: "a religious
> corporation, association, or society"; "a school, college, university,
> or other educational institution or institution of learning" that "*is
> in whole or substantial part controlled, managed, owned, or supported
> by a particular religion, religious corporation, association or
> society, or the curriculum of the institution is directed toward the
> propagation of a particular religion"* (emphasis added)*.* Some
> conservatives may be concerned that this language does not properly
> address and protect non-denominational religious schools or other
> organizations from being covered by ENDA. In addition, this language
> would subject the curriculum of such organizations to review by the
> courts to determine if the goal of the curriculum is for the
> propagation of a specific religion.
>
> **Note:** Representative Hoekstra offered an amendment in the House
> Education and Labor Committee which would have expanded the religious
> exemption to include institutions that maintain a faith-based mission.
> This amendment failed in Committee on a vote of 21-27.
>
> H.R. 3685 defines sexual orientation as "homosexuality,
> heterosexuality, or bisexuality."

-   **Prohibition of Employment Discrimination.** H.R. 3685 declares
    that it is unlawful for any employer (or employment agency) to
    discriminate (as evidenced by the failure or refusal to hire or
    withhold employee privileges) against any individual on the basis of
    *actual or perceived sexual orientation.* Furthermore, it prohibits
    an employer from segregating or classifying any employee or
    applicant for employment in any way that may adversely affect their
    status, based on their actual or perceived sexual orientation*.*

> The bill prohibits a labor organization from excluding or expelling
> from its membership (or otherwise discriminating against) any
> individual because of their actual or perceived sexual orientation.
> According to H.R. 3685, discrimination includes segregating,
> negatively classifying the individual, and doing anything that would
> limit the employment of the individual. In addition, H.R. 3685
> prohibits labor organizations from causing an employer to discriminate
> against his/her employee based on actual or perceived sexual
> orientation.
>
> **Note:** Representative Souder offered an amendment in the House
> Education and Labor Committee which would have struck 'perceived' from
> the protection against discrimination based on 'actual or perceived
> sexual orientation.' This amendment failed in Committee on a vote of
> 18-30.
>
> With regard to training programs, H.R. 3685 prohibits discrimination
> based on the actual or perceived sexual orientations of an employee by
> an employer, labor organization, or join labor-management committee.
>
> H.R. 3685 states that no preferential treatment or quotas may be
> permitted to grant preferential treatment to any individual on the
> basis of the actual or perceived sexual orientation of an individual.
> In addition, H.R. 3685 states that only disparate (unequal) treatment
> claims may be brought under this Act. Some conservatives may be
> concerned that while the bill specifically states that no quotas be
> permitted, evidence of companies currently employing quotas would
> indicate that such actions are often done informally to protect such
> companies from accusations of discrimination.

-   **Prohibition of Retaliation.** H.R. 3685 stipulates that an
    employee who submits a complaint with their employer about an
    alleged ENDA violation is protected from any retaliatory action by
    their employer. Some conservatives may be concerned that while
    protection for outing discrimination may be necessary, the same
    protection should be afforded those whose personal or moral beliefs
    are being challenged due to such actions.

> **Note:** Representative Souder offered an amendment in the House
> Education and Labor Committee which would have provided protection for
> someone who "refused to express or provide written or oral consent to
> a covered entity's anti-discrimination or anti-harassment policy, or
> refused to participate in a covered entity's diversity training
> program, because such policy or program imposes a substantial burden
> upon the individual's sincerely held religious beliefs regarding
> sexual orientation." This amendment failed in Committee on a vote of
> 19-29.

-   **Religious Organizations Exemption.** H.R. 3685 states that this
    Act does not apply to a religious organization (see above for
    definition of religious organization). Some conservatives may be
    concerned that this exemption is not nearly comprehensive enough to
    cover non-denomination religious organizations that will remain
    subject to ENDA due to this weak religious exemption.

    -   **Non-Application to the Armed Forces and Veterans.** H.R. 3685
        clarifies that the term "employment" does not apply to
        individuals who are members of the U.S. Armed Forces (therefore,
        the DOD is not covered by ENDA). In addition, the bill clarifies
        that nothing in the Act will repeal or modify any federal,
        state, territorial, or local law which currently supports
        special rights concerning the employment of a veteran.

    -   **Construction.** The bill states that nothing in the Act is
        meant to prohibit "a covered entity from enforcing rules and
        policies that do not intentionally circumvent the purposes of
        this Act, if the rules or policies are designed for, and
        uniformly applied to, all individuals regardless of actual or
        perceived sexual orientation."

> H.R. 3685 states that nothing in the Act should be construed to limit
> a covered entity from taking action against an individual based on a
> charge of sexual harassment, so long as the rules regarding such
> actions are equally applied to all employees, regardless of actual or
> perceived sexual orientation.

-   **Marriage Provision.** H.R. 3685 states that in any state where
    same-sex marriage is not legal, employment choices made by a covered
    entity, based on the individual's marriage preference, status and/or
    actual or perceived sexual orientation, is unlawful. In other words,
    an employment decision can not be made with consideration of the
    individual's marital status or preference. Some conservatives may be
    concerned that this undermines marriage laws as well as
    unnecessarily disallows nondenominational religious organizations
    the right to a marital preference when hiring employees.

> **Note:** Representative Souder offered an amendment in the House
> Education and Labor Committee which would have would have permitted
> employers to condition employment on being married or being eligible
> to marry. This amendment failed in Committee on a vote of 18-30.
>
> H.R. 3685 clarifies that nothing in the Act would require that a
> covered entity provide marital benefits to a couple who are not
> married (including a same-sex marriage).

-   **Statistics Collection.** H.R. 3685 prohibits covered entities from
    collecting statistics on actual or perceived sexual orientation.

-   **Enforcement.** H.R. 3685 declares that the Equal Employment
    Opportunity Commission (Commission) reserves the right to enforce
    the powers instituted in this bill as they currently do under
    specified provisions of the Civil Rights Act of 1694 and the
    Government Employee Rights Act of 1991. In addition, H.R. 3685
    grants the Librarian of Congress, the Attorney General, and U.S.
    courts the same enforcement powers as they have under specified
    provisions of the Civil Rights Act of 1964, the Government Employee
    Rights Act of 1991, and other specified laws. H.R. 3685 states that
    any and all procedures and remedies applicable to a claim alleged by
    an individual for a violation of this Act are the same as those
    provided in specified provisions of the Civil Rights Act of 1964,
    the Government Employee Rights Act of 1991, and other specified
    laws.

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-   **State and Federal Immunity.** H.R. 3685 authorizes federal civil
    damage actions against state entities, which some conservatives may
    be concerned violates a states' immunity under the Eleventh
    Amendment to the U.S. Constitution. H.R. 3685 makes it possible to
    collect punitive damages from both the state and the federal
    government.

-   **Attorneys' Fees.** The bill allows the successful party in a suit
    to request a "reasonable" attorney's fee and to include any "expert
    witness" costs.

-   **Posting Notices.** The bill requires that all applicable covered
    entities post notices for employees, applicants, and members who
    would be affected by any change in law affected by this Act,
    pursuant to the Civil Rights Act of 1964.

-   **Regulations.** The bill grants the Equal Employment Opportunity
    Commission the authority to issue regulations under this Act to all
    but Library of Congress employees, Congressional employees, and
    federal employees (that authority rests with the Librarian of
    Congress, the Board specified by the Congressional Accountability
    Act, or the President, respectively).

-   **Relationship to Other Laws**. H.R. 3685 states, "This Act shall
    not invalidate or limit the rights, remedies, or procedures
    available to an individual claiming discrimination prohibited under
    any other Federal law or regulation or any law or regulation of a
    State or political subdivision of a State."

-   **Severability**. No provision in the bill held unconstitutional
    would affect the remainder of the bill's validity.

-   **Effective Date**. The Act would take effect six months after the
    date of enactment, and would not apply retroactively to conduct
    occurring before enactment.

**[Amendments Made in Order]{.underline}**:

***1. Miller (D-CA):*** The amendment provides that any religious
corporation, school, association or society that is exempt under Title
VII's religious exemptions is exempt under ENDA. In addition, the
amendment clarifies that if a school is exempt from Title VII's
religious discrimination prohibitions, it will also be exempt from ENDA.
The amendment also requires that ENDA may have no effect on the Defense
of Marriage Act (DOMA). To do this, the amendment strikes language
referencing "a same-sex couple who are not married" and inserts language
clarifying that the term "married" has the meaning given in DOMA,
purposely incorporating DOMA's definition of marriage into the bill.

**2. Souder (R-IN).** The amendment would strike the provision which
prohibits employers from considering marital status for employment.

***3. Baldwin (D-WI).*** The amendment would insert 'gender identity'
everywhere in the bill where "sexual orientation" currently exists.
'Gender identity' is defined as "the gender-related identity,
appearance, or mannerisms or other gender-related characteristics of an
individual, with or without regard to the individual's designated sex at
birth." In addition, the amendment contains language concerning shared
facilities, dress, and grooming standards, and a statement that
clarifies that the construction of additional facilities for these
employees are not required under ENDA.

**[Conservative Concerns]{.underline}**: The following are *some*
concerns that many conservatives have expressed with H.R. 3685:

-   **Perceived Sexual Orientation.** ENDA expands civil rights
    protections on the basis of perceived sexual orientation. However,
    "perceived" is not defined in the bill, and therefore, any
    individual with any sexual orientation can file suit accusing the
    hiring organization of discrimination due to how they may or may not
    have perceived the individual's sexual orientation. Despite the
    strong opposition by most conservatives, hate crime legislation
    passed the House earlier this year. Much like hate crime
    legislation, ENDA could also incite the practice of thought policing
    by the federal government.

-   **Vague Religious Exemption.** The religious exemptions in H.R. 3685
    do not appropriately protect nondenominational religious
    organizations from being subject to ENDA. For example, certain
    colleges and universities (i.e. Gordon College, Wheaton College), or
    nondenominational organizations (such as a Christian counseling
    centers) would be required to comply with ENDA law under the overly
    broad and vague religious exemption language in the bill. In the
    case of a college or university that is not "controlled, managed,
    owned or supported by a religion," as would be the case for both
    Gordon and Wheaton, it would be left to the courts to decide if
    their curriculum is directed toward the propagation of a religion.
    This opens such organizations up to endless litigation, and
    restricts their religious freedoms to make hiring decisions based
    upon moral or religious grounds.

> The American Association of Christian Colleges and Seminaries, Inc.
> sent a letter to Chairman Miller and Ranking Member McKeon stating the
> following:
>
> The bill does exempt institutions in which the curriculum is "directed
> toward the propagation of a particular religion." The American
> Association of Christian Colleges and Seminaries sees practical and
> philosophical problems with this portion of the definition. From a
> practical standpoint, our schools that are not directly associated
> with a church are at risk. First, it is not clear that our preparatory
> schools associated with religious liberal arts colleges would be
> covered under this exemption. Second, it appears that there may be
> inadequate protections for our Christian liberal arts universities
> which are not denominationally aligned. The language of the exemption
> leaves a substantial loophole for litigants to bring suits against
> religious schools regarding employment practices ... Section
> 3(a)(8)(ii) would invite the courts to examine the beliefs and
> practices of religious schools to determine the degree of
> religiousness. Philosophically, this aspect of the bill is deeply
> troubling because it infringes on the ability of religious schools to
> exercise their religious beliefs free from government intrusion.

-   **Creates a New Protected Class Status.** ENDA would overturn the
    historical basis of protected class status by adding "sexual
    orientation" to civil rights law. Other federally protected classes
    (race, gender, ethnicity) are determined by the following criteria:

    -   An obvious, immutable (i.e. undeniable) characteristic;

    -   A history of discrimination evidenced by economic
        disenfranchisement; and

    -   Political powerlessness.

> Arguably, "sexual orientation" does not meet all---if any---of these
> criteria. Therefore, some conservatives may be concerned that adding
> them to a category which currently contains race, gender and
> ethnicity, would set a new and dangerous precedent.

-   **Increased Litigation.** Due to the way that the bill is written,
    both with the overly broad and vague religious exemption language
    and other similar provisions, the only way to interpret this bill
    would be through litigation. For instance, the word "perceived" is
    not defined in the legislation and therefore leaves it open for
    individuals to file lawsuits based on what an employee believes an
    employer perceived him or her to be.

-   **Retaliation Provision.** ENDA contains a retaliation provision
    that protects only those individuals who claim discrimination on the
    basis of sexual orientation, but not those who are retaliated
    against because of their beliefs about sexual orientation (be they
    religious reasons or other). Unfortunately, the bill only prevents
    discrimination for one group while allowing for increased
    discrimination of another.

-   **Undermines Marriage.** ENDA undermines the institution of marriage
    by including a provision which states that organizations cannot use
    marriage as a valid qualification for employment. In practical
    terms, this would prevent a boys/girls home from specifying that a
    requirement for employment as the house parents be that the
    applicants be a married couple.

-   **Interference with the Free Market.** Even according to the bill's
    supporters, 94% of Fortune 500 companies already employ laws similar
    to ENDA in their hiring practices. Some conservatives may be
    concerned that it is not the role of the federal government to
    mandate similar laws for the rest of them.

-   **Hostile Work Environment.** Some are concerned that a hostile work
    environment may be legally construed as discrimination under H.R.
    3685, opening the door to lawsuits against employees whose speech or
    actions (i.e. having a Bible at their desk) may be interpreted as
    discrimination.

-   **Current State Laws Already Exist.** Currently, 28 states have
    ENDA-type laws providing discrimination protections for sexual
    orientation in public employment, and 21 states provide such
    protections for private employment. Some conservatives may argue
    that it is unnecessary for the federal government to create a
    mandate affecting all 50 states, when only half currently impose
    such protections.

**[Committee Action]{.underline}**: The original version of ENDA, H.R.
2015, was introduced April 24, 2007 and included Rep. Franks original
"sexual orientation or gender identity" language. H.R. 2015 was referred
to the Committee on Education and Labor, and a Subcommittee hearing was
held. After facing opposition from numerous organizations and Members
regarding the "gender identity" language (as well as numerous other
concerns), Mr. Franks introduced H.R. 3685 on September 27, 2007, which
removed the term "gender identify" and made a few other technical and
cosmetic changes. H.R. 3685 was referred to the Committee on Education
and Labor, as well as to the Committees on House Administration,
Oversight and Government Reform, and the Judiciary. The Committee on
Education and Labor held a mark-up of the bill on October 18, 2007 and
ordered the bill reported by a vote of 27-21.

[]{.mark}

**[Administration Position]{.underline}**: The Administration is opposed
to H.R. 3685 and released the following statement regarding the
President's likely veto:

[]{.mark}

> H.R. 3685 would extend existing employment-discrimination provisions
> of Federal law, including those in Title VII of the Civil Rights Act
> of 1964, to establish "a comprehensive Federal prohibition of
> employment discrimination on the basis of sexual orientation."  [The
> bill raises concerns on constitutional and policy grounds, and if H.R.
> 3685 were presented to the President, his senior advisors would
> recommend that he veto the bill]{.underline}.
>
> H.R. 3685 is inconsistent with the right to the free exercise of
> religion as codified by Congress in the Religious Freedom Restoration
> Act (RFRA).  The Act prohibits the Federal Government from
> substantially burdening the free exercise of religion except for
> compelling reasons, and then only in the least restrictive manner
> possible.  H.R. 3685 does not meet this standard.  For instance,
> schools that are owned by or directed toward a particular religion are
> exempted by the bill; but those that emphasize religious principles
> broadly will find their religious liberties burdened by H.R. 3685.
>
> A second concern is H.R. 3685's authorization of Federal civil damage
> actions against State entities, which may violate States' immunity
> under the Eleventh Amendment to the U.S. Constitution.
>
> The bill turns on imprecise and subjective terms that would make
> interpretation, compliance, and enforcement extremely difficult.  For
> instance, the bill establishes liability for acting on "perceived"
> sexual orientation, or "association" with individuals of a particular
> sexual orientation.  If passed, H.R. 3685 is virtually certain to
> encourage burdensome litigation beyond the cases that the bill is
> intended to reach.
>
> Provisions of this bill purport to give Federal statutory significance
> to same-sex marriage rights under State law.  These provisions
> conflict with the Defense of Marriage Act, which defines marriage as
> the legal union between one man and one woman.  The Administration
> strongly opposes any attempt to weaken this law, which is vital to
> defending the sanctity of marriage.

[]{.mark}

**[Cost to Taxpayers]{.underline}**: According to CBO cost estimates,
H.R. 3685 would cost \$28 million over FY 2008-2012 for the Equal
Employment Opportunity Commission (EEOC) to handle additional
discrimination cases. The bill could affect direct spending, but CBO
estimates that any such effects would be less than \$500,000 annually.
CBO estimates that H.R. 3685 would not affect revenues.

[]{.mark}

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}** Yes, H.R. 3685 would extend existing
employment-discrimination provisions of federal law to establish "a
comprehensive federal prohibition of employment discrimination on the
basis of sexual orientation."

[]{.mark}

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes, H.R. 3685 would require
that covered entities (including private businesses and state
employees), pursuant to the Civil Rights Act of 1964, prohibit
discrimination of employees and applicants for eligibility based on
their actual or perceived sexual orientation. In addition, H.R. 3685
would require affected organizations to post notices regarding such
discrimination prohibitions. H.R. 3685 would also impose a number of
mandates on private-sector employers, employment agencies, and labor
organizations, but CBO estimates that the direct cost of those
requirements would not exceed the annual threshold specified in UMRA
(\$131 million in 2007, adjusted annually for inflation) in any of the
first five years the mandates would be effective.

[]{.mark}

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: According to the House
Committee on Education and Labor [House Report
110-406](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr406):),
"H.R. 3685 does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(d), 9(e) or
9(f) of rule XXI."

[]{.mark}

**[Constitutional Authority]{.underline}**: According to the House
Committee on Education and Labor [House Report
110-406](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr406):),
"Under clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives, the Committee must include a statement citing the
specific powers granted to Congress in the Constitution to enact the law
proposed by H.R. 3685. Congress has the authority to enact ENDA through
the Commerce Clause, the Fourteenth Amendment of the United States
Constitution. The Act's authorization of individual suits against state
governmental employers is derived from Congress' enforcement power under
Section 5 of the Fourteenth Amendment as well as Congress' Spending
Power under Article 1."

**[RSC Staff Contact]{.underline}**: Sarah Makin;
<sarah.makin@mail.house.gov>; 202-226-0718.