69–006 

1 California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, 

Oregon, Rhode Island, Vermont, Washington and Wisconsin have laws barring discrimination 

in employment (and other areas) based on sexual orientation. Oregon’s law takes effect on January 1, 2008. 

110TH CONGRESS REPT. 110–406 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

EMPLOYMENT NON-DISCRIMINATION ACT OF 2007 

OCTOBER 22, 2007.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. GEORGE MILLER of California, from the Committee on 

Education and Labor, submitted the following 

R E P O R T 

together with 

MINORITY AND DISSENTING VIEWS 

[To accompany H.R. 3685] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 3685) to prohibit employment discrimination on the 

basis of sexual orientation, having considered the same, report favorably thereon without amendment and recommend that the bill 

do pass. 

PURPOSE

Millions of gay, lesbian, bisexual, and heterosexual Americans 

can be fired from their jobs, refused work, paid less and otherwise 

subjected to employment discrimination because of their actual or 

perceived sexual orientation with no recourse under Federal law. 

Currently, it is legal in 30 states 1 to fire someone based on their 

sexual orientation. 

Workplace discrimination based on sexual orientation, affecting 

heterosexual, as well as gay, lesbian and bisexual (GLB) Americans, has been widespread and well-documented over the years. 

The Employment Non-Discrimination Act (ENDA) protects all 

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2 42 U.S.C. §§ 2000e–2000e–17. 3 42 U.S.C. §§ 12101–12213. 

ual by making it illegal to fire, refuse to hire, refuse to promote 

employees based on notions of a person’s sexual orientation. Furthermore, employers are prohibited from requiring GLB employees 

to work in a discriminatorily hostile or abusive environment. 

Specifically, ENDA extends Federal employment protections to 

GLB workers similar to those protections provided to a person 

based on race, religion, sex, national origin, age or disability. The 

Act prohibits an employer from using an individual’s sexual orientation as the basis for employment decisions, such as hiring, firing, promotion or compensation. ENDA also creates a cause of action for any individual—whether actually homosexual or heterosexual—who is discriminated against because that individual is ‘‘perceived’’ as homosexual due to the fact that the individual does 

not conform to the sex or gender stereotypes associated with that 

individual’s sex. Furthermore, ENDA provides for the similar procedures, while giving somewhat more limited remedies as those 

under Title VII of the Civil Rights Act of 1964 2 (‘‘Title VII’’) and 

the Americans with Disabilities Act (‘‘ADA’’).3 In addition, ENDA 

applies to Congress and the Federal government, as well as employees of state and local governments. 

COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES

94th Congress 

On January 14, 1975, Congresswoman Bella Abzug (D–NY) introduced the first bill to address sexual-orientation discrimination in 

the United States, H.R. 166, the Civil Rights Amendments. H.R. 

166 would have amended the Civil Rights Act of 1964 to prohibit 

discrimination on the basis of affectional or sexual orientation, sex, 

or marital status in public accommodations, public education, equal 

employment opportunities, the sale, rental and financing of housing, and education programs which receive Federal financial assistance. It garnered four cosponsors and was referred to the Judiciary 

Committee. The Committee did not consider H.R. 166. 

Representative Abzug on March 25, 1975 reintroduced the Civil 

Rights Amendments, as H.R. 5452 with 23 cosponsors. The Civil 

Rights Amendments was also introduced by Representative Richard Ottinger (D–NY) as H.R. 10389 on October 28, 1975 with no 

cosponsors. Both bills were referred to the Judiciary Committee 

and neither was considered by the Committee. 

On February 4, 1975 Representative Donald Fraser (D–MN) introduced H.R. 2667, A Bill to Prohibit Employment Discrimination 

on the Basis of Sexual Orientation, which also sought to amend the 

Civil Rights Act of 1964. However, in addition to covering discrimination in all the venues provided in the Civil Rights Act of 1964, 

H.R. 2667 also banned discrimination in public facilities and federally assisted opportunities. The bill had no co-sponsors and was referred to the Judiciary Committee. The Committee did not consider 

H.R. 2667. 

The Civil Rights Amendments were reintroduced by Representative Phillip Burton (D–CA) as H.R. 13019, on March 5, 1976 with 

no cosponsors. H.R. 13019 was substantively the same as H.R. 

2667, A Bill to Prohibit Employment Discrimination on the Basis 


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of Sexual Orientation. Representative Abzug subsequently introduced the Civil Rights Amendments, H.R. 13928 on May 20, 1976 

with 4 cosponsors. Both bills were referred to the House Judiciary 

Committee, where no further action was taken. 

96th Congress 

On February 8, 1979 the Civil Rights Amendments Act of 1979, 

H.R. 2074 was introduced by Representative Ted Weiss (D–NY). In 

addition to prohibiting discrimination on the basis of affectional or 

sexual orientation, it prescribed penalties for non-compliance and 

authorized the Attorney General to intervene. It garnered 56 cosponsors and was referred to the House Judiciary and House Education and Labor Committees. No further action was taken. 

On December 5, 1979, Senator Paul Tsongas (D–MA) introduced 

the first bill in the Senate to address sexual-orientation discrimination, A Bill to Prohibit Employment Discrimination on the Basis of 

Sexual Orientation, S. 2081. It had 3 cosponsors and was referred 

to the Senate Labor and Human Resources Committee. No further 

action was taken. 

97th Congress 

On January 28, 1981, Representative Ted Weiss (D–NY) introduced the Civil Rights Amendments Act of 1981, H.R. 1454. It garnered 59 cosponsors and was referred to the House Committees on 

Judiciary and Education and Labor. However, no further action 

was taken on the bill. 

On May 1, 1981, Representative Phillip Burton (D–CA) introduced the Civil Rights Amendments Act of 1981, H.R. 3371, which 

had no cosponsors. It was referred to the House Judiciary Committee and the Committee on Education and Labor. It was subsequently referred to the Education and Labor Committee’s Subcommittee on Employment Opportunities of the Committee on Education and Labor. No further action was taken in either Committee 

or in the Subcommittee. 

On October 6, 1981, Senator Paul Tsongas (D–MA) introduced A 

Bill To Prohibit Employment Discrimination on the Basis of Sexual 

Orientation, S. 1708, which garnered 6 cosponsors. It was referred 

to the Senate Labor and Human Resources Committee, but no further action was taken. 

98th Congress 

On January 3, 1983, Representative Ted Weiss (D–NY) introduced the Civil Rights Amendments Act of 1983, H.R. 427. It garnered 38 cosponsors and was referred to the House Committees on 

Judiciary and Education and Labor. It was subsequently referred 

to the Subcommittee on Civil and Constitutional Rights of the Judiciary Committee. 

On February 3, 1983, Senator Paul Tsongas (D–MA) introduced 

A Bill To Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, which garnered 8 cosponsors. It was referred to the Senate Labor and Human Resources Committee. No 

further action was taken. 

On April 19, 1983, Representative Ted Weiss (D–NY) reintroduced the Civil Rights Amendments Act of 1983, H.R. 2624. It garnered 75 cosponsors and was referred to the House Judiciary ComVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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mittee and the Education and Labor Committee. H.R. 2624 was 

subsequently referred to the Subcommittee on Employment Opportunities of the Committee on Education and Labor. No further action was taken in either Committee or the Subcommittee. 

99th Congress 

On January 3, 1985, Representative Ted Weiss (D–NY) introduced the Civil Rights Amendments Act of 1985, H.R. 230. It garnered 72 cosponsors and was referred to the House Committees on 

Judiciary and Education and Labor. It was subsequently referred 

to the Subcommittee on Civil and Constitutional Rights of the Judiciary Committee. 

On July 15, 1985, Senator John Kerry (D–MA) introduced the 

Civil Rights Amendments Act of 1985, S. 1432, which garnered 5 

cosponsors. It was referred to the Senate Judiciary Committee. No 

further action was taken. 

100th Congress 

On January 21, 1987, Representative Ted Weiss (D–NY) introduced the Civil Rights Amendments Act of 1987, H.R. 709. It garnered 73 cosponsors and was referred to the House Committees on 

Judiciary and Education and Labor. It was subsequently referred 

to the Subcommittee on Employment Opportunities of the Committee on Education and Labor, but no further action was taken. 

On February 2, 1987, Senator Alan Cranston (D–CA) introduced 

the Civil Rights Amendments Act of 1987, S. 464, which garnered 

9 cosponsors. It was referred to the Senate Judiciary Committee, 

and the Committee’s Subcommittee on the Constitution. No further 

action was taken. 

On February 29, 1988, Senator John Kerry (D–MA) introduced 

the Civil Rights Protection Act of 1988, S. 1432, which garnered 2 

cosponsors. It was referred to the Senate Judiciary Committee, and 

the Committee’s Subcommittee on the Constitution. Neither the 

Committee nor the Subcommittee considered the bill. 

101st Congress 

On January 24, 1989, Representative Ted Weiss (D–NY) introduced the Civil Rights Amendments Act of 1989, H.R. 655. It garnered 79 cosponsors and was referred to the House Judiciary Committee and the Education and Labor Committee. H.R. 655 was subsequently referred to the Judiciary Committee’s Subcommittee on 

Civil and Constitutional Rights, but no further action was taken. 

On January 25, 1989, Senator Alan Cranston (D–CA) introduced 

the Civil Rights Amendments Act of 1989, S. 47, which garnered 

11 cosponsors. It was referred to the Senate Judiciary Committee 

and the Committee’s Subcommittee on Constitution. No further action was taken. 

102nd Congress 

On March 6, 1991, Senator Alan Cranston (D–CA) introduced the 

Civil Rights Amendments Act of 1991, S. 47, which garnered 16 cosponsors. It was referred to the Senate Judiciary Committee and 

then to the Subcommittee on Constitution. No further action was 

taken. 


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4S. Hrg. 103–703. 

On March 13, 1991, Representative Ted Weiss (D–NY) introduced the Civil Rights Amendments Act of 1991, H.R. 1430. It garnered 110 cosponsors and was referred to the House Judiciary 

Committee and Education and Labor Committee. H.R. 1430 was 

subsequently referred to the Judiciary Committee’s Subcommittee 

on Civil and Constitutional Rights, but no further action was 

taken. 

103rd Congress 

On January 5, 1993, Representative Edolphus Towns (D–NY) introduced the Civil Rights Amendments Act of 1993, H.R. 423, 

which had no cosponsors. It was referred to the House Committees 

on Judiciary and Education and Labor. It was subsequently referred to the Subcommittee on Civil and Constitutional Rights of 

the Judiciary Committee, but no further action was taken. 

Also on January 5, 1993, Representative Henry Waxman (D–CA) 

introduced the Civil Rights Act of 1993, H.R. 431, which had garnered 76 cosponsors. It was referred to the House Committees on 

the Judiciary and Education and Labor. It was subsequently referred to the Subcommittee on Civil and Constitutional Rights of 

the Judiciary Committee, but no further action was taken. 

On June 23, 1994 Senator Edward Kennedy (D–MA) introduced 

the Employment Non-Discrimination Act of 1994 (ENDA), S. 2238. 

It was referred to the Senate Labor and Human Resources Committee, which held the first hearing on the issue entitled ‘‘Employment Non-Discrimination Act of 1994’’ on July 29, 1994.4

The hearing featured testimony from witnesses, including: The 

Honorable Claiborne Pell, U.S. Senator from the State of Rhode Island; The Honorable Jeff Bingaman, U.S. Senator from the State 

of New Mexico; Ms. Cheryl Summerville, Bremen, Georgia; Ernest 

Dillon, Detroit, Michigan; Mr. Justin Dart, Jr., Chairman, President Bush’s Committee on Employment of People with Disabilities; 

Warren Phillips, former publisher, the Wall Street Journal, and 

former CEO and Chairman, Dow Jones & Company, Inc.; Steven 

Coulter, Vice-President, Pacific Bell; and Richard Womack, Director 

of Civil Rights, AFL–CIO; Mr. Joeseph E. Broadus, George Mason 

School of Law; Robert H. Knight, Family Research Council; and 

Chai Feldblum, Georgetown University Law Center, on behalf of 

Leadership Conference on Civil Rights. 

Written statements were provided by: Mr. Philippe Kahn, President, Chairman, and CEO, Borland, International; Leadership Conference on Civil Rights, Washington, D.C.; Mr. Deval Patrick, Assistant Attorney General, Department of Justice; The Honorable 

John Chafee, U.S. Senator from the State of Rhode Island; The 

Honorable Barry Goldwater, U.S. Senator from the State of Arizona; Reverend Edmond Browning, Presiding Bishop, Episcopal 

Church; Mrs. Coretta Scott King, President, Martin Luther King 

Jr. Center for Non-Violent Social Change; Ms. Mary Frances Berry, 

Chairperson, U.S. Commission on Civil Rights; and Mr. Anthony 

Carnevale, Chair, National Commission on Employment Policy. 

On June 23, 1994, Representative Gerry Studds (D–MA) introduced the Employment Non-Discrimination Act, H.R. 1430, which 

garnered 110 cosponsors. It was referred to the House Committees 


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5 Rollcall No. 281. 

6S. Hrg. 105–279. 

on the Judiciary and Education and Labor. It was subsequently referred to the Subcommittee on Civil and Constitutional Rights of 

the Judiciary Committee, but no further action was taken. 

104th Congress 

On January 4, 1995, Representative Edolphus Towns (D–NY) introduced the Civil Rights Amendments Act of 1995, H.R. 382, 

which had 1 cosponsor. It was referred to the House Judiciary 

Committee, the Economic and Educational Opportunities Committee and subsequently referred to the Subcommittee on Employer-Employee Relations of the Committee on Economic and Educational Opportunities. No further action was taken in either Committee or the Subcommittee. 

On June 15, 1995, Representative Gerry Studds (D–MA) introduced the Employment Non-discrimination Act of 1995, H.R. 1863, 

which garnered 142 cosponsors. It was referred to the House Committees on Educational and Economic Opportunities, Oversight, Judiciary, and Government Reform and Oversight. It was subsequently referred to the Subcommittee on the Constitution of the 

Judiciary Committee, but no further action was taken. 

On June 15, 1995, Senator James Jeffords (R–VT) introduced the 

Employment Non-Discrimination Act of 1995, S. 932, which garnered 30 cosponsors. It was referred to the Committee on Labor 

and Human Resources. 

On September 5, 1995, Senator Edward Kennedy (D–MA) introduced the Employment Non-Discrimination Act of 1995, S. 2056, 

which garnered 3 cosponsors. It was brought before the Senate by 

unanimous consent. The Senate narrowly rejected S. 932 on September 10, 1996 by a 50–49 vote.5 It marked the first time that the 

idea of a Federal non-discrimination clause protecting gays and lesbians in employment was voted on in the Congress. 

105th Congress 

On January 7, 1997, Representative Edolphus Towns (D–NY) introduced the Civil Rights Amendments Act of 1998, H.R. 365, 

which had no cosponsors. It was referred to the House Judiciary 

Committee, and Education and the Workforce Committee. H.R. 365 

was subsequently referred to the Subcommittee on Employer-Employee Relations of the Committee on Education and the Workforce, 

but no further action was taken. 

On June 10, 1997, Senator James Jeffords (R–VT) introduced the 

Employment Non-Discrimination Act of 1997, S. 869, which garnered 34 cosponsors. It was referred to the Committee on Labor 

and Human Resources. 

On October 23, 1997, a hearing was held by the Committee on 

Labor and Human Resources entitled ‘‘The Employment Non-discrimination Act of 1997’’.6 The following persons and organizations 

presented testimony: Ms. Kendall Hamilton, Oklahoma City, Oklahoma; Mr. David N. Horowitz, Phoenix, Arizona; Raymond W. 

Smith, Chairman of the Board and CEO, Bell Atlantic Corporation, 

Arlington, Virginia; Mr. Thomas J. Grote, Chief Operating Officer, 

Donato’s Pizza, Blacklick, Ohio; Mr. Herbert D. Valentine, ExecuVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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7S. Hrg. 107–307. 

tive Presbyter, Baltimore Presbytery, Moderator of the 203rd General Assembly, the Presbyterian Church (USA); National Council of 

the Churches of Christ in the U.S. A.; Mr. Oliver Thomas, Special 

Counsel for Civil and Religious Liberties; Ms. Chai Feldblum, Associate Professor of Law, Georgetown University Law Center; American Civil Liberties Union; Ann McBride, President, Common 

Cause; America Psychological Association; Elizabeth Birch, Executive Director, Human Rights Campaign; Parents, Families, and 

Friends of Lesbians and Gays. 

On June 10, 1997, Representative Chris Shays (R-CT) introduced 

the Employment Non-discrimination Act of 1997, H.R. 1858, which 

garnered 160 cosponsors. It was referred to the House Committees 

on Education and the Workforce, Oversight, Judiciary, and Government Reform and Oversight. It was subsequently referred to the 

Subcommittee on Employer-Employee Relations of the Education 

and the Workforce Committee, but no further action was taken. 

106th Congress 

On January 6, 1999, Representative Edolphus Towns (D–NY) introduced Civil Rights Amendments Act of 1999, H.R. 311, which 

had one cosponsor. It was referred to the House Committees on Judiciary, and Education and the Workforce. It was subsequently referred to the Subcommittee on the Constitution of the Committee 

on Judiciary, but no further action was taken. 

On June 24, 1999, Senator James Jeffords (R–VT) introduced the 

Employment Non-Discrimination Act of 1999, S. 1276, which garnered 36 cosponsors. It was referred to the Committee on Health, 

Education, Labor, and Pensions (HELP). No further action was 

taken. 

On June 24, 1999, Representative Chris Shays (R–CT) introduced the Employment Non-Discrimination Act of 1999, H.R. 2355, 

which garnered 173 cosponsors. It was referred to the Education 

and the Workforce Committee, House Administration Committee, 

Judiciary Committee, and Government Reform Committee. It was 

subsequently referred to the Subcommittee on Employer-Employee 

Relations of the Education and the Workforce Committee, but no 

further action was taken. 

107th Congress 

On January 3, 2001, Representative Edolphus Towns (D–NY) introduced Civil Rights Amendments Act of 2001, H.R. 217, which 

had no cosponsors. It was referred to the House Committees on Judiciary and Education and the Workforce. It was subsequently referred to the Subcommittee on Employer-Employee Relations of the 

Committee on Education and the Workforce, but no further action 

was taken. 

On July 31, 2001, Senator Edward Kennedy (D–MA) introduced 

the Employment Non-Discrimination Act of 2002, S. 1274, which 

garnered 44 cosponsors. It was referred to the HELP Committee. 

The HELP Committee held a hearing on the legislation on February 27, 2002 entitled ‘‘The Employment Non-Discrimination 

Act.’’ 7 The following persons presented testimony: Mr. Charles K. 

Gifford, President and CEO FleetBoston Financial, Boston, MassaVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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8S. Rep. 107–341. 

chusetts; Lucy Billingsley, Partner, Billingsley Company, 

Carrollton, Texas; Robert L. Berman, Director of Human Resources 

and Vice President, Eastman Kodak Company, Rochester, New 

York; Richard Womack, Director, Department of Civil Rights, AFL– CIO, Washington, D.C.; Lawrence Lane, Long Island, New York; 

and Matthew Coles, Director, National Lesbian and Gay Rights 

Project, American Civil Liberties Union, New York, New York. 

Written statements were provided by: The American Psychological Association; Kim Wisckol, Vice-President and Director of 

Human Resources of the Consumer Business Association, HewlettPackard Company; Elizabeth Birch, Executive Director, Human 

Rights Campaign; and the Honorable Patty Murray, U.S. Senator 

from the State of Washington. A letter was provided from the 

President of New Balance Athletic Shoe, Inc., James Davis, to Senators Kennedy and Gregg, dated April 18, 2002. 

The bill was reported out of committee by voice vote 8 and placed 

on the legislative calendar. However, no vote was taken in the Senate. 

On July 31, 2001, Representative Chris Shays (R–CT) introduced 

the Employment Non-discrimination Act of 2001, H.R. 2692, which 

garnered 193 cosponsors. It was referred to the House Committees 

on Education and the Workforce, Administration, Judiciary, and 

Government Reform. It was subsequently referred to the Subcommittee on Employer-Employee Relations of the Education and 

the Workforce Committee, but no further action was taken. 

108th Congress 

On October 2, 2003, Senator Edward Kennedy (D–MA) introduced the Employment Non-Discrimination Act of 2003, S. 1705, 

which garnered 43 cosponsors. It was referred to the HELP Committee however, no further action was taken. 

On January 7, 2003, Representative Edolphus Towns (D–NY) introduced the Civil Rights Amendments Act of 2003, H.R. 214, 

which had no cosponsors. It was referred to the Judiciary Committee, and the Education and the Workforce Committee. H.R. 214 

was subsequently referred to the Subcommittee on Constitution of 

the Committee on Judiciary, but no further action was taken. 

On October 8, 2003, Representative Chris Shays (R–CT) introduced the Employment Non-discrimination Act of 2003, H.R. 3285, 

which garnered 180 cosponsors. It was referred to the House Committees on Education and the Workforce, House Administration, 

Judiciary, and Government Reform. It was subsequently referred to 

the Subcommittee on Employer-Employee Relations of the Education and the Workforce Committee, but no further action was 

taken. 

109th Congress 

On January 6, 2005, Representative Edolphus Towns (D–NY) introduced the Civil Rights Amendments Act of 2003, H.R. 214, 

which had no cosponsors. It was referred to the House Committees 

on Judiciary, and Education and the Workforce. It was subsequently referred to the Subcommittee on Constitution of the Committee on Judiciary, but no further action was taken. 


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110th Congress 

On March 24, 2007, Representative Barney Frank (D–MA) introduced the Employment Non-Discrimination Act of 2007, H.R. 2015, 

which currently has 165 cosponsors. It was referred to the House 

Committees on Education and Labor, Administration, Judiciary, 

and Oversight and Government Reform. It was subsequently referred to the Subcommittee on Health, Employment, Labor and 

Pensions (HELP) of the Education and Labor Committee. 

On September 28, 2007, Representative Barney Frank (D–MA) 

and Deborah Pryce (R–OH) introduced H.R. 3685, the Employment 

Non-Discrimination Act of 2007. It was referred to House Committees on Education and Labor, Administration, Judiciary, and Oversight and Government Reform. 

Subcommittee Hearing on H.R. 2015 

On September 5, 2007, the Education and Labor Committee’s 

HELP Subcommittee held a hearing on ‘‘The Employment Non-Discrimination Act of 2007 (H.R. 2015).’’ Witnesses testifying before 

the Committee included: Representative Barney Frank; Representative Tammy Baldwin; Representative Emmanuel Cleaver; Michael 

Carney of Springfield, MA; Brooke Waits of Dallas, TX; Mark 

Fahleson, Attorney at Rembolt Ludtke LLP; Lee Badgett, Research 

Director of Williams Institute at the UCLA School of Law; Helen 

Norton, Associate Professor of Law, University of Colorado School 

of Law; Nancy Kramer, Founder and CEO of Resource Interactive; 

Kelly Baker, Vice President of Diversity of General Mills; and 

Larry Lorber, Partner at Proskauer Rose LLP. 

Full Committee Markup of H.R. 3685 

On October 18, 2007, the Committee on Education and Labor 

met to mark up H.R. 3685, the Employee Non-Discrimination Act 

of 2007. The Committee reported the bill favorably by a vote of 27– 21 to the House of Representatives. 

Four amendments were offered and debated. None of the amendments were adopted. 

Representative Souder (R–IN) offered three amendments. The 

first Souder amendment was defeated by a vote of 18–30. The 

amendment would have struck ‘‘perceived’’ from the protection 

against discrimination based on ‘‘actual or perceived sexual orientation.’’ The term sexual orientation is expressly defined in H.R. 

3685 as including only: ‘‘homosexuality, heterosexuality, or bisexuality.’’ The Committee strongly believes that prohibiting discrimination based on ‘‘perceived’’ sexual orientation is necessary to protect the rights of employees. The Souder amendment would permit 

an employer who believes an employee may be gay, when in fact 

he or she is not, to lawfully fire that employee based on that perception. Furthermore, including protections based on an individual’s perceived sexual orientation ensures that employers will not 

be able to defend its actions by alleging it did not know the ‘‘actual’’ sexual orientation of the employee but nevertheless discriminated against the employee on the basis of his/her perceived sexual 

orientation. 

The second Souder amendment was defeated by a vote of 18–30. 

The amendment would have permitted employers to condition employment on being married or being eligible to marry. The ‘‘Actions 


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Conditioned on Marriage’’ provision is necessary to protect against 

an easy subterfuge for anti-gay discrimination. A marriage ability 

job requirement would be a deceptive way in which employers 

could intentionally discriminate against gay employees in states 

without same-sex marriage. 

The third Souder amendment was defeated by a vote of 19–29. 

The third amendment offered by Congressman Souder would prohibit retaliation against an employee who refuses to sign an employer’s anti-discrimination or anti-harassment policy or refused to 

participate in diversity training because such policy is against the 

individual’s religious beliefs regarding sexual orientation. 

The fourth amendment was offered by Representative Hoekstra 

(R–MI) and defeated by a vote of 21–27. The Hoekstra amendment 

would have expanded the religious exemption to include institutions that maintain a faith-based mission. H.R. 3685 adopts Title 

VII’s definition of a religious organization and thereby imports 

long-standing existing law on who is or is not a religious organization. The scope of its religious exemption is to those organizations 

who are covered by Title VII’s exemption, no more and no less. 

SUMMARY

The Employment Non-Discrimination Act of 2007 prohibits employers of fifteen or more persons, including government employers, 

employment agencies and labor organizations, from discriminating 

in employment or employment opportunities on the basis of actual 

or perceived sexual orientation. Employment opportunities include: 

firing, hiring, compensation, terms, conditions and privileges of employment or union membership. 

The Act prohibits the imposition of affirmative action and the 

adoption of quotas or granting preferential treatment to an individual based on their sexual orientation by an employer. H.R. 3685 

does not require employers to provide benefits to their employees 

or their domestic partners. It prohibits the Equal Employment Opportunity Commission (EEOC) from collecting statistics and does 

not require the collection of statistics by employers. Religious organizations, including religious corporations, associations, societies, 

or educational institutions are exempted. In addition, H.R. 3685 

does not apply to members of the Armed Forces. 

The enforcement powers, procedures, and remedies that exist 

under current Federal employment discrimination law are included 

under the Act. This means a plaintiff must go through the administrative mechanism of the EEOC. A plaintiff may then file a lawsuit 

in Federal court and, if the plaintiff prevails, may receive injunctive relief such as reinstatement and/or back pay. A plaintiff may 

also receive compensatory and punitive damages, to the extent 

such damages are allowed under Title VII. Similar to Title VII, attorney’s fees are also available. However, unlike the protections 

contained under Title VII, ENDA does not allow an individual to 

bring a traditional ‘‘disparate impact’’ claim, which is a claim that 

a facially neutral practice of the employer has a disproportionate 

adverse effect on persons of a protected class. 

STATEMENT AND COMMITTEE VIEWS

The Committee on Education and Labor of the 110th Congress 

is committed to guaranteeing equality and opportunity in the workVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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9S. Rep. 107–341. 

place and to ensuring that American workers have access to remedies if they are discriminated against. ENDA is a critical step toward ensuring that Americans are not discriminated against because of their sexual orientation. Despite the tremendous progress 

this country has made in securing the rights of Americans to be 

free from discrimination, GLB workers remain vulnerable to discrimination. Without any Federal protection, GLB workers can be 

fired simply for being gay. The Employment Non-Discrimination 

Act will ensure that in the same tradition of this country’s civil 

rights laws, the fundamental principles of fairness and equality at 

work will be protected regardless of an individual’s sexual orientation. 

Title VII of the 1964 Civil Rights Act generally makes it unlawful for employers with 15 or more employees, employment agencies, 

and labor organizations to discriminate against employees or applicants on the basis of race, color, religion, sex, or national origin. 

While many forms of employment and pre-employment bias are forbidden under Title VII, discrimination based on sexual orientation 

is currently an unprotected class which represents millions of 

working Americans. 

H.R. 3685 furthers the spirit of civil rights law by extending protections to GLB workers. In the same way that Title VII, the Age 

Discrimination in Employment Act (ADEA), and the Americans 

with Disabilities Act (ADA) prohibit other forms of employment discrimination, ENDA would prohibit intentional discrimination based 

on sexual orientation. The legislation would create no ‘‘special 

rights,’’ but will guarantee equal rights. ‘‘Sexual orientation’’ is defined by the bill as ‘‘homosexuality, bisexuality, or heterosexuality.’’

In addition to prohibiting discrimination based on a person’s actual sexual orientation, ENDA also prohibits discrimination based 

on a person’s perceived sexual orientation. Both forms of discrimination—because of a person’s actual sexual orientation and because 

of a person’s perceived sexual orientation—are invidious. For this 

reason, ENDA creates a cause of action for an individual, for example, who is actually heterosexual, but who is discriminated against 

because that individual is perceived as homosexual. 

By providing workplace protections and remedies to these workers who experience discrimination, ENDA will help to end the insidious and irrational job discrimination inflicted upon GLB workers each day. 

Anti-Discrimination Protections Must Extend to Sexual Orientation 

Historical overview of sexual orientation discrimination 

In the majority of states, it is entirely legal for employers to 

openly discriminate on the grounds of sexual orientation. The existence of sexual orientation discrimination in American employment 

illustrates half a century’s worth of severe anti-gay bias in both the 

state and private employment contexts.9 A pattern of anti-gay discrimination began to emerge throughout the 1940’s and 1950’s, 

both in the public and private employment contexts. In many instances, such discrimination was a matter of policy in areas of Federal employment, as well as in many police forces, fire departVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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10 Id. See generally Russell J. Davis, Refusal to Hire, or Dismissal From Employment, On Account of Plaintiff’s Sexual Lifestyle or Sexual Preference as a Violation of Federal Constitution 

or Federal Civil Rights Statutes, 42 A.L.R. Fed. 189 (2002); Robin Cheryl Miller, Federal and 

State Constitutional Provisions As Prohibiting Discrimination in Employment on the Basis of 

Gay, Lesbian or Bisexual Orientation or Conduct, 96 A.L.R. 5th 391 (2002); The Human Rights 

Campaign, Documenting Discrimination (2001); William D. Rubenstein, Do Gay Rights Matter?: 

An Empirical Assessment, 75 S. Cal. L. Rev. 65 (2001). 11The Employment Non-Discrimination Act of 2007, hearing before the Subcommittee on 

Health, Employment, Labor and Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Representative Emanuel Cleaver II (D–MO)) [Hereinafter Cleaver testimony]. 12On Friday evening, June 27, 1969, the New York City tactical police force raided a popular 

Greenwich Village gay bar, the Stonewall Inn. Raids were not unusual in 1969; in fact, they 

were conducted regularly without much resistance. However, that night the street erupted into 

violent protest as the crowds in the bar fought back. The backlash and several nights of protest 

that followed have come to be known as the Stonewall Riots. The Stonewall uprising marked 

the arrival of the modern mass movement for equality for lesbians, gay men, transgender and 

bisexual men and women. 13 H.R. 166. Congresswoman Abzug introduced a bill of the same nature two additional times 

during the 94th Congress, H.R. 5452, H.R. 13928. 14S. Rep. 107–341. 15Pub. L. 95–454. 16The law did not affect the issuing of security clearances by agencies including the FBI and 

CIA because they denied clearances based on sexual orientation on the grounds that homosexuality might subject them to blackmail. See, Peter Freiberg, President’s Order Protects Workers, 

the Wash. Blade (June 5, 1998). 17President Clinton did not initially issue an Executive Order requiring these policies because 

of a fear that Congress would overturn it. 

ments, schools, and public agencies of our country. Even where no 

government policies mandated sexual orientation discrimination, 

unchecked private anti-gay biases cost the careers of thousands of 

GLB workers.10

On July 2, 1964 the Civil Rights Act of 1964 was signed into law, 

prohibiting discrimination based on race, sex, color, national origin, 

and religion. Despite a growing awareness that anti-discrimination 

law should include protections based on sexual orientation, Title 

VII did not extend such protection to GLB workers. However, the 

implementation of Title VII demonstrated the positive impact antidiscrimination laws can have,11 while fueling a widening belief that 

sexual orientation discrimination should no longer be legally permissible. Events, particularly the Stonewall uprising of 1969 12 further highlighted the plight of GLB individuals and the need to protect them under Federal anti-discrimination law. 

In 1975, Congresswoman Bella Abzug (D–NY) introduced the 

first Federal legislation 13 to address sexual orientation discrimination in America. This legislation was modeled after the succession 

of previous civil rights legislation that prohibited employment discrimination based on race and sex. Despite these early efforts, severe discrimination has continued throughout the years, with private anti-gay biases fortified by the lack of a Federal pronouncement on sexual orientation discrimination. Federal courts have 

been rendered virtually powerless to remedy the discrimination for 

want of a proper Federal cause of action.14

The Civil Service Reform Act of 1978 15 put into law regulatory 

changes and prohibited discrimination against Federal employees 

for ‘‘conduct which does not adversely affect’’ their job performance. 

This was interpreted to mean that sexual orientation discrimination is a prohibited personnel practice.16

Despite the reach of the Civil Service Reform Act, formal protections for GLB workers are still lacking. In response to the lack of 

recourse, the Clinton Administration encouraged individual Federal 

agencies to issue policies banning sexual orientation discrimination.17 However agencies failed to adopt such policies or notify emVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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18 Executive Order 11478. 19Peter Freiberg, President’s Order Protects Workers, the Wash. Blade (June 5, 1998). 20 Id. 21 Childers v. Dallas Police Dep’t, 513 F. Supp. 134 (N.D. Tex. 1981). 22 Rowland v. Mad River Local School Dist., 730 F.2d 444 (6th Cir. 1984). 23 Id. at 454 (Edwards, J., dissenting). 

ployees that non-discrimination policies were adopted. Consequently, in 1998 President Clinton issued Executive Order (E.O.) 

13087, formally adding sexual orientation to an existing E.O.18

which banned job discrimination against Federal workers based on 

race, color, religion, sex, national origin, disability and age.19 While 

E.O. 13087 was a crucial step, Federal law applicable to non-federal employers was still needed. 

President Clinton highlighted that the Order failed to create any 

new enforcement rights, such as the ability to bring bias complaints to the Equal Employment Opportunity Commission 

(EEOC). However Federal employees like Rob Sadler, an attorney 

with the Department of Commerce and president of the Federal 

GLOBE (gay, lesbian, or bisexual employees) stated the Order 

would bring major change to the workplace by telling ‘‘agencies to 

explicitly detail and distribute the complaint procedures for employees who believe they have been subject to anti-gay discrimination.’’ President Clinton urged Congress to pass ENDA to extend these 

basic employment protections to all GLB workers. He argued, ‘‘individuals should not be denied a job on the basis that has no relationship to their ability to perform work.’’ 20

Sexual orientation discrimination by State and local governments 

In addition, the State and local governments throughout the 

United States have demonstrated a long and troubling history of 

unconstitutional discrimination against GLB workers who are employed by those government entities. Examples of discrimination by 

state or local government employers include: • In 1973, Steven Childers was denied a job with the Dallas Police Department because of his sexual orientation, despite the fact 

that he earned the highest score of any candidate who took the 

civil service examination for that position.21 During the relevant 

job interview, the police department official with sole authority for 

hiring for that particular opening asked Childers various questions 

intended to determine Childers’ sexual orientation. At the conclusion of the interview, the interviewer told Childers, ‘‘I think you 

should know there are a lot of cops who like to bust fags.’’ After 

he was denied the job, Childers filed suit against the local government employer in the U.S. District Court for the Northern District 

of Texas, but he was denied relief. • In December 1974, Ms. Rowland was suspended from her position as a high school guidance counselor in the Mad River Local 

School District in Montgomery County, Ohio.22 Rowland ‘‘was fired 

because she was a homosexual who revealed her sexual preference—and, as the jury found, for no other reason.’’ 23 Indeed, the 

federal jury that heard her case ruled in her favor and awarded her 

damages, however, that ruling was later overturned by the U.S. 

Court of Appeals for the Sixth Circuit. Although the U.S. Supreme 

Court later declined to hear Rowland’s appeal, Justice William 

Brennan offered a powerful opinion dissenting from the denial of 


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24 470 U.S. 1009, 105 S. Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan, J. and Marshall, J. dissenting from the denial of cert.). 25 Acanfora v. Board of Ed. of Montgomery County, 359 F. Supp. 843 (D.Md. 1973). 26 Acanfora v. Board of Ed. of Montgomery County, 491 F.2d 498 (4th Cir. 1974). 27 Aumiller v. the University of Delaware, 434 F. Supp. 1273 (D.Del. 1977). 28Jantz v. Muci, 759 F.Supp. 1543 (D.Kan. 1991), reversed by, 976 F.2d 623 (10th Cir. 1992), 

cert. denied, 508 U.S. 952, 113 S. Ct. 2445, 124 L.Ed.2d 662 (1993). 29Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), vacated en banc, 114 F.3d 1097 (1997), 

writ of certiorari denied, 522 U.S. 1049, 118 S. Ct. 693, 139 L.Ed.2d 638 (1998). 

certiorari, in which he explained why classifications based on sexual orientation are suspect and should be carefully scrutinized by 

the courts.24

• Joseph Acanfora III, a public junior high school science teacher 

in Montgomery County, Maryland, was transferred to a nonteaching position in 1972 when the school district learned he was 

gay. Acanfora filed a constitutional challenge and the U.S. District 

Court for the District of Maryland ruled in his favor, holding that 

the school officials wrongfully transferred him to a nonteaching position when they discovered that he was gay.25 However, the U.S. 

Court of Appeals for the Fourth Circuit overturned this ruling 

without even considering the equal protection arguments presented 

in Acanfora’s case. Instead, the Fourth Circuit oddly focused on the 

fact that Acanfora had not outed himself in his application for employment.26

• Richard Aumiller, a lecturer at the University of Delaware, 

served as the faculty advisor to the University’s Gay Community 

group.27 Aumiller’s employment contract was not renewed in 1975 

after he made positive statements in newspaper articles about homosexuality which the University, president, and officials found to 

be offensive. The U.S. District Court for the District of Delaware 

found that these statements in no way impeded Aumiller’s ability 

to perform his daily duties, nor did they substantially disrupt the 

University or his working relationship with his superiors. Therefore, the Court held that the University’s discriminatory actions 

violated Aumiller’s constitutional rights. 

• Vernon R. Jantz had regularly worked as a substitute teacher 

at the Wichita North High School in Wichita, Kansas, but he was 

denied fulltime employment as a social studies teacher in 1988 because the principal of that high school had perceived that Jantz 

might have ‘‘homosexual tendencies.’’ 28 Jantz filed suit against the 

local government employer in the U.S. District Court for the District of Kansas, and he was initially successful as that court ruled 

in his favor. However, his victory was later overturned by the U.S. 

Court of Appeals for the Tenth Circuit. 

• Robin Joy Shahar—a lawyer who was employed by the Georgia 

Attorney General’s Office—was terminated from her job in 1991 

when her State employer discovered that she was a lesbian and 

had held a private religious ceremony with her lesbian partner.29

Attorney General Michael Bowers—who had previously achieved 

notoriety by promoting the discriminatory legal position in the 

now-discredited case of Bowers v. Hardwick, 478 U.S. 186, 92 L. 

Ed. 2d 140, 106 S. Ct. 2841 (1986)—personally wrote to Shahar to 

inform her that he could not continue to employ her because—in 

his opinion—her life did not reflect appropriately on the Attorney 

General’s Office. Shahar brought a constitutional challenge in the 


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30See Figenshu v. State, 1999 Cal. LEXIS 4666, No. S079219 (Cal. Jul. 14, 1999). 31Shermer v. Illinois DOT, 937 F. Supp. 781 (C.D. Ill. 1996). 32 Id.; Shermer v. Illinois DOT, 171 F.3d 475 (7th Cir. 1999). 33Weaver v. Nebo School District, 29 F. Supp. 2d 1279 (C.D. Ut. 1998). 

federal courts, but was ultimately unsuccessful in getting reinstated by her State employer. 

• Thomas Figenshu worked as an officer with the California 

Highway Patrol from 1983 to 1993.30 After he was promoted to sergeant and transferred to West Los Angeles in 1988, co-workers 

began to harass him by taping anti-gay pornographic cartoons to 

his mailbox and leaving a ticket for ‘‘sex with dead animals’’ on his 

windshield. Figenshu also found urine on his clothes and his locker, and was commonly the object of anti-gay slurs. To remove himself from the hostile work environment, Figenshu resigned in 1993 

and brought a successful claim pursuant to California law. However, he had no Federal remedy to address the discriminatory 

workplace environment created by his State employer. 

• James Shermer worked as a building tradesman for the Illinois 

Department of Transportation.31 Shermer’s supervisor constantly 

made offensive homophobic remarks about Shermer at the workplace, thus creating a hostile work environment. In 1995, Shermer 

filed suit against his State employer pursuant to Title VII of the 

Civil Rights Act of 1964, however, the U.S. District Court for the 

Central District of Illinois and the U.S. Court of Appeals for the 

Seventh Circuit ruled against Shermer because the harassment 

was based on sexual orientation and not prohibited by Title VII.32

• Wendy Weaver was a teacher at Spanish Fork High School in 

Utah for 19 years, and served as the school’s volleyball coach since 

1979.33 Weaver consistently received good to excellent evaluations, 

was never subject to any discipline and was considered an effective 

and capable teacher. After it was discovered in 1997 that Weaver 

was a lesbian, the school directed her to refrain from making comments to or answering questions from students, staff or parents 

about her ‘‘homosexual orientation or lifestyle,’’ and she was removed from her position as volleyball coach. The U.S. District 

Court for the District of Utah held that because the school attempted to infringe upon Weaver’s First Amendment rights, she 

was entitled to summary judgment. Weaver was reinstated to her 

coaching position and awarded damages. 

After reviewing this long history of workplace discrimination by 

State and local government employers, Congress finds that the 

States do not possess even a rational basis—and certainly not a 

compelling reason—for discriminating against GLB workers merely 

because of their sexual orientation. Any such discrimination by 

State and local governments is completely irrational. 

Discrimination based on sexual orientation continues 

Employment discrimination based on actual or perceived sexual 

orientation continues in America’s workplaces. Studies find that 

while a majority of GLB workers believe there is more acceptance 

of them in today’s society compared to years previous, they also report an equally significant amount of prejudice and discriminaVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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34 Inside Out: A Report on the Experience of Lesbians, Gays and Bisexuals in America and 

the Public’s Views on Issues and Policies Related to Sexual Orientation, The Kaiser Family 

Foundation (2001). 35See generally, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination; Badgett, Lau, Sears, Ho; The Williams Institute (2007) at Executive 

Summary [hereinafter Williams Institute Report]; Sexual Orientation-Based Employment Discrimination; GAO–02–878R [hereinafter GAO Report]; Inside-Out: A Report on the Experiences 

of Lesbians, Gays, and Bisexuals in America and the Public’s Views on Issues and Policies Related to Sexual Orientation; The Kaiser Family Foundation (2001) [hereinafter Kaiser Report]. 36 Employment Non-Discrimination Act (H.R. 2015), Hearing before the Subcommittee on 

Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Prof. Helen Norton). In this testimony, the witness cited cases where workers suffered oppressive conditions and discrimination due to their sexual orientation, but were denied legal recourse under 42 U.S. C. 2000e–2000e–17 (Title VII of the Civil Rights Act of 1964), citing Vick- ers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006) cert. denied, 127 S. Ct. 2910 

(2007); Simonton v. Runyon, 232 F.3d 33, 34–35 (2 Cir. 2000); Medina v. Income Support Div., 

New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) (rejecting heterosexual woman’s Title VII 

claim challenging her lesbian supervisor’s sexually explicit remarks and e-mail: ‘‘We construe 

Ms. Medina’s argument as alleging that she was discriminated against because she is a heterosexual. Title VII’s protections, however, do not extend to harassment due to a person’s sexu- ality.’’); Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001) (‘‘Harassment on the basis of sexual orientation has no place in our society. Congress has not yet 

seen fit, however, to provide protection against such harassment.’’) (citations omitted). 37See generally, Williams Institute Report; GAO Report; Kaiser Report. 38 Referring to documented cases where heterosexuals who are either perceived to be gay or 

simply befriend gay co-workers, resulting in workplace harassment and/or discrimination—as in 

the case of Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006) cert. denied, 

127 S. Ct. 2910 (2007). 39 I.e. Denying promotions, paying GLB workers a lower wage than their heterosexual counterparts, and/or termination. 

tion.34 Many well documented cases 35 illustrate the need to protect 

workers who experience discrimination with regard to unfair hiring 

and termination practices, inequitable benefits, and hostile and oppressive working conditions.36

Numerous studies 37 show that discrimination in the workplace 

based on sexual orientation is a national problem. Sexual orientation discrimination occurs in small and large companies, public 

agencies, schools, and municipalities across the nation. It impacts 

all levels of the workforce from minimum wage employees to corporate executives, affecting all races, ages, religions and skill levels 

of workers. Basic protections are long overdue, as homosexual and 

bisexual—as well as heterosexual 38—workers have been vulnerable 

to unfair treatment through the years. The lack of basic rights 

leaves millions of hardworking tax-payers without Federal protection from discriminatory practices. 

A considerable amount of evidence has been presented before 

both the House and Senate demonstrating that intentional employment discrimination on the basis of sexual orientation causes severe economic and psychological harm. Many employees who have 

experienced discrimination demonstrated an exemplary work ethic, 

received above-average evaluations and have made significant contributions to the workplace and their communities. However, a 

prejudice towards their sexual orientation ensues irrespective of job 

performance.39 Consequently, GLB employees are put at an economic disadvantage as an entire class of workers. The lack of Federal protection fosters hostile work environments where GLB employees fear that their sexual orientation could be revealed to the 

detriment of their careers. 

To learn more about this problem, the HELP Subcommittee 

heard testimony from police officer Michael Carney, a highly decorated police officer who was denied reinstatement to the Springfield, Massachusetts Police Department because he is gay. Despite 

his solid record as an officer, and despite the Police Chief’s recVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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40Mass. Gen. Law Chpt. 151B. 41 Employment Non-Discrimination Act (H.R. 2015) hearing before the Subcommittee on 

Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of Officer Michael Carney). 42 Employment Non-Discrimination Act (H.R. 2015), hearing before the Subcommittee on 

Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Brooke Waits). 43The Employment Non-Discrimination Act, hearing before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (written testimony of Lawrence 

Lane, at 22) [hereinafter Lane Testimony]. 44Lane Testimony at 23. 45 Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination; Badgett, Lau, Sears, Ho; The Williams Institute; (2007) at Executive Summary 

[hereinafter Williams Institute]. 

ommendations, Carney was denied reinstatement three times after 

informing the Police Commission that he was gay. Fortunately for 

Mr. Carney, Massachusetts has a law prohibiting such discrimination.40 As a result, he filed a claim under state law. After an investigation, the Massachusetts Commission against Discrimination 

ruled probable cause existed that the police commission discriminated against Officer Carney on the basis of sexual orientation. A 

settlement was subsequently reached and Officer Carney was reinstated.41 Mr. Carney’s experience demonstrates that state and local 

government employers continue to discriminate against GLB workers, even though such discrimination is completely irrational and 

serves no conceivable government purpose. 

The Subcommittee also heard from Brooke Waits, who was 

praised for her job performance at Cellular Sales in Texas, as an 

inventory control manager. She received a raise within several 

weeks after joining the company, and was lauded for her performance. However, when her supervisor discovered that she was a lesbian, Brooke was fired the very next day. Unfortunately Brooke 

had no recourse under Texas law, and thus could not assert a valid 

claim against her employer’s discriminatory conduct.42

The Senate HELP Committee heard testimony from Larry Lane 

who worked as the regional manager for the New York region of 

Collins and Aikman Floor Coverings, Inc. For over two-years 

Larry’s work was praised. In the only written evaluation he received, Larry’s manager stated ‘‘Larry is doing an outstanding job. 

He is already having a positive impact on the New York zone.’’ 43

However, when colleagues discovered Larry was gay they began a 

campaign to get rid of him. Without warning he was placed on probation. Shortly thereafter he admitted to colleagues that he was in 

fact gay and within weeks he was formally fired. Recounting his 

experience Larry testified, ‘‘one’s success in the workplace should 

depend on performance and ability and not be subject to the ignorant views and lack of acceptance that many times still exists toward lesbians and gay men.’’ 44

Cases such as these are not isolated. Unfortunately, many GLB 

workers who have been discriminated against are frightened to 

speak up after the discriminatory act for fear that it could happen 

again by a subsequent employer. Studies show that up to 68 percent of GLB respondents have experienced some kind of workplace 

discrimination ranging from the denial of employment promotion, 

to termination without cause.45 States that ban this type of discrimination, report that the number of sexual orientation discrimination suits is proportional to that of sex and race discrimination 


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46 Id. 47 Id. at 12, 15, 18–20. 48 Id. 13. 49 Id. 50 Human Rights Campaign at 15. 51The Employment Non-Discrimination Act, hearing before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (testimony submitted by the 

American Psychological Association (APA), at 40) [hereinafter APA Testimony]. 52 Id. 53Waites Testimony at 1. 54 Id. 55 Id. 

complaints, pro rata.46 Thus, there is a substantial need for Federal protection of these workers, particularly in the majority of 

states that do not already protect them. 

The impact of sexual orientation discrimination 

Economic impact on GLB workers 

GLB workers experience significant wage disparities, higher unemployment rates, and inequitable public accommodations and benefits.47 Economists and sociologists who study these patterns also 

conclude that due to discrimination based on sexual orientation, 

gay men earn less money than heterosexual men who have similar 

experience, education, and credentials.48 Another study showed 

that when job applicants submitted applications or resumes that 

were coded with language suggesting the applicants’ involvement 

in a gay rights organization, those applicants were consistently denied employment more often than applicants of equivalent quality 

that did not have any ‘‘gay code’’ in their applications.49

In addition to economic harms, GLB workers tend to experience 

substantially impaired ability to obtain affordable healthcare and 

employment related benefits.50 Without stable employment, income, and access to jobs, the effects of discrimination are felt in almost every aspect of life, including one’s own health and wellbeing. 

Psychological impact 

The discrimination and/or fear of discrimination that many GLB 

workers face can have far-reaching consequences. The American 

Psychological Association testified to the Senate HELP Committee 

that researchers have found that GLB workers suffer psychological 

distress because they are often persecuted and in a constant state 

of fear of being discovered.51 The study reported ‘‘research has indicated that social stigma based upon sexual orientation may be a 

risk factor for psychological depression, and anxiety.52 Brooke 

Waites testified that her co-workers frequently made jabs and 

other derogatory comments about GLB people. Fearing for her job 

and not wanting to ‘‘cause problems,’’ 53 Waites carefully avoided 

using pronouns when talking about her girlfriend. Although Waites 

was openly lesbian in every aspect of her life outside of her job, 

this work environment ‘‘kept [her] * * * from being [herself] with 

coworkers.’’ 54 Despite her efforts, Waites was ultimately fired 

when her manager discovered that she was a lesbian. She testified 

‘‘the experience has been difficult for me, as it has altered not only 

how I feel about the world but also, how I feel in the world. Work 

was more than work to me: it was a part of what I know about myself and how I feel about myself.’’ 55


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56Shaun Pichler, ‘‘Heterosexism in the Workplace,’’ Sloan Work and Family Research Network 

at 7 (Apr. 3, 2007). See also, Y.B. Chung, ‘‘Career Decision Making of Lesbian, Gay, and Bisexual Individuals,’’ Career Development Quarterly at 44 (1995). 57 R.N.C. Trau & C.E.J. Hartel, ‘‘Impact of career-life conflict on disclosure and attitudes towards organization among gay men’’ Sexual Orientation in the Workplace: Current Issues. Symposium Presented at the National Academy of Management Meeting, Atlanta, GA. See also, 

Shaun Pichler, ‘‘Heterosexism in the Workplace,’’ Sloan Work and Family Research Network at 

7 (Apr. 3, 2007). 58 APA Testimony at 41. 59 Id. 60 Id. 61 42 U.S. C. §§ 2000e–2000e–17 (Title VII of the Civil Rights Act of 1964); 29 U.S. C. §§ 621–

634 (Age Discrimination in Employment Act); 42 U.S. C. §§ 12101–12102, 12111–12117, 12201–

12213 (Americans with Disabilities Act). 62 Courtney Joslin. ‘‘Protection for Lesbians, Gay, Bisexual, and Transgender Employees 

Under Title VII of the 1964 Civil Rights Act.’’ http://www.abanet.org/irr/hr/summer04/ 

protectlgbt.html. 

Researchers have found that the experience of Brooke Waites is 

not isolated. In fact GLB workers who place a high value on career 

advancement and success fear being ‘outed’ at work. Disclosure at 

work ‘‘may be related to the relative importance a [GLB] employee 

places on certain aspects of work and life domains.’’ 56 A 2006 study 

found that ‘‘gay men who emphasized quality of work life and relationship quality were more likely to disclose at work than those 

who emphasized job security or career success.57

The American Psychological Association concludes that psychological research findings indicate that GLB individuals experience 

‘‘significantly higher levels of discrimination based upon sexual orientation than do heterosexual individuals.’’ 58 Stigmatization and 

discrimination can lead to increased vulnerability of negative mental health conditions. 

The APA further states that ‘‘anti-discrimination policies in the 

workplace can * * * [positively] affect job satisfaction and productivity.’’ 59 Researchers have found ‘‘a significant relationship between self-disclosure, anti-discrimination policies and top management support for equal rights and organizational commitment.’’ 60

Enactment of ENDA would decrease the fear and stigmatization 

GLB workers feel and would promote the mental welfare of these 

individuals as well as the public good. 

Existing Federal and State Laws Provide Inadequate Protections 

Federal law 

Federal law today provides the American worker with the necessary safeguards to protect them against workplace discrimination 

with regard to race, color, sex, national origin, religion, age and 

disability.61 Courts have interpreted Title VII to prohibit associative discrimination in employment (i.e., discrimination against a 

person with whom the employee associates). Title VII and other 

Federal laws have been interpreted to prohibit discrimination 

based on the perceived characteristics of an employee or applicant 

for employment.62

Unfortunately, however, current Federal law fails to address discrimination on the basis of sexual orientation in the workplace. 

Federal case law is ‘‘replete with decisions where Federal judges 

have characterized egregious acts of discrimination targeted at 

GLB workers as morally reprehensible yet utterly beyond the law’s 


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63The Employment Non-Discrimination Act of 2007 (H.R. 2015), hearing before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written 

testimony of Professor Helen Louise Norton) [hereinafter Norton Testimony]. See, Higgens v. 

New Balance Athletic Shoes, Inc., 194 F.3d 252, 258 (1st Cir. 1999) (The court held that harassment because of sexual orientation is a noxious practice but the court is called upon to construe 

a statute, not to make a moral judgment—Title VII does not proscribe harassment simply of 

sexual orientation); Simonton v. Runyon, 232 F.3d 33, 34–35 (2nd Cir. 2000) (The court stated 

the conduct allegedly engaged in by [Simonton’s] co-workers is morally reprehensible * * * particularly in the modern workplace. However, the court held that Simonton had no cause of action under Title VII. 64 California, Colorado, District of Columbia, Illinois, Iowa, Maine, Minnesota, New Jersey, 

New Mexico, Oregon, Rhode Island, Vermont, Washington, Connecticut, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York and Wisconsin. 65 Russell Davis, ‘‘Refusal to hire, or dismissal from employment, on account of plaintiff’s sex- ual lifestyle or sexual preference as violation of Federal constitution or Federal civil rights statutes.’’ 42 A.L.R. Fed.189. at 4. 66 Id. 67 Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001). (‘‘Harassment on the basis of sexual orientation has no place in our society. Congress has not yet seen 

fit, however, to provide protection against such harassment.’’) 68 Id. 69 Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Circuit 1979). 70DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (9th Cir. 1979). 

reach.’’ 63 Furthermore, only 20 states, plus the District of Columbia, prohibit employment discrimination based on sexual orientation,64 leaving millions of GLB Americans vulnerable to blatant 

employment discrimination. 

Over the past several decades, some courts have held that dismissing an individual from Federal employment because of their 

sexual orientation without a rational connection between the employee’s behavior and the efficiency of the government service is a 

violation of the constitutional guarantee of due process.65 Conversely, other Federal courts have upheld Federal regulations that 

allowed for dismissal based on what those misguided courts have 

labeled as ‘‘immoral’’ sexuality.66

Many plaintiffs have attempted to bring sexual orientation 

claims pursuant to Title VII’s sex discrimination provision however 

they have done so without success.67 Federal courts have asserted 

that they do not have the legal authority to remedy workplace discrimination based on sexual orientation under Title VII. Although 

a few Federal courts have broadly applied Title VII’s prohibition on 

sex discrimination, GLB workers were held not to be covered by 

civil rights law.68

The first Title VII cases filed for employment discrimination 

based on sexual orientation emerged in the 1970s. In 1979, the 

U.S. Court of Appeals for the Fifth Circuit ruled that ‘‘discharge for 

homosexuality is not prohibited by Title VII.’’ 69 In the same year, 

the U.S. Court of Appeals for the Ninth Circuit issued a similar 

ruling in what is considered the most clearly established precedent, 

clarifying that sexual orientation discrimination was not actionable 

under Title VII. 

In DeSantis v. Pacific Telephone & Telegraph Co., the plaintiffs 

argued that Title VII should be interpreted to cover discrimination 

on the basis of sexual orientation and that Title VII should be interpreted to encompass discrimination directed at a male employee 

because he is perceived to be ‘‘effeminate.’’ 70 Both arguments were 

rejected by the Ninth Circuit on the basis that that court believed 

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71 Id. 72 Id. 73Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th Circuit 1989). 74Fredette v. BVP Management Associates, 112 F.3d 1503, 1510 (11th Cir. 1997). 75 490 U.S. 228 (1989). 76Joslin, supra note 63 at 2. 77 Id. 78 Id. 

entation.71 Rather, the court held that Title VII was only intended 

to cover ‘‘traditional notions of [gender].’’ 72

In 1989, the U.S. Court of Appeals for the Eighth Circuit Court 

of Appeals ruled in accordance with the previous courts’ rulings on 

the matter by issuing an opinion which clearly stated: ‘‘Title VII 

does not prohibit discrimination against homosexuals.’’ 73 And in 

1997, the U.S. Court of Appeals for the Eleventh Circuit ruled in 

a similar manner when it held in Fredette v. BVP Management Associates that 

finally, we address concerns raised by the appellee regarding the implication of this case for the law regarding discrimination based on sexual orientation. BVP argues that 

to hold in favor of the appellant is, in effect, to protect 

against discrimination on the basis of sexual orientation. 

The short but complete answer to this argument is to 

make clear the narrowness of our holding today. We do not 

hold that discrimination based on sexual orientation is actionable * * * We note at the EEOC has also drawn a distinction between [what is] actionable as gender discrimination, and discrimination because of sexual orientation.74

While many U.S. District Courts and U.S. Courts of Appeals 

have made it clear that they do not have the legal authority to 

remedy workplace discrimination based on sexual orientation 

under Title VII of the Civil Rights Act of 1964, two decisions by the 

U.S. Supreme Court clearly display the Court’s intent to protect 

against certain types of gender-role discrimination. 

In Price Waterhouse v. Hopkins,75 plaintiff Ann Hopkins claimed 

she had been denied partnership at the firm because she was not 

feminine enough. In order to increase her chances of making partner, Hopkins was told she should ‘‘walk more femininely, talk more 

femininely, dress more femininely, wear make-up, have her hair 

styled, and wear jewelry.’’ 76 While the employer argued that Title 

VII did not prohibit discrimination based on gender stereotypes, 

the Supreme Court disagreed and held that Title VII is not simply 

limited to discrimination based on the biological makeup of an individual but also includes discrimination based on gender stereotypes.77

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees 

by assuming or insisting that they matched the stereotype 

associated with Their group, for in forbidding employers to 

discriminate against individuals because of their sex Congress intended to strike at the entire spectrum of disparate 

treatment of men and women resulting from sex stereotypes.78

In addition, the Supreme Court’s decision in Oncale v. 

Sundowner further expanded previous interpretations of Title 


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79 523 U.S. 75 (1998). 80 Id. 81 Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002). 82 305 F.3d 1061 (9th Cir. 2002). 83 Id. 84William Rubenstein. ‘‘Do Gay Rights Laws Matter? An Empirical Assessment.’’ (November 

2001) at 3. 85Joslin, supra note 63 at 3. 

VII.79 In Oncale, the Supreme Court held that a plaintiff could 

state a Title VII claim where sexual harassment was perpetrated 

by a person of the same sex.80

These two important Supreme Court cases influenced contemporary courts to more vigorously scrutinize cases involving sexual 

orientation discrimination under a variety of state and Federal constitutional theories. For example, in 2002, the U.S. District Court 

for the District of Oregon denied the defendant-employer’s motion 

for summary judgment in a Title VII suit brought by a lesbian who 

claimed her female supervisor made disparaging and harassing 

comments based on gender stereotypes.81 The Ninth Circuit issued 

a similar ruling in the Rene v. MGM Grand Hotel, Inc.,82 where a 

gay male plaintiff presented evidence that his former coworkers 

harassed and taunted him by calling him feminine names and saying he walked like a woman.83

Despite what may be seen as progress in the direction of protecting GLB Americans from employment discrimination, millions 

of workers still face the prospect of being fired because they are 

gay, lesbian, or bisexual. Therefore, Congress finds it important to 

protect GLB workers in all states in order to end the irrational 

practice of workplace discrimination based on sexual orientation. 

State laws 

The first jurisdiction to prohibit sexual orientation discrimination 

in employment was East Lansing, Michigan in 1972. Wisconsin enacted its gay-rights law in 1983, leading the way for states passing 

laws that ban sexual orientation discrimination in employment.84

Since then, a significant number of cities and counties that have 

enacted similar laws, but as of today, only 20 states and the District of Columbia prohibit discrimination based on sexual orientation. 

State laws that prohibit employment discrimination on the basis 

of sexual orientation can be divided into two groups. In some 

states, sexual orientation is deemed a protected class in a general 

anti-discrimination law. In other states, sexual orientation is protected under a provision separate from those protecting other categories such as race or sex.85

According to the General Accounting Office’s (GAO) report on ‘‘Sexual Orientation—Based Employment Discrimination: States’ Experience with Statutory Prohibitions,’’ states that protect against 

employment discrimination based on sexual orientation have generally established the basis for the protection they provide. Most of 

these states define ‘‘sexual orientation’’ as heterosexuality, homosexuality, or bisexuality. Besides Vermont and the District of Columbia, all other state definitions include people who are perceived 

by others to be in, or are identified with, those three categories. 

These states have expanded their definition to not only prohibit 

discrimination against employees who actually are homosexual, but 


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86The Government Accounting Office (GAO). ‘‘Sexual Orientation ‘‘Based Employment Discrimination: States’ Experience with Statutory Prohibitions,’’ (July 2002) at 1. 87 Id at 4–5. 88This is also the case under existing Federal laws and ENDA. 89GAO, supra note 86 at 5. 90 Id. at 5. 91S. Rpt. 107–341. 

also against employees whom the employer incorrectly believes are 

homosexual.86

California and Minnesota provide protections to its citizens that 

expressly prohibit associational discrimination. Specifically, California’s statute prohibits unlawful employment practices on the basis 

of sexual orientation including instances where ‘‘the [employee] is 

associated with a person who has, or is perceived to have ‘any of 

the characteristics on which basis it is illegal to discriminate,’ such 

as sexual orientation.’’ Minnesota deems it an unfair discriminatory practice for an individual who participated in alleged discrimination to intentionally engage in a reprisal against any person because that person associated with a person or group of persons who 

are of a different sexual orientation.87

Under the state laws the size of the employer’s business is a factor in determining coverage.88 GAO found that in the states they 

reviewed with laws prohibiting discrimination on the basis of sexual orientation, six included all employers regardless of business 

size. In seven other states, the minimum number of employees that 

trigger coverage ranges from as few as three (Connecticut) to as 

many as fifteen (Maryland and Nevada).89

The nature of an employer’s business or activity is another factor 

states have used to determine whether nondiscrimination protections apply. In particular, all states have found it necessary to provide an exemption for religious organizations. Though the religious 

exemption language varies from state to state, most states have exemptions that are broad in scope. Under these broad exemptions, 

religious organizations are permitted to give preference to individuals of the same religion or to those people whose employment is 

in accordance with the tenets of their particular religion. However, 

Minnesota has an exemption that does not apply to secular business activities engaged in by religious associations.90

ENDA Is the Necessary Remedy 

Congress has the responsibility to pass ENDA to ensure that all 

GLB individuals, regardless of where they live or work, are protected from sexual orientation discrimination. The lack of Federal 

protection leaves GLB workers reliant on a patchwork of local and 

state laws that have failed to protect them. While certain states, 

municipalities and businesses should be commended for adopting 

anti-discrimination policies, their efforts do not extend far enough 

to negate the need for federal intervention. 

In addition to state and local support for fair and equal treatment of GLB individuals, business leaders have widely adopted 

workplace anti-discrimination policies protecting GLB rights. According to a recent survey, over 2000 companies, colleges, universities, state and local governments and Federal agencies have nondiscrimination policies encompassing sexual orientation of their 

employees.91


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92The Employment Non-Discrimination Act of 2007, hearing before the Subcommittee on 

Health, Employment, Labor and Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Helen Norton, Associate Professor, University of Colorado School of Law, at 3) [Hereinafter Norton Testimony]. 93The Employment Non-Discrimination Act, hearing before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (written testimony of Richard 

Womack, Director of the AFL–CIO Department on Civil and Human Rights Charles at 22) [hereinafter Womack Testimony]. 94The Employment Non Discrimination Act of 2007, hearing before the Subcommittee on 

Health, Employment, Labor and Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Brooke Waits, at 2) [Hereinafter Waites Testimony]. 

Despite some progress to secure the rights of GLB workers, millions of Americans remain vulnerable to workplace discrimination. 

In her testimony before the HELP Subcommittee’s September 5, 

2007 hearing, Professor Helen Norton stated that the patchwork of 

state and local laws leaves a wide range of injuries and injustices 

unaddressed and that ENDA would ‘‘fill these gaps’’ by extending 

a ‘‘national commitment to equal employment opportunity’’ for 

these workers.92 Opponents of this legislation have argued that 

GLB anti-discrimination policies should be left to the states and/ 

or individual businesses. However, as Richard Womack, Director of 

the AFL–CIO Department on Civil and Human Rights testified to 

the Senate HELP Committee in reflection of the debate over the 

Civil Rights Act in the 1960’s where there was disagreement over 

bill, ‘‘if we had waited for the states to say this was the right thing 

to do, we would not have had a civil rights bill [at all].’’ 93

Moreover, the gaps in the state and municipal protections leave 

the majority of GLB workers defenseless against discrimination. 

This reality was directly evidenced by the experience with discrimination described by Officer Michael Carney and Brooke Waites before the HELP Subcommittee. While both were discriminated 

against for being gay, the outcomes of their experiences are dramatically different. As previously discussed, Michael Carney—a 

Springfield, Massachusetts police officer—was denied reinstatement to the police force because he was gay. However, because Officer Carney was protected under a Massachusetts anti-discrimination law, he was reinstated. Unfortunately, Brook Waites of Dallas, 

Texas, had no right to fight for her job because Texas does not have 

an anti-discrimination statute to protect the rights of GLB workers. 

Ms. Waites testified that while ENDA may not change people’s 

minds, Congress has the power to help stop the devastating effects 

of discrimination. She explained no one ‘‘should be exposed to a 

workplace where they have to worry that simply and honestly 

being who they are could cost them their livelihood.’’ 94 ENDA will 

close the loopholes that currently exist in anti-discrimination laws 

so that people like Brooke Waites have the right to fight an employer’s discrimination regardless of the state in which she lives. 

The Act will not only extend fair employment practices, it will 

also foster workplaces where creativity, knowledge and life experiences are exchanged freely. This type of environment unquestionably benefits employers and employees. Nancy Kramer, Founder 

and CEO of Resource Interactive, testified that in her twenty-six 

years running a small business, she ‘‘ha[s] learned that an inclusive workplace, which judges people on their merits, not on unreVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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95The Employment Non Discrimination Act of 2007, hearing before the Subcommittee on 

Health, Employment, Labor and Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Nancy Kramer, Founder and CEO, Resource Interactive, at 1) [Hereinafter Kramer Testimony]. 96 Id. 97 Id. 98The Employment Non-Discrimination Act, hearing Before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (written testimony of Lucy 

Billingsley, founder and partner of Billingsley Company, at 32) [hereinafter Billingsley Testimony]. 99The State of the Workplace 2006–2007, The Human Rights Campaign (2007) at 7. [hereinafter Human Rights Campaign Report] 100 Human Rights Campaign Report. 101The Employment Non-Discrimination Act, hearing Before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2 Sess. (2002) (written testimony of Charles Gifford, Chairman and CEO, FleetBoston Corporation, at 30) [hereinafter Gifford Testimony]. 102 Human Rights Campaign at 13. 103 Id. 

lated matters like sexual orientation * * * is the key to success in 

a competitive, ever-changing marketplace.’’ 95

In addition, business leaders like Lucy Billingsley believe that 

failing to enact ENDA would be more costly to business than having businesses comply with its non-discrimination requirements.96

Discrimination in the workplace burdens companies and gives rise 

to costly grievances and lawsuits.97 A Federal law banning sexual 

orientation discrimination will actually give businesses the right 

focus. Ms. Billingsley testified: ‘‘By directing attention to only factors of performance and productivity * * * all of America’s businesses will perform better.’’ 98 Accordingly, Congress finds that employment discrimination against GLB workers—whether in the private or public sector—is completely irrational. 

Broad Support for Federal Protection 

Business leaders support equality in the workplace 

A significant number of large and small businesses support the 

goals of ENDA, and many have already adopted their own corporate non-discrimination policies.99 Employers promote equality 

not only because it is the right and moral thing to do, but also because it makes good business sense. Today, nearly 90 percent of the 

Fortune 500 ranked corporations include workplace protections 

based on sexual orientation.100 Charles Gifford, Chairman and 

CEO of FleetBoston Financial, testified before the Senate that the 

trend among businesses indicates that corporate leaders view antidiscrimination policies to protect GLB workers as good for business 

noting ‘‘the closer a company is to the top of the Fortune list, the 

more likely it is to include sexual orientation in its non-discrimination policy.’’ 101

In an effort to attract and retain GLB workers and fair minded 

employees and consumers, companies acknowledge that such internal and public policies are necessary to preserve a stable and developing economy. More than half of the nation’s employers in 2007 

assert that one of their primary business goals is to retain employees.102 Hayward Bell, Chief Diversity Officer of Raytheon (73,000 

employees) stated that ‘‘over the next 10 years we’re going to need 

anywhere from 30,000 to 40,000 new employees. We can’t afford to 

turn our back on anyone in the talent pool.’’ 103

Maintaining a satisfied and productive workforce within any 

company is critical to a business’ success, and forward-thinking employers are taking crucial steps to ensure as much productivity in 


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104 Employment Non-Discrimination Act (H.R. 2015), Hearing Before the Subcommittee on 

Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Kelly Baker, Vice President of Diversity, General Mills, Inc.) [hereinafter Baker Testimony] 105Gifford Testimony at 31. 106The Employment Non-Discrimination Act, hearing Before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2 Sess. (2002) (written testimony of Robert Berman, Senior Vice President, Eastman Kodak, at 32) [hereinafter Berman Testimony]. 107 Id. 108 Employment Non-Discrimination Act (H.R. 2015), Hearing Before the Subcommittee on 

Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 

Nancy Kramer, Founder & CEO, Resource Interactive (200 employees), at 1) [hearinafter Kramer Testimony] 109 Billingsley Testimony at 31. 110 Id. 

this area as possible. General Mills, Inc., with over 28,500 employees worldwide, voluntarily holds as its policy that GLB inclusion in 

the workplace ‘‘only makes good business sense to create a work 

environment where every employee is respected, valued, challenged, and rewarded for their individual contribution and performance. Because when you do this, good things happen.’’ 104

Testifying before the Senate HELP Committee hearing, Charles 

Gifford, Chairman and CEO of FleetBoston Financial stated that 

members of his company’s gay and lesbian community ‘‘remind 

[him] of how tiring it can be to stay ‘in the closet’ and how much 

energy is wasted and how focus is diverted from their job when 

they feel they must conceal so much of who they are.’’ 105 Robert 

Berman, senior Vice President of Eastman Kodak, testified that 

one key reason for Kodak’s success has been the company’s work 

environment ‘‘in which [our] employees can perform to their full potential. In the same way [we] value each and every one of [our customers], we also value each and every one of [our] employees.’’ 106

Berman testified that while it was unusual for companies to support legislation that would invite further Federal regulation, ‘‘the 

protection against discrimination because of one’s sexual orientation is a basic civil right. [The] issue is so fundamental to core 

principles of fairness that [we] believe the value of Federal leadership outweighs [any] concerns.’’ 107

Smaller employers also testified to the positive impact of implementing acceptance policies, stating that such policy represents the 

‘‘importance of creating a workplace that welcomes the best and the 

brightest, from all walks of life.’’ 108 Lucy Billingsley, founder and 

partner of Billingsley Company in Dallas Texas testified to the 

Senate HELP Committee that her ‘‘workplace is a collaborative environment where employees can work hard together to beat the 

competition, regardless of sexual orientation. As a small business 

[we] can afford nothing less.’’ 109

Businesses such as IBM Corp., Eastman Kodak Co., American 

Express and Microsoft also provide comprehensive health benefits 

specific to GLB needs.110

All of the evidence above provides persuasive evidence—which 

Congress credits—that from the perspective of business efficiency, 

discrimination based on irrelevant characteristics such as sexual 

orientation is completely irrational. 


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111 As represented by the Leadership Conference on Civil Rights (Coalition). 112The Employment Non-Discrimination Act, hearing Before the Senate Health, Education, 

Labor and Pensions Committee, 107th Cong., 2nd Sess. (2002) (written testimony of Rep. Emanuel Cleaver, II). 113 Id. 114 U.S. v. Darby, 312 U.S. 100 (1941) (upholding the Fair Labor Standards Act as applied 

to a local employer); Wickard v. Filburn, 317 U.S. 111 (1942) (upholding federal limits on farm 

production as applied to a local farmer who grew wheat for family consumption). 

Civil rights & religious leaders support a federal non-discrimination law 

ENDA has been endorsed by over 180 civil rights, religious, 

labor, and women’s rights organizations.111 These communities 

have articulated their support on moral and economic grounds. As 

a moral issue, extending workplace protections to GLB workers will 

further the goals of equality and fairness in the workplace to all 

people. Many faith organizations of various denominations have 

taken part in a strong movement against discrimination: including 

the Episcopal Church, the Union for Reform Judaism; the United 

Church of Christ; the United Methodist Church; the American 

Friends Service Committee as well as many individual Quaker institutions; the Unitarian Universalists; the Universal Fellowship of 

Metropolitan Community Churches; and the Interfaith Alliance. 

Representative Emanuel Cleaver, an ordained minister in the 

United Methodist Church, spoke candidly about the legislation during the HELP Subcommittee hearing, stating ‘‘[as a minister], no 

one has yet explained to me how keeping someone from gaining 

equal consideration based on their individual skill set to obtain 

lawful employment pleases God.’’ 112 He and others in the civil 

rights and religious community agree that ENDA seeks simply to 

‘‘further extend the rights of individuals who have been 

marginalized and discriminated against and denied legal Federal 

protection for an equal playing field when they seek employment.’’ 113

Constitutional Authority 

Congress has the authority to enact ENDA through the Commerce Clause and the Fourteenth Amendment of the United States 

Constitution. In addition, 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. 

Commerce clause and fourteenth amendment authority for ENDA 

The Supreme Court has acknowledged that Congress has considerable discretion to determine what activities affect interstate commerce, to the extent that the Court has held events of purely local 

commerce (such as local working conditions) might, because of market forces, negatively affect interstate commerce, and thus could be 

regulated.114 Protecting the employment rights of GLB workers is 

a valid exercise of Congress’ authority to regulate commerce pursuant to Article 1, Section 8 of the Constitution. 

Congress has a long-history of enacting civil rights legislation 

based on its Constitutional authority granted in the Commerce 

Clause of Article 1, Section 8. This power is the same power exercised when enacting Title VII of the Civil Rights of 1964, the ADA, 


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115 Katzenbach v. Morgan, 384 U.S. 641 (1966). 116 Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). 117Weaver, supra note 34 at 1287. 118 Janet E. Halley, ‘‘The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, 

and Bisexual Identity, 36 UCLA L. Rev. 915, 937 (1989). See also, Erwin Chemerinsky, Constitutional Law: Principles and Policies, Aspen Publ. (2002). 

and the ADEA. The costs of sexual orientation discrimination in 

the workplace are significant and have regional and national economic impacts for which the federal government must be responsive. Sexual orientation discrimination is a detriment to American 

commerce because it impedes employers’ productivity, and has significant psychological and economic costs on GLB workers in the 

form of lost and lower wages, and unfair terms and conditions of 

employment to sustain themselves and their families. 

The Fourteenth Amendment of the United States Constitution 

entitles all persons to equal protection under the law. Congress 

possesses the authority to enforce the substantive provisions of the 

Fourteenth Amendment through Section 5 of the Amendment: ‘‘The 

Congress shall have power to enforce, by appropriate legislation, 

the provisions of this article.’’ Section 5 of the Fourteenth Amendment is an affirmative grant of legislative power to Congress.115

The Supreme Court has ruled that Congress’ authority to legislate 

under the Fourteenth Amendment is broader than the Amendment’s language, holding that Congress has the ability to deter and 

remedy conduct which is not by itself forbidden under the Fourteenth Amendment.116

Protecting and ensuring civil rights in this country has long been 

recognized as an essential element to national citizenship and the 

Federal government has sought to enforce and guarantee those 

rights through the Fourteenth Amendment. Similar to discrimination based on race, sex, national origin, religion, age, or disability, 

sexual orientation discrimination stands wholly contrary to the 

fundamental principles of equal protection. The Fourteenth Amendment’s Equal Protection Clause prohibits a State government from 

engaging in intentional discrimination—even when that basis is 

sexual orientation—absent some rational basis for doing so.117 The 

Supreme Court has recognized that ‘‘irrational prejudice’’ does not 

create a rational basis to support a state action against an equal 

protection challenge. Sexual orientation discrimination predominately reflects prejudices and stereotypes, not actual differences.118

Consequently, it is well within Congress’ power to properly address 

the unfairness and irrationality of workplace discrimination 

through the enforcement powers granted to it pursuant to this 

Amendment. 

Fourteenth Amendment and spending clause authority for abrogating the State’s sovereign immunity 

Section 5 of the Fourteenth Amendment clearly provides Congress with the power to enforce ENDA against state and local governments. Congress possesses the authority to remedy sexual orientation discrimination in state government employment by abrogating the states’ sovereign immunity in private suits for damages 

under ENDA. This action is congruent and proportional to the 

problem addressed by ENDA. Indeed, Congress’ action specifically 

targets the pattern of irrational and unconstitutional discriminatory conduct—discussed earlier in this Report—on the part of State 


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119See, e.g., Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L.Ed. 2d 508 (2003); Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L.Ed. 2d 855 (1996). 120 Board of Trustees of the University of Alabama v. Garrett, 121 S. Ct. 955 (2001). 121 Id. 122 Id. at 964. 123 Kimel, 528 U.S. at 81; City of Bourne, 521 U.S. at 518. 

and local government employers. Congress finds that the states do 

not possess even a rational basis—and certainly not a compelling 

reason—for discriminating against GLB workers merely because of 

their sexual orientation. Any such discrimination by state and local 

governments is completely irrational. 

Sexual orientation discrimination has been held unconstitutional 

in many cases when perpetrated through State action.119 The outcome of these cases is not surprising given that GLB Americans are 

a discrete and insular minority that has been subjected to a history 

of purposeful unequal treatment based on characteristics that are 

beyond the control of such individuals and resulting from 

stereotypic assumptions not truly indicative of the ability of such 

individuals to participate in, and contribute to, society. Thus, in the 

absence of Congressional action, invidious and irrational discrimination on the part of state employers would continue to deprive 

hard-working GLB Americans of the fundamental fairness to which 

all American workers are entitled: the right to be judged on one’s 

merits, not upon irrelevant factors such as sexual orientation. 

As the Supreme Court noted in Garret,120 [Congress] has the 

power ‘‘both to remedy and to deter violation of rights guaranteed 

[by the Fourteenth Amendment] * * *. Furthermore, ‘‘legislation 

reaching beyond the scope of Section 1’s actual guarantees must exhibit ‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ’’ 121 Unlike 

Garret where the Court held that the Americans with Disabilities 

Act exceeds Congress’ authority because a State may have a rational reason to not provide a reasonable accommodation (i.e. saving 

money), as cruel as that decision might be,122 employment discrimination against gays, lesbians and bisexuals is entirely irrational. 

Thirty states legally permit state-sponsored discrimination by allowing state employers to refuse to hire, fire or harass GLB workers because of their sexual orientation. The evidence presented before Congress demonstrates that state conduct in the area of sexual 

orientation discrimination is marked by pervasive unequal treatment of GLB workers who have no legal protections. 

The Supreme Court continues to assert its respect for Congress’ determinations concerning what is necessary to guarantee Fourteenth Amendment rights.123 However, the Court places the onus 

on Congress to limit legislation so as to correspond to the constitutional violations that it seeks to address. ENDA is narrowly tailored. The Act exempts certain categories of employers from liability to ensure that the bill does not reach beyond Congress’ authority. ENDA has no application to the military; it exempts businesses 

with fewer than 15 employees; and it exempts religious organizations. ENDA also prohibits the imposition of affirmative action and 

the adoption of quotas or granting preferential treatment to an individual based on their sexual orientation. Moreover, ENDA is further limited because it does not allow GLB plaintiffs to bring disparate impact claims. In sum, these limitations demonstrate the 

Act’s concern for targeting conduct which is in need of redress and 


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124William D. Araiza, ENDA Before it Starts: Section 5 of the Fourteenth Amendment and 

the Availability of Damages Awards to Gay State Employees under the Proposed Employment 

Non-Discrimination Act,’’ 22 B.C. Third World L.J. 1 (2002). 125 42 U.S.C. 2000d–4a (2002). 126Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Say. Bank, 527 U.S. 627, 686 (1999). 127South Dakota v. Dole, 483 U.S. 203, 211 (1987). 128 Id. at 207. 129 Id. at 207. 130 Id. at 213. 131 Id. at 208. 

which serves no possible rational purpose.124 Consequently, ENDA 

is a congruent and proportional response to the problem of workplace discrimination based on sexual orientation. 

In addition to its authority under Section 5 of the Fourteenth 

Amendment, Congress has the power to apply ENDA to the states 

and localities under its Spending Power authority. States that wish 

to obtain Federal funds for their programs or activities must comply with reasonable, constitutional conditions placed on the receipt 

of such funds.125 Through this power, Congress has the authority 

to provide a private cause of action for damages against states to 

those state employees who are affected by discrimination based on 

their sexual orientation. The Supreme Court has recognized that 

‘‘Congress may, in the exercise of its spending power, condition its 

grant of funds to the states upon their taking certain actions that 

Congress could not require them to take, and that acceptance of 

the funds entails an agreement to the actions.126

The Supreme Court has identified five limitations on Congressional power to condition funds, including: (1) conditions placed on 

funds may not be ‘‘so coercive as to pass the point at which pressure turns into compulsion 127; (2) the plain language of the Spending Clause indicates the use of the spending power must be aimed 

at the ‘‘public welfare’’ of the country, and thus have ‘‘a general 

public purpose’’ 128; (3) the receipt of funds must be ‘‘unambiguous’’ in the statute so that a state may make an informed choice as to 

whether to adhere to conditions upon which the receipt of funds are 

contingent 129; (4) conditions must be reasonably related to the purpose for which the funds are expended 130; and (5) the conditional 

grant of funds should not be barred by any provision of the Constitution.131 Congress intends, consistent with the guidelines set 

forth, to use its spending power to condition the receipt of Federal 

funding in State programs and activities upon the availability of a 

private cause of action for damages against the state under ENDA 

to state employees. 

ENDA constitutes historic civil rights legislation that will provide critical workplace protections to millions of Americans who 

have lived in fear of being fired, not being hired, or otherwise being 

discriminated against because of their sexual orientation. This Act 

ensures equal opportunity for gay, lesbian, and bisexual Americans 

and thus enshrines a fundamental American principle. Its passage 

by the Congress and its enactment are long overdue. 

SECTION-BY-SECTION ANALYSIS

Section 1: This section of the bill designates it as the ‘‘Employment Non-Discrimination Act of 2007.’’ Section 2: Defines the purposes of the Act, namely: to provide a 

comprehensive Federal prohibition on employment discrimination 

on the basis of sexual orientation; to provide meaningful remedies 


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132See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 

against such discrimination; and to invoke congressional powers, 

including the enforcement clause of the Fourteenth Amendment to 

the Constitution, the Commerce Clause and the Spending Clause. 

Section 3: Provides definitions of key terms used in the Act, most 

of which come directly from existing Federal civil rights laws, primarily Title VII of the Civil Rights Act of 1964 (‘‘Title VII’’). The 

Act defines ‘‘sexual orientation’’ as ‘‘homosexuality, heterosexuality, 

or bisexuality.’’ The term employer includes a person engaged in an 

industry affecting commerce who has 15 or more employees for 

each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. The 

definitions of ‘‘employee’’ and ‘‘employer’’ exclude volunteers and 

private membership clubs from the coverage of the Act. The term 

religious organization means a religious corporation, association or 

society; or a school, college, university or other educational institution or institution if the institution 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. This definition of a religious organization is taken directly 

from Title VIPs descriptions of religious organizations exempt from 

that law’s religious discrimination prohibitions. If an organization 

qualifies for Title VII’s religious exemption from religious discrimination claims, it would qualify for ENDA’s religious organization 

exemption as well. 

Section 4: Prohibits employers, employment agencies, labor organizations, and joint labor-management committees from discriminating in employment or employment opportunities on the basis of 

actual or perceived sexual orientation. With respect to the latter, 

ENDA creates a cause of action for any individual—whether actually homosexual or heterosexual—who is discriminated against because that individual is ‘‘perceived’’ as homosexual due to the fact 

that the individual does not conform to the sex or gender stereotypes associated with that individual’s sex. Employment opportunities include hiring, firing, compensation, and other terms, conditions, or privileges of employment or union membership. In accordance with Title VII, the phrase ‘‘terms, conditions, or privileges of 

employment’’ includes requiring GLB people to work in a 

discriminatorily hostile or abusive environment. In other words, 

ENDA creates an actionable discrimination claim based on hostile 

work environment when, for example, the workplace is permeated 

with discriminatory intimidation, ridicule, or insult that is 33 sufficiently severe or pervasive to alter the conditions of the victim’s 

employment and create an abusive working environment.132

Modeled after a provision of the Americans with Disabilities Act 

(‘‘ADA’’) and case law under Title VII, Section 4 also prohibits discrimination based on the actual or perceived sexual orientation of 

someone with whom an employee associates. Section 4 sets forth 

the Act’s prohibition on quotas and preferential treatment based on 

sexual orientation. ENDA does not require employers to justify 

neutral practices that may result in a disparate impact against 

people of a particular sexual orientation. As a result, the disparate 


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133See Clark County School District v. Breeden, 532 U.S. 268 (2001). 

impact claim available under Title VII is not available under this 

Act. 

Section 5: Prohibits retaliation against individuals because they 

oppose any practice prohibited by the Act or participate in an investigation or other proceeding authorized by the Act. This section 

is modeled on Title VII’s retaliation prohibition, and retaliation 

claims under the act will be treated like similar claims under Title 

VII, including providing protection from retaliation where a person 

reasonably believes the practice in question is an unlawful employment practice.133

Section 6: This section provides that the Act shall not apply to 

religious organizations. Religious organizations, defined in Section 

2 above, are identical to religious organizations described in Title 

VII. In other words, insofar as a religious organization is exempt 

from Title VII religious discrimination claims, it is exempt from 

sexual orientation discrimination claims under ENDA. 

Section 7: Explicitly provides that the Act does not apply to uniformed members of the Armed Forces. The Act does not affect current law on gay men, lesbians, and bisexuals in the military. Similar to Title VII, section 7 further provides that the act does not repeal or modify any other law that gives special preferences to veterans. 

Section 8: Defines how the Act would apply to employer workplace rules and policies and employee benefits. Section 8 clarifies 

that the Act does not affect an employer’s authority to regulate employee conduct (including, explicitly, sexual harassment) to same 

the extent currently allowed under law, so long as that regulation 

does not intentionally circumvent the purposes of the Act and is 

neutral with regard to sexual orientation in both design and implementation. The term ‘‘intentionally’’ here carries no further import 

than the intentionality required to make a disparate treatment 

claim, as opposed to a disparate impact claim. This section clarifies 

that it is unlawful to condition a term or condition of employment 

either on being married or being eligible to marry in states where 

same-sex marriage is not permitted, as such a condition would constitute a subterfuge for disparate treatment against GLB workers. 

This section also makes clear that nothing in the Act shall be construed to require that an employer treat a couple who are not married, including a same-sex couple, in the same manner as an employer treats a married couple for purposes of employee benefits. 

Section 9: Expressly prohibits the EEOC from collecting statistics 

on sexual orientation or requiring employers to collect such statistics. 

Section 10: Authorizes the same enforcement powers, procedures, 

and remedies that currently exist in Federal employment law. All 

individual relief that is available under Title VII is available under 

ENDA, although disparate impact claims are not permitted. 

Section 11: Waives the states’ Eleventh Amendment immunity 

from suit for discrimination based on sexual orientation. This section is based on Congress’ enforcement powers pursuant to Section 

5 of the Fourteenth Amendment to the U.S. Constitution, as well 

as Congress’ spending power under Article I. If the Federal government or the states violate this Act, they are subject to the same 


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action and remedies as other employers, except that punitive damages are not available. 

Section 12: Provides that a successful party, other than the 

EEOC or the United States, is entitled to attorneys’ fees and litigation expenses. 

Section 13: Sets forth a covered entity’s duty to post notices describing the requirements of the law. 

Section 14: Authorizes, but does not require, the issuance of regulations to enforce the Act. 

Section 15: Preserves provisions in other Federal, state, or local 

laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any 

other way affect any U.S. Supreme Court or other federal court 

opinion that has interpreted Title VII in such a way that protects 

individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. 

Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful 

Title VII claim after she was denied partnership in an accounting 

firm because she did not conform to female sex stereotype); Nichols 

v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff 

brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male 

stereotype). 

Section 16: Ensures that if one or more provisions of the Act are 

held invalid by a court, the balance of the Act will remain in effect. 

Section 17: Provides that ENDA will take effect sixty days after 

its enactment and will not apply retroactively. 

EXPLANATION OF AMENDMENTS

No amendments to the legislation were adopted. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1, the Congressional Accountability Act, requires a description of the application of this bill 

to the legislative branch. H.R. 3685 includes in its definition of employer any employing office as defined in section 101 of the Congressional Accountability Act of 1995, as well as entities covered by 

Section 717(a) of the Civil Rights Act of 1964, which include the 

Library of Congress. 

REGULATORY IMPACT STATEMENT

As H.R. 3685 merely adds ‘‘actual or perceived sexual orientation’’ to the categories of discrimination already prohibited by federal employment law, does not create any new enforcement structures but merely utilizes those already in existence, and authorizes, 

but does not require, further regulation by the appropriate agencies 

to carry out the Act, the Committee has determined that H.R. 3685 

will have minimal impact on the regulatory burden. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 


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provisions of the reported bill include unfunded mandates. (The 

CBO letter will address this issue.) 

EARMARK STATEMENT

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. 

ROLLCALL


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STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE

COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of Clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 

1974, the Committee has received the following estimate for H.R. 

3685 from the Director of the Congressional Budget Office: 

OCTOBER 22, 2007. 

Hon. GEORGE MILLER, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3685, the Employment 

Non-Discrimination Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

PETER R. ORSZAG. 

Enclosure. 

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

Summary: H.R. 3685 would prohibit employment discrimination 

based on sexual orientation. Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 3685 

would cost $28 million over the 2008–2012 period for the Equal 

Employment Opportunity Commission (EEOC) to handle additional 

discrimination cases. The bill could affect direct spending, but we 

estimate that any such effects would be less than $500,000 annually. H.R. 3685 would not affect revenues. 

H.R. 3685 would prohibit state, local, and tribal governments 

from discriminating against employees and applicants for employment based on sexual orientation, and it would require those governments to post notices regarding such prohibitions. Those requirements would be intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA). However, CBO estimates 

that the costs of complying with those mandates would not be significant and would not exceed the thresholds established in UMRA 

($66 million in 2007, adjusted annually for inflation). 

The bill also would impose a number of mandates on private-sector employers, employment agencies, and labor organizations. 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. 


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Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 3685 is shown in the following table. The costs 

of this legislation fall within budget function 750 (administration 

of justice). 

By fiscal year, in millions of dollars— 

2008 2009 2010 2011 2012 

SPENDING SUBJECT TO APPROPRIATION 1

EEOC Spending Under Current Law: 

Estimated Authorization Level 2 ........................................................... 339 351 362 375 387 

Estimated Outlays ................................................................................ 338 350 361 374 386 

Proposed Changes: 

Estimated Authorization Level ............................................................. 4 6 6 6 6 

Estimated Outlays ................................................................................ 4 6 6 6 6 

EEOC Spending Under H.R. 3685: 

Estimated Authorization Level 2 ........................................................... 343 357 368 381 393 

Estimated Outlays ................................................................................ 342 356 367 380 392 

1 In addition to the bill’s discretionary cost, H.R. 3685 could affect direct spending, but CBO estimates that any such effects would be less 

than $500,000 annually. 2 The estimated authorization levels for 2008 through 2012 are CBO baseline estimates. A full-year appropriation for 2008 for EEOC has 

not yet been enacted, so we adjusted the amount appropriated for the agency in 2007 for anticipated inflation. 

Basis of estimate: CBO estimates that implementing H.R. 3685 

would cost $28 million over the 2008–2012 period, assuming appropriation of the necessary amounts. For this estimate, CBO assumes 

that the necessary amounts will be appropriated near the start of 

each fiscal year and that outlays will follow the historical spending 

pattern of those activities. The bill could affect direct spending, but 

we estimate that any such effects would be less than $500,000 annually. 

Spending subject to appropriation 

The EEOC expects that implementing H.R. 3685 would increase 

its annual caseload (currently about 90,000 cases) by about 5 percent and would require an additional 60 to 80 staff. CBO estimates 

that the costs to hire an additional 70 employees would reach $6 

million annually by fiscal year 2009, subject to the appropriation 

of the necessary amounts. We expect that enacting H.R. 3685 also 

would increase the workload for a few other agencies, such as the 

Merit Systems Protection Board, but any increase in costs for those 

agencies would not be significant because of the small number of 

additional cases. 

The additional cases resulting from H.R. 3685 also would increase the workload of the Department of Justice’s Civil Rights Division and the federal judiciary. However, CBO estimates that increased costs for those agencies would also not be significant because of the relatively small number of cases referred to them. 

Direct spending 

Enacting H.R. 3685 could increase payments from the Treasury’s 

Judgment Fund for settlements against federal agencies in discrimination cases based on sexual orientation. However, CBO estimates that any increases in direct spending would be less than 

$500,000 annually. 

Estimated impact on state, local, and tribal governments: H.R. 

3685 would prohibit state, local, and tribal governments from discriminating against employees and applicants for employment 

based on sexual orientation, and it would require those governVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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ments to post notices regarding such prohibitions. Those requirements would be intergovernmental mandates as defined in UMRA. 

The costs of the mandates would include the costs of posting notices and modifying employment procedures to avoid discriminatory 

practices. CBO assumes that the costs of notices would likely be 

relatively minor and would be made in the course of other routine 

updates. Similarly, changes to employment procedures likely would 

build on such things as ongoing training and updates to personnel 

manuals. Thus, CBO estimates that compliance costs would not be 

significant and would not exceed the thresholds established in 

UMRA ($66 million in 2007, adjusted annually for inflation). 

Under H.R. 3685, by accepting any federal financial assistance, 

states would waive their sovereign immunity under the 11th 

Amendment and would be subject to suit for discriminatory practices. Because UMRA excludes conditions of federal assistance from 

the definition of an intergovernmental mandate, any costs resulting 

from potential suits would not be the result of complying with an 

intergovernmental mandate as defined in UMRA. In any event, the 

number of such cases likely would be very small, and states would 

not be subject to punitive damages. 

Estimated impact on the private sector: The bill would impose a 

number of mandates on many private-sector employers, employment agencies, and labor organizations. It would prohibit employers from discriminating against any worker on the basis of sexual 

orientation in hiring, firing, pay, and other aspects of employment. 

The bill would also require employers to modify the notices they 

are required to post regarding federal laws that protect employees 

from discrimination and set minimum wages. CBO estimates that 

the direct costs of complying with those mandates 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. 

Estimate prepared by: Federal Costs: Mark Grabowicz; Impact 

on State, local, and Tribal Governments: Melissa Merrell; Impact 

on the Private Sector: Nabeel Alsalam. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c) of House rule XIII, the goal of 

H.R. 3685 is to prohibit employment discrimination on the basis of 

sexual orientation. 

CONSTITUTIONAL AUTHORITY STATEMENT

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. 


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COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 3685. However, clause 

3(d)(3)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

COMMITTEE CORRESPONDENCE

None. 


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DISSENTING VIEWS 

We dissent from H.R. 3685, a narrow version of the Employment 

Non-Discrimination Act (ENDA) that excludes protections based on 

gender identity. We are co-sponsors of H.R. 2015, the original 

version of ENDA introduced earlier this year, that would prohibit 

workplace discrimination based on sexual orientation and gender 

identity. While we agree with H.R. 3685’s objective of prohibiting 

workplace discrimination on the basis of sexual orientation, we do 

not support the decision to remove gender identity from the bill because it leaves this legislation woefully incomplete. H.R. 3685 fails 

to expressly protect transgender people, who are among the most 

at risk for discrimination. The decision to strip gender identity 

from the bill was not based on substantive concerns about the bill’s 

language but rather on a perception that protecting this vulnerable 

group might jeopardize the bill’s chances for clean passage on the 

House floor. We cannot support this rationale, which reinforces the 

very bias and discrimination that ENDA seeks to prohibit. 

Transgender individuals and their families aspire to the same 

basic rights as other Americans, including equal access to gainful 

employment and fair housing in safe communities. Yet across this 

country, transgender people face extremely high rates of unemployment, poverty, and homelessness. Studies across the country reveal 

that transgender people suffer a 35% unemployment rate, with 

60% earning less than $15,300 a year. As a result of this disparity 

in income and employment levels, a disproportionate number of 

transgender people cannot support themselves or their families, 

and many are literally forced onto the streets. Every American has 

the right to be free from discrimination in employment and to be 

judged solely on one’s performance in the workplace—not on irrelevant characteristics such as sexual orientation and gender identity. 

We are eager to support legislation that addresses such discrimination, and we wish that we would have had an opportunity to do so 

in Committee. 

We believe that Congress should pursue the path that state legislatures have uniformly followed for the past several years, which 

is to pass measures that include both sexual orientation and gender identity. Such inclusive laws have passed on the local and state 

level in jurisdictions in every region of the country. Nationally, 37% 

of the U.S. population lives in jurisdictions that prohibit gender 

identity discrimination. Currently, there are inclusive laws in 

twelve states and over 90 local jurisdictions, including Iowa, New 

Jersey, Colorado, and Oregon, which passed inclusive laws just this 

year. Congress should be reinforcing these efforts instead of undermining advancement on the state and local level. 

We have heard overwhelmingly from constituents and civil rights 

organizations that passage of this non-inclusive bill will undermine 

the ultimate attainment of full employment protections for all 


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LGBT individuals. We are not aware of a single gay or LGBT organization that has endorsed this bill. In contrast, over 300 organizations have formally opposed H.R. 3685 because it omits gender 

identity protections. These include national groups such as the National Gay and Lesbian Task Force, National Center for Lesbian 

Rights, Equality Federation, National Black Justice Coalition, National Association of LGBT Community Centers, Pride At Work 

(AFL–CIO), PFLAG (Parents, Families and Friends of Lesbians 

and Gays), and the National Center for Transgender Equality. Also 

in opposition is nearly every single statewide organization that represents the LGBT community in their state, including Equality 

Alabama, Equality California, Equality Illinois, Equality Maryland, 

Equality Advocates Pennsylvania, Garden State Equality, Empire 

State Pride Agenda, Equality Florida, Equality Maine, Equality 

Ohio, Equal Rights Washington, and Equality Texas. 

For the reasons set forth herein, we respectfully dissent from 

H.R. 3685. 

RUSH HOLT. 

YVETTE D. CLARKE. 

LINDA T. SA ́ NCHEZ. 

DENNIS J. KUCINICH. 


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1 42 U.S.C. § 2000e. 

MINORITY VIEWS 

INTRODUCTION

At the federal level, numerous civil rights statutes exist to protect individuals from discrimination. Although these laws share 

similar features, each statute differs based upon the type of discrimination that it prohibits and the circumstances under which it 

operates. Arguably the most prominent among these various laws 

is the Civil Rights Act (‘‘CRA’’) of 1964, which expanded civil rights 

protections to many different settings and served as a model for 

subsequent anti-discrimination laws. Among the provisions of the 

CRA, Title VII specifically prohibits discrimination in employment 

on the basis of race, color, religion, national origin, or sex.1 Title 

VII applies to employers with 15 or more employees, including the 

federal government and state and local governments. 

For more than two decades, a number of bills have been introduced in Congress that sought to protect individuals from workplace discrimination on the basis of sexual orientation, Very recently, in the 110th Congress, Rep. Barney Frank (D–MA) introduced H.R. 2015, The Employment Non-Discrimination Act of 2007 

(‘‘H.R. 2015’’). This bill, introduced on April 24, 2007, purports to 

protect against discrimination on the basis of sexual orientation 

and, for the first time, gender identity. On September 5, 2007, the 

Committee on Education and Labor, Subcommittee on Health, Employment, Labor, and Pensions held a hearing on H.R. 2015. On 

September 27, 2007, because of questions raised at that hearing 

and questionable support for H.R. 2015, Rep. Frank introduced two 

new bills, H.R. 3685 and H.R. 3686, which split the protections for 

sexual orientation and gender identity, respectively. On October 18, 

2007, the full Committee on Education and Labor proceeded to 

markup H.R. 3685, which provides protections on the basis of sexual orientation only. Subsequently, the Committee on Education 

and Labor ordered reported H.R. 3685. 

The Minority Members of this Committee have consistently stated their opposition to intentional workplace discrimination. However, H.R. 3685 as reported out of Committee raises many legitimate concerns that remain unresolved. For example, the bill’s religious exemption fails to adequately protect certain religious employers from liability. Also, the bill provides unprecedented protection against discrimination based on ‘‘perceived’’ sexual orientation. 

For these reasons and others detailed later in this document, the 

majority of Committee Republicans reject this legislation, and urge 

its defeat on the House Floor. Further, the House should reject any 

attempt to amend this bill to add protections for gender identity. 


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2See, CRS Report RL31863, Sexual Orientation Discrimination in Employment: Legal Analysis of Title VII of S. 16, the Employment Nondiscrimination Act of 2003. 3 ‘‘Minority Views’’, S. Report 107–341, p. 39 (2001). 

FEDERAL LEGISLATIVE HISTORY

A variety of federal proposals have been introduced over the last 

two decades that sought to protect against workplace discrimination on the basis of sexual orientation. Included in these efforts 

were relatively simple proposals to amend Title VII of the CRA to 

add the term ‘‘sexual orientation’’ to existing categories afforded 

protection, such as race.2 Since it was first introduced in the House 

and the Senate in the 103rd Congress, the Employment Non-Discrimination Act (ENDA) has been the primary legislative vehicle 

for extending federal employment discrimination protections to employees on the basis of their sexual orientation. While many Democrats and some Republicans have supported ENDA legislation, the 

bill has not garnered the support necessary to move through Congress. In September 1996, the Senate voted on a prior version of 

ENDA, but the bill was defeated by a vote of 50–49 (Roll Call Vote 

No. 281). The last major action on this issue took place in the Senate during the 107th Congress, when the Senate Health, Education, Labor, and Pensions (HELP) Committee under Chairman 

Kennedy held a hearing, marked up a bill, and reported it favorably out of Committee. Despite reporting the bill favorably, Senate 

HELP Committee Republicans, who did not support the legislation, 

voiced concerns and claimed that ‘‘* * * the legislation remains 

overly broad and unclear in many respects, specifically, with regard 

to its effect on individual, constitutional, and States’ rights.’’ 3 That 

bill was placed on the Senate Legislative Calendar under General 

Orders, but did not move any further. 

In the 108th Congress, an ENDA bill (H.R. 3285) was introduced 

by Rep. Christopher Shays (R–CT), but there was no action taken 

on that bill. Subsequently, legislation was not introduced during 

the 109th Congress. In the 110th Congress, Rep. Frank introduced 

three separate ENDA bills that included protection against discrimination on the basis of gender identity (defined below), as well 

as sexual orientation. Given the considerable policy and political 

questions raised by this legislation, a discussion of these three 

ENDA bills is appropriate to illustrate its progression. 

H.R. 2015, the Employment Non-Discrimination Act of 2007 

Rather than amend existing civil rights laws, H.R. 2015 was 

drafted as a stand-alone anti-discrimination law, but generally has 

the same enforcement scheme and remedies as Title VII of the 

CRA (Title VII) and the Americans with Disabilities Act (ADA). 

Central to its purpose, the bill, at Section 3(a)(9), defines ‘‘sexual 

orientation’’ as ‘‘homosexuality, heterosexuality, or bisexuality.’’

Also, Section 3(a)(6) defines gender identity as ‘‘the gender-related 

identity, appearance, mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s 

designated sex at birth.’’

H.R. 2015 would address employment discrimination in four 

areas. First, the legislation would make it unlawful to fire, refuse 

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4 Employer actions that aversely affect a person’s status as an employee relate to compensation, benefits, training programs and opportunities, and union membership. 5Transgendered individuals are individuals of one sex who, by surgery or other means, change 

their gender to the opposite sex. 

son’s status as an employee based on his or her actual or perceived 

sexual orientation or gender identity.4 With language borrowed 

from the ADA, the legislation also prohibits ‘‘association discrimination’’ as a result of the actual or perceived sexual orientation or 

gender identity of someone with whom an employee associates. Second, H.R. 2015 would prohibit discrimination against an individual 

who has opposed or spoken out against an unlawful employment 

practice. Third, the bill would not permit the creation or use of 

preferential treatment or employent quotas based on perceived sexual orientation or gender identity. Finally, H.R. 2015 requires that 

employers must have policies in place to address dress standards 

and gender-segregated facilities (such as changing areas) in the 

workplace. 

Similar to current requirements under Title VII, H.R. 2015 

would apply to private employers with 15 or more employees, labor 

unions, employment agencies, and federal, state, and local governments. The bill contains a number of exemptions, including those 

for members of the armed forces, private employers with less than 

15 employees, and religious and religious-affiliated entities. Also, 

H.R. 2015 would grant the Equal Employment Opportunity Commission (EEOC) and other appropriate agencies the power to enforce the Act. If an employee’s complaint is not resolved by the 

EEOC, the legislation would allow an individual to file suit seeking 

punitive and compensatory damages up to a cap of $300,000 and 

attorney’s fees. 

Notably, H.R. 2015 differs in several significant respects from 

prior versions of ENDA. H.R. 2015 adds, for the first time, gender 

identity as a protected classification which would prohibit workplace discrimination against transgendered individuals.5 Section 

4(b) of the bill makes it an unlawful employment practice to discriminate against an individual because of ‘‘the actual or perceived 

sexual orientation or gender identity’’ of the individual. The inclusion of protection based on ‘‘perceived’’ gender identity would likely 

raise issues as to how employers could accommodate individuals 

who perceive themselves to be of the opposite gender, and therefore 

comply with the legislation. 

In addition, although the bill retains language from previous 

bills that would not require domestic partner benefits, H.R. 2015 

would exempt any state and local rules from preemption under the 

Employee Retirement and Income Security Act (ERISA). This exemption would be contrary to longstanding precedent that prevents 

state and local mandates on employer-provided benefits. 

Further, H.R. 2015 contains insufficient exemptions for religious 

organizations and actions based on religious beliefs, and actually 

narrowed the single broad exemption for religious-affiliated organizations contained in the ENDA legislation introduced in the 108th 

Congress (H.R. 3285). First, under H.R. 2015, all houses of worship, missions or schools that have the purpose of religious worship 

or teaching of religious doctrine would be completely exempt. Second, in religiously-affiliated entities, employees who teach or 


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6Since these exemption provisions are narrower than the religious exemptions contained in 

Title VII, this proposed exemption has raised significant concern among religious employers (detailed below). 

spread religion, take part in religious governance or supervise 

those who teach or spread religion are completely exempt. Third, 

a religiously-affiliated entity can require all or some employees to 

conform to religious tenets as set forth by the organization regardless of sexual orientation or gender identity.6 Although seemingly 

intended to cover a wide range of religious organizations and activities, the H.R. 2015 religious exemption is far more prescriptive 

than earlier versions and the existing exemption contained in Title 

VII of the CRA, and it therefore results in a far narrower religious 

exemption. Although a broader religious exemption had been proposed in a prior Congress, those who previously sponsored and supported H.R. 2015 chose, inexplicably, to narrow the exemption. 

In addition to the Committee on Education and Labor, H.R. 2015 

was referred to three other committees of jurisdiction: the Committee on House Administration, the Committee on the Judiciary, 

and the Committee on Oversight and Government Reform. To date, 

none of the other committees of jurisdiction have taken any official 

action on H.R. 2015. 

On September 5, 2007, a legislative hearing on H.R. 2015 took 

place before the Committee on Education and Labor, Subcommittee 

on Health, Education, Labor, and Pensions. Witness testimony at 

that hearing raised several substantive concerns about ENDA legislation in the 110th Congress, many of which have yet to be addressed by the Majority. 

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

On September 27, 2007, in apparent recognition of the fundamental policy flaws contained in H.R. 2015 and diminishing support for that bill as a result of those flaws, Representative Barney 

Frank introduced two bills, H.R. 3685 and H.R. 3686 which, respectively, split the protections against discrimination based on sexual 

orientation and gender identity into two separate bills. 

Although H.R. 3685 attempts to address certain concerns, many 

of its provisions are similar to those contained in H.R. 2015 and 

therefore continue to raise significant policy questions. H.R. 3685 

removes ‘‘gender identity’’ as a protected classification, and conforms the retaliation provision to existing law under Title VII. 

However, H.R. 3685 revises the religious exemption, ostensibly to 

conform to the exemption under Title VII. The new provision, however, still fails to protect many religious organizations that would 

qualify for an exemption under Title VII. Further, H.R. 3685 retains vague and unworkable references to the ‘‘perceived’’ sexual 

orientation of individuals. The bill would still make it unlawful to 

condition employment, in a state in which a person cannot marry 

a person of the same sex, either on being married or being eligible 

to marry. 

H.R. 3686, to prohibit employment discrimination based on gender 

identity 

On September 27, 2007, Representative Frank also introduced 

H.R. 3686, legislation which is intended to complement the soVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00049 Fmt 6604 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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called ‘‘improved’’ version of ENDA embodied in H.R. 3685. The 

stated purpose of H.R. 3686 is to prohibit employment discrimination based on gender identity. 

Again, many of the provisions of H.R. 3686 are similar to those 

contained in H.R. 2015; but the legislative language of H.R. 3686 

contains fatal flaws and raises significant concerns that undermine 

the fundamental policy promoted by this bill. Like H.R. 3685, the 

revision to the religious exemption in effect fails to protect many 

religious organizations that would qualify for an exemption under 

Title VII. H.R. 3685 also retains the vague and unworkable reference to the ‘‘perceived’’ gender identity of individuals. This is arguably even more problematic than use of the term as applied to 

sexual orientation, since perception of one’s gender could be inherently more difficult to ascertain from day to day. Further, H.R. 

3686 contains language governing employer rules and policies with 

respect to certain shared facilities and dress and grooming standards, provisions that were initially included in H.R. 2015. Although 

the Majority attempts to address concerns regarding certain shared 

shower or dressing facilities by stating ‘‘nothing in this Act shall 

be construed to require the construction of new or additional facilities,’’ significant questions still remain regarding what constitutes 

reasonable access to such facilities, which will result in great uncertainty and litigation. 

LEGISLATIVE ACTIVITY

Legislative hearing on H.R. 2015 

The only hearing on ENDA legislation during the 110th Congress 

occurred on September 5, 2007, before the Committee on Education 

and Labor, Subcommittee on Health, Education, Labor, and Pensions. The subject of the legislative hearing was H.R. 2015. Notably, the full Committee on Education and Labor failed to hold a 

legislative hearing on that bill, or any other ENDA legislation, 

thereby depriving most Committee Members of the opportunity to 

hear testimony on the merits and/or flaws of the bills prior to their 

consideration. 

At the September 5, 2007 hearing, testimony was received from 

Representatives Barney Frank, Tammy Baldwin, and Emanuel 

Cleaver, II, along with two alleged victims of discrimination, two 

representatives from academic institutions, and two company representatives. Additional witnesses included Lawrence Lorber, Esq., 

an experienced labor and employment lawyer, and Mark Fahleson, 

Esq., a labor and employment lawyer who counsels small and medium-sized businesses, including religious colleges and universities. 

Although purported to be a legislative hearing on the provisions of 

H.R. 2015, most of the testimony from the Majority’s witnesses focused on personal experiences and opinions concerning discrimination. By contrast, most of the discussion of substantive problems 

and concerns with the actual legislative language was provided by 

the Republican witnesses, Mr. Lorber and Mr. Fahleson. 

The two witnesses who testified on behalf of private business, 

Ms. Kelly Baker from General Mills and Ms. Nancy Kramer, owner 

of an Ohio marketing services company, stated that promoting a diverse work environment, that respects individuals’ sexual orientaVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00050 Fmt 6604 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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7See generally, Testimony of Nancy Kramer, Founder and Chief Executive Officer, Resource 

Interactive, and Testimony of Kelly Baker, General Mills, Inc., Committee on Education and 

Labor, Subcommittee on Health, Education, Labor and Pensions Hearing, ‘‘The Employment 

Non-Discrimination Act of 2007 (H.R. 2015)’’ (September 5, 2007). 8Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP, Committee on Education and 

Labor, Subcommittee on Health, Education, Labor and Pensions Hearing, ‘‘The Employment 

Non-Discrimination Act of 2007 (H.R. 2015)’’ (September 5, 2007), at 2. 9Testimony of Mark A. Fahleson, Esq., testifying individually, Committee on Education and 

Labor, Subcommittee on Health, Education, Labor and Pensions Hearing, ‘‘The Employment 

Non-Discrimination Act of 2007 (H.R. 2015)’’ (September 5, 2007), at 1. 

tion, helps their businesses improve productivity and compete more 

effectively.7 This testimony raises the question of whether a federal 

directive applied to the free market is necessary in light of voluntary (and apparently successful) private-sector efforts to promote 

diversity and improve business performance. 

Mr. Lorber and Mr. Fahleson focused their written testimony 

and verbal comments on substantive concerns with H.R. 2015. Mr. 

Lorber initially noted that the ‘‘[g]reatest single area of growth in 

federal civil litigation involves employment and labor law. Therefore the Congress should be cautious in adding to this growing and 

complex list of laws, and thereby the potential for increased litigation.’’ 8 He then went on to highlight concerns with various provisions of the bill, including the need to appropriately define the 

term ‘‘disparate impact’’ and clarify that only intentional circumvention of the Act is implicated in order to avoid attacks on 

neutral employer rules and policies. Also, Mr. Lorber raised multiple technical concerns resulting from inclusion of gender identity 

as a new protected class, and the need to conform the bill’s prohibition against retaliation with existing Title VII language. 

Mr. Fahleson began his testimony by raising a threshold question as to whether there was a need for a federal remedy at this 

time. In his own words: 

I believe it is appropriate to ask the question: is a broad, 

new federal remedy for sexual orientation and gender 

identity employment discrimination such as that embodied 

in H.R. 2015 necessary at this time? As the Committee is 

aware, a significant number of employers have voluntarily 

adopted policies barring discrimination on the basis of sexual orientation and transgender status. In addition, several states and municipalities have enacted local regulatory schemes addressing sexual orientation and/or 

transgender discrimination in the workplace. For the last 

32 years legislation has been introduced in Congress seeking to prohibit sexual orientation discrimination in employment. Meanwhile, it appears that the free market and 

local regulators are already addressing the issues raised 

by this legislation.9

Mr. Fahleson also raised concerns regarding the cost of this legislation, especially the potential impact on smaller employers that 

have less ability to absorb financial costs associated with this regulation. Further, he expressed concerns that the exemption for religious organizations was far narrower than the current exemption 

under Title VII, and raised a number of hypothetical situations in 

which eligibility for the exemption was questionable. Mr. Fahleson 

opined that ‘‘[t]he blanket exemption for religious organizations 


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10 Id., at 4. 

found in prior versions of ENDA provides greater certainty and is 

less problematic for religious and faith-based employers, as well as 

the judiciary.’’ 10

Committee Republicans share the concerns expressed by Mr. 

Lorber and Mr. Fahleson that H.R. 2015 creates significant policy 

questions on the issue of extending federal protections based on 

sexual orientation and gender identity. Left unanswered, these 

questions could result in severe burdens being placed on employees 

and employers. Such questions must be addressed before extending 

new federal protections and requirements in this area. 

Committee legislative action 

Despite the fact that a legislative hearing was held on H.R. 2015, 

the Committee did not further consider H.R. 2015. 

Instead, on Thursday, October 18, 2007, the Committee on Education and Labor met to consider H.R. 3685, without the benefit of 

any legislative hearing on the bill or the ways in which it differs 

from H.R. 2015, the bill that did receive some limited scrutiny from 

the Committee. Republican Members offered four (4) amendments 

designed to: (1) broaden the exemption for religious schools not covered under H.R. 3685; (2) strike the term ‘‘perceived’’ sexual orientation, which is vague and will create uncertainty in the workplace; (3) prohibit retaliation against employees who may not agree 

with employer policies relating to the Act on the basis of sincerely 

held beliefs; and (4) remove the provision making it unlawful to 

condition employment, in a state in which a person cannot marry 

a person of the same sex, either on being married or being eligible 

to marry. These amendments were rejected by the Committee. The 

Committee favorably reported H.R. 3685 on a roll call vote of 27 

to 21. 

REPUBLICAN VIEWS, H.R. 3685

Committee Republicans are generally committed to the principle 

that discrimination in the workplace is unacceptable. It is for that 

reason that we support the current-law protections provided under 

Title VII of the Civil Rights Act. However, we also believe that before imposing any new federal mandates in this area, even those 

cloaked in the honorable moniker of ‘‘non-discrimination,’’ the Committee and Congress must thoroughly and thoughtfully examine 

the need for such mandates and must evaluate the substantive implications of the legislative proposals. In this regard, the Committee has fallen short. Not only has the Majority provided little 

compelling evidence as to the need for this legislation, but they 

have also failed to fully address the substantive concerns it raises. 

Remarkably, although absent from the bill reported by the Committee, the issue of providing discrimination protections on the 

basis of gender identity remains clearly on the Majority’s agenda 

for future consideration. Indeed, at the conclusion of the Committee’s consideration of H.R. 3685, several Committee Democrats 

voiced their intent to amend the bill during its consideration by the 

full House of Representatives by inserting additional protections for 

gender identity. While we do not question the right of our DemoVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00052 Fmt 6604 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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11See, 42 U.S.C. Section 2000e–1. 12See, 42 U.S.C. Section 2000e–2(e)(2). 

crat colleagues to offer such amendments, we do believe their expressed intention to do so begs an important question: Why was an 

amendment to include protections from discrimination on the basis 

gender identity not offered by these Members during the Committee’s consideration of the bill? Indeed, why were gender identity 

protections—expressly provided in H.R. 2015—dropped from the 

bill that was brought before the Committee? The answer, of course, 

is rooted in the fact that extending non-discrimination protections 

to gender identity not only raises substantive and policy-related 

questions that the Majority cannot answer, it is also politically untenable. That Committee Democrats would forgo the opportunity to 

include such protections during the Committee’s consideration of 

the bill merely underscores this fact. 

Finally, we are troubled by the fact this legislation is proceeding 

to the House floor without adequately resolving outstanding issues 

and urge that the House of Representatives reject it, along with 

any amendments that seek to include protections based on gender 

identity. 

The bill fails to protect the hiring prerogatives of religious schools 

H.R. 3685 attempts to provide an exemption for religious organizations, including religious educational institutions. However, the 

bill’s definition of ‘‘religious organizations’’ contains a two-part test 

used to determine if an educational institution qualifies for an exemption. This test, found in Section 3(a)(8) of the bill, requires that 

the school be ‘‘controlled, managed, owned, or supported by a particular religion’’; or, have its curriculum ‘‘directed toward the propagation of a particular religion.’’ (emphasis added). Although this 

exemption is broader than that contained in H.R. 2015, it still does 

not provide the broad protections that exist under current law. 

Moreover, it fails to cover non-denominational religious schools and 

invites the federal government to investigate the religious nature 

of schools’ curricula, effects we find unacceptable. 

Despite assertions by the Majority that the exemption in H.R. 

3685 is the same as the exemption found in Title VII, a plain reading of both reveals the Majority’s assertion is incorrect. Current 

law, under Title VII, as amended, broadly exempts religious corporations, associations, societies, and educational institutions.11

Title VII also contains a provision, the so-called ‘‘bona fide occupational qualification’’ (BFOQ), which provides further protections applicable to educational institutions in certain rare circumstances.12

The BFOQ provision is rarely utilized in practice, because of the 

initially broad protections for educational institutions contained in 

Title VII. However, H.R. 3685 changes the nature of the exemption 

under Title VII with respect to educational institutions because, 

rather than simply providing a broad exemption for ‘‘educational 

institutions,’’ it qualifies the exemption for such institutions by 

using the BFOA provision exclusively. This creates several unresolved problems. 

For example, a non-denominational, independent faith-based 

school that is not controlled or supported by a ‘‘particular’’ religion, 


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or whose curriculum is not directed toward propagation of a ‘‘particular’’ religion, may not be exempt from this legislation, even 

though religion forms the foundation of its mission. Unfortunately, 

there are many schools that may be penalized by this provision. 

One such institution, Wheaton College in Wheaton, Illinois, expressed serious concerns about the religious exemption in H.R. 

3685. In a letter dated October 3, 2007 to Congressman Tim 

Walberg, the President of Wheaton College, Duane Litfin, stated as 

follows: 

On behalf of Wheaton College I want to register our concern about a bill that has been introduced in the U.S. 

House titled ‘‘To prohibit employment discrimination on 

the basis of sexual orientation or gender identity,’’ and referred to as the Employment Non-Discrimination Act or 

ENDA (HR 3685), Appropriately, the Act provides a religious exemption consistent with the Civil Rights Act as 

Amended in 1972. However, the categorical religious exemption is undermined in Section 3(a)(8) of the Act by a 

problematic definition of religious organization that casts 

doubt on whether Wheaton College would be exempt. As I 

understand the definition language, educational institutions that are themselves religious but that are not controlled by some other religious organization, such as a 

church or a denomination, may not be covered by the religious exemption. 

Wheaton College has a clearly defined religious identity, 

dating back to its founding in 1860, including a Statement 

of Faith to which all of our employees give assent, and a 

Community Covenant to which all of the members of our 

community adhere, Nevertheless, Wheaton College is not 

controlled by a religious corporation, but rather by a selfperpetuating Board of Trustees. 

Surely a religious college such as Wheaton should be 

permitted the same protection of its religiously motivated 

hiring rights as those colleges that are controlled by 

churches or other religious organizations. 

Since 1972 when the Civil Rights Act was amended to 

forthrightly protect the mission-critical hiring rights of religious organizations, including religious higher education, 

we have been able to grow and expand our service to our 

communities with a robust religious mission and distinctive approach because we have had the ability to select all 

of our staff on a religious, mission-critical basis. Our continued existence as a distinctively religious institution, and 

with it, a diverse and thriving higher education sector, is 

threatened because the proposed ENDA, with its limiting 

and non-categorical religious exemption, does not clearly 

and fully ensure our religious, mission-critical staffing 

freedom. 

I urge you to remove the problematic religious definition 

language currently in ENDA and ensure that the Act categorically exempts religious organizations as in Section 

702(a) of Title VII of the Civil Rights Act of 1964, as 

amended. 


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The concerns expressed by Mr. Litfin are not unique to Wheaton 

College. Indeed, the impact of the insufficient religious exemption 

has engendered comments from numerous organizations, who expressed serious reservations similar to those expressed by Wheaton 

College. Those commentators included: 

The Council for Christian Colleges & Universities 

Agudath Israel of America 

The American Association of Christian Colleges & Seminaries, Inc. 

The American Association of Christian Schools 

The Family Research Council 

The Ethics & Religious Liberty Commission of the Southern Baptist Convention 

The Traditional Values Coalition 

The American Center for Law and Justice 

This is by no means a comprehensive list of concerned parties, 

but reflects the concern of many impacted institutions and organizations who find the current exemption to be wholly insufficient. 

Additional concerns regarding the so-called religious exemption 

are also worthy of mention. For example, if the current exemption 

were to be enacted, religious schools would likely be subjected to 

a ‘‘denominational’’ test. Such a test would inevitably ‘‘entangle’’

the federal government in the practice of religion, since it invites 

courts to examine the beliefs and practices of religious schools to 

determine if they are ‘‘religious enough.’’ In addition, H.R. 3685 

would vest the EEOC with regulatory, enforcement, and investigatory powers. This would require the EEOC to investigate and determine whether institutions are associated with ‘‘particular’’ religions or whether the curriculum of an institution is directed toward 

the propagation of a ‘‘particular’’ religion. In doing so, the provisions would entangle a Federal agency in complex questions involving religious missions and doctrine and would require promulgation 

of Federal rules governing this area of inquiry. This intrusive federal inquiry into the religious beliefs of schools arguably violates 

the constitutional separation of church and state. Religious schools 

and faith-based institutions should be free to exercise their religious beliefs without government intrusion. 

Also, in an effort to qualify for the exemption, religious schools 

may be forced to alter their curricula in an attempt to focus it on 

the ‘‘propagation of a particular religion.’’ Forcing schools to choose 

between adopting a ‘‘particular religion’’ or relinquishing hiring 

prerogatives would be antithetical to, and in conflict with, the mission of many of these faith-based schools. 

Uncertainties associated with the new exemption would result in 

lengthy and expensive litigation to uphold religious freedoms and 

the separation of church and state. Litigants would use this loophole to bring suits against the schools, forcing them to hire individuals whose lifestyles might violate the schools’ core principles. 

In an effort to address the insufficient religious exemption, Republican Members overwhelmingly supported an amendment by 

Rep. Hoekstra at the full Committee markup that would appropriately expand the exemption to include religious and faith-based 

schools. More specifically, the amendment would have stricken the 

requirement to associate with a ‘‘particular’’ religion, and would 

have provided an exemption for institutions that maintain a faithbased mission. Unfortunately, the Majority refused to address the 


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13Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP, Committee on Education and 

Labor, Subcommittee on Health, Education, Labor and Pensions Hearing, ‘‘The Employment 

Non-Discrimination Act of 2007 (H.R. 2015)’’ (September 5, 2007), at 3. 

legitimate concerns regarding the religious exemption, and the 

amendment failed. 

The bill provides vague prohibitions based on ‘‘perceived’’ sexual orientation 

H.R. 3685 prohibits—as did its predecessor, H.R. 2015—employers from discriminating against an individual because of an individual’s actual or ‘‘perceived’’ sexual orientation. The bill also 

makes it unlawful to discriminate against an individual based on 

the actual or ‘‘perceived’’ sexual orientation of a person with whom 

the individual associates or has associated. Despite its significance 

to the bill’s underlying policy, the term ‘‘perceived’’ is not defined 

anywhere in H.R. 3685. Its inclusion raises a number of practical 

and legal concerns that remain unaddressed. 

At the Subcommittee hearing on H.R. 2015, one of the witnesses, 

Mr. Lorber, expressed general concern regarding legal protections 

based on perception, which would be applicable to perception as applied to both sexual orientation and gender identity. In his own 

words, Mr. Lorber states: 

Section 4(e) is modeled after the ADA, 42 U.S.C. sect. 

12112(b)(4) and is understandable when applied to defined 

characteristics. It is less than clear, however, when applied 

to non-inherent characteristics which may be self-perceived by the individual but not apparent to the employer. 

This will seem to create the potential for difficult enforcement and even more potentially difficult litigation since 

the underlying issue may be ephemeral or not readily apparent to the employer. Again, understanding the law 

makes compliance with the law an acceptable undertaking.13

The issue raised by Mr. Lorber highlights the fact that a perception of an individual being homosexual or bisexual is a highly subjective determination. An individual may ‘‘perceive’’ themselves to 

be homosexual, but this may not be apparent to others. Yet, notwithstanding the lack of clarity, this could still provide the basis 

for a discrimination claim. In the litigation context, determinations 

would have to be made involving consideration of evidence that is 

highly subjective, circumstantial, or contradictory. This would 

make it virtually impossible to make factual determinations with 

a high degree of certainty and confidence. 

The potential impact on employers is profound. Even though employers would have difficulty in identifying non-inherent characteristics of a person, they would still be subjected to claims and potential liability. Even though an employer may not be capable of perceiving a person to be homosexual, if they have fifteen or more employees and are otherwise subject to this bill, they would have to 

defend themselves in lawsuits by having to prove a negative; that 

they did not ‘‘perceive’’ the person to be part of a protected class. 

Difficulty in enforcing this provision will undoubtedly lead to costly 

litigation. Or, in the alternative, employers—especially small emVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00056 Fmt 6604 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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14 If protection based on ‘‘perceived’’ gender identity were added to this bill, it would raise 

similar significant, and perhaps even greater, concerns regarding its application in the workplace. For example, questions regarding employee privacy and reasonable accommodation of 

transgendered individuals and coworkers would arise. Such an extension of the law, if attempted, is wholly inappropriate and should be rejected. 15 H.R. 3685, Section 8(a)(3). 

ployers with limited resources—may simply choose to settle these 

cases regardless of the merits, in order to avoid lengthy and costly 

litigation. 

It is worth noting that the term ‘‘perceived’’ does not appear in 

any other civil rights legislation, including Title VII, which protects 

race, color, religion, sex, and national origin. As such, there is simply no reason to provide more statutory protection for one protected 

class over other protected classes. Although the Majority may claim 

that the ADA protects persons ‘‘regarded as’’ having a disability, 

that term is different from ‘‘perceived’’ and is applied to protect situations that are different from those to be addressed by this bill. 

Their analogy to the ADA is off the mark. For example, an employer may more easily be able to identify an apparent condition, 

for example the fact that a worker suffered a treatable heart attack, and ‘‘regard’’ that employee as being disabled. A person’s sexual orientation may not be so readily apparent to an employer, and 

thus protection against discrimination based on ‘‘perceived’’ sexual 

orientation is not appropriate. 

The Majority denies these valid concerns, by simply stating that 

the inclusion of this term is necessary to protect the rights of employees, and that employers could use the absence of this term to 

defend against lawsuits by claiming they did not know the ‘‘actual’’ sexual orientation of the individual. However, this explanation 

evades and ignores the expansion of statutory rights based on sexual orientation, beyond the current statutory protections for race, 

color, sex, religion and national origin. 

At markup, Rep. Souder offered an amendment to strike the 

term ‘‘perceived’’ from the bill. This amendment was rejected. Inclusion of the statutory extension of protection on the basis of ‘‘perceived’’ sexual orientation is justification to reject this bill.14

Policies conditioning employment on marriage 

Under the bill it is unlawful to condition employment, in a state 

in which a person cannot marry a person of the same sex, either 

on being married or being eligible to marry.15 The Majority claims 

that this provision purports to protect against instances where an 

employer would use marriage as a pretext for discrimination. On 

its face, the inclusion of such a provision would suggest that employers routinely engage in such pretext, and that they regularly 

condition employment with their companies for the sole purpose of 

engaging in discrimination. Yet, the Committee heard no testimony, nor is there any history of case law, to suggest that employers use such a pretext in order to discriminate on this basis. As 

such, the provision is unnecessary, in the first instance. 

Beyond the apparent lack of need for the provision, its practical 

implications are significant. Current law permits employers to 

adopt policies on the basis of behavior expectations, if such policies 

are applied equally to all employees. In some work environments— or for some specific jobs—it may be entirely appropriate to condiVerDate Aug 31 2005 05:35 Oct 26, 2007 Jkt 069006 PO 00000 Frm 00057 Fmt 6604 Sfmt 6602 E:\HR\OC\HR406P1.XXX HR406P1

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16See, Comments of the ACLJ on the Employment Non-Discrimination Act of 2007, addressed 

to the Hon. Robert Andrews, Chairman, Hon. John Kline, Ranking Member (October 1, 2007). 

tion employment on marital status. Take, for instance, certain 

groups, such as Boys and Girls Ranch organizations, which provide 

residential treatment programs designed to help at-risk children 

and families. If this provision of the bill were enacted, these organizations could be precluded from using married couples for ‘‘house 

parent’’ positions. In short, the provision could prevent employers 

from hiring people they believe to be best-suited to the job. 

In addition, employers could be precluded from implementing 

codes of ethics with respect to employees’ behavior. One such example would be a policy that discourages any form of extra-marital 

conduct, both homosexual and heterosexual. Such codes are reasonable and legal under current law. The provision would limit the 

ability of employers from instituting such policies or others they believe to be in the best interest of their companies and their workers. 

Finally, the provision undermines the ability of states to define, 

preserve and protect the institution of marriage. Only one state, 

Massachusetts, permits same-sex marriage. The other 49 states 

currently have chosen to prohibit same-sex marriage. This provision directly challenges and circumvents independent state determinations to define and protect their definitions of marriage. At 

least one commentator, the American Center for Law and Justice 

(ACLJ), in an October 1, 2007 memorandum to the Chairman and 

Ranking Member of the Committee’s HELP Subcommittee, highlighted this concern.16

In order to maintain the current legal right of employers to 

maintain codes of conduct, and to preserve 49 independent state 

determinations regarding the definition of marriage, Republican 

Rep. Souder offered an amendment to strike the provision at markup. Unfortunately, this amendment was rejected by the Majority. 

Protection from retaliation 

The bill makes it unlawful to discriminate or retaliate against an 

individual because the individual opposed any practice made unlawful by the bill, or participated in a proceeding relating to the 

bill. However, the bill fails to protect those who may not agree with 

employer policies relating to this Act, because of sincerely held beliefs regarding sexual orientation. This creates an imbalance with 

respect to protections from retaliation by excluding certain individuals from those protections. 

This is not some theoretical concern, proffered merely to provide 

yet another reason to oppose this bill. In fact, Members were provided with substantial anecdotal evidence of instances where employees were disciplined, or even terminated, for failing to embrace 

their employers’ policies, irrespective of whether those policies conflicted with the employee’s sincerely held religious beliefs. 

It is simply unfair to provide legal protections relating to sexual 

orientation, without also protecting the rights of individuals to be 

free from retaliation for disagreeing or refusing to consent to employer policies on this issue. Certain people, because of sincerely 

held beliefs, may have great difficulty consenting to employer rules, 


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policies—such as diversity training programs—related to treatment 

of sexual orientation in the workplace. It is unfair to leave these 

employees open to punishment or retaliation, while at the same 

time providing new protections to another class of workers. Further, freedom of speech and free exercise of religious beliefs may 

be at issue. The failure to provide protections against retaliation 

would place a severe, unjustified, and wholly unnecessary burden 

on an individual. 

In an effort to restore this balance of protections, Rep. Souder offered an amendment that would have clearly and unambiguously 

extended protection against retaliation to employees who, because 

of burdens on sincerely held beliefs, may choose not to provide consent to employer policies on this issue. Unfortunately, the Souder 

amendment was rejected by the Committee. 

Protection against discrimination based on gender identity 

Although absent from the bill under consideration, H.R. 3685, 

the issue of extending non-discrimination protections based on gender identity is clearly on the agenda for future consideration by the 

House. In fact, several Members at markup expressed the intent to 

offer an amendment to this bill to extent such protection prior to 

or during a House Floor vote on this bill. Accordingly, it is appropriate to raise concerns regarding this issue at this time. 

Evidence presented for the record at the September 5, 2007 

HELP Subcommittee hearing on H.R. 2015 raised numerous concerns associated with gender identity. The problems associated 

with providing protection based on ‘‘perceived’’ status are more 

compounded in the case of gender identity. The question of providing reasonable accommodation for such employees is extremely 

problematic. Employee privacy issues are significant, Litigation 

concerns abound. 

Simply put, it is premature to consider extending protections 

based on gender identity, a fact grudgingly acknowledged by the 

bill’s own sponsor. This becomes more apparent in light of the 

sparse legislative history and consideration of this issue. Any attempt to amend this bill to add protections based on gender identity should be rejected by the House. 

CONCLUSION

As noted repeatedly throughout these Views, Committee Republican Members strongly oppose intentional discrimination in the 

workplace. We also believe the protections found in Title VII of the 

Civil Rights Act to be, on balance, sufficient for guarding against 

such discrimination. We therefore find H.R. 3685, the Employment 

Non-Discrimination Act, to be unnecessary in the first instance. 

Moreover, we find many of the bill’s provisions, and the policy 

questions they raise, to be troubling. Among its more obvious flaws, 

the bill fails to provide an adequate exemption for religious organizations, including many faith-based educational institutions. It also 

includes questionable protections based on ‘‘perceived’’ sexual orientation, which will result in great uncertainty as to the meaning 

and application of this term, leading to costly and unnecessary litigation. The bill also precludes employers from regulating workplace 

conduct, despite the lack of evidence supporting the need for such 


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a provision and the adverse impact on employers’ ability to institute policies for the benefit of companies and their workers. Finally, the bill fails to provide a proper balance with respect to retaliation, unfairly according protections to one class of employees 

but not others. In every instance, Republican Members offered viable and entirely reasonable proposals to address these concerns. 

Unfortunately, those proposals were rejected by the Majority. The 

result of these legislative machinations is a bill that, however wellintended, favors a certain protected class of individual over other 

classes already protected under current civil rights law, and over 

individuals with sincerely-held moral and religious beliefs. It is for 

these reasons that Republicans opposed the bill during its consideration by the Committee on Education and Labor, and why we urge 

its defeat when considered by the full House of Representatives. 

HOWARD P. ‘‘BUCK’’ MCKEON. 

PETE HOEKSTRA. 

MARK SOUDER. 

JOE WILSON. 

JOHN KLINE. 

CATHY MCMORRIS RODGERS. 

TOM PRICE. 

C. W. BOUSTANY, Jr. 

DAVID DAVIS. 

TIM WALBERG. 

Æ 


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