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[Senate Report 107-341]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 763
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-341

======================================================================

 
               EMPLOYMENT NON-DISCRIMINATION ACT OF 2001

                                _______
                                

               November 15, 2002.--Ordered to be printed

                                _______
                                

   Mr. Kennedy, from the Committee on Health, Education, Labor, and 
                   Pensions, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 1284]

    The Committee on Health, Education, Labor, and Pensions, to 
which was referred the bill (S. 1284) to prohibit employment 
discrimination on the basis of sexual orientation, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill (as amended) do pass.

                                CONTENTS

                                                                   Page
  I. Introduction.....................................................1
 II. Summary of legislation...........................................2
III. Hearings.........................................................2
 IV. Cost estimate....................................................4
  V. Regulatory impact statement......................................6
 VI. Application of law to the legislative branch.....................6
VII. Section-by-section analysis......................................6
VIII.Summary of committee action......................................9

 IX. Need for the legislation.........................................9
  X. Explanation of the legislation..................................26
 XI. Minority views..................................................39

                            I. Introduction

    On April 24, 2002, the Committee on Health, Education, 
Labor, and Pensions, by voice vote, favorably reported S. 1284, 
the Employment Non-Discrimination Act with an amendment in the 
nature of a substitute and two amendments offered by Senator 
Collins.
    The bill is co-sponsored by Senators Kennedy, Specter, 
Jeffords, Lieberman, Daschle, Akaka, Baucus, Bayh, Biden, 
Bingaman, Breaux, Boxer, Cantwell, Carnahan, Carper, Chafee, 
Cleland, Clinton, Collins, Corzine, Dayton, Dodd, Durbin, 
Edwards, Feingold, Feinstein, Harkin, Inouye, Kerry, Kohl, 
Landrieu, Leahy, Levin, Mikulski, Murray, Nelson of Florida, 
Reed, Reid, Sarbanes, Schumer, Smith of Oregon, Stabenow, 
Torricelli, Wellstone, and Wyden.

                       II. Summary of Legislation

    The purpose of the Employment Non-Discrimination Act of 
2001 is to prohibit employers, including government employers, 
employment agencies, labor organizations, and joint labor-
management committees, from discriminating in employment or 
employment opportunities on the basis of sexual orientation. 
Employment opportunities include hiring, firing, compensation 
and other terms, conditions, or privileges of employment or 
union membership.
    The Act does not require employers to provide benefits to 
their employees or their domestic partners, or to collect 
statistics. It expressly prohibits the Equal Employment 
Opportunity Commission (``EEOC'') from collecting statistics 
and does not require the collection of statistics by any 
employer. The Act also prohibits the imposition of affirmative 
action and the adoption of quotas or granting of preferential 
treatment to an individual by any employer. Religious 
organizations including religious corporations, associations, 
societies, or educational institutions--are exempt from 
coverage under ENDA. The relationship between the armed 
services and its uniformed service members is also not subject 
to the Act.

                             III. Hearings

    S. 2238, The Employment Non-Discrimination Act of 1994, was 
introduced on June 23, 1994. A hearing was held on July 29, 
1994.
    On July 29, 1994, the following persons presented 
testimony: 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.
    S. 869, The Employment Non-Discrimination Act of 1997 was 
introduced on June 10, 1997. A hearing was held on the bill on 
October 23, 1997.
    On October 23, 1997, 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, Executive 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; PFLAG, Parents, Families, and 
Friends of Lesbians and Gays.
    S. 1284, The Employment Non-Discrimination Act of 2001, was 
introduced on July 31, 2001. A hearing was held on the bill on 
February 27, 2002.
    On February 27, 2002, the following persons presented 
testimony: Mr. Charles K. Gifford, President and CEO 
FleetBoston Financial, Boston, Massachusetts; 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, Hewlett-Packard 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.

                           IV. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 13, 2002.
Hon. Edward M. Kennedy,
Chairman, Committee on Health, Education, Labor, and Pensions, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1284, the Employment 
Non-Discrimination Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 1284--Employment Non-Discrimination Act of 2002

    Summary: S. 1284 would prohibit employment discrimination 
based on sexual orientation. Assuming appropriation of the 
necessary amounts, CBO estimates that implementing S. 1284 
would cost $22 million over the 2003-2007 period for the Equal 
Employment Opportunity Commission (EEOC) to handle additional 
discrimination cases. This estimate assumes adjustments for 
anticipated inflation. The bill could affect direct spending, 
so pay-as-you-go procedures would apply, but we estimate that 
any such effects would be less than $500,000 annually.
    S. 1284 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 threshold 
established in UMRA ($58 million in 2002, 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 ($115 million 
in 2002, adjusted annually for inflation) in any of the first 
five years the mandates would be effective.
    Estimated Cost to the Federal Government: The estimated 
budgetary impact of S. 1284 is shown in the following table. 
For this estimate, CBO assumes that the necessary amounts will 
be appropriated by the start of each fiscal year and that 
outlays will follow the historical spending pattern of these 
activities. The costs of this legislation fall within budget 
function 750 (administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                             By Fiscal Year, in Millions of Dollars
                                               -----------------------------------------------------------------
                                                   2002       2003       2004       2005       2006       2007
----------------------------------------------------------------------------------------------------------------

                                       SPENDING SUBJECT TO APPROPRIATION a
EEOC Spending Under Current Law:
    Estimated authorization Level b...........        311        325        336        348        360        373
    Estimated Outlays.........................        310        324        335        347        359        372
Proposed Changes:
    Estimated Authorization Level b...........          0          4          5          5          5          5
    Estimated Outlays.........................          0          3          4          5          5          5
EEOC Spending Under S. 1284:
    Estimated Authorization Level b...........        311        329        341        353        365        378
    Estimated Outlays.........................        310        327        339        352        364        377
----------------------------------------------------------------------------------------------------------------
a In addition to the bill's discretionary cost, S. 1284 could affect direct spending, but CBO estimates that any
  such effects would be less than $500,000 annually.
b The 2002 level is the amount appropriated for that year for the EEOC. The estimated authorization levels for
  2003 through 2007 are CBO baseline estimates, assuming adjustments for anticipated inflation.

    The EEOC expects that implementing S. 1284 would increase 
its annual caseload (currently about 80,000 cases) by 5-to-7 
percent and would require an additional 60 to 90 staff. CBO 
estimates that the costs to hire an additional 75 employees 
would reach $5 million annually by fiscal year 2004, subject to 
the appropriation of the necessary amounts. CBO expects that 
enacting S. 1284 also would increase the workload for a few 
other agencies, such as the Merit Systems Protection Board, but 
any increase in costs for the agencies would not be significant 
because of the small number of additional cases.
    The additional cases resulting from S. 1284 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 these agencies would not be 
significant because of the relatively small number of cases 
referred to them.
    Pay-as-You-Go Considerations: The Balanced Budget and 
Emerging Deficit Control Act specifies pay-as-you-go procedures 
for legislation affecting direct spending and receipts. 
Enacting S. 1284 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 nay increases in direct spending would be less 
than $500,000 annually.
    Estimated Impact on State, Local, and Tribal Governments: 
S. 1284 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 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 probably be 
made in the course of other routine updates. Similarly, changes 
to employment procedures likely would build on practices such 
as ongoing training and personnel manual updates. Thus, CBO 
estimates that compliance costs would not be significant and 
would not exceed the threshold established in UMRA ($58 million 
2002, adjusted annually for inflation).
    By accepting federal financial assistance for any program, 
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, 
the costs resulting from any 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 any 
punitive damages.
    Estimated Impact on the Private Sector: The bill would 
impose a number of mandates on private-sector employers, 
employment agencies, and labor organizations by requiring them 
not to discriminate against workers on the basis of sexual 
orientation and by requiring them to post notices of the new 
law where they would be accessible to workers. The direct cost 
of complying with the mandates would equal the value of the 
resources used by employers and other affected entities to 
become familiar with the new law, the cost of posting notices, 
and the cost, if any, of modifying their employment procedures 
to conform with the new rules. CBO estimates that the aggregate 
amount of this direct cost would not exceed the annual 
threshold specified in UMRA ($115 million in 2002, adjusted 
annually for inflation) in any of the first five years the 
mandates would be effective.
    Estimate Prepared by: Federal Costs, Impact on State, 
Local, and Tribal Government, Impact on the Private Sector.
    Estimate Approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                     V. Regulatory Impact Statement

    The act prohibits employers (including government 
employers), employment agencies, labor organizations, and joint 
labor-management committees from engaging in intentional 
discrimination in employment on the basis of sexual 
orientation. The act's requirements and enforcement mechanisms 
are similar to those found in Title VII, and accordingly, it's 
impact on individuals and businesses is similar. The direct 
impact would equal the value of the resources used by employers 
and others to become familiar with the law, post notices, and, 
if necessary, modify employment procedures to conform with the 
requirements of the Act.

            VI. Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act (CAA), requires a description of the 
application of the bill to the legislative branch. Consistent 
with the CAA's mandate that civil rights laws be applied to the 
legislative branch, S. 1284 prohibits employers--including 
those in the legislative branch--from engaging in intentional 
discrimination in employment on the basis of sexual 
orientation.

                    VII. Section-by-Section Analysis

                          SEC. 1. SHORT TITLE

    This section of the bill designates that act as the 
``Employment Non-Discrimination Act.''

                            SEC. 2. PURPOSES

    The purpose of the act is to provide a comprehensive 
Federal prohibition on employment discrimination on the basis 
of sexual orientation, to provide meaningful remedies against 
such discrimination, and to invoke congressional powers, 
including those pursuant to the 14th Amendment of the 
Constitution, as well as the Commerce Clause and the Spending 
Clause.

                          SEC. 3. DEFINITIONS

    This section provides the 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, bisexuality or heterosexuality, whether the 
orientation is real or perceived.

                   SEC. 4. DISCRIMINATION PROHIBITED

    This section makes clear that the act is intended to 
address intentional sexual orientation discrimination in 
employment and does not provide a cause of action for disparate 
impact claims. Most of the definitions and statutory language 
are drawn from Title VII.
    ENDA prohibits employers, employment agencies, labor 
organizations, and joint labor-management committees from 
discriminating in employment or employment opportunities on the 
basis of sexual orientation. Employment opportunities include 
hiring, firing, compensation and other terms, conditions, or 
privileges of employment or union membership. Like a similar 
provision of the Americans with Disabilities Act and consistent 
with case law under Title VII, this section prohibits 
discrimination based on the sexual orientation of someone with 
whom an employee associates.
    Importantly, 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 impact claim available under Title VII is not 
available under this act.

                    SEC. 5. RETALIATION PROHIBITIED

    This section 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 directly on Title VII's 
retaliation prohibition, and retaliation claims under the act 
should be treated like similar claims under Title VII.

                            SEC. 6. BENEFITS

    This section makes it clear that the act does not require 
employers to provide benefits to their employees' domestic 
partners.

              SEC. 7. COLLECTION OF STATISTICS PROHIBITED

    This section of the act expressly prohibits the EEOC from 
collecting statistics on sexual orientation and from requiring 
employers to collect such statistics. The collection of 
statistics would require employers to engage in invasive 
administrative procedures not intended by the Act.

          SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED

    This section sets forth the act's prohibition on quotas and 
preferential treatment based on sexual orientation. The act 
also prohibits orders or consent decrees that include quotas or 
preferential treatment based on sexual orientation.

                      SEC. 9. RELIGIOUS EXEMPTION

    This section exempts religious organizations from the scope 
of the act. Religious organizations include religious 
corporations, associations, or societies, and educational 
institutions substantially owned, managed, controlled or 
supported by religious organizations or whose curriculum is 
directed to the propagation of a religion.

   SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' 
                              PREFERENCES

    This section makes clear the act's inapplicability to the 
relationship between the United States government and uniformed 
members of the Armed Forces. The act does not affect current 
law on gay men, lesbians, and bisexuals in the military. Like 
Title VII, Section 10 further provides that the act does not 
repeal or modify any other law that gives special preferences 
to veterans.

                         SEC. 11. CONSTRUCTION

    This section clarifies that the act does not affect an 
employer's authority to regulate employee conduct to the same 
extent currently allowed under law. The act only requires that 
employer rules and policies be sexual orientation-neutral in 
design and implementation.
    This section also clarifies that nothing in the Act shall 
be construed to infringe upon the First Amendment associational 
rights conferred on nonprofit, voluntary membership 
organizations by the Constitution.

                          SEC. 12. ENFORCEMENT

    This section authorizes the same enforcement powers, 
procedures and remedies that currently exist in Federal 
employment law, with the exception of the explicit prohibition 
of affirmative action on the basis of sexual orientation 
contained in subsection (d). All individual relief that is 
available under Title VII is available under ENDA, except there 
is no cause of action for a disparate impact claim.

                  SEC. 13. STATE AND FEDERAL IMMUNITY

    This section would waive the States' Eleventh Amendment 
immunity from suit for sexual orientation discrimination 
against employees or applicants within any State program or 
activity that receives Federal financial assistance. This 
section also provides that if the Federal Government or the 
States violate this act, they are subject to the same action 
and remedies as other employers, except that punitive damages 
are not available.

                        SEC. 14. ATTORNEY'S FEES

    This section is identical to the attorney's fees provisions 
in Title VII. Accordingly, a successful party, other than the 
EEOC or the United States, is entitled to attorneys' fees and 
litigation expenses.

                        SEC. 15. POSTING NOTICES

    This section sets forth a covered entity's duty to post 
notices describing the requirements of the law.

                          SEC. 16. REGULATIONS

    This section authorizes, but does not require, the issuance 
of regulations to enforce the act.

                  SEC. 17. RELATIONSHIP TO OTHER LAWS

    This section preserves provisions in other Federal, State, 
or local laws that currently provide protection from 
discrimination.

                         SEC. 18. SEVERABILITY

    This section ensures that if one or more provisions of the 
act are held invalid by a court, the balance of the act remains 
in effect.

                        SEC. 19. EFFECTIVE DATE

    This section provides that ENDA shall take effect sixty 
days after its enactment and does not apply retroactively.

                   VIII. Summary of Committee Action

    The committee met to consider S. 1284 on April 24, 2002. 
The committee, by voice vote, adopted an amendment in the 
nature of a substitute proposed by Senator Kennedy and Senator 
Jeffords. The Kennedy-Jeffords amendment clarified that only 
disparate treatment claims may be brought under the act.
    The committee, by voice vote, also adopted two amendments 
offered by Senator Collins. The first amendment replaced the 
``Retaliation and Coercion Prohibited'' section with a 
``Retaliation Prohibited'' section which tracks the anti-
retaliation language used in Title VII. The second amendment 
replaced the ``NonPrivate Conduct'' subsection with an 
``Employer Rules and Policies'' subsection which makes it clear 
that employers may adopt rules and policies that are designed 
for and uniformly applied to all individuals regardless of 
sexual orientation.
    By voice vote, the committee voted to report S. 1284, as 
amended, favorably to the full Senate.

                      IX. Need for the Legislation

    A. HISTORICAL OVERVIEW OF SEXUAL ORIENTATION DISCRIMINATION IN 
                               EMPLOYMENT

    The problem of sexual orientation discrimination in the 
workplace is wide-spread and well-documented.\1\ The history of 
sexual orientation discrimination in American employment 
represents the sum of half a century's worth of severe anti-gay 
bias in State-sanctioned, as well as private employment 
contexts. In the 1940's and 50's, evidence began to emerge of a 
pattern of anti-gay discrimination in both public and private 
employment contexts. Such discrimination was a matter of policy 
in many areas of federal employment, and in many police forces, 
fire departments, schools, and public agencies of our country. 
Laws prevented gay and lesbian people from obtaining security 
clearances for federal employment--a State of affairs that 
lasted until an Executive Order prohibited sexual orientation 
discrimination in the security clearance process in 1995--and 
many law enforcement agencies and schools, in particular, made 
homosexuality a disqualifier for employment. Even where no 
government policies mandated sexual orientation discrimination, 
unchecked private anti-gay biases cost thousands of dedicated 
and talented lesbian, gay, and bisexual American workers their 
careers in the latter half of the twentieth century.
---------------------------------------------------------------------------
    \1\ 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); John D'Emelio, Sexual Politics, and Sexual Communities: The 
Making of a Homosexual Minority in the United States (1998); Lisa Keen 
and Suzanne Goldberg, Strangers to the Law: Gay People on Trial (1998); 
David K. Johnson, Homosexual Citizens: Washington's Gay Community 
Confronts the Civil Service, Washington History, Fall/Winter 1994-95; 
Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal 
History, 79 Val L. Rev. 1551 (1993).
---------------------------------------------------------------------------
    Throughout the 1960's and 70's, discrimination based on 
sexual orientation in employment, as well as other facets of 
American life, gained visibility through events such as the 
Stonewall uprising of 1969, and the ensuing political discourse 
on the civil rights of gay and lesbian Americans. Americans 
began to see the inequalities faced by gay and lesbian 
Americans in the employment context and elsewhere, and the need 
for comprehensive civil rights legislation guaranteeing 
equality without regard to sexual orientation became apparent. 
As Congress battled to address discrimination based on race, 
sex, religion and national origin at the height of the modern 
civil rights movement, many Americans began to develop a 
growing awareness of an injustice left unaddressed by the 
passage of the Civil Rights Act of 1964--that of sexual 
orientation discrimination. By the end of the 1960's, a nascent 
movement developed to address this injustice under Federal law.
    In 1975, Congresswoman Bella Abzug introduced the first 
legislation to address sexual orientation discrimination in 
America. However, in the 27 years since that bill was 
introduced, Congress has left this pressing civil rights issue 
unaddressed. Severe discrimination continued through the 
1970's, 80's, 90's and into the twenty-first century, with 
private anti-gay biases fortified by the lack of a Federal 
pronouncement on sexual orientation discrimination with courts 
rendered virtually powerless to remedy the injustice for want 
of a Federal cause of action.
    Ample evidence has been presented to this Committee to show 
that intentional employment discrimination on the basis of 
sexual orientation causes harm to individual employees. It puts 
them at an economic disadvantage by threatening job security 
and by fostering an oppressive work environment in which gay, 
lesbian, and bisexual employees fear that their sexual 
orientation may be revealed to the detriment of their careers. 
As long as tens of thousands of people go to work each day with 
fear in their hearts--fear not only for themselves and their 
individual welfare, but also for their continued ability to 
provide for the families they love--our nation is failing to 
live up to its promise of basic fairness and dignity for all.
    States, municipalities, and private companies have 
recognized this problem and have begun to institute policies to 
address sexual orientation discrimination in the workplace. But 
due to the limited number of jurisdictions in which they are 
applicable and the lack of uniformity from State to State, 
these developments, while laudable, do not provide a 
comprehensive solution to the problem of sexual orientation 
discrimination in employment.
    Accordingly, courts have chastised Congress for failing to 
provide a statutory cause of action to accommodate the many 
cases of sexual orientation discrimination they are forced to 
dismiss--despite compelling facts--for want of a Federal law 
under which these claims may be brought. See, e.g. Bibby v. 
Philadelphia Coca-Cola Bottling Co., 2001 U.S. App. LEXIS 17075 
(3rd Cir. 2001), in which the Third Circuit Court of Appeals 
laments, (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. (See also Higgins 
v. New Balance Athletic Shoe, Inc., 21 F. Supp. 2d 66 (D. Me. 
1998), which called upon Congress for a remedial response to 
workplace discrimination against gay men and lesbians. 
Congressional action to prohibit discrimination based on sexual 
orientation is long overdue by any standard and should be a 
priority of the 107th Congress.
    The consequence of Congress' failure to take a stance on 
anti-gay discrimination in the workplace is a tacit endorsement 
by the Federal Government of anti-gay bias. By failing to 
provide recourse for sexual orientation discrimination in 
employment--the very essence of economic security--Congress has 
effectively given its nod of approval to a regime of second 
class citizenship for gay, lesbian, and bisexual Americans.

                     B. THE PROBLEM CONTINUES TODAY

    Employment discrimination based on sexual orientation 
continues in America's workplaces today, and thousands of 
people experience harassment and adverse employment action 
based on their sexual orientation.
    The problem of sexual orientation discrimination in the 
workplace is wide-spread and well-documented. 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 sexual orientation 
with no recourse under Federal law. Sexual orientation 
discrimination occurs in major corporations, small businesses, 
public agencies, schools, fire departments, retail stores and 
warehouses. It affects executives with six-figure salaries and 
people who wait tables and work at minimum wage. Discrimination 
based on sexual orientation affects individuals of all income 
and skill levels, ages, races, and religions.
    The lack of basic protections leaves millions of 
hardworking, taxpaying people vulnerable to unfair treatment. 
The following are just a few examples of the discrimination 
faced by lesbian and gay people, and heterosexual people 
perceived to be gay, in every region of the country.
     Cheryl Summerville began working as a cook for a 
Cracker Barrel Country Store in Douglasville, Georgia in 1987. 
She was well-liked at work and had recently purchased a home 
where she lived with her partner and her son. In February 1991, 
the company adopted an official policy to fire any employee who 
``failed to demonstrate normal heterosexual values.'' 
Summerville's supervisor, who knew that she was a lesbian, 
initially told her the firm's new policy apply to her because 
she did not interact with customers in her job. The regional 
manager, however, strictly enforced the policy. Summerville 
asked to be treated like the other gay employees and was fired 
February 16, 1991. Her official separation notice read: ``This 
employee is being terminated due to violation of company 
policy. The employee is gay.'' After drawing negative publicity 
and picketing by civil rights groups, the restaurant chain 
rescinded its official anti-gay policy, but has not rehired the 
many employees fired on that basis.
     ``T.B.'' began working as a sales representative 
for a large home furnishings company in 1993. After compiling a 
stellar sales record in North and South Carolina during his 
first nine months of work, T.B. received a raise and was 
transferred to Washington, D.C., to revitalize the depressed 
sales market in this area. Despite his outstanding performance, 
T.B. was ``outed'' by a co-worker and subjected to demeaning 
threats and anti-gay slurs. He was eventually fired, as was a 
sympathetic colleague believed to be helping T.B. with his 
case.
     In 1993, Nan Miguel, the heterosexual manager of a 
hospital radiology department in Washington, interviewed a 
well-qualified candidate for a technician position in her 
department. After the interview, one of the hospital 
technologists commented that the candidate was obviously gay. 
Subsequently, the medical director approached Miguel and 
suggested that she not hire the young woman because she was 
gay. Despite this advice, Miguel hired the young woman, but the 
medical director was rude to the new employee and made anti-gay 
remarks about her. Miguel stood up for her employee and refused 
to fire her. For this, both Miguel and the technician were 
fired.
     Dwayne Simonton worked for the U.S. Postal Service 
from 1984 to 1995. In 1987, when co-workers discovered he was 
gay, Simonton became the target of ridicule and harassment. Co-
workers and supervisors threatened him, yelled obscenities at 
him and placed notes on the bathroom walls with his name and 
the names of celebrities who had died of AIDS. He was subjected 
to fiercely abusive language and anti-gay epithets, was 
physically assaulted twice, and was so upset by the persistent 
torment that he eventually suffered a heart attack. His suit 
for sexual orientation discrimination was dismissed by a 
Federal judge because Title VII does not provide a cause of 
action for sexual orientation discrimination. Simonton v. 
Runyon, 232 F.3d 33 (2nd Cir. 2000).
    Despite efforts at the State, local and corporate level to 
address employment discrimination based on sexual orientation, 
the absence of a Federal law allows discrimination to go 
unchecked in workplaces around the country. The stories above 
are not isolated incidents but are typical of the experiences 
of gay and lesbian, as well as heterosexual Americans in many 
workplaces today.

                 C. EXISTING LAWS ARE NOT COMPREHENSIVE

    Only 12 States and the District of Columbia currently 
prohibit employment discrimination based on sexual orientation. 
By passing the Employment Non-Discrimination Act, Congress will 
provide a comprehensive response to discrimination previously 
unaddressed by the Federal Government. As with the Civil Rights 
Act of 1964, the act will extend protection to those who live 
in States and localities that provide no protection against 
employment discrimination based on sexual orientation.
    Congress has acted to pass Federal laws when some or all of 
the states have also prohibited similar discrimination. For 
example, several States had some form of civil rights law 
prohibiting racial discrimination in 1964. Yet, Congress 
recognized the need for Federal protection because of the large 
number of States that offered no protection against racial 
discrimination. Similarly, Congress passed the Americans with 
Disabilities Act although several States provided some 
protection to individuals with disabilities prior to 1990. 
Regardless of State action, civil rights have traditionally 
been considered a matter of national interest. As Congress 
understood over 100 years ago, when it passed the first civil 
rights laws against discrimination, uniform standards are 
needed to reinforce our national commitment to equality.
    In addition, Federal Courts of Appeal have been unanimous 
in concluding that discrimination based solely upon sexual 
orientation is not actionable under Title VII's sex 
discrimination prohibition. For more than two decades 
plaintiffs have attempted to bring sexual orientation claims 
under Title VII's sex discrimination provision, but such a 
claim has never succeeded at the Federal appeals court level. 
Unless sexual orientation discrimination takes the form of sex-
stereotyping or same-sex harassment, such discrimination is not 
recognized as actionable under Title VII as currently 
interpreted by the courts. Federal district and appellate 
courts are clear on this point and indicate the degree to which 
courts' hands are tied when it comes to remedying workplace 
discrimination based on sexual orientation under Title VII.
    The first sexual orientation employment discrimination 
cases raised under Title VII emerged in the 1970's. As early as 
1979, the Fifth Circuit Court of Appeals ruled that ``discharge 
for homosexuality is not prohibited by Title VII.'' Blum v. 
Gulf Oil Corp., 597 F.2d 936, 938 (5th Circuit 1979). The same 
year, the Ninth Circuit Court of Appeals came to a similar 
conclusion, stating that ``Title VII's prohibition of `sex' 
discrimination applies only to discrimination on the basis of 
gender and should not be judicially extended to include sexual 
preference such as homosexuality.'' DeSantis v. Pacific 
Telephone and Telegraph Co., Inc., 608 F.2d 327, 329-30 (9th 
Circuit 1979). Ten years later, in 1989, the Eighth Circuit 
Court of Appeals clearly stated its opinion that ``Title VII 
does not prohibit discrimination against homosexuals.'' 
Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th 
Circuit 1989).
    In considering a sexual orientation discrimination suit 
brought under Title VII, the Eleventh Circuit Court of Appeals 
found as follows. ``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 that the EEOC has also drawn a 
distinction between [what is] actionable as gender 
discrimination, and discrimination because of sexual 
orientation.'' Fredette v. BVP Management Associates, 112 F.3d 
1503, 1510 (11th Cir. 1997), citing EEOC Compliance Manual 
(CCH) Sec. 615.2(b)(3) (1987).
    The last decade has witnessed a continuation of the Federal 
appeals courts' refusal to recognize sexual orientation 
discrimination claims under Title VII. In reference to 
demeaning anti-gay graffiti and comments directed at a gay 
employee by his co-workers, the Sixth Circuit Court of Appeals 
in 1992 ruled that ``these actions, although cruel, are not 
made illegal by Title VII.'' Dillon v. Frank, 1992 U.S. App. 
LEXIS 766 (6th Circuit 1992). The Fourth Circuit Court of 
Appeals came to the same conclusion in a 1996 case, in which it 
denied a sexual orientation discrimination claim under Title 
VII, clearly stating, ``Title VII does not prohibit conduct 
based on the employee's sexual orientation, whether homosexual, 
bisexual, or heterosexual.'' Hopkins v. Baltimore Gas and 
Electric Co., 77 F.3d 745, 751-2 (4th Circuit 1996).
    The First Circuit Court of Appeals regretfully denied a 
sexual orientation discrimination claim brought under Title VII 
in 1999, nonetheless finding such discrimination to be highly 
troubling and deserving of a legislative response. Higgins v. 
New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Circuit 
1999).
    In 2001, the Third Circuit ruled, ``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. Because the evidence produced by Bibby--and, 
indeed, his very claim--indicates only that he was being 
harassed on the basis of his sexual orientation, rather than 
because of his sex, the District Court properly determined that 
there was no cause of action under Title VII [of the Civil 
Rights Act of 1964].'' Bibby v. Philadelphia Coca-Cola Bottling 
Co., 2001 U.S. App. LEXIS 17075 (3rd Cir. 2001).
    The Second Circuit Court of Appeals in 2000 similarly found 
that ``Title VII does not prohibit harassment or discrimination 
because of sexual orientation,'' in another case in which a 
sexual orientation claim was denied under Title VII. In this 
case, the court found the vulgar and degrading behavior of the 
plaintiff's co-workers ``morally reprehensible,'' but was 
constrained by what it perceived to be the clear legislative 
intent of Title VII to address sex discrimination, versus 
sexual orientation discrimination. Simonton v. Runyon, 232 F.3d 
33, 35 (2d Circuit 2000). The same year, the Seventh Circuit 
Court of Appeals denied a sexual orientation discrimination 
claim under Title VII, finding that ``sexual orientation is not 
a classification that is protected under Title VII.'' Hamner v. 
St. Vincent Hospital and Health Care Center, Inc., 224 F.3d 
701, 707 (7th Circuit 2000).
    An excerpt from the Ninth Circuit Court of Appeals' most 
recent opinion on whether sexual orientation discrimination is 
actionable under Title VII indicates the lack of movement on 
this issue in the last twenty years.

          . . . Title VII protects against discrimination only 
        on the basis of race, color, religion, sex, or national 
        origin . . . Discrimination based on a victim's other 
        characteristics, no matter how unfortunate and 
        distasteful that discrimination may be, simply does not 
        fall with the purview of Title VII. This court 
        recognized that fact more than twenty years ago in 
        DeSantis v. Pacific Telephone and Telegraph Company, 
        when we held that discrimination on the basis of sexual 
        orientation does not subject an employer to liability 
        under Title VII. While societal attitudes towards 
        homosexuality have undergone some changes since 
        DeSantis was decided, Title VII has not been amended to 
        prohibit discrimination on the basis of sexual 
        orientation; DeSantis remains good law and has been 
        followed in other circuits. . . .
          The degrading and humiliating treatment [the 
        plaintiff] contends that he received from his fellow 
        workers is appalling, and is conduct that is most 
        disturbing to this court. However, this type of 
        discrimination, based on sexual orientation, does not 
        fall within the prohibitions of Title VII.

Rene v. MGM Grand Hotel, 2001 U.S. App. LEXIS 5201 (9th Cir. 
    2001).

    Given the courts' clear indication that Title VII as 
currently construed does not provide a cause of action for 
employment discrimination based on sexual orientation, the 
Employment Non-Discrimination Act is absolutely necessary to 
provide a clear statement on Congressional intent to prohibit 
workplace discrimination based on sexual orientation.

                       D. CONGRESS MUST PASS ENDA

    Congress must pass the Employment Non-Discrimination Act to 
fill a gaping hole in the fabric of Federal civil rights 
legislation. Title VII prohibits discrimination based on race, 
color, religion, sex and national origin--but not sexual 
orientation. This leaves gay, lesbian, and bisexual Americans--
as well as heterosexual Americans--reliant on a patchwork of 
legal protections inadequate to address the problem of sexual 
orientation discrimination in employment in a uniform, 
predictable, fair and reliable manner.
    Twelve States and the District of Columbia have laws 
prohibiting sexual orientation discrimination, and an estimated 
225 municipalities have ordinances or policies barring sexual 
orientation discrimination in private employment. At least 68 
Senators and 268 Representatives have non-discrimination 
policies encompassing sexual orientation for their staffs. 
Federal civilian employees are governed by an executive order 
prohibiting discrimination based on sexual orientation, and 
over 2000 companies, colleges, universities, State and local 
governments and Federal agencies have non-discrimination 
policies encompassing sexual orientation for their employees. 
Twenty-three States, the District of Columbia, and roughly 225 
municipalities prohibit sexual orientation discrimination for 
their public employees. The private and public sectors clearly 
recognize the importance of guaranteeing fair treatment to 
employees without regard to sexual orientation. Yet Congress 
has still not acted to provide a Federal solution to this 
pressing national problem.
    For Americans working outside any of these jurisdictions--
that is--for the vast majority of Americans, there is no 
explicit legal recourse for discrimination based on sexual 
orientation in employment. Notwithstanding the significant 
progress outlined above, in most of America, it is perfectly 
legal to fire or refuse to hire someone purely because he or 
she is--or is perceived to be--gay or lesbian. The fact that in 
the year 2002 our Federal law still tolerates this kind of 
unfair treatment in the workplaces of America is unacceptable.
    Prohibiting sexual orientation discrimination in American 
workplaces does not create special rights for gay and lesbian 
Americans. ENDA would not give any greater rights to gay and 
lesbian Americans than Irish-Americans, Baptists, senior 
citizens, Americans with disabilities or women enjoy under 
existing federal law. ENDA merely prohibits the consideration 
of sexual orientation in employment decisions such as hiring 
and firing to the same extent consideration of race, gender, 
religion, and national origin is prohibited under current 
Federal law. ENDA is a rational response to the inequities 
created by sexual orientation discrimination in American 
workplaces and guarantees nothing more than equality.
    There exists broad support for including sexual orientation 
among the classifications upon which employers may not 
discriminate. According to a 2001 Harris Interactive/Witeck 
Combs Communications survey, 42 percent of Americans believe 
that a Federal law already exists to prohibit sexual 
orientation discrimination. The fact that these Americans are 
mistaken makes clear that Congress is well behind the times by 
the gauge of the American people with respect to the issue of 
employment discrimination based on sexual orientation.
    Americans have always believed that people who do their 
jobs, pay their taxes, and contribute to their communities 
should not be singled out for unfair discrimination. Federal 
law should ensure that this basic fairness applies to all 
Americans without regard to sexual orientation, and the 
Employment Non-Discrimination Act would accomplish that goal in 
the workplace.

                    E. ENDA HAS BROAD PUBLIC SUPPORT

    Overwhelming majorities have indicated that they believe 
gays and lesbians should have equal rights in terms of job 
opportunities. In fact, to ensure equal opportunities exist in 
the workplace regardless of sexual orientation, a majority of 
Americans support ENDA. In June of 2001, a Gallup Poll asked 
respondents, ``In general, do you think homosexuals should or 
should not have equal rights in terms of opportunities?'' Up 
from 56 percent in 1977, 85 percent of respondents favored 
equal opportunity in employment for gays and lesbians. Only 11 
percent thought gays and lesbians should be discriminated 
against based on sexual orientation in the workplace.
    In June 2001, a Harris Poll found that 61 percent of 
Americans favored a Federal law prohibiting job discrimination 
based on sexual orientation. Additionally, the survey found 
that 42 percent of adults surveyed incorrectly believe that 
such a law currently exists.
    In addition to the broad support this legislation enjoys in 
Congress and among the American public, corporate America 
supports ENDA and the legislation's principles. In fact, the 
closer a corporation is to the top of the Fortune 500 list, the 
more likely the company is to have a non-discrimination policy 
that includes sexual orientation. Many of our nation's most 
successful corporations have specifically endorsed ENDA, 
including:

  AT&T, New York, NY; Bausch & Lomb, Rochester, NY; Ben & 
        Jerry's Homemade Ice Cream, South Burlington, VT; 
        Borland International, Scotts Valley, CA; BP, Chicago, 
        IL; Capital One Financial Corp., Falls Church, VA; 
        Charles Schwab, San Francisco, CA; Coors Brewing Co., 
        Golden, CO; Digi-Net Syndication, Tampa, FL; Eastman 
        Kodak, Rochester, NY; FleetBoston Financial Corp., 
        Boston, MA; Franklin Research, Boston, MA; General 
        Mills, Minneapolis, MN; Hewlett-Packard Co., Palo Alto, 
        CA; Hill and Knowlton, New York, NY; Honeywell, 
        Morristown, NJ; Imation, Oakdale, MN; Louis Dreyfus 
        Corp., Wilton, CT; MFS Investment Management, Boston, 
        MA; Microsoft, Redmond, WA; Millipore Corp., Bedford, 
        MA; Nike, Beaverton, OR; Pacific Telesis, San 
        Francisco, CA; Prudential Insurance Co., Newark, NJ; 
        Quark, Denver, CO; SGI, Mountain View, CA; Shell Oil 
        Co., Houston, TX; Software Spectrum Inc., Garland, TX; 
        State Street Corp., Boston, MA; The Quaker Oats 
        Company, Chicago, IL; Triarc Beverage Group, White 
        Plains, NY; Wainwright Bank, Boston, MA; Xerox, 
        Stamford, CT.

    While small businesses with less than 15 employees are 
exempt from ENDA, many small businesses support this 
legislation. Among the small businesses which have supported 
ENDA are:

  America's Second Harvest, Chicago, IL; Ansafone.com/
        Ephonamation.com, Santa Ana, CA; Aquila Dallas 
        Marketing, Dallas, TX; Atlanta Computer Group, 
        Alpharetta, GA; Billingsley Co., Dallas, TX; Bridge 
        Capital, Irvine, CA; Ceres Capital Partners, Dallas, 
        TX; Corey & Co., Watertown, MA; Crow Design Centers, 
        Dallas, TX; Donato's Pizza, Boston, MA; EduMedia, Round 
        Lake Beach, IL; Emerson Partners Inc., Dallas, TX; 
        Employon, Cleveland, OH; Far West Management, Santa 
        Ana, CA; Greater Boston Food Bank, Boston, MA; Hall 
        Financial Group, Frisco, TX; Homewood Suite Hotels, 
        Lewisville, TX; I Love Flowers, Dallas, TX; James 
        Daniels & Associates, Fort Worth, TX; Linkage Inc., 
        Lexington, MA; LOPEZGARCIA Group, Dallas, TX; 
        MassEnvelopePlus, Sommerville, MA; Memorial Family 
        Medicine Medical Group Inc., Long Beach, CA; Microtek 
        Inc., Chicopee, MA; Morrisey Associates Inc., Chicago, 
        IL; Mozzarella Co., Dallas, TX; Nims Associates Inc., 
        Dallas, TX; Odell & Associates, Dallas, TX; Parma 
        Pediatrics Inc., Parma, OH; Phil's CookShop LLC, 
        Lexington, KY; Rafanelli Events Management Inc., 
        Boston, MA; Replacements Ltd., Greensboro, NC; Resource 
        One, Columbus, OH; Riverview Center for Orthopedic 
        Rehabilitation, Columbus, OH; Saddleback Interiors, 
        Corona Del Mar, CA; Southern Enterprises Inc., Dallas, 
        TX; The Feed Bag Restaurants, Dallas, TX; The Staubach 
        Co., Addison, TX; Triton Funding Group, San Francisco, 
        CA; Voice Publishing Co. Inc., Dallas, TX; Waters Ford 
        Co. Inc., Blackshear, GA; WheelHouse Corp., Burlington, 
        MA; Winninghabits.com, Dallas, TX; Witeck-Combs 
        Communications, Washington, DC; Wyndham Jade, Dallas, 
        TX.

    Business leaders support the act for numerous reasons. Many 
believe it fosters a diverse workplace that encourages all 
workers to fulfill their potential. Many believe its provisions 
are not burdensome. Business leaders also note that the act is 
unlikely to lead to excessive litigation. In fact, in a July 9, 
2002, report to Senators Kennedy, Jeffords, Lieberman, and 
Specter, the General Accounting Office wrote, ``For those 
States where the law has taken effect, relatively few formal 
complaints of employment discrimination on the basis of sexual 
orientation have been filed, either in absolute numbers or as a 
percentage of all employment discrimination complaints in the 
State. Moreover, the state statistics generally do not show any 
trend in the volume of employment discrimination cases based on 
sexual orientation over the periods we examined.''
    While religious organizations are not currently covered by 
ENDA, many religious organizations support enactment of this 
legislation. On April 24, 2002, religious groups in support of 
the Act wrote the following:

          ENDA is a modest measure that would extend employment 
        protections currently provided on the basis of race, 
        gender, and disability to sexual orientation, thereby 
        repairing the injustice that allows gay and lesbian 
        Americans to suffer discrimination in the workplace.
          Under current Federal law, it is entirely legal to 
        fire, hire, demote, promote, and make all other 
        employment decisions based solely on sexual 
        orientation, regardless of workplace performance. As 
        people of faith who stand for the equality and dignity 
        for all people, we find this reprehensible.
          Biblical tradition teaches us that all human beings 
        are created b'tselem elohim--in the Divine image. As it 
        says in Genesis 1:27, ``And God created humans in God's 
        own image, and in the image of God, God created them; 
        male and female God created them.'' Regardless of 
        context, discrimination against any person arising from 
        apathy, insensitivity, ignorance, fear, or hatred is 
        inconsistent with this fundamental belief. We oppose 
        discrimination against all individuals, including gays 
        and lesbians, for the stamp of the Divine is present in 
        each and very one of us.\2\
---------------------------------------------------------------------------
    \2\ Letter from Union of American Hebrew Congregations; Central 
Conference of American Rabbis; Women of Reform Judaism; Unitarian 
Universalist Association; Presbyterian Church (USA), Washington Office; 
Evangelical Lutheran Church in America; United Church of Christ, 
Justice and Witness Ministries; Friends Committee on National 
Legislation (Quaker); United Methodist Church, General Board of Church 
and Society, Episcopal Church, USA to United States Senate (Apr. 24, 
2002) (discussing passage of ENDA).
---------------------------------------------------------------------------

                  F. CONSTITUTIONAL AUTHORITY FOR ENDA

    Congressional authority to enact ENDA is found in the 
Commerce Clause and the 14th Amendment. ENDA's provision 
authorizing individual suits against State governmental 
employers is based on Congress' Article I Spending Power and 
Congress' enforcement power under Section Five of the 
Fourteenth Amendment.

1. Commerce Clause Authority for ENDA

    The Commerce Clause provides Congress' strongest source of 
legislative authority to prohibit intentional employment 
discrimination based on sexual orientation. Congress has a 
well-established history of enacting civil rights laws based on 
this authority, including Title VII, the ADEA, and the ADA. The 
Supreme Court's recent decisions invalidating Federal statutes 
as an inappropriate use of the Commerce Clause power do not 
apply to ENDA because the discrimination prohibited--employment 
discrimination--is very directly related to commerce.
    Terms and conditions of employment in industries affecting 
commerce fall squarely within the purview of Congress' Commerce 
Clause authority. Discrimination based on sexual orientation is 
an expensive detriment to American commerce, costing employers 
lowered productivity and costing employees lost wages. The 
economic impacts of sexual orientation discrimination in the 
workplace are serious and broad, and ENDA is an appropriate 
response to what is as much an economic problem as a civil 
rights problem.

2. Fourteenth Amendment Authority for ENDA

    The Federal Government has long recognized that ensuring 
civil rights is essential to national citizenship and has 
sought to enforce and protect those rights under the authority 
granted to Congress by the Fourteenth Amendment. Section Five 
of the Fourteenth Amendment gives Congress the power to enforce 
the substantive provisions of the Fourteenth Amendment, 
stating, ``The Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article.''
    Section Five of the Fourteenth Amendment is an affirmative 
grant of legislative power to Congress. Katzenbach v. Morgan 
384 U.S. 641 (1966). The Supreme Court has recognized that 
Congress may legislate, using its authority under Section Five 
of the Fourteenth Amendment, to deter or remedy Federal 
constitutional violations even if, in the process, the 
legislation prohibits conduct which is not itself 
unconstitutional. City of Boerne v. Flores, 521 U.S. 507 
(1997). The Supreme Court has also ruled that the scope of 
Congressional legislative authority under Section Five of the 
Fourteenth Amendment is broader than the language of the 
Amendment itself, providing Congress the ability to deter and 
remedy conduct which is not forbidden by the Fourteenth 
Amendment itself. Kimel v. Florida Bd. of Regents, 528 U.S. 62 
(2000).
    Sexual orientation discrimination in employment, like 
discrimination based on race, sex, national origin, religion, 
age, or disability, is an evil properly addressed by Congress 
under its Fourteenth Amendment legislative powers. When 
perpetrated through State action, such discrimination is in 
many instances unconstitutional, and in the absence of State 
action, employment discrimination based on sexual orientation 
still deprives hard-working Americans of the basic fairness to 
which all American workers aspire: the right to be judged on 
one's merits, and not upon irrelevant factors such as sexual 
orientation.

3. Enforceability against States through a private cause of action for 
        damages

    ENDA is enforceable against State governments. Congress 
invokes its authority under the Spending Clause and the 
Fourteenth Amendment to provide a private cause of action for 
damages against States to State employees who suffer 
discrimination based on sexual orientation in the workplace.
    a. Spending Clause.--In several recent cases, the Supreme 
Court has indicated that Congress may use its Spending Clause 
powers to condition the receipt of Federal funds upon a State's 
agreement to forego its Eleventh Amendment immunity to suit 
under certain Federal regulatory and statutory schemes. See 
Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. 
Bank, 527 U.S. 627 (1999); South Dakota v. Dole, 483 U.S. 203 
(1987). As Justice Scalia framed the issue, ``Congress has no 
obligation to use its Spending Clause power to disburse funds 
to the States; such funds are gifts.'' Fla. Prepaid 
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 
627, 686-687 (1999). As such, ``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.'' Id. at 686.
    Nonetheless, the Court has recognized five limitations on 
Congressional power to condition funding upon a State's 
agreement to subject itself to private suits for damages. 
First, conditions placed upon receipt of Federal funds may not 
be ``so coercive as to pass the point at which `pressure turns 
into compulsion.' '' South Dakota v. Dole, 483 U.S. 203, 211 
(1987). Second, the plain language of the Spending Clause 
indicates that the use of the spending power must be aimed at 
``the general welfare'' of the country, that is, it must have a 
``general public purpose.'' South Dakota v. Dole, 483 U.S. 203, 
207 (1987); Helvering v. Davis, 301 U.S. 619, 640-41 (1937). 
Third, congressional intent to condition States' receipt of 
funding on compliance with certain regulations must be 
``unambiguous'' in the language of the statute, such that the 
State may make an informed choice as to whether to adhere to 
the conditions upon which the receipt of funds are contingent. 
See South Dakota v. Dole, 483 U.S. 203, 207 (1987); Pennhurst 
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Fourth, 
conditions upon the grant of Federal funds must be related to 
the Federal interest asserted by the ``particular national 
projects or programs,'' in other words, the ``condition imposed 
must be reasonably related to the purpose for which the funds 
are expended.'' South Dakota v. Dole, 483 U.S. 203, 207, 213 
(1987). Finally, the conditional grant of Federal funding must 
not be barred by any provision of the Constitution. South 
Dakota v. Dole, 483 U.S. 203, 208 (1987); Lawrence County v. 
Lead-Deadwood Sch. Dist., 469 U.S. 256, 269-270 (1985).
    Consistent with these guidelines for the use of Congress' 
spending power, Congress intends 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.
            i. The Condition Placed Upon Receipt of Funds is Not 
                    Coercive
    First, the conditioning of receipt of Federal funds under 
ENDA upon a State's agreement to be open to private suits for 
damages by employees under ENDA is not a condition so coercive 
as to compel States to accept the condition in exchange for 
Federal funding of programs or activities as defined by 42 
U.S.C. 2000d-4a. A State which chooses not to forego immunity 
to private suits for damages under ENDA becomes ineligible only 
for Federal funding of those ``programs or activities,'' as 
that term is defined by 42 U.S.C. Sec. 2000d-4a, for which it 
wishes to retain its Eleventh Amendment immunity. The funds at 
stake, therefore, are not so substantial as to compel the 
exchange of Eleventh Amendment immunity for Federal funding. 
This arrangement represents a non-coercive, reasonable use of 
Congress' Spending Clause powers.
    Further, States will not be unduly burdened by the choice 
to remain open to such suits, as States' experience with Title 
VII has shown that the defense of private employment 
discrimination suits is not overly burdensome, and because 
sexual orientation-based claims make up a relatively small 
proportion of employment discrimination claims generally.
    States have been subject to private suits under Title VII 
since shortly after the statute's enactment. The resources 
required to defend a private suit under ENDA should generally 
be no different from those required to defend a private cause 
of action under Title VII.
    The number of cases a State may expect to defend would be, 
in fact, a relatively small proportion of employment 
discrimination cases generally. According to a 2002 GAO report 
submitted to Senators Jeffords, Kennedy, Lieberman, and Specter 
in response to their request for information regarding how much 
litigation has been created by the advent of sexual 
orientation-inclusive employment non-discrimination laws in the 
States, of all the employment discrimination claims made under 
those State laws ``relatively few'' pertained to sexual 
orientation discrimination.\3\ The GAO examined the experiences 
of the twelve States with statutory prohibitions on sexual 
orientation discrimination, and the District of Columbia. Seven 
of the thirteen jurisdictions have over ten years worth of 
experience with their statutory prohibitions on sexual 
orientation law, and sexual orientations claims ranged from .5 
percent to 9 percent of yearly employment discrimination claims 
in those jurisdictions.\4\ Only six of the States reported a 
proportion of sexual orientation-based cases of 3 percent or 
higher.\5\ Assuming a similar proportion of Federal employment 
discrimination cases against States would be sexual orientated-
related were ENDA to become law, these figures indicate that 
the proportion of additional employment discrimination 
complaints and associated costs States are likely to face upon 
ENDA's passage is relatively small.
---------------------------------------------------------------------------
    \3\ U.S. General Accounting Office, Sexual Orientation-Based 
Employment Discrimination: States' Experience with Statutory 
Prohibitions, GAO-02-878R (Washington, D.C.: July 9, 2002).
    \4\ U.S. General Accounting Office, Sexual Orientation-Based 
Employment Discrimination: States' Experience with Statutory 
Prohibitions, GAO-02-878R (Washington, D.C.: July 9, 2002).
    \5\ U.S. General Accounting Office, Sexual Orientation-Based 
Employment Discrimination: States' Experience with Statutory 
Prohibitions, GAO-02-878R (Washington, D.C.: July 9, 2002).
---------------------------------------------------------------------------
            ii. Prevention of Sexual Orientation Discrimination 
                    Advances the General Welfare of the Country
    The prevention of discrimination based on sexual 
orientation by State employers is a legitimate national 
interest, meaning that the spending at issue in the case of 
ENDA falls well within the rubric of ``the general welfare.'' 
Extensive data support the contention that discrimination based 
on sexual orientation is a pressing problem in both public and 
private workplaces. ENDA would provide a reasonable, well-
tailored remedial scheme which, like Title VII is made most 
effective through the inclusion of a private right of action 
against State employers for violations of Title VII.
            iii. The Conditions Imposed on the Receipt of Funding Are 
                    Unambiguous
    The conditions imposed upon receipt of Federal funds 
through this statute are unambiguous. Specifically, States 
accepting Federal funds for qualifying programs or activities 
shall, as a condition upon the receipt of those funds, forego 
their immunity to private suit by employees of those qualifying 
programs or activities for the enforcement of the provision of 
ENDA.
            iv. The Nexus Between the Funding and Condition is Clear
    The nexus between the conditions placed upon the receipt of 
these Federal funds and the purpose of the expenditure of such 
funds is clear; where the Federal Government contributes 
funding to State programs or activities, those funds 
necessarily contribute to the employment conditions of State 
workers. Because Congress is concerned with the eradication of 
discrimination based on sexual orientation in the State 
workplace, and because Congress may therefore refuse to provide 
funding to State programs or activities which do not comply 
fully with the provisions of ENDA and agree to subject 
themselves to the potential for private suit in order to 
enforce ENDA, the required nexus between conditions and 
purposes of the expenditure is established. Stated differently, 
Congress is under no obligation to fund the operations of State 
programs and activities which are unwilling to comply with, and 
remain open to the potential for private enforcement of, the 
Employment Non-Discrimination Act.
            v. The Condition Placed on the Receipt of Funding Is Not 
                    Unconstitutional
    Finally, this conditioning of the receipt of Federal funds 
upon a State's agreement to remain open to private suits for 
damages does not violate any provision of the Constitution.
    b. Fourteenth Amendment.--In enacting ENDA, Congress is 
invoking Section Five of the Fourteenth Amendment as a separate 
source of constitutional authority for remedying and preventing 
sexual orientation discrimination in State workplaces. Section 
13 of ENDA clearly abrogates States' Eleventh Amendment 
immunity to private causes of action for damages. The 
invocation of the Fourteenth Amendment follows a long-standing 
practice by Congress of relying on the Fourteenth Amendment 
when enacting civil rights statutes.
    The Supreme Court has held that Congress has the power to 
abrogate States' sovereign immunity to private suits when it 
properly exercises its enforcement powers under Section Five of 
the Fourteenth Amendment or under other amendments added to the 
Constitution after ratification of the Eleventh Amendment. Bd. 
of Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001); 
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Fla. Prepaid 
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 
627 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 
(1996). For example, it is well-established that Title VII 
allows for private suits for damages against State governments 
and the officials of State governments in their official 
capacities. Fitzpatrick v. Bitzer, 427 U.S. 455 (1976). 
Congress finds that it has similar authority under Section Five 
of the Fourteenth Amendment to abrogate State immunity for 
sexual orientation discrimination claims for damages brought by 
private persons against States.
    Congress always has the authority to abrogate State 
immunity to private suits for damages when the Federal statute 
remedies and prevents little or no more discriminatory conduct 
by States than the Constitution itself prohibits. Recent 
Supreme Court decisions applying the Eleventh Amendment do not 
contradict this principle. E.g., Garrett, 121 S. Ct. at 963 
(stating that ``Section Five legislation reaching beyond the 
scope of Section One's [of the Fourteenth Amendment] actual 
guarantees must exhibit `congruence and proportionality between 
the injury to be prevented or remedied and the means adopted to 
that end.' '') (emphasis added); Kimel, 528 U.S. at 91 (holding 
that lack of legislative findings ``is not determinative of the 
Section Five inquiry''). The Justice Department has 
successfully defended numerous Federal statutes against 
Eleventh Amendment defenses, including the Religious Land Use 
and Institutionalized Persons Act, the religious accommodation 
provision of Title VII, and the Equal Pay Act, as prohibiting 
little or no more discriminatory conduct by States than the 
Constitution itself prohibits. In the reported decisions, every 
Federal appellate court that has decided the constitutionality 
of the Equal Pay Act, and every Federal court that has decided 
the constitutionality of the Religious Land Use and 
Institutionalized Persons Act and the religious accommodation 
provision of Title VII, has found that Congress properly 
exercised its Fourteenth Amendment authority, regardless of 
whether Congress had received evidence of a pattern of 
unconstitutional conduct by States. E.g., Cherry v. Univ. of 
Wis. Sys. Bd. of Regents, 265 F. 3d 541, 549-53 (7th Cir. 2001) 
(Equal Pay Act); Siler-Khodr v. Univ. of Texas Health Science 
Center San Antonio, 261 F. 3d 542, 550-51 (5th Cir. 2001) 
(Equal Pay Act); Kovacevich v. Kent State Univ., 224 F. 3d 806, 
820 n.6 (6th Cir. 2000) (Equal Pay Act); Freedom Baptist Church 
of Delaware County v. Tp. of Middletown, 204 F. Supp. 2d 857, 
874 (E.D. Pa. 2002) (Religious Land Use and Institutionalized 
Persons Act); Holmes v. Marion County Office of Family and 
Children, 184 F. Supp. 2d 828, 835-36 (S.D. Ind. 2002) 
(religious accommodation provision of Title VII of the Civil 
Rights Act of 1964).
    Congress finds that ENDA remedies and prevents little or no 
more discriminatory conduct by States than the Constitution 
itself prohibits. Although the Supreme Court has not 
definitively held whether government classifications based on 
sexual orientation should be subject to rational basis or to 
some level of heightened scrutiny, see Chai R. Feldblum, The 
Pursuit of Social and Political Equality: Sexual Orientation, 
Morality and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237 
(1996), the Court recently indicated that classifications based 
on sexual orientation may be unconstitutional even when 
afforded the most generous standard of review, the rational 
basis standard of review, when those classifications fail to 
serve a legitimate governmental purpose. Romer v. Evans, 116 S. 
Ct. 1620 (1996).
    The intentional sexual orientation discrimination in the 
State workplace prohibited by ENDA is never justified by a 
legitimate State interest. As a Federal court recently held, 
``harassment in the public workplace against homosexuals based 
on their sexual orientation constitute[s] an Equal Protection 
violation.'' Quinn v. Nassau Co. Police Dep't, 53 F. Supp. 2d 
237, 256-57 (E.D.N.Y. 1999). As a statute that prohibits only 
intentional sexual orientation discrimination in the State 
workplace, ENDA tracks constitutional prohibitions against 
State-sponsored sexual orientation discrimination. Thus, 
Congress has the Fourteenth Amendment authority to apply ENDA 
to the States.
    The Supreme Court has decided several recent cases in which 
it found that a Federal statute created a private right of 
action against a State for a broad swath of what the Court 
considered constitutional conduct. E.g., Garrett, 121 S. Ct. 
955; Kimel, 528 U.S. 62. In those cases, the Court found that 
Congress did not properly rely on its Fourteenth Amendment 
authority in applying those statutes to the States in 
abrogation of their Eleventh Amendment immunity, because the 
remedy of allowing a private cause of action for damages 
against States was a disproportional and incongruent remedy to 
the problem addressed by the statute. Id. In Garrett, the Court 
held that when a Federal statute prohibits a broad swath of 
constitutional conduct by States, a substantial record of 
unconstitutional conduct by States may be required to show that 
the statute's prophylactic prohibitions against constitutional 
discriminatory conduct by States are proportional and congruent 
to the need to prevent unconstitutional conduct. Garrett, 121 
S. Ct. 955.
    Although Congress finds that ENDA prohibits little or no 
constitutional conduct by States, it also finds that States 
have engaged in a long-standing pattern of unconstitutional 
conduct based on sexual orientation in the workplace. See 
generally Section IV-A and IV-B, describing the history of 
sexual orientation discrimination in both public and private 
employment contexts. Congressional abrogation of States' 
immunity to private suit under Title VII has been considered a 
valid exercise of congressional power under Section Five of the 
Fourteenth Amendment for over three decades. See Fitzpatrick v. 
Bitzer, 427 U.S. 455 (1976). Sexual orientation discrimination, 
unlike discrimination based on race, sex, national origin and 
religion, has gone without a remedy under Federal law, creating 
a situation in which all Americans are vulnerable. The lack of 
a Federal cause of action for sexual orientation discrimination 
in the workplace creates a situation in which State employees 
who are victims of sexual orientation discrimination have in 
general had few opportunities to bring claims against their 
employers for unconstitutional discrimination.
    Congress finds that sexual orientation discrimination in 
State employment continues to occur throughout the country, at 
almost all levels of State government service, and in varying 
levels of severity. Examples of States discriminating on the 
basis of sexual orientation in employment abound, and affect 
employees in law enforcement, academia, and many other fields 
of employment. The following are just two examples of the many 
cases in which State employees suffered discrimination based on 
sexual orientation in State workplaces.

     James Shermer worked as a building tradesman for 
the Illinois Department of Transportation. John Tress, a plant 
maintenance engineer, supervised Shermer between May and August 
1993. In front of Shermer and his co-workers, Tress repeatedly 
made offensive remarks, suggesting Shermer enjoyed having sex 
with men. In 1995, Shermer filed suit against the department 
under Title VII of the Civil Rights Act of 1964, claiming that 
Tress' conduct created a hostile work environment. Both the 
U.S. District Court and U.S. Court of Appeals found against 
Shermer, arguing that the harassment was based on sexual 
orientation and not prohibited by State law or Title VII.
     Thomas Figenshu worked as an officer with the 
California Highway Patrol from 1983 to 1993. After he was 
promoted to sergeant and transferred to West Los Angeles in 
1988, co-workers began to harass him. Anti-gay pornographic 
cartoons were taped to his mailbox. A ticket for ``sex with 
dead animals'' was left on his windshield. He found urine on 
his clothes in his locker. Figenshu was commonly the object of 
anti-gay slurs. After Figenshu complained, an officer was 
reprimanded and another suspended, but the harassment 
continued. To remove himself from the hostile work environment, 
Figenshu resigned in 1993, and brought a successful suit under 
California law.

  G. STATE AND LOCAL GOVENMENTS ACT ON EVIDENCE OF SEXUAL ORIENTATION 
                  DISCRIMINATION IN PUBLIC EMPLOYMENT

    The fact that sexual orientation discrimination is 
widespread in State employment and municipal employment is also 
apparent from the numerous State governments and agencies who 
have recognized the problem of sexual orientation 
discrimination in the State workplace and taken affirmative 
steps to address it. Twenty-two States, the District of 
Columbia and 243 State and local governments and quasi-
governmental agencies across the country prohibit workplace 
discrimination based on sexual orientation for their public 
employees. It is reasonable to believe that these policies were 
enacted not in a vacuum, but instead represent rational State 
responses to a pattern of sexual orientation discrimination--a 
discrimination the State clearly found to be irrational and 
therefore to be prohibited.
    The American Federation of State, County and Municipal 
Employees (AFSCME) represents 1.3 million State, county and 
municipal employees around the country and has made clear to 
Congress its position that ENDA is necessary to address the 
widespread problem of sexual orientation discrimination in the 
State workplace, and to fill the gaps in Federal workplace 
discrimination law left by Title VII's inapplicability to 
sexual orientation discrimination. As a union organized solely 
for the representation of public employees, AFSCME is perhaps 
one of the best situated organizations in the country to attest 
to the presence of sexual orientation discrimination in State 
employment. AFSCME has passed two Resolutions in support of the 
Employment Non-Discrimination Act and has written the Chairman 
of this Committee as recently as April 2002, to express its 
strong support for ENDA as a necessary response to ``the 
millions of hard working Americans [who] are not hired or . . . 
find themselves subject to firing, lack of promotions and other 
unfair treatment, simply because of their sexual preference.'' 
\6\
---------------------------------------------------------------------------
    \6\ AFSCME letter to The Honorable Edward Kennedy, Chairman, 
Health, Education, Labor & Pensions Committee, April 23, 2002.
---------------------------------------------------------------------------
    In short, Congress intends to invoke two sources of 
constitutional authority in making ENDA enforceable against 
States: the Spending Power and Section Five of the Fourteenth 
Amendment. The Spending Power provides the clearest authority 
for Congress to condition the receipt of Federal funding in 
programs and activities as defined by 42 U.S.C. 2000d-4a 
(2002). States that wish to obtain Federal funds for their 
programs or activities must comply with the reasonable, 
constitutional conditions placed on receipt of such funds. 
Further, Section Five of the Fourteenth Amendment clearly gives 
Congress the power to remedy sexual orientation discrimination 
in employment through the abrogation of States' immunity to 
private suits for damages under ENDA. Abrogation of States' 
immunity to private suits for damages is a congruent and 
proportional response to the pattern of unconstitutional 
conduct by States that discriminate in employment based on 
sexual orientation.

                   X. Explanation of the Legislation

    A. THE ACT IS BASED ON TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

    The purpose of the Employment Non-Discrimination Act is 
straight-forward and simple: to prohibit intentional 
discrimination based on sexual orientation in employment. ENDA 
will add sexual orientation to the Federal list of prohibited 
bases for employment discrimination, which currently consists 
of race, sex, national origin, religion, age and disability. In 
doing so, ENDA extends fair employment guarantees to thousands 
of Americans who face employment discrimination based on sexual 
orientation, in the same way that Title VII, the Age 
Discrimination in Employment Act, and the Americans with 
Disabilities Act prohibit other common forms of employment 
discrimination. In sum, ENDA is a guarantor of equal rights; it 
in no way creates special rights.
    ENDA is narrowly crafted to address sexual orientation 
discrimination in employment, and to ensure that sexual 
orientation becomes exactly what it should be in the American 
workplace--a non-issue. Employment decisions should be made on 
individual merit and performance, not extraneous, irrelevant 
factors such as sexual orientation. Like other personal 
qualities such as race and sex, sexual orientation is 
irrelevant to an individual's ability to do his or her job. 
Sexual orientation only becomes a factor in employment when 
people's biases and prejudices determine employment actions 
such as hiring and firing. Just as it is unacceptable to fire 
or refuse to hire a person based on his or her race or sex, for 
example, it is unacceptable to base employment decisions on an 
employee's or applicant's sexual orientation. Federal law 
should reflect this.
    Title VII serves as the model for the Employment Non-
Discrimination Act, and it is the intent of this committee 
that, except as indicated in the act, ENDA be read as 
consistent with Title VII to the greatest extent possible. Just 
as Title VII does with respect to race, religion, national 
origin and religion, ENDA prohibits employers, employment 
agencies, and labor unions from making employment decisions 
such as hiring, firing, promotion and compensation on the basis 
of sexual orientation. Because the purposes of Title VII and 
ENDA are consistent, and because the Committee wishes to 
provide courts construing ENDA with the benefit of the well-
established jurisprudence of Title VII, much of ENDA's language 
comes directly from Title VII.
    Nonetheless, there are several ways in which ENDA differs 
from Title VII. Some of these differences stem from the 
Committee's intent to codify certain aspects of Title VII 
jurisprudence that should be imported into courts' 
interpretation of ENDA, and others stem from an intent to treat 
sexual orientation discrimination somewhat differently from 
other forms of employment discrimination under Federal law.
    Title VII has been interpreted by courts to prohibit 
associative discrimination in employment, that is, 
discrimination against a person based on the race, sex, 
national origin or religion of the persons with whom the 
employee associates. ENDA makes the prohibition on associative 
discrimination explicit in Section 4(e). It is the intent of 
the committee that this provision be construed consistent with 
the associative discrimination jurisprudence developed under 
Title VII.
    Title VII and other Federal laws, including the Americans 
with Disabilities Act, have been interpreted to prohibit 
discrimination based on the perceived characteristics of an 
employee or applicant for employment, without regard to whether 
that perception is correct. The discriminatory intent of an 
employer is the evil to be remedied by Federal civil rights 
legislation, therefore even absent explicit language regarding 
``perceive'' characteristics or characteristics individuals may 
be ``regarded as'' having, courts have often interpreted civil 
rights statutes as encompassing discrimination based on 
perceived characteristics. The definition of sexual orientation 
in ENDA adopts this reasoning, by defining sexual orientation 
as ``homosexuality, bisexuality, or heterosexuality, whether 
the orientation is real or perceived.''
    Section 11(a) addresses employer rules and policies, and no 
correlate for this provision exists in the language of Title 
VII. This provision is intended to reinforce existing law with 
respect to employers' prerogative to regulate employee conduct, 
and merely states that such regulation shall be done in a way 
that is sexual orientation-neutral.
    The small number of limited differences between Title VII 
and ENDA are intended to treat sexual orientation 
discrimination in employment differently from the way 
employment discrimination based on race, sex, national origin 
and religion is treated under Title VII.
    Unlike Title VII, which provides for disparate impact 
claims, ENDA only provides redress for intentional 
discrimination. That is, only disparate treatment claims may be 
brought under ENDA. While evidence of disparate impact may be 
introduced in a proceeding to support a claim of disparate 
treatment, as ENDA clearly states under Section 4(f), there is 
no cause of action under ENDA for disparate impact.
    ENDA also differs from Title VII by not requiring employers 
to provide domestic partnership benefits to employees. While 
Federal law has made clear that the provision of employment 
benefits in a discriminatory manner based on sex is 
impermissible,\7\ ENDA's Section 6 clearly states that the act 
does not apply to the provision of employee benefits. Employers 
nonetheless remain free to provide such benefits.
---------------------------------------------------------------------------
    \7\ See Califano v. Westcott 443 U.S. 76, 99 S. Ct. 2655 (1979); 
Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 
U.S. 636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973).
---------------------------------------------------------------------------
    Section 7 of ENDA differs from Title VII by prohibiting the 
collection of statistics on sexual orientation by the EEOC. The 
privacy concerns inherent in the collection of information 
about individuals' sexual orientation by a government agency 
make the collection of such statistics at best impracticable, 
and at worst, impermissibly invasive.
    Finally, ENDA differs from Title VII with respect to the 
availability of affirmative action as a remedy. ENDA's Section 
8 makes clear that employers may not adopt quotas or give 
preferential treatment to individuals on the basis of sexual 
orientation and it prohibits orders or consent decrees that 
include quotas or preferential treatment for those protected 
under the act. Section 12(d) explicitly precludes the 
institution of affirmative action as a remedy under the act. 
Finally, ENDA differs from Title VII in the breadth of its 
religious organization exemption. Section 9 of ENDA exempts 
religious organizations, including religious corporations, 
associations, or societies, or educational institutions 
substantially owned, managed, controlled or supported by 
religious organizations or whose curriculum is directed to the 
propagation of a religion. The range of organizations covered 
by ENDA's definition of ``religious organization'' comes 
directly from Title VII. However, under Title VII, the scope of 
the religious organization exemption only permits religious 
organizations to discriminate on the basis of religion.\8\ It 
does not permit religious organizations to discriminate in non-
clergy positions on the basis of race, sex or national origin. 
By contrast, ENDA provides entities that qualify as religious 
organizations a complete exemption from the statute.
---------------------------------------------------------------------------
    \8\ Note that the Free Exercise Clause also allows religious 
organizations to discriminate on any basis in the selection of clergy. 
McClure v. Salvation Army, 460 F. 2d 553 (5th Cir. 1972).
---------------------------------------------------------------------------
    The differences between Title VII and ENDA outlined in this 
committee report are the only differences intended to be found 
between ENDA and Title VII as it is currently interpreted by 
the courts. The fact that ENDA in some respects provides less 
protection from employment discrimination based on sexual 
orientation than Federal law provides for other forms of 
employment discrimination is by no means a statement that anti-
gay discrimination or other forms of sexual orientation 
discrimination are any less abominable than other forms of 
federally prohibited discrimination. Instead, ENDA's deviations 
from Title VII are meant to acknowledge particular challenges 
inherent in addressing discrimination against American workers 
based on their sexual orientation, and to narrowly tailor 
legislation to address this problem. Privacy and religious 
freedom concerns are carefully balanced against concerns 
regarding equal protection and fairness. While the committee 
expects courts to acknowledge the technical differences in the 
way ENDA addresses sexual orientation versus the way other 
Federal laws treat discrimination based on race, sex, national 
origin, religion, age and disability as outlined above, the 
committee expects that in all other ways ENDA should be 
interpreted consistent with Title VII and its companion 
legislation in the larger body of Federal civil rights 
legislation, the Age Discrimination in Employment Act, and the 
Americans with Disabilities Act.

                     B. EXPLANATION OF DEFINITIONS

1. Most definitions are taken from Title VII

    The definitions provided under Section 3 of ENDA come 
almost exclusively from Title VII, thereby providing courts 
with the benefit of over three decades of experience. Courts 
understand these definitions, as do employers, giving ENDA a 
level of predictability and clarity uncommon in new Federal 
legislation.
    The definitions of ``employee,'' ``employer,'' ``employment 
agency,'' ``labor organization,'' ``person'' and ``State'' are 
all cross-referenced to the relevant Title VII definitions. 
These terms in ENDA should be interpreted consistent with Title 
VII.
    The ``Commission'' is clearly defined in Section 3(1) to 
mean the Equal Employment Opportunity Commission.
    The term ``covered entity'' does not appear in Title VII, 
and instead comes from the Americans with Disabilities Act. 
``Covered entity'' is a term used to encompass all employing 
entities covered by the act, including employers, employment 
agencies, labor organizations and joint labor-management 
committees. ENDA's definition of ``covered entity'' mirrors 
precisely the definition of ``covered entity'' found at Section 
12111(2) of the Americans with Disabilities Act.
    The definition of the term ``religious organization'' in 
ENDA is a combination of two provisions of Title VII and is 
meant to be read consistent with Title VII. The language of 
ENDA's Section 8 represents a combination of the language of 
Title VII Section 702(a), which provides an exemption for 
religious corporations, associations, educational institutions, 
or societies, and Section 703(e)(2), which exempts schools, 
colleges, universities or educational institutions which are 
``in whole or in substantial part, owned, supported, 
controlled, or managed by a particular religion . . . or 
directed toward the propagation of a particular religion.''
    The definition of sexual orientation is written to include 
``homosexuality, bisexuality, or heterosexuality, whether the 
orientation is real or perceived.''

2. The definition of ``Sexual Orientation'' is clear and well 
        understood.

    The definition of sexual orientation under federal law is 
clear, and the terms homosexuality, bisexuality, and 
heterosexuality are well understood in the courts and by the 
American people.\9\ Furthermore, laws like ENDA exist in 12 
States, the District of Columbia and over 200 municipalities in 
this country, and the definition of sexual orientation has 
never presented a court with any difficulty.
---------------------------------------------------------------------------
    \9\ See Hyman v. City of Louisville, 132 F. Supp. 2nd 528, 545-47 
(W.D.KY 2001) (The definition of ``sexual orientation'' is consistent 
with the meaning attributed to the term by common usage).
---------------------------------------------------------------------------
    The use of the term ``perceived'' in ENDA's definition of 
``sexual orientation'' represents an effort to address 
employment discrimination directed at individuals because of 
their presumed sexual orientation, whether or not that 
presumption is correct. It ensures that ENDA's prohibitions 
reach all discriminatory actions of an employer, regardless of 
whether the assumptions upon which the employer bases his 
discrimination are accurate. The use of the term ``perceived'' 
or a similar modifier is seen in the civil rights laws of many 
States, emphasizing the importance of the subjective intent of 
an employer in determining whether inappropriate discrimination 
has occurred.\10\
---------------------------------------------------------------------------
    \10\ Minn Stat. Sec. 363.01 (2001), defining sexual orientation as 
``having or being perceived to have an emotional, physical, or sexual 
attachment to another person without regard to the sex of that person . 
. . or having or being perceived as having an orientation for such 
attachment;'' R.S.A. 354-A:2 (2001), defining sexual orientation for 
the purposes of New Hampshire law as ``having or being perceived as 
having an orientation for heterosexuality, bisexuality or 
homosexuality;'' N.J. Stat Sec. 10:5-3 (2001), defining ``affectional 
or sexual orientation'' as ``male or female heterosexuality, 
homosexuality or bisexuality by inclination, practice, identity or 
expression, having a history thereof or being perceived, presumed or 
identified by others as having such an orientation;'' Nev. Rev. Stat. 
Ann Sec. 281.370 (2001), defining sexual orientation as ``having or 
being perceived as having an orientation for heterosexuality, 
homosexuality or bisexuality;'' R.I. Gen. Laws Sec. 28-5-6 (2001), 
defining sexual orientation as ``having or being perceived as having an 
orientation for heterosexuality, bisexuality, or homosexuality;'' Wis. 
Stat. Sec. 111.32 (2001), defining sexual orientation as ``having a 
preference for heterosexuality, homosexuality, or bisexuality, having a 
history of such a preference, or being identified with such a 
preference;'' Md. Ann. Code art. 49B Sec. 5 (2001), defining sexual 
orientation as ``the identification of an individual as to male or 
female homosexuality, heterosexuality, or bisexuality;'' Conn. Gen. 
Stat. Sec. 46a-81a (2001), defining sexual orientation as ``having a 
preference or being identified with such preference;'' Mass. Ann. Laws 
ch. 151B, Sec. 3 (2002), defining sexual orientation as ``having an 
orientation for or being identified as having an orientation for 
heterosexuality, bisexuality, or homosexuality.''
---------------------------------------------------------------------------
    This Federal interest in addressing subjective intent in 
employment discrimination is also reflected in other Federal 
laws. For example, the Americans with Disabilities Act 
prohibits discrimination against the disabled and those who are 
``regarded as'' having a disability. Courts have also read 
prohibitions on discrimination based on perceived 
characteristics into statutes where this language does not 
exist, because such a reading supports the spirit in which 
Congress promulgates civil rights laws. Even without such 
explicit language, courts regularly interpret civil rights 
statutes as encompassing discrimination based on perceived 
characteristics. Title VII has been interpreted to encompass 
discrimination based on perceived race and national origin, 
without regard to whether the perception upon which the 
employer based his discrimination was correct.\11\
---------------------------------------------------------------------------
    \11\ EEOC v. Shoney's, 1994 U.S. App. LEXIS 16876.
---------------------------------------------------------------------------
    In summary, the definition of sexual orientation is 
intended to be narrowly construed to include heterosexuality, 
bisexuality, and homosexuality, whether real or perceived. The 
use of the term ``real or perceived'' in ENDA is consistent 
with the statutory definitions of sexual orientation found in 
many State laws, and represents an effort to discourage 
inappropriate discrimination, regardless of the accuracy of the 
assumptions upon which the discrimination is based.

              C. THE ``DISCRIMINATION PROHIBITED'' SECTION

    Section 4 is at the core of the act and describes the 
discrimination prohibited by ENDA. Subsections 4(a)-(d) are 
taken directly from Title VII subsections 703(a)-(d), and have 
the benefit of over 30 years of judicial interpretation. 
Employers and courts alike understand this language and its 
requirements.
    ENDA prohibits employers (including government employers), 
employment agencies, labor organizations, and joint labor-
management committees from engaging in intentional 
discrimination in employment on the basis of sexual 
orientation. This discrimination includes but is not limited to 
discrimination in hiring, firing, compensation and other terms, 
conditions, or privileges of employment or union membership. 
Employers also may not limit, segregate or classify their 
employees or applicants for employment so as to disadvantage 
certain employees based on their sexual orientation.
    Subsection 4(e)'s prohibition on associative discrimination 
is meant to prohibit such discrimination to the same extent as 
Title VII does. Courts have read a prohibition on associative 
discrimination into Title VII, and in the Americans with 
Disabilities Act, this prohibition is explicit in Section 
102(b)(4). ENDA makes the prohibition on associative 
discrimination explicit just as the ADA does, and associative 
discrimination is meant to be actionable to the same extent as 
it is under Title VII. Discrimination against an employee 
because he or she has a lesbian daughter, or because he or she 
has a gay friend, for example, should be prohibited in the same 
manner that it would be unlawful under Title VII to 
discriminate against an employee because of the race of her 
spouse.
    Finally, subsection 4(f) clarifies that ENDA does not 
provide a cause of action for disparate impact discrimination 
as Title VII does. ENDA only provides a remedy for disparate 
treatment. While evidence of disparate impact may be used to 
support a claim of disparate treatment, there is no cause of 
action under ENDA for disparate impact discrimination.

D. RETALIATION AGAINST THOSE WHO EXERCISE THEIR RIGHTS UNDER THE ACT IS 
                               PROHIBITED

    Section 5 makes it an unlawful employment practice for a 
covered entity to discriminate against those who exercise their 
rights under ENDA, or participate in any manner in an 
investigation, proceeding, or hearing under ENDA. Section 5 was 
amended at the April 24, 2002 committee business meeting to 
mirror Section 704 of Title VII as precisely as possible, 
creating greater uniformity throughout federal civil rights 
law.
    Prior to April 2002, a subsection (b) was also included in 
this section of the bill. That subsection was modeled on 
Section 503(b) of the Americans with Disabilities Act, and 
prohibited a person from coercing, intimidating, threatening, 
or interfering with any individual in the exercise of his or 
her rights under the Act. However, given the relative paucity 
of case law interpreting that provision of the ADA, the 
committee approved an amendment, offered by Senator Collins, to 
remove subsection (b) and change the language of this Section 
to mirror Section 704 of Title VII, which has the benefit of 
over thirty years of judicial interpretation.
    The elimination of subsection (b) was not intended to 
narrow the scope of ENDA's prohibition on retaliation in any 
way. The amendment was instead designed to create uniformity 
with Title VII, the primary Federal law upon which ENDA is 
modeled, and to allow courts to draw from the well-established 
jurisprudence of Title VII when adjudicating retaliation claims 
under ENDA.

 E. THE ACT DOES NOT REQUIRE EMPLOYERS TO PROVIDE DOMESTIC PARTNERSHIP 
                                BENEFITS

    Section 6 of ENDA explicitly states that ENDA ``does not 
apply to the provision of employee benefits to an individual 
for the benefit of the domestic partner of such individual.'' 
The language of ENDA could not be more clear on this point: 
ENDA does not require employers to provide domestic partner 
benefits. Employers remain free to provide these benefits, 
however ENDA does not require the provision of domestic partner 
benefits.
    Employers across the country are discovering that the 
provision of domestic partnership benefits make good business 
sense. Over 4,300 employers, including corporations, 
universities, and State and local governments across the 
country offer such benefits to their employees. Fully, 59 
percent of Fortune 500 companies offer domestic partner 
benefits to their employees.
    Given these statistics, it seems likely that domestic 
partnership benefits will become the rule, rather than the 
exception, for American employers. However, ENDA leaves 
employers free to make decisions about whether and to what 
extent to provide domestic partnership benefits to their 
employees without pressure from Congress.
    During the April 2002 committee meeting, a member of the 
committee expressed concern that ENDA could conflict with 
Federal regimes governing employment benefits. Section 6 makes 
clear, however, that no such conflict is presented by ENDA.
    Eligibility for many Federal employment benefits is based 
upon spousal status, and the Defense of Marriage Act \12\ 
currently precludes the recognition of same-sex spouses for the 
purposes of Federal law. ENDA has no effect on the 
administration of pre-existing workers' compensation benefit 
programs, the FMLA, or other Federal benefits programs, and 
would not create a cause of action allowing employees to sue 
for alleged violations of these benefit systems.
---------------------------------------------------------------------------
    \12\ 1 USCS Sec. 7 (2002).
---------------------------------------------------------------------------

6. The Act Specifically Prohibits the Collection of Statistics and Does 
        Not Require Employers or Unions to Collect Statistics

    ENDA expressly prohibits the EEOC from collecting 
statistics on sexual orientation and from requiring covered 
entities to collect such statistics. Collection of such 
information would violate the privacy rights of workers and is 
not necessary to support an intentional discrimination action 
brought under the act.
    This provision reflects current EEOC practice and decisions 
with regard to employers' collecting statistics on the 
religious affiliations of their employees. The only statistics 
that the EEOC requires employers with over 100 employees to 
maintain are statistics regarding the gender and race breakdown 
in the workplace. The EEOC has never required the collection of 
statistics regarding an employee's religion--a characteristic 
which, like sexual orientation, is not apparent on its face and 
can be determined mainly through making inquiries of applicants 
and employees. Nor has the EEOC found that presenting such 
statistics after a charge of discrimination is particularly 
useful in defending against a claim of intentional 
discrimination. To the contrary, the EEOC has looked with some 
significant suspicion on employers who have attempted to 
maintain records of employees' religious affiliations.\13\ 
While it is unlikely that the EEOC would have ever added sexual 
orientation to the reporting form used by employers or 
otherwise required the collection of statistics on sexual 
orientation, this section addresses this concern by explicitly 
prohibiting such an action.
---------------------------------------------------------------------------
    \13\ See EEOC Dec. No. 76-95, 1976 EEOC Lexis 23; EEOC Dec. No. 71-
1469, 1971 EEOC Lexis 49.
---------------------------------------------------------------------------
    Some query was whether the act would prevent employers from 
asking about the sexual orientation of their employees as part 
of a defense strategy to counter a sexual orientation 
discrimination lawsuit--particularly, to gather evidence of 
other employees of the same sexual orientation who did not 
experience discrimination. For example, if a lesbian employee 
brought a suit against her employer alleging she suffered 
discrimination based on sexual orientation, her employer might 
wish, as part of its defense strategy, to highlight the 
positive treatment of other lesbian employees in the company. 
In doing so, the employer may ask employees believed to be 
lesbian to testify on the employer's behalf.
    Section 7 does not prohibit an employer from asking such 
employees to testify, make statements, or otherwise support the 
employer's defense. Under current law, an employer may ask 
employees to voluntarily attest to their experiences regarding 
a lack of sexual orientation discrimination in the workplace, 
and ENDA would not change this. The only way such a question or 
request would violate ENDA would be if information regarding 
employees' sexual orientation elicited through such a request 
or survey resulted in sexual orientation discrimination.
    Situations analogous to this one occur in the litigation of 
disability discrimination cases and other sensitive cases where 
medical information is pertinent to a defense. In particular, 
cases of discrimination brought against healthcare providers 
accused of denying care to HIV positive persons create 
situations in which the defense strategy would include the 
disclosure of third parties' private medical information. In 
such cases, courts can be expected to issue protective orders 
allowing for affidavits to be submitted under pseudonyms, or 
for relevant documentation to be submitted with names or other 
identifying information redacted. Courts would be at liberty to 
employ similar measures to protect employee privacy where the 
sexual orientation of employees not parties to the suit may be 
relevant to the defense.

          G. QUOTAS AND PREFERENTIAL TREATMENT ARE PROHIBITED

    ENDA's section 8 is included to clearly delineate the 
limits of the act's remedial powers. Subsection 8(a) and 8(b) 
prohibit employers from adopting quotas or giving preferential 
treatment to an individual on the basis of sexual orientation, 
primarily because such policies are not practical remedies for 
sexual orientation employment discrimination. As with the 
prohibition on affirmative action in section 12(d), ENDA 
recognizes that some policies and practices traditionally used 
to provide redress in cases of employment discrimination on the 
basis of race or gender are impractical and ultimately 
unworkable remedies for employment discrimination on the basis 
of sexual orientation. Subsection 8(c) further clarifies the 
limits of such remedial actions by prohibiting the inclusion of 
a quota or preferential treatment as part of any order or 
consent decree entered for a violation of the act.

             H. THE ACT'S RELIGIOUS EXEMPTION IS VERY BROAD

    Section 9 of ENDA provides that ``this act shall not apply 
to a religious organization.'' The scope of this exemption is 
very broad, providing that any entity that constitutes a 
``religious organization'' under ENDA is completely exempted 
from coverage under the act.
    The definition of ``religious organization'' in Section 3 
of the act mirrors the definition of ``religious organization'' 
used by courts interpreting Title VII. During the debate over 
the Civil Rights Act of 1964, some members of Congress 
expressed concerns that the legislation would trample the 
personal religious beliefs of employers. Therefore, the final 
statute, as enacted, contained two provisions exempting 
religious employers from coverage--Sec. 702(a) (a general 
exemption) and Sec. 703(e) (an exemption for religiously-
affiliated educational institutions). Prior to 1972, Sec. 702 
only exempted the religious activities of employees of 
religious employers. The statute was then amended to exempt all 
activities of employees of religious organizations. However, 
religious organizations are not permitted to discriminate on 
the basis of race, color, sex, or national origin in secular 
employment positions.
    Although Title VII does not define the term ``religious 
organization,'' Federal courts have addressed the issue of 
defining a ``religious organization'' many times. According to 
the courts, religious organizations are religious corporations, 
associations, or societies, and educational institutions 
substantially owned, managed, controlled or supported by 
religious organizations or whose curriculum is directed to the 
propagation of a religion. Organizations as diverse as a 
retirement home operated by Presbyterian Ministries; \14\ a 
newspaper published by the First Church of Christ, Scientist; 
\15\ Christian elementary schools and universities; \16\ and a 
non-profit medical center operated and controlled by the 
Seventh Day Adventist faith \17\ have been found to be 
religious organizations under Title VII.
---------------------------------------------------------------------------
    \14\ See EEOC v. Presbyterian Ministeries, 788 F. Supp. 1154 (W.D. 
Wash. 1992).
    \15\ See Feldstein v. Christian Science Monitor, 555 F. Supp. 974 
(D. Mass. 1983).
    \16\ See Ganzy v. Allen Christian School, 1997 U.S. Dist. LEXIS 
20938 (E.D.N.Y.), Killinger v. Samford University, 113 F. 3d 196 (11th 
Cir. 1997), Little Wuerl, 929 F. 2d 944(3rd Cir. 1991).
    \17\ See Young v. Shawnee Mission Med. Ctr, 1988 U.S. Dist. LEXIS 
12248 (D. Ks. 1988).
---------------------------------------------------------------------------
    The range of organizations exempted from ENDA under this 
provision is the same as those religious organizations already 
exempted from Title VII of the Civil Rights Act of 1964. In an 
effort to simplify the legislative language of the act, the 
religious organizations protected by the exemptions in Title 
VII's Sec. 702 and Sec. 703 are combined in the act's 
definition of ``religious organization.'' The scope of ENDA's 
exemption is significantly broader than the scope of the Title 
VII exemption. While religious organizations are exempt from 
religious discrimination prohibitions in non-clergy positions 
under Title VII, they remain subject to prohibitions on race, 
sex, and national origin discrimination. By contrast, ENDA 
exempts religious organizations completely, thus exempting them 
entirely from the prohibition on discrimination based on sexual 
orientation.
    Despite the act's broad religious exemption, some have 
expressed concern that the religious beliefs of employers and 
employees are not sufficiently protected. They argue that those 
whose religion dictates that homosexuality is wrong will be 
forced to hire or work with gay men and lesbians. Similar 
arguments are not new to the civil rights debate, but our 
nation's civil rights laws require those who participate in 
commercial activity to adhere to our broad principles of 
fairness and equality.
    For example, during debate on the Civil Rights Act of 1964, 
one Senator said,

          And yet, here we have a law proposed which would 
        attempt to deny to millions of employers and employees 
        any freedom to speak or to act on the basis of their 
        religious convictions or their deep-rooted preferences 
        for associating or not associating with certain 
        classifications of people . . .
          It may be immoral for a man to have a prejudice 
        against persons of a particular race, color, or 
        religion just because he has found it particularly 
        difficult to associate without discordant mutual 
        misunderstandings with many persons of that particular 
        race, color, or religion. But what is left of 
        individual liberty if a man or woman cannot choose 
        associates in work or in play on that basis of either 
        reason or prejudice, which are often indistinguishable? 
        Where was Congress ever given the power to establish a 
        state or morality to be enforced in the private 
        selection of private associates for work or play? \18\
---------------------------------------------------------------------------
    \18\ Congressional Record, Volume 110, p. 7778.

    Although several members of Congress made similar 
arguments, they were rejected by Congress. The Civil Rights Act 
of 1964--with the exception of the narrow religious exemption 
described above--prohibits discrimination based on race, 
ethnicity, gender, or religion irregardless of personal 
beliefs. Similarly, excepting religious organizations, ENDA 
prohibits discrimination based on sexual orientation. The 
principle set forth in 1964 remains true in 2002.

    I. THE ACT DOES NOT AFFECT THE RELATIONSHIP BETWEEN THE FEDERAL 
        GOVERNMENT AND THE ARMED FORCES OR VETERANS PREFERENCES

    ENDA does not apply to the relationship between the U.S. 
government and uniformed members of the Armed Forces. 
Therefore, ENDA will not affect current law on gay men, 
lesbians, and bisexuals in the military or the associated 
``Don't Ask, Don't Tell'' policy. In a provision taken from 
Title VII, Section 10 further provides the bill does not repeal 
or modify any other law that gives special preferences to 
veterans.

    J. THE ACT DOES NOT AFFECT AN EMPLOYER'S RIGHT TO ESTABLISH AND 
    IMPLEMENT UNIFORM RULES AND POLICIES OR A VOLUNTARY, NON-PROFIT 
           MEMBERSHIP GROUP'S RIGHT TO FREEDOM OF ASSOCATION

    Section 11 was not in the original version of ENDA as 
introduced in the Senate in 104th Congress but was added 
immediately prior to the Senate consideration of the bill in 
September 1996, to address concerns raised by some that the 
legislation would prohibit employers from implementing and 
enforcing their own rules and policies, including those which 
govern the conduct of employees.
    In July of 1996, the media reported that a high school 
teacher in Loudoun County, Virginia, was engaged in the 
production of sexually-explicit adult movies. The teacher 
resigned before Loudoun County school officials could take any 
disciplinary action against him. Prior to the Senate debate in 
1996, concerns were raised that ENDA would prohibit any 
disciplinary action in similar situations. Those concerns were 
based on the erroneous assertion that disciplinary action would 
be considered discrimination on the basis of sexual 
orientation.
    To clarify the intent of the bill, the sponsors of the act 
added a section before the Senate vote to ensure that employers 
retained the same right to enforce employer rules and policies 
under ENDA that they currently have under Title VII. However, 
the provision's emphasis on ``nonprivate'' employee conduct 
raised further concerns by a number of business groups that 
this language might prevent employers from enforcing policies 
such as anti-harassment policies. Questions were also raised 
about the meaning of the term, ``non-private''.
    During the February 27, 2002, hearing on the act, Robert 
Berman, Director, Human Resources and Vice President, Eastman 
Kodak Company--a strong supporter of ENDA--raised the concern 
that the use of ``nonprivate'' in the original language of 
section 11(a) might ``significantly impair'' a company's 
ability to take prompt remedial action to end harassment that 
takes place in a private setting, away from a company office or 
plant, but which happened while the employee was engaged in 
company-related business or at a company-sponsored event.
    In mark-up, Senator Collins offered an amendment to clarify 
the intention of section 11(a), to ensure that, like Title VII, 
ENDA allows employers to implement and enforce rules and 
policies governing employee conduct, as along as such rules and 
policies are enforced uniformly, without regard to an 
employee's sexual orientation.
    Section 11(b) was added to the bill to acknowledge that the 
act has no effect on the right of freedom of association for 
nonprofit, voluntary membership groups, such as the Boy Scouts 
of America.

 K. WITH ONE EXECPTION, THE REMEDIES ARE COMPARABLE TO THOSE AVAILABLE 
                            UNDER TITLE VII

    ENDA adopts the enforcement mechanisms of Title VII, as 
amended by the Civil Rights Act of 1991, with the exception of 
prohibiting the use of affirmative action (prohibited by 
section 12(d)).
    The requirement of filing claims with the EEOC, the ability 
of an individual to bring a private right of action in court, 
and the ability of an individual to receive injunctive relief 
and damages, up to the limits authorized by Title VII (as 
amended), are all incorporated by reference in ENDA.
    The remedy of affirmative action available under Title VII 
is explicitly made unavailable under ENDA through section 
12(d). This subsection was added to emphasize that this 
legislation is not about affirmative action or special rights 
for rights gay and lesbian people. This bill is about fairness 
in the workplace and allowing all Americans the freedom to work 
without fear of discrimination based on sexual orientation.

 L. THE ACT ENSURES THAT AN INDIVIDUAL HAS REMEDIES AGAINST STATES AND 
                           THE UNITED STATES

    Section 13 ensures that an individual can sue a State or an 
official of a State in his or her official capacity. In several 
recent cases, the Supreme Court has indicated that Congress may 
use its Spending Clause powers to condition the receipt of 
Federal funds upon waiver of Eleventh Amendment immunity to 
suit under certain Federal regulatory and statutory schemes. 
See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. 
Bank, 527 U.S. 627 (1999); South Dakota v. Dole, 483 U.S. 203 
(1987). The Court has also held, however, that there are 
limitations to Congress' authority.
    Five restrictions are generally associated with the use of 
Congress' spending power, and the act falls within the 
parameters of those restrictions. First, the act does not place 
conditions upon the receipt of Federal funds that are ``so 
coercive as to pass the point at which `pressure turns into 
compulsion,' '' South Dakota v. Dole, 483 U.S. 203, 211 (1987). 
States have been subject to private suits under Title VII since 
shortly after the statute's enactment, and the resources 
required to defend a suit under ENDA should generally be no 
different from those required to defend a Title VII suit 
brought by the EEOC on behalf of an injured employee.
    Second, the plain language of the Spending Clause indicates 
that the use of the spending power must be aimed at ``the 
general welfare'' of the country, that is, it must have a 
``general public purpose.'' South Dakota v. Dole, 483 U.S. 203, 
207 (1987); Helvering v. Davis, 301 U.S. 619, 640-41 (1937). 
Extensive evidence supports the contention that discrimination 
based on sexual orientation is a pressing problem in both 
public and private workplaces. Without question, the prevention 
of discrimination based on sexual orientation by State 
employers is a legitimate national interest, meaning that the 
spending at issue in the case of the act falls well within the 
rubric of ``the general welfare.''
    Third, the act clearly reflects congressional intent to 
condition States' receipt of funding on compliance with certain 
regulations. Congress' intent is ``unambiguous'' in the 
language of the statute, and a State may make an informed 
choice as to whether to adhere to the conditions upon which the 
receipt of funds are contingent. See South Dakota v. Dole, 483 
U.S. 203, 207 (1987); Pennhurst State Sch. & Hosp. v. 
Halderman, 451 U.S. 1, 17 (1981). Specifically, States 
accepting Federal funds for qualifying programs or activities 
shall, as a condition upon the receipt of those funds, waive 
their immunity to private suit by employees of those qualifying 
programs or activities to enforce the act.
    Fourth, as required, the ``condition imposed [on Federal 
funds is] reasonably related to the purpose for which the funds 
are expended.'' South Dakota v. Dole, 483 U.S. 203, 207, 213 
(1987). In this instance, the act could not be more clear. 
Congress is concerned with the eradication of discrimination 
based on sexual orientation in the State workplace and may 
therefore refuse to provide funding to State programs or 
activities which do not comply fully with the provisions of the 
act and agree to subject themselves to the potential for 
private suit in order to enforce it.
    Fifth, the condition upon the receipt of Federal funds in 
the act is not barred by any provision of the Constitution. 
Because the basis for the waiver of 11th Amendment immunity in 
this case is the Spending Clause, compliance with the 
limitations upon the spending power indicated above is 
sufficient basis for the constitutionality of the act.
    Finally, section 13 also sets forth that in an action 
against a State, State official, or the United States, remedies 
similar to those available under Title VII--with the exception 
of punitive damages and limited compensatory damages--are 
available.

 XI. MINORITY VIEWS OF SENATORS GREGG, FRIST, ENZI, HUTCHINSON, BOND, 
                        AND SESSIONS ON S. 1284

    The Employment Non-Discrimination Act (ENDA) attempts to 
pattern itself after other Federal nondiscrimination statutes, 
and has been revised to address some longstanding questions 
raised about the legislation. However, even with these 
revisions, including the adoption of two amendments introduced 
by Senator Collins during the committee mark-up, this 
legislation remains overly-broad and unclear in many respects, 
specifically, with regard to its effect on individual, 
constitutional and States' rights. As a result, we cannot 
support the legislation in its present form.
    First, as currently drafted, ENDA may endanger the First 
amendment rights of many employers to make hiring decisions 
based upon religious criteria--a right that has been reiterated 
in federal civil rights law and upheld by the United States 
Supreme Court.
    Second, ENDA may chill the rights of individuals to engage 
in constitutionally protected speech in the workplace when that 
speech involves beliefs and opinions contrary to certain 
lifestyle decisions and practices protected in the Act.
    Third, because ENDA includes an overly-broad definition of 
sexual orientation which includes ``perception'' that the 
plaintiff is homosexual or bisexual or ``association'' with 
others who are or who are ``perceived'' to be homosexual or 
bisexual, employers will be subject to a virtual litigation 
bonanza. Forced to defend themselves in countless lawsuits by 
proving a negative, many employers will have no practical 
choice but to settle cases out of court to avoid potentially 
costly and lengthy court battles.
    Fourth, an examination of the 13 laws passed by the States 
on this issue reveals a diverse collection of policies and 
remedies that are tailored to the needs and sensitivities of 
the various States, some of which have been reflected to ENDA, 
many others of which have not. Yet ENDA would very likely 
conflict with and preempt certain State laws, which is 
troublesome.
    For example, many have questioned whether the phrase 
``sexual orientation'' could be interpreted to include behavior 
or conduct that constitutes a criminal act. Of the 13 state 
nondiscrimination laws related to sexual orientation, eight 
contain provisions ensuring that criminal conduct is not 
protected.
    Connecticut law, for example, excludes behavior with 
constitutes a criminal offense, Hawaii law ensures that 
``sexual orientation'' shall not be construed to protect 
conduct otherwise proscribed by law. Massachusetts law says 
that ``sexual orientation'' ``shall not include persons whose 
sexual orientation involves minor children as the sex object,'' 
and also specifically excludes pedophilia from coverage. 
Minnesota law says that ``sexual orientation'' does not include 
a physical or sexual attachment to children by an adult.'' New 
Hampshire law's definition of ``sexual orientation'' does not 
render lawful any conduct prohibited by the criminal laws of 
this State. New Jersey law says that it shall not be construed 
to prevent or preclude daycare centers from refusing to employ 
known or suspected child molesters. Rhode Island law says it 
definition of sexual orientation does not render lawful any 
conduct prohibited by its State criminal laws. And finally, 
Vermont law states that ``sexual orientation'' shall not be 
construed to protect conduct otherwise proscribed by law.
    Given that States facing this issue have made clear that 
``sexual orientation'' shall not include criminal behavior, it 
is puzzling that the Federal ENDA legislation would not contain 
a similar clarification, making its preemption of State law 
particularly troubling.
    In sum, the Employment Non-Discrimination Act as passed by 
this Committee leaves us with too many questions and concerns 
to be able to support the legislation.

                                   Judd Gregg.
                                   Bill Frist.
                                   Michael B. Enzi.
                                   Tim Hutchinson.
                                   Christopher S. Bond.
                                   Jeff Sessions.

                                
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