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THE EMPLOYMENT NON–DISCRIMINATION

ACT OF 2007 (H.R. 2015)

HEARING

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR AND PENSIONS

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, SEPTEMBER 5, 2007

Serial No. 110–60

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS 

ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California 

Dale E. Kildee, Michigan 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Linda T. Sa ́nchez, California 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

John Kline, Minnesota, 

Ranking Minority Member 

Howard P. ‘‘Buck’’ McKeon, California 

Kenny Marchant, Texas 

Charles W. Boustany, Jr., Louisiana 

David Davis, Tennessee 

Peter Hoekstra, Michigan 

Cathy McMorris Rodgers, Washington 

Tom Price, Georgia 

Virginia Foxx, North Carolina 

Timothy Walberg, Michigan 

(III)

C O N T E N T S 

Page

Hearing held on September 5, 2007 ....................................................................... 1

Statement of Members: 

Andrews, Hon. Robert E., Chairman, Subcommittee on Health, Employment, Labor and Pensions ............................................................................ 1

Prepared statement of ............................................................................... 3

Letter from Congressman Frank pertaining to ERISA .......................... 58

Letter from the Business Coalition for Workplace Fairness ................. 70

Letter from the International Brotherhood of Police Officers, Local 

364, dated September 1, 2007 ............................................................... 73

Kline, Hon. John, Senior Republican Member, Subcommittee on Health, 

Employment, Labor and Pensions ............................................................... 4

Prepared statement of ............................................................................... 5

Letter from the General Conference of Seventh Day Adventists, the 

Union of Orthodox Jewish Congregations, and the U.S. Conference 

of Catholic Bishops ................................................................................ 56

Additional submissions for the record ..................................................... 73

Sa ́nchez, Hon. Linda T., a Representative in Congress from the State 

of California, prepared statement of ........................................................... 6

Statement of Witnesses: 

Badgett, M.V. Lee, associate professor of economics, University of Massachusetts .......................................................................................................... 38

Prepared statement of ............................................................................... 40

Baker, Kelly, vice president, diversity, General Mills, Inc. .......................... 30

Prepared statement of ............................................................................... 32

Baldwin, Hon. Tammy, a Representative in Congress from the State 

of Wisconsin ................................................................................................... 7

Prepared statement of ............................................................................... 9

Carney, Michael P., officer, Springfield, Massachusetts Police Department ............................................................................................................... 21

Prepared statement of ............................................................................... 22

Cleaver, Hon. Emanuel, a Representative in Congress from the State 

of Missouri ..................................................................................................... 15

Prepared statement of ............................................................................... 17

Fahleson, Mark A., Rembolt Ludtke, LLP; adjunct professor of employment law, the University of Nebraska College of Law .............................. 42

Prepared statement of ............................................................................... 44

Frank, Hon. Barney, a Representative in Congress from the State of 

Massachusetts ............................................................................................... 10

Newspaper article from the Boston Globe, September 5, 2007, ‘‘Gay 

Officer to Speak Out for Job Rights Bill’’ ............................................ 14

Kramer, Nancy, founder and chief executive officer, Resource Interactive . 25

Prepared statement of ............................................................................... 26

Lorber, Lawrence Z., partner, Proskauer Rose, LLP ..................................... 34

Prepared statement of ............................................................................... 35

Norton, Helen, associate professor, University of Colorado School of Law . 47

Prepared statement of ............................................................................... 49

Waits, Brooke .................................................................................................... 28

Prepared statement of ............................................................................... 29

(1)

THE EMPLOYMENT NON–DISCRIMINATION 

ACT OF 2007 (H.R. 2015) 

Wednesday, September 5, 2007

U.S. House of Representatives 

Subcommittee on Health, Employment, Labor and Pensions 

Committee on Education and Labor 

Washington, DC

The subcommittee met, pursuant to call, at 10:33 a.m., in Room 

2175, Rayburn House Office Building, Hon. Robert Andrews [chairman of the subcommittee] presiding. 

Present: Representatives Andrews, Kildee, McCarthy, Tierney, 

Wu, Holt, Sanchez, Loebsack, Hare, Clarke, Courtney, Kline, Davis 

of Tennessee, Price, and Walberg. 

Also present: Representative Neal. 

Staff present: Aaron Albright, Press Secretary; Tylease Alli, 

Hearing Clerk; Jody Calemine, Labor Policy Deputy Director; Michael Gaffin, Staff Assistant, Labor; Jeffrey Hancuff, Staff Assistant, Labor; Brian Kennedy, General Counsel; Thomas Kiley, Communications Director; Megan O’Reilly, Labor Policy Advisor; 

Michele Varnhagen, Labor Policy Director; Robert Borden, Minority 

General Counsel; Cameron Coursen, Minority Assistant Communications Director; Ed Gilroy, Minority Director of Workforce Policy; Rob Gregg, Minority Legislative Assistant; Victor Klatt, Minority Staff Director; Molly McLaughlin Salmi, Minority Deputy Director of Workforce Policy; Ken Serafin, Minority Professional Staff 

Member; and Loren Sweatt, Minority Professional Staff Member. 

Chairman ANDREWS [presiding]. Good morning. The subcommittee will come to order. I would ask everyone to please take 

their seats. 

Good morning. This morning we would like to welcome our witnesses, especially our colleagues that either are with us or will be 

with us shortly. And we would like to thank the members of the 

public who are present. I notice the presence of our friend and colleague from Massachusetts, Mr. Neal, who has an outstanding constituent who is going to testify on the second panel, as I understand it. 

It is a part of our law—and, I think, more importantly, a part 

of our national principles—if a person goes to apply for a job as a 

bank teller or a computer programmer or a bus driver, the employer can’t say, ‘‘You can’t have this job because you are a Catholic.’’ Or ‘‘I won’t hire you because you are Italian.’’ Or ‘‘We only hire 

men for this job, not men and women.’’

2

Why should it be any different if the person applying for that job 

is a person who has faced discrimination based on gender identity 

or a person who has faced discrimination based upon sexual orientation? Why should it be any different? That is really the purpose of this hearing this morning. 

I think the answer is resounding; it should be no different at all. 

Whether you are Italian or Catholic or female or gay or lesbian has 

nothing to do with how well you will do the job. And whether you 

get the job and whether you are promoted and how you do in the 

job should depend upon your qualifications and your performance 

and your work ethic, none of those other extraneous, irrelevant factors. 

Now, the sad reality is that if you live in 31 states with respect 

to sexual orientation discrimination, and 39 states with respect to 

gender identity discrimination, the law doesn’t protect you. If you 

apply for that bank teller job and you are gay or lesbian, in 31 

states the employer can say, ‘‘I am sorry, but we don’t hire gay people—gay men or lesbian women—to be bank tellers or computer 

programmers or bus drivers.’’ And it is legal. 

I think it shouldn’t be. And that is why I am one of the cosponsors of the bill that is before us today that our colleagues are going 

to speak about. 

Now, we will hear arguments, I think, to the following effect: We 

will hear arguments that no one is in favor of discrimination. And 

in my heart I think that is true of my colleagues—almost all my 

colleagues on both sides of the aisle. I think this is an institution 

where people do not want to practice or live discrimination. 

But, you know, the test is not our intentions, it is our results. 

And, again, we have to start from the reality that in 31 states, for 

people faced with sexual orientation discrimination, there is no 

legal protection. In 39 states, for people faced with gender identity 

discrimination, there is no legal protection. 

Significant numbers of people report having experienced prejudice in the process of seeking a job or going after a promotion. The 

studies are compelling in this regard. 

And I think what is most important is the question of what this 

says about our country; not what it says about the employer who 

is denying someone a job because of their sexual orientation or 

other irrelevant characteristic. Or not even what it does to the person who feels the pain of that discrimination, terrible as that is. 

What does it say about our country that we are a place that 

knows that this discrimination is going on but chooses to look the 

other way? It is not flattering. It is not what we want said about 

our country. 

Now, beyond the obvious moral issue—the dehumanizing effect of 

treating someone as a category rather than as a person, of saying 

to that person who wants to be a bank teller or bus driver or computer programmer that what matters is not how smart you are or 

how well you do this job, but whom you love and how you organize 

your family—beyond the dehumanizing effect of that, there is another strong argument for the adoption of this bill. And it is the 

fact that in the global economic competition, this country cannot afford to leave any of its talented people out of the process of working. 

3

In a country that is in an increasingly acute global competition 

in virtually every industry, virtually every field, how can we afford 

to say that some of our best and brightest and most productive and 

industrious people will be left out because of whom they love and 

because of how they choose to organize their families? 

I think this bill is a moral imperative, but I think it is more than 

just a moral imperative. I think it is an economic necessity. 

I think a country like ours that is in this increasingly acute global competition cannot afford to shut the door on anybody who is 

ready and willing and talented and able to contribute to an enterprise or an institution or a profession or a business or to this country’s economy. That is what I believe this is about. 

So we want to see the day come when you hand in your job application for a bank teller or a computer programmer or a bus driver, 

and the question is, ‘‘How well can you drive the bus? How much 

do you know about the software you are going to program?’’ Not, 

‘‘Who are you in terms of your personal and private life?’’

There was a vigorous debate in this country just over 40 years 

ago about whether employers should be able to say to someone, 

‘‘We won’t hire you because you are Catholic.’’ ‘‘We won’t hire you 

because you are Italian.’’ ‘‘We won’t hire you because you are female.’’ And that debate ended, and a strong law was enacted in the 

middle of the 1960s. 

It is time that that law expanded its reach to other people whose 

characteristics have equally little to do with their ability to drive 

a bus or program a computer or work in a bank. It is time that 

that law reached out and humanized and included all people who 

are willing and able to work. And that is what this morning’s hearing is about. 

I am going to proceed now to ask my friend, the ranking member 

of the subcommittee, Mr. Kline, from Minnesota, for his statement. 

We will then invite the first of our colleagues, Ms. Baldwin, to 

testify. I know she is going to be joined by two of our other colleagues, and we will proceed. 

Mr. Kline, welcome back from your well-deserved break.

Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee 

on Health, Employment, Labor and Pensions 

Good morning and welcome to the Health, Employment, Labor and Pensions Subcommittee hearing on H.R. 1015, the Employment Non-Discrimination Act. 

Today marks a historic moment in the committee’s history. Despite being the primary committee of jurisdiction, this is the first time our committee has considered 

this important piece of legislation that would extend federal employment discrimination protections to workers based on sexual orientation and gender identity, in addition to protection that already exists for race, gender religion, national origin, age 

and disability. 

The legislation we will consider today, also known as ENDA, is a bill about fairness and access to equal opportunity for employment to gays, lesbians, bisexual, 

transgender and heterosexuals. ENDA would prohibit an employer from discriminating against an employee based on their sexual orientation or gender identity. Although the bill provides basic protections for everyone, it focuses on protecting gays, 

lesbians, bisexuals and transgender people from employment discrimination. 

Today, we will hear firsthand from individuals who have experienced employment 

discrimination based on their sexual orientation. We will also hear from an academic researcher who has conducted an extensive analysis of several surveys about 

employment sexual orientation discrimination. 

The problem of discrimination based on sexual orientation is real and it is our 

goal today to examine a solution. 

4

I would like to take this opportunity to thank the sponsors of ENDA for testifying 

before us today. Congressman Barney Frank and Congresswoman Tammy Baldwin 

have vigorously worked to bring this legislation before us today and I admire them 

for their courage and steadfast determination. 

The late Coretta Scott King said, ‘‘Americans who believe in freedom, tolerance 

and human rights have a responsibility to oppose bigotry and prejudice based on 

sexual orientation.’’ We intend to carry out that vision today. 

I would like to thank all the witnesses for their testimony today and look forward 

to hearing from them. Thank you. 

Mr. KLINE. Thank you, Mr. Chairman. Good to see you, as well. 

Good morning, all. I would like to start by thanking our witnesses. We have two great panels. And I certainly want to thank 

our colleagues, some of whom are here and some of whom will be 

joining us shortly. 

You know, this is a legislative hearing. And I am delighted that 

we are having one. Too many times in the past several months I 

have felt we have not had enough hearings, and hearings that 

haven’t been focused on specific legislation. So I am glad that we 

are having this. 

A hearing such as this is a tool that allows us to give a really 

thorough, thoughtful consideration to proposals that will impact 

the American people. These hearings allow us to understand a bill’s 

intent. But, as the chairman said, it is not enough to understand 

the intent. We need to explore potential consequences, both intended and unintended, that may result if such a law is enacted. 

The legislation we are here to consider, the Employment NonDiscrimination Act of 2007, has, as its core, a principle to which 

I believe we are all—or almost all—committed: That no employee 

should be subject to discrimination. So the intent, I think, is not 

the issue here. We really need to explore the consequences, intended and unintended. 

More specifically, this bill aims to prohibit organizations from 

discriminating in their employment practices against individuals 

on the basis of their sexual orientation or gender identity. The bill 

before us today is broader in its scope than versions of the legislation introduced in previous Congresses, a fact that makes today’s 

hearing all the more important. 

As with any new federal mandate, I believe we must begin consideration of this legislation by determining whether it is necessary. Is there evidence that this type of discrimination is occurring? Are current laws and employer policies insufficient to protect 

the rights of employees? 

We must then ask what the practical impact of the legislation 

would be. 

Would it have the intended effect of preventing discrimination? 

Would it create unnecessary burdens on employers and employees, 

or open the door to frivolous litigation? Would it interfere with an 

employee’s right to privacy? Is it consistent with other state and 

federal antidiscrimination laws, or would it establish a new framework that could be confusing or contradictory? 

These are questions that must be answered before legislation is 

enacted. 

Numerous laws have already been enacted at the state and federal level to prevent discriminatory employment practices. It is my 

5

view that the role of this subcommittee, followed by the full Education and Labor Committee and the Congress, is to build upon 

those laws, where needed. It is also our role to determine when 

new laws are not needed and to avoid legislating for its own sake. 

I appreciate the opportunity to consider these questions as we 

take a closer look at this act. 

Today’s hearing is an important first step. And I look forward to 

the testimony that will be offered by our witnesses on both panels. 

I am pleased that we will hear multiple perspectives on this important topic, and that among them will be a discussion of the realworld impact that such a mandate will have on an organization’s 

employment practices and prerogatives. 

The legislation, as currently drafted, raises a number of concerns. And I am pleased that several of them will be addressed 

today. 

For example, I understand that previous versions of this bill included a blanket exemption for religious organizations, but the bill 

before us includes much more narrowly-crafted exemptions. 

The bill also includes a new protected class for actual or perceived gender identity, yet it provides a definition that is vague 

and could result in significant uncertainty. 

The requirements for shower and dressing facilities, for example, 

could prove problematic as well, raising potential privacy concerns 

for employees, as well as other challenges. 

I would also like to address the inclusion of an exemption from 

ERISA preemption in the bill before us. It is my understanding 

that Representative Frank, who will be joining us shortly to sponsor the legislation, has made it clear that his intent is to remove 

this provision when the bill is considered. And I certainly hope that 

is the case. I appreciate Mr. Frank’s recognition of the unprecedented policy shift that exempting state and local rules from preemption under ERISA would entail. 

I look forward to a continued dialogue with Chairman Andrews 

and Mr. Frank on how best to achieve our shared goal of ensuring 

that employees are not subject to discrimination. At the same time, 

I hope we will give due consideration to the laws currently on the 

books to protect the rights of employees and ensure that a well-intentioned effort does not result in harmful, unintended consequences. 

With that, Mr. Chairman, I yield back the balance of my time.

Prepared Statement of Hon. John Kline, Senior Republican Member, 

Subcommittee on Health, Employment, Labor, and Pensions 

Good morning. I’d like to begin by thanking the witnesses for being here and expressing my appreciation to Chairman Andrews for convening this hearing. A legislative hearing is an important tool that allows us to give thorough, thoughtful consideration to proposals that would impact the American people. These hearings 

allow us to understand a bill’s intent, and explore potential consequences, both intended and unintended, that may result if such a law was enacted. 

The legislation we are here to consider, the Employment Non-Discrimination Act 

of 2007, has at its core a principle to which I believe we are all committed: that 

no employee should be subject to discrimination. 

More specifically, the bill aims to prohibit organizations from discriminating in 

their employment practices against individuals on the basis of their sexual orientation or gender identity. The bill before us today is broader in its scope than versions 

of the legislation introduced in previous Congresses, a fact that makes today’s hearing all the more important. 

6

As with any new federal mandate, I believe we must begin consideration of this 

legislation by determining whether it is necessary. Is there evidence that this type 

of discrimination is occurring? Are current laws and employer policies insufficient 

to protect the rights of employees? 

We must then ask what the practical impact of the legislation would be. Would 

it have the intended effect of preventing discrimination? Would it create unnecessary burdens on employers and employees or open the door to frivolous litigation? 

Would it interfere with employees’ right to privacy? Is it consistent with other state 

and federal anti-discrimination laws, or would it establish a new framework that 

could be confusing or contradictory? These are questions that must be answered before legislation is enacted. 

Numerous laws have already been enacted at the state and federal level to prevent discriminatory employment practices. It is my view that the role of this subcommittee, followed by the full Education and Labor Committee and the Congress, 

is to build upon those laws where needed. It is also our role to determine when new 

laws are not needed, and to avoid legislating for its own sake. I appreciate the opportunity to consider these questions as we take a closer look at the Employment 

Non-Discrimination Act of 2007. 

Today’s hearing is an important first step, and I look forward to the testimony 

that will be offered by our witnesses. I am pleased that we will hear multiple perspectives on this important topic, and that among them will be a discussion of the 

‘‘real world’’ impact that such a mandate will have on organizations’ employment 

practices and prerogatives. 

The legislation as currently drafted raises a number of concerns, and I am pleased 

that several of them will be addressed today. For example, I understand that previous versions of this bill included a blanket exemption for religious organizations, 

but the bill before us includes much more narrowly crafted exemptions. The bill also 

includes a new protected class for actual or perceived ‘‘gender identity,’’ yet it provides a definition that is vague and could result in significant uncertainty. The requirements for shower and dressing facilities could prove problematic as well, raising potential privacy concerns for employees as well as other challenges. 

I’d also like to address the inclusion of an exemption from ERISA preemption in 

the bill before us. It is my understanding that Representative Frank, the sponsor 

of the legislation, has made clear his intent that this provision be removed if and 

when the bill may be considered. I certainly hope that is the case, and I appreciate 

Mr. Frank’s recognition of the unprecedented policy shift that exempting state and 

local rules from preemption under ERISA would entail. 

I look forward to a continued dialogue with Chairman Andrews and Mr. Frank 

on how best to achieve our shared goal of ensuring that employees are not subject 

to discrimination. 

At the same time, I hope we will give due consideration to the laws currently on 

the books to protect the rights of employees, and ensure that a well-intentioned effort does not result in harmful unintended consequences. 

With that, I yield back the balance of my time. 

Chairman ANDREWS. Thank you. 

By unanimous consent, the opening statements of all other members of the committee will be inserted into the record, without objection.

Prepared Statement of Hon. Linda T. Sa ́nchez, a Representative in 

Congress From the State of California 

Thank you, Chairman Andrews. As an original co-sponsor and strong supporter 

of the Employment Non-Discrimination Act, I appreciate your work to put together 

this hearing so that we can learn more, and the American people can learn more, 

about the employment discrimination that takes place here in America—legally—

every day. More importantly, this hearing gives us an opportunity to do something 

about it. 

Ending employment discrimination against gay, lesbian, bisexual, and 

transgender people by enacting ENDA is such a common sense solution, and consistent with the American principles of freedom, justice, and equality that it’s amazing to me that in 2007, we still haven’t passed this bill. 

ENDA is the most important civil rights bill that we will have the opportunity 

to pass during the current Congressional cycle. 

7

Americans believe that if you work hard and do your job, you should be rewarded. 

And, Americans believe that this basic principle should apply across the board. 

Poll after poll reveals that an overwhelming majority of Americans agree someone 

shouldn’t lose a job or be denied a promotion simply for being gay or lesbian. 

Americans also believe that it is already illegal to do so. Unfortunately, in many 

states, it isn’t. That’s why today’s hearing is so important. 

Passing ENDA is consistent with the other work we are doing in this Committee, 

and throughout the House, to protect America’s workers. We have acted to increase 

the minimum wage, to make college more affordable, and to strengthen Title VII 

so that companies cannot hide gender discrimination behind secretive wage policies. 

We have acted to ensure that employers provide mental health care as part of 

their health benefits and to promote wage parity between men and women. Now, 

we are acting to protect gay, lesbian, bisexual, and transgender workers from onthe-job discrimination. It’s been a long time coming. 

It is NOT OK to deny someone a job, a raise, or a promotion because of his or 

her real or perceived sexual orientation or gender identity. And now is the time for 

Congress to say so. After more than thirty years of struggle, we have a chance to 

give this important issue the attention it deserves. 

The American people are counting on us to make the law consistent with our values. I am proud that, as a member of this Committee, I can help make that happen. 

Again, thank you Mr. Chairman. 

Chairman ANDREWS. I am pleased to welcome three of our colleagues to come testify about this bill this morning. 

Tammy Baldwin represents the 2nd Congressional District of 

Wisconsin. She has quickly developed a reputation as a member 

who is accessible to people of all different ideologies and all different points of view. She is respected throughout the House. 

She served as an attorney before she came to the Congress, represented clients who have dealt with many of the situations that 

are the subject of this bill. 

She has excelled in work ranging from agriculture to energy 

issues. And we are very, very pleased that she serves also, I believe, on the Energy and Commerce Committee. Is that correct? A 

committee almost as important as this one. [Laughter.] 

Tell Mr. Dingell that we said that. 

And we are very pleased that you are with us this morning, and 

we recognize Representative Baldwin. 

STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF WISCONSIN 

Ms. BALDWIN. Thank you, Chairman Andrews and Ranking 

Member Kline and members of the committee, for the opportunity 

to testify today. I am here, clearly, as a strong supporter of H.R. 

2015, the Employment Non-Discrimination Act of 2007. 

As my colleagues know, more than 40 years ago, we enacted the 

Civil Rights Act of 1964 that banned employment discrimination in 

certain circumstances. We did so based on a clear record demonstrating that some employers were judging employees by factors 

wholly unrelated to their work performance, their skills and their 

abilities. We found, as a nation, that when employer judgments 

were based upon race, color, sex or national origin, these discriminatory decisions should be unlawful. 

Today, we can point to a clear record demonstrating further employment discrimination based on sexual orientation and gender 

identity. And I think it is high time that we, as a nation, declare 

this sort of discrimination unlawful, as well. 

8

Twenty-five years ago my own state of Wisconsin was the first 

state in the nation to add sexual orientation to its antidiscrimination statutes. At that time—and we are talking about 1982—only 

41 municipalities in this country and 8 counties offered limited protections against discrimination based on sexual orientation. 

Wisconsin’s efforts to pass the nation’s first sexual orientation 

antidiscrimination statute were supported by a broad, bipartisan 

coalition, including members of the clergy, religious denominations, 

medical and professional groups. The measure was signed into law 

by a Republican governor, Lee Sherman Dreyfus. And he signed 

the bill based on his belief that the success of municipal ordinances 

providing similar protections spoke for the need for a statewide 

prohibition. 

Now, prior to my election to the Wisconsin state legislature back 

in 1992, I practiced law at a small, general practice law firm in 

Madison. And, on occasion, I represented clients in employment 

discrimination cases. Through this work, I was able to see firsthand the importance of Wisconsin’s landmark antidiscrimination 

statute, and the positive effect that it had on our state. 

I represented a number of clients who were fired from their jobs 

because of their sexual orientation. And Wisconsin’s statute was 

vital in affording them the employment protection that I think all 

Americans deserve. 

I was struck during my time as a practicing attorney by the 

depth of the emotional and financial devastation and consequences 

of employment discrimination. 

My clients were frequently fearful and ashamed. They were talented and hard workers. And they had had their livelihood taken 

away for reasons wholly unrelated to their talents, their drive, they 

loyalty, their commitment and their skills. But the fact that Wisconsin had a law that said that this type of discrimination was 

wrong gave them hope and helped them find the courage they 

needed to publicly confront the injustice that they had experienced. 

Since Wisconsin passed its statute 25 years ago, 18 additional 

states and the District of Columbia have passed similar protective 

measures. And we have a chance to now set a higher standard for 

our nation by passing 2015. 

As my colleagues know, the Employment Non-Discrimination 

Act, or ENDA, will provide basic protections against workplace discrimination on the basis of sexual orientation and gender identity. 

ENDA does not create special rights. It simply affords to all Americans basic employment protection from discrimination based on irrational prejudice. 

I would like to take a moment to focus on the protections in 

ENDA that prohibit workplace discrimination on the basis of gender identity, because I have found that there is a great deal of 

question and confusion about this term. 

Gender identity is a person’s internal sense of his or her gender. 

In the vast majority of our population, an individual’s gender identity and his or her birth sex match. But for a small minority of people, gender identity and birth sex conflict. 

Because an individual was born one sex and presents to the 

world as another, or in a way other than people think is consistent 

with how a man or a woman should present themselves, he or she 

9

can face many forms of discrimination, from physical violence to 

employment discrimination. 

ENDA contains language that makes it clear that an employer 

may establish and enforce reasonable and otherwise lawful dress 

and grooming standards for employees. But it also provides assurances that aspects of a person’s gender identity and gender expression cannot be the basis for workplace discrimination. ENDA ensures that an employer cannot fire an employee solely because she 

is a woman with a masculine walk or a man with an effeminate 

voice. 

In conclusion, I want to underscore that the purpose of ENDA is 

to ensure that hardworking Americans cannot be denied job opportunities, fired or otherwise discriminated against just because of 

their sexual orientation or gender identity. There is nothing more 

American than ensuring that people should have equal job opportunities. 

And I want to thank Congressman Frank for his leadership on 

the issue, also acknowledging Congresswoman Pryce and Congressman Shays for their commitment on this issue. 

And, again, I sincerely appreciate the opportunity to testify before you on this important matter today. Thank you. 

[The statement of Ms. Baldwin follows:]

Prepared Statement of Hon. Tammy Baldwin, a Representative in Congress 

From the State of Wisconsin 

Thank you Chairman Andrews, Ranking Member Kline and members of the Committee for allowing me the opportunity to testify today. 

I am a strong supporter of H.R. 2015, the Employment Non-Discrimination Act 

of 2007. 

As my colleagues know, more than 40 years ago, we enacted the Civil Rights Act 

of 1964 that banned employment discrimination in certain circumstances. We did 

so based on a clear record demonstrating that some employers were judging employees by factors wholly unrelated to their work performance, skills and abilities. 

We found—as a nation—that when employer judgments were based upon race, 

color, religion, sex, or national origin, these discriminatory decisions should be unlawful. 

Today, we can point to a clear record demonstrating further employment discrimination based upon sexual orientation and gender identity, and it is high time that 

we as a nation declare this sort of discrimination unlawful, as well. 

Twenty-five years ago, my own state of Wisconsin was the first in the nation to 

add sexual orientation to its anti-discrimination statutes. At the time, and this was 

in 1982, only 41 municipalities and 8 counties in the entire United States offered 

limited protections against discrimination based on sexual orientation. 

Wisconsin’s efforts to pass the nation’s first sexual orientation anti-discrimination 

statue were supported by a broad, bipartisan coalition, including members of the 

clergy, various religious denominations, medical, and professional groups. The measure was signed into law by a Republican Governor, who based his decision to support the measure on the success of municipal ordinances providing similar protections. 

Prior to my election to the Wisconsin Assembly in 1992, I practiced law at a small 

general practice law firm. On occasion, I represented clients in employment discrimination cases. Through this work, I was able to see first-hand the importance 

of Wisconsin’s sexual orientation anti-discrimination statute and the positive effect 

it had on our state. I represented a number of clients who were fired because of 

their sexual orientation and Wisconsin’s sexual orientation anti-discrimination statute was vital in affording them the employment protection that all Americans deserve. 

Since Wisconsin passed its statute in 1982, nineteen additional states and the 

District of Columbia have passed similar protective measures. And we now have a 

chance to set a higher standard for our nation by passing H.R. 2015. 

As my colleagues know, the Employment Nondiscrimination Act, or ENDA, will 

provide basic protections against workplace discrimination on the basis of sexual 

10

orientation or gender identity. ENDA does not create ‘‘special rights.’’ It simply affords to all Americans basic employment protection from discrimination based on irrational prejudice. 

I’d like to take one moment to focus on the protections in ENDA that prohibit 

workplace discrimination on the basis of gender identity, because I’ve found that 

there is a great deal of confusion about this term. 

Gender identity is a person’s internal sense of his or her gender. In the vast majority of the population, an individual’s gender identity and his or her birth sex 

‘‘match.’’ But for a small minority of people, gender identity and anatomical sex conflict. Because an individual was born one sex and presents themselves to the world 

as another—or in a way that other people may think is inconsistent with how a man 

or a woman should present themselves—he or she can face many forms of discrimination. 

ENDA contains language that makes it clear than an employer may establish and 

enforce reasonable and otherwise lawful dress and grooming standards for employees. But it also provides assurances that aspects of a person’s gender identity and 

gender expression cannot be the basis for workplace discrimination. ENDA ensures 

that an employer cannot fire an employee solely because she is a woman with a 

‘‘masculine’’ walk or a man with an ‘‘effeminate’’ voice. 

In conclusion, I want to underscore that the purpose of ENDA is to ensure that 

hard-working Americans cannot be denied job opportunities, fired or otherwise be 

discriminated against just because of their sexual orientation or gender identity. 

There is nothing more American than ensuring that people should have equal job 

opportunities. 

I want to thank Congressman Frank for his leadership on this issue. I also want 

to thank Congresswoman Pryce and Congressman Shays for their commitment to 

this issue. 

Once again, I sincerely appreciate the opportunity to testify today and look forward to the discussion. 

Thank you. 

Chairman ANDREWS. Tammy, we thank you very much. 

There are certain members that, when they rise to take the floor 

of the House, command the attention of just about everyone in the 

House. 

I am reminded of my predecessor as chairman of this subcommittee, Sam Johnson from Texas, for example. Whenever there 

is a military issue, a foreign policy issue, Sam, given his incredible 

heroism for this country as a POW, when he gets up, people listen 

to what he has to say. And Barney Frank is a very similar kind 

of member. 

Whether he is talking about banking issues, housing, foreign policy, civil rights, Barney is one of those members that, when he 

rises to the floor to speak, people who agree with him and people 

who disagree with him, stop and listen to what he has to say. 

He is chairman of the Financial Services Committee, wrestling 

with some very difficult economic issues as we speak. 

He has made a life and a career out of advocating for civil rights 

for all people. He is the lead sponsor of the bill in front of us. And 

it is our honor to welcome him to the committee this morning. 

Welcome, Barney. 

STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MASSACHUSETTS 

Mr. FRANK. Thank you, Mr. Chairman. I am very appreciative of 

what you say. 

And it is true. As members know, we are subject to conflicting 

demands. 

I just left the hearing of the Financial Services Committee on the 

issues in the financial market, which I am chairing, so I am very 

11

torn today. And I got up this morning, I didn’t want to sort of play 

favorites in my responsibilities. So that is why I appear before you 

today in a pinstripe suit and a lavender tie. I figured that would 

be kind of a sartorial compromise that could reach everything. 

[Laughter.] 

I am very pleased that the subcommittee is taking this up. And 

I am pleased you heard from my colleague, Ms. Baldwin, who has 

been a pioneer in helping this country deal with questions of sexual 

orientation. 

The bill before us is a very straightforward one. But I do want 

to begin with one acknowledgment, and that is: I requested Police 

Officer Michael Carney, who is seated in the front row, to testify. 

And there are people who say, ‘‘Well, what do you need this law 

for? What good will it do?’’ I asked him to testify because he is an 

example of what the law can do. 

He was a police officer, as he will tell you. He left the force because of personal problems that grew out of his being a closeted 

gay man, a subject on which I am far more of an authority than 

I wish I was. 

And he and several others who had left the force applied a few 

years later for readmission. They were all admitted except Mr. Carney—because he had come to terms with being gay, had cleaned up 

the behavioral issues that had accompanied that—and he was denied readmission when everybody else was allowed. 

And because Massachusetts had passed a law signed and administered under a Republican governor—started first by Michael 

Dukakis but signed by Governor Weld—that law was used and he 

was reinstated. And he has since then been an extraordinarily able 

member of the police department. And you will note that he is here 

with the full support of his union and others. 

But one thing I want to mention particularly. 

There is an article in today’s Boston Globe, which I will submit 

for the record. Springfield Police Commissioner Edward Flynn said 

‘‘The department supports Carney. This is an important social 

issue and it is important that a credible police officer come out and 

speak about it.’’

What is relevant is that Mr. Flynn is now the police commissioner in Springfield but, as my colleague Mr. Tierney knows, prior 

to that, he was the secretary of public safety for the Commonwealth of Massachusetts, appointed by Governor Mitt Romney. 

Now, I do not mean to infer that because Governor Mitt Romney 

appointed this man, Presidential Candidate Mitt Romney would 

want to be associated with that. But it is relevant, it seems to me, 

that the appointee as secretary of public safety of Governor Mitt 

Romney is one of the men who endorses and enabled Officer Carney to be here. 

The principle of the bill is very simple. In America, if you apply 

for a job and are working on that job, you should be judged by your 

job performance only. That is it. 

Now, frankly, one of the difficulties we have encountered when 

we have pushed for laws like this is people say, ‘‘Well, what are 

you really up to,’’ because that must already be the law. 

Frankly, a large number of Americans not conversant with these 

issues instinctively say, ‘‘Well, that must already be the law. How 

12

can you fire someone just because she is a lesbian? I mean, she is 

a good cook at Cracker Barrel’’—which is one of the cases we had—

‘‘and she never caused any trouble. And you fired her because she 

is a lesbian. That must not be fair.’’

But as members know, fair isn’t necessarily illegal or legal, and 

it is not now. It is perfectly legal in most of the states of this country to fire someone, or otherwise discriminate against that individual in employment, because of his or her sexual orientation 

wholly outside of any job-related issues. 

Now, I say that because nothing in here gives you any permission to misbehave on the job, to do anything on the job that violates any of the rules. It explicitly says no affirmative action. 

I believe in affirmative action in the race area. But I think that 

the cases of race discrimination and sexual orientation discrimination differ in many ways. And this explicitly disavows any affirmative action. 

It says you do not have the disparate impact for members who 

are—and I noticed one of the witnesses said, ‘‘Well, you don’t do 

that well enough.’’ Fine, fix it up more. 

Because this is not an effort to have affirmative action—by the 

way, you couldn’t do affirmative action because we still respect people’s right of privacy. And it would be impossible because the only 

way you could do a disparate impact would be to compel everybody 

to tell his or her sexual orientation, which we certainly don’t want 

to have happen. 

So you couldn’t even begin to make a disparate impact case unless you got the sexual orientation of everybody at the workplace. 

And I hope nobody wants to see that. So it explicitly disavows affirmative action. 

It also tries to respect the autonomy of religious organizations. 

Again, I noticed some of the religious organizations say it doesn’t 

do well enough. Fine, let us work together to do it better. The principle that we should not impinge on them is there. 

What that leaves us with is you don’t fire someone, you don’t 

refuse to hire someone, because he or she is gay or lesbian. 

And people have said, ‘‘Well, what about my right to my opinion?’’ People have their rights to their opinions. People have a right 

to be racist. People have a right to dislike certain religions. 

What you don’t have a right to do, I believe, in our system, is 

in your economic interactions with people be prejudiced against 

them on that. 

In your personal life, who you associate with, who comes to dinner at your house, all of those are left untouched by this bill. It is 

narrowly on employment. 

And then we have the issue that my colleague so ably discussed 

of the transgender. And I understand that this is a new issue for 

people. 

There are people who are born with the physical characteristics 

of one sex who strongly identify with the other. Some of them have 

a physical change. Some of them don’t. 

Let me make a plea to all of my colleagues. These are people—

think what it must be like to be born with that set of feelings. 

Think what it must be like, think what stress, what agony you go 

through to defy society’s conventions to the extent where you make 

13

that kind of a statement. This is something people are driven to 

do. 

Is there any reason why any of us should make those lives of 

those people more difficult than they already are? Obviously, these 

are people who are coping. And things are getting better. Things 

are better. 

When I was younger, a lot of things were difficult that are less 

difficult today. But what we say here is, ‘‘If someone has these feelings, if someone is born with one set of characteristics, strongly 

identifies the other way, should you fire them? You deny them a 

promotion? You say no matter how good your job is that makes me 

uneasy, so out you go?’’

Now, we say in here you can make rules that those people have 

to abide by, that they have to dress in a gender-consistent way. We 

say in there, yes. There is an issue—we shouldn’t have to talk 

about it, but we do—what happens when they are all in the shower 

together? You know, you can segregate bathrooms. A shower is a 

little difficult. This says, ‘‘No. People don’t have the right to go into 

open places where people are unclothed in a way that is going to 

embarrass people.’’

Now, we talk about an accommodation. Again, people have said, 

‘‘Well, you didn’t do that well enough.’’

There is room for some fine-tuning there, but on the fundamental 

principle—you know, particularly for those people who are themselves made the most uneasy by the transgender issue—and, I 

must say, having worked with a lot of transgender people, I would 

tell my friends, you get over it pretty quick, because what you find 

out is you are dealing with human beings like all the rest of us, 

normal human beings who have the same emotions and needs and 

strengths and weaknesses of all of us. 

But for those who are not yet at the point of comfort with them, 

do we really feel driven to make lives harder for these people who 

already have, through no—and, by the way, you know, I just want 

to deal with this choice issue. 

No one, I believe, in the history of the world has said, ‘‘You know 

what? Life is too easy. I think, although I was born a woman, I am 

going to act like a man. I think that would be a real lark. I think 

I will just go through life that way and invite physical abuse and 

invite all kinds of ridicule.’’ So that is all we are saying. 

And let me say here, a final appeal. If there is any institution 

that ought to understand this, it is here. 

Let me tell you what I know. This institution—we, as members, 

are very well served by a large number of gay and lesbian employees. And many of my colleagues on the Republican side know that 

and have, to their credit, employed them. 

And I might say—you know, I wouldn’t have said this a couple 

of years ago, but after the recent incident, it is now public. 

For years, the clerk of this House was a gay man, a Republican 

named Jeff Trandahl whose orientation became public because he 

behaved in a very honorable and admired way on the issue of our 

former colleague, Mr. Foley. And the Ethics Committee saluted Mr. 

Trandahl. 

14

You know, Jeff Trandahl is an example. And I know Jeff well, 

and he is a friend whom I respect and admire. And look at the role 

he played. 

How much easier it would have been, maybe some troubles could 

have been avoided, if there were legal protections that he and others would have had so they would not be subject to prejudice. 

I will acknowledge, yes, as Mike Carney’s example will show, as 

my own example will show, people say, ‘‘Well, you know, some of 

these gay people are misbehaving.’’

Yes. Living a life that you are trying to hide from others is not 

a prescription for model behavior. And you do dumb things in the 

closet sometimes. It is not an excuse. It is your fault when you do 

them. 

But it is in society’s interest to diminish that pressure. And you 

can do that today. 

Thank you. 

[Newspaper article submitted by Mr. Frank follows:]

[From the Boston Globe, September 5, 2007]

Gay Officer to Speak Out for Job Rights Bill

U.S. Measure Would Forbid Discrimination

By MARIA CRAMER, Globe Staff 

Springfield Patrolman Michael Carney decided to hide his homosexuality immediately after he graduated from the police academy. 

At a graduation party, he saw a fellow officer come out of the men’s room with 

a bloody nose. A police supervisor had beaten him up when he learned the officer 

had brought a male friend to the party, Carney recalled. 

For years, Carney never spoke about his attraction to men. To deflect suspicion, 

he would make homophobic remarks in front of fellow officers. 

But today, 25 years after he became a police officer, he will speak in the most 

public way about his sexual identity. He will ask Congress to pass the Employment 

Non-Discrimination Act, a bill US Representative Barney Frank, a Democrat, introduced in April that would make it illegal to fire gays and lesbians because of their 

sexual orientation. 

‘‘My objective is to support those who are closeted as well as out,’’ said Carney, 

who will testify in full uniform. ‘‘I feel when I speak I speak for those who can’t 

speak for themselves.’’

Springfield Police Commissioner Edward Flynn said the department supports 

Carney. 

‘‘This is an important social issue and it’s important that a credible police officer 

come out and speak about it,’’ he said. 

Carney, 47, will testify before the Education and Labor Committee about the bill, 

which also would make it illegal to refuse to hire someone based on their sexual 

orientation. Some critics of the bill have expressed reservations that it does not 

clearly state the extent to which religious organizations are exempt. 

Frank said he asked Carney to speak because he is a beneficiary of Massachusetts’ antidiscrimination law—the state is one of 17 that prohibits discrimination 

against gays and lesbians—and because as a law enforcement figure, Carney helps 

fight the stereotype of gay men as weak or effeminate. 

‘‘He’s a thoughtful, articulate guy, and he’s very honest about his story,’’ Frank 

said. 

Carney said he knew he was gay when he was about 12. The son of Irish-Catholic 

immigrants, he was afraid to tell his family. 

As a young man, he dated men on the sly. He was more afraid that his fellow 

officers would find out he was gay than he was of the dangers he faced on duty. 

‘‘Who’s going to find out?’’ he said. ‘‘That became the focus of my career.’’

The pressure to stay quiet overwhelmed him. Carney began to drink heavily, and 

in 1989, he was so depressed, he resigned from the Police Department. He sought 

counseling to help him face his sexual orientation and deal with his alcoholism. He 

said he never drank again. 

Carney told his parents, and in 1991, he helped found Gay Officers Action League 

of New England, a support group for gay law enforcement officers. In 1992, he tried 

to get his job back, and during his interview, he acknowledged he was gay. He was 

15

denied reinstatement and filed a complaint with the Massachusetts Commission 

Against Discrimination. In 1994, the agency ruled that there was probable cause the 

department had discriminated. 

Carney returned to the Police Department that year. Since then, he has joined 

the department’s uniform division, patrolling the city on foot and on bicycle. Two 

years ago, he helped solve the murder of a man who was killed because he was gay. 

Veteran officers with gay children have approached him for advice. Others on the 

450-member force have talked to him about their sexuality. 

Still, Carney said, the fear of coming out to fellow officers remains pervasive. 

‘‘Sadly enough today, I am the only one that is publicly out,’’ he said. 

Chairman ANDREWS. Chairman, thank you very, very much for 

what I think was very moving testimony. 

Representative Emanuel Cleaver is a person who is, frankly, a 

joy to encounter around the halls of this institution. 

There are some people who read their religious scripture. There 

are others who live it. 

And Representative Cleaver is someone who, in any small interaction—2 o’clock in the morning during late votes—if you encounter him, there is a warmth. There is a glow. I think there is a godliness about the way he conducts himself, which makes him an 

asset to this institution, not simply as a lawmaker, but as a human 

being. 

And, Representative, we are glad to welcome you here with us 

this morning. 

STATEMENT OF HON. EMANUEL CLEAVER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI 

Mr. CLEAVER. Thank you, Mr. Chairman. I apologize. I have been 

in a little struggle for the last week. 

I would like to thank you and Ranking Member Kline for holding 

this hearing. And I think this hearing is extremely important because this may be the first of many discussions in the 110th Congress on the status or perceived status of an individual’s sexual orientation and their right to employment. 

And I look forward to both bodies and both parties in Congress 

working together to help strengthen and expand the Civil Rights 

Act of 1964 so that our nation can further empower and engage the 

patchwork of all Americans in every community toward achieving 

full participation in every sphere of life in our nation. 

Simply put, Mr. Chairman, we are talking about jobs and an individual’s right to work. The measure we are examining here 

today, H.R. 2015, the Employment Non-Discrimination Act of 2007, 

known as ENDA, will strengthen the legal right for all individuals 

and allow them to be assessed on their ability to do a job because 

of their skill set and not a set of prejudices. 

Most of the arguments against this measure, as I have listened 

to religious radio, which my wife thinks that it is an act of selftorture, but nonetheless, I do listen almost on a daily basis, and 

I hear the arguments against this measure. And they usually take 

the form of some kind of an attack on family values. And that 

somehow protecting those who are, or are perceived to be, gay, lesbian, bisexual, transgender from equal legal consideration for employment is an affront to family and, somehow, specifically their 

family. 

16

In all the discussions I have heard on this subject, no one has 

yet explained how keeping someone from gaining equal consideration based on their individual skill set to obtain lawful employment pleases God. How can an American who claims to embrace 

God and uses that theology to then discriminate against another 

individual. 

Before I was elected to Congress, I very happily, and I might 

add, considered my only full-time job, even when I served as mayor 

of Kansas City, to being the pastor of the St. James United Methodist Church. And against all odds and against the Wesleyan tradition, I have held this appointment for 30 years. The average tenure 

of a Methodist pastor in our country is 3 years. 

However, I have two full-time jobs. I still remain the unpaid senior pastor of St. James, while I serve as the representative from 

Missouri’s 5th Congressional District. 

The role as pastor will never leave me, and I will never leave it. 

I am compelled to go home each weekend. And I generally preach 

and teach and visit hospitals. And I counsel all people who come 

to me. 

And I have never been able to get over the fact that, when a parishioner comes to me and expresses discrimination he or she has 

felt based on their sexual orientation, how I could then say, in the 

name of God, ‘‘I am sorry. I cannot be supportive.’’ I have theological difficulty in doing that. 

And I say here, now, with absolute conviction and confidence, 

that an individual’s sexual orientation has nothing, absolutely no 

connection with my God’s interpretation of my need to minister to 

them. 

Three of the greatest sins, I believe, are indifference to, neglect 

of, and disrespect for God’s other sheep. Now, I will not delve too 

deeply into the political or ecclesiastical details of my position on 

those questions. Suffice it to say, none of the world’s major religions—and certainly, not the three monotheistic religions—believe 

that God endorses discrimination based on sexual orientation. 

Now, opponents of this legislation—at least the ones on radio—

argue that homosexuality and transgender identity are unnatural, 

immoral, or that someone else’s sexual orientation offends their religious senses. 

Let there be no doubt. I am certainly pro-marriage. As an ordained United Methodist pastor, I have performed more than 400 

heterosexual weddings. And I have been happily and fortunately 

married to the same woman for three decades, even the same 

woman who thinks that I am mentally ill for listening to the radio 

programs that condemn me. [Laughter.] 

Nonetheless, those opposing the legislation, I believe, have their 

issues confused. We are not discussing whether a state should recognize an individual’s right to marry. That was, is and shall, hopefully, always be left to the wisdom of state legislatures around the 

country. Although it is much too often discussed in Congress, marriage is not a federal issue. 

Today we are trying to further extend the rights of individuals 

who have been marginalized and discriminated against and denied 

legal federal protection for an equal playing field in their own country. 

17

Mr. Chairman, members of the committee, I have watched, over 

my lifetime, a person who has almost the same name as me—his 

name is Gary Emanuel Cleaver, my first cousin—I have seen him 

with a college education move from job to job to job. Once he was 

discovered, or once people believed him, to be homosexual, all of a 

sudden the pressures became too difficult for him to stay in that 

job. 

I never thought it was right, when I didn’t see Gary being mistreated, but when I watched someone with my same DNA, with a 

very healthy IQ, and with a very, very good work ethic have difficulty staying on a job, I became more and more committed to this 

cause. 

Before I was mayor, I was the national vice president of the 

Southern Christian Leadership Conference. It is the organization 

founded by Martin Luther King, Jr., and four other mentors of 

mine: Joe Lowery, Fred Shuttlesworth, C. K. Steele and Ralph 

David Abernathy. We realized—or they did, I was much younger 

and just following behind these giants—that the federal government was our friend. In fact, absent the actions of the federal government, I am not sure what would be happening in our country 

today. 

The federal government took the lead in providing us with civil 

rights and with equal rights. And, therefore, I was very pleased on 

July 26, 1990, when President George H. W. Bush signed one of 

the most groundbreaking civil rights laws in our nation’s history: 

the Americans with Disabilities Act. No law since the Civil Rights 

Act of 1964 has been as sweeping and as all-encompassing as the 

bill signed by former president Bush. 

And I think today of the words of Dr. Martin Luther King, Jr., 

because they still ring true. And he said, ‘‘I refuse to accept the 

idea that the is-ness of man’s present nature makes him morally 

incapable of reaching up for the ought-ness that forever confronts 

him.’’

This legislation ought to be approved. No matter where we are, 

we need to reach for the ought-ness. 

In conclusion, let me just say, Mr. Chairman, I believe that all 

Americans deserve the right of equal protection under the law. 

Now is the time to guarantee all Americans the God-given right to 

be. Thank you. 

[The statement of Mr. Cleaver follows:]

Prepared Statement of Hon. Emanuel Cleaver, a Representative in 

Congress From the State of Missouri 

Mr. Chairman, I would like to thank you and Ranking Member Kline for holding 

this hearing and examining, what I hope to be the first of many discussions in the 

110th Congress, on the status or perceived status of an individual’s sexual orientation and their right to employment. I look forward to both bodies and both parties 

in Congress working together to help strengthen and expand the Civil Rights Act 

of 1964, so that our nation can further empower and engage the patchwork of all 

Americans in every community towards achieving full participation in every sphere 

of life in our nation. 

Simply put, Mr. Chairman, we are talking about jobs and an individual’s right 

to work. The measure we are examining here today, H.R. 2015, the Employment 

Non-Discrimination Act of 2007, known as ENDA, would strengthen the legal right 

for all individuals and allow them to be assessed on their ability to do a job because 

of their skill set and not based on who an individual’s personal life-style choice. 

Most of the arguments against this measure have taken the form of ‘‘family values,’’ 

18

and that some how protecting those who are or are perceived to be gay, lesbian, bisexual, transgender from equal legal consideration for employment is an affront to 

family—and somehow, specifically their family. In all the discussions I have heard 

on this subject, no one has yet explained how keeping someone from gaining equal 

consideration based on their individual skill set to obtain lawful employment pleases 

God. How can an American’s choice to live with the person they choose become an 

affront to someone they have never met and will never know? 

Before I was elected to Congress, I, very happily I might add, considered my only 

full-time job to be that of Senior Pastor of St. James United Methodist Church in 

Kansas City Missouri. Against all odds and Wesleyan Tradition, I have held this 

appointment for 30 years. However, now I have two full time jobs. I still remain 

Senior Pastor at St. James while I serve as the Representative of Missouri’s Fifth 

Congressional District. The role as pastor will never leave me, and I will never leave 

it. I am compelled to go home and preach every Sunday. I will pastor and counsel 

all people until I return to my maker. And I say here now, with absolute conviction 

and confidence, that an individual’s sexual orientation has nothing, absolutely no 

connection with my God’s issued mandate to minister to their needs, including their 

right to barrier-free access to employment. Three of the greatest sins, I believe, are 

indifference to, neglect of, and disrespect for God’s other sheep. 

Opponents of this legislation argue that homosexuality and transgender identity 

are ‘‘unnatural,’’ ‘‘immoral,’’ or that someone else’s sexual orientation offends my religious senses. Let there be no doubt. I am certainly pro-marriage. As an ordained 

member of the clergy, I have performed more than 400 hundred weddings and I 

have been happily and fortunately married to the same lovely woman for three decades. However, to this I say, those opposing the legislation have their issue confused. We are not discussing whether a state should recognize an individual’s right 

to marry. That was, is, and shall, hopefully, always fall to the wisdom of the state 

legislatures around the country. Although it is much to often discussed in Congress, 

marriage is not a federal issue. Today we are trying to further extend the rights 

of individuals who have been marginalized and discriminated against and denied 

legal federal protection for an equal playing field when they seek employment. 

Further, the opponents of ENDA are concerned about creating a protected class 

that promotes homosexuality and thus negatively impacting the institution of marriage and family values. They cite the profusion of local laws on the subject, and 

suggest that country-wide protection is unnecessary. Again, I ask how protecting an 

individual’s right to pursue a job on an equal playing field with equal consideration 

is promoting homosexuality and hurting the values within their family? Moreover, 

I say to these naysayers the current draft of this legislation goes beyond every previous incarnation of the legislation to protect small businesses and religious-based 

organizations and institutions that may preach against and hold tenants opposing 

same sex orientation. There are protections within the measure, so as to exempt 

these groups who have centralized these values of marginalization and separation. 

On July 2, 1964, the Civil Rights Act of 1964 was signed in to law. It was landmark legislation in the United States that outlawed segregation in the American 

schools and public places. Originally conceived to legally help African Americans, 

the bill was amended prior to passage to protect women. Once it was implemented, 

its effects were far reaching and had tremendous long-term impacts on the whole 

country. It prohibited discrimination in public facilities, in government, and in employment, invalidating the ‘‘Jim Crow’’ laws in the South. It became illegal to compel segregation of the races in schools, housing, or hiring. Powers given to enforce 

the law were initially weak, but were supplemented in later years. 

On July 26, 1990, President George H.W. Bush signed one of the most 

groundbreaking civil rights laws in our nation’s history—the Americans with Disabilities Act (ADA). No law since the Civil Rights Act of 1964 has been as sweeping 

and all encompassing as the ADA addressing employment, businesses, public accommodations, and telecommunications. As far reaching and effective as the ADA is, 

now is the time for Congress to continue what we started a decade ago. Today, the 

words of Rev. Martin Luther King, Jr. still ring true, ‘‘I refuse to accept the idea 

that the ’isness’ of man’s present nature makes him morally incapable of reaching 

up for the ’oughtness’ that forever confronts him.’’ This legislation ought to be approved. Because of things that have happened to me and others who look like me, 

I have come to see that it is a first class mistake treat anyone as a second class 

citizen. 

Now is the time for us to go further, so that all individuals will be able to work, 

promoting their own self-sufficiency and independent living. Now is the time for millions of Americans who are gay, lesbians, bisexuals, or transgenders to receive equal 

protection under the law. Now is the time for a guarantee to all Americans the God 

19

given right to be. I know that everyone’s participation is key. The same is true for 

enacting ENDA. 

Although I was not a Member of Congress when the ADA was written and made 

its precarious way through Congress, I am keenly familiar with expanding individual’s civil rights and the suffering of all people when constrained, confined, and cut 

off. The premise of civil rights is simple: that all men, women, and children are created equal. We include rather than exclude. We engage rather than withdraw. We 

become one rather than segregate. I was an active member of the Civil Rights movement, and feel blessed to be a participant in this civil rights movement. I am proud 

to cosponsor this legislation and I am proud to be speaking in support of it today. 

Each year millions of Americans travel to Washington to talk to their elected officials, so that their voices can be heard by those who shape policy. Thank God they 

do come because they can effect change. The majority of Americans cannot make 

the trip to our nation’s capital and are constrained by location and circumstances. 

As Members of Congress, we must reach out to our constituents through traditional 

and new technologies such as the Internet. I invite every Member of the House and 

Senate to engage our constituents and disabilities groups in our districts to participate in this vital discussion. Our nation is at the threshold of a vital second step, 

and as policy makers, this hearing is a chance to directly listen to the people affected by these issues, and to contribute to the national dialogue on the issues that 

affect their everyday lives, so that we can expand the rights and liberties of all 

Americans for full and equal employment. 

Thank you Mr. Chairman and the Committee for the opportunity to join and address you today. 

Chairman ANDREWS. We thank you, our friend and colleague, 

Mr. Cleaver, for your very powerful and eloquent statement. 

Each member has the prerogative of asking questions to the witnesses on this panel. It has generally been our practice, when we 

have lay witnesses, as it were, to try to move on to the second 

panel. So I would first ask my friends on the minority side, are 

there any questioners who would like to ask questions of this panel 

before we move on? 

Okay. 

And my friends on the majority side, do we have anybody that 

wants to ask questions of this panel? 

Well, let me express my appreciation to our colleagues for their 

indulgence this morning. We are very pleased you were here. 

Thank you. 

I would ask if the witnesses for the second panel would proceed 

to the witness table, and we will proceed in short order with their 

testimony. 

It is my understanding there is unanimous consent that Officer 

Carney can be introduced by his congressman, Congressman Neal, 

without objection. 

So what I am going to do is introduce the other witnesses. And 

then, Rich, I will turn to you to introduce Officer Carney last, if 

we would. 

Helen Norton is an associate professor at the University of Colorado School of Law. Previously, Ms. Norton served as a political appointee in the Civil Rights Division of the White House from 1998 

until January of 2001, first as counsel to the assistant attorney 

general for civil rights, and then later as a deputy assistant attorney general for civil rights, where her duties included supervision 

of the employment litigation section. 

Welcome, Professor Norton, we are happy to have you with us. 

Mark Fahleson is an attorney with the law firm of Rembolt 

Ludtke, LLP in Lincoln, Nebraska. He earned his J.D. from the 

University of Nebraska at Lincoln. He is currently an adjunct proVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
20

fessor of employment law at the University of Nebraska College of 

Law. 

Mark, glad to have you with us this morning. 

Lee Badgett is an associate professor of economics at the University of Massachusetts at Amherst. She is the research director of 

the Institute for Gay and Lesbian Strategic Studies. Professor 

Badgett received her B.A. in economics from the University of Chicago and a Ph.D. in economics from the University of California at 

Berkeley. 

Professor Badgett, we are very happy you are with us this morning. 

Lawrence Z. Lorber is a partner in the Washington, DC, office of 

Proskauer Rose, LLP, a fine firm. Mr. Lorber was formerly the deputy assistant secretary of labor and director of the Office of Federal 

Contract Compliance Programs during the Ford administration. 

Mr. Lorber received his undergraduate degree from Brooklyn College and his J.D. from the University of Maryland Law School. 

Welcome, Mr. Lorber. We are glad you are with us. 

Kelly Baker is presently the vice president of corporate diversity 

for General Mills in Minneapolis, Minnesota. Ms. Baker has a B.A. 

in Business Administration from Howard University and an MBA 

from an institution that lost to Appalachian State on Saturday, the 

University of Michigan. [Laughter.] 

Broderick will not like that. [Laughter.] 

That is for all my Buckeyes out there. I got to try to win some 

help in Ohio. 

Brooke Waits is from Dallas, Texas. She was previously an employee for Cellular Sales of Texas, and she is going to share her 

experience with us this morning. 

Nancy Kramer is the founder and CEO of Resource Interactive, 

a marketing service company in Columbus, Ohio, home of the 

Buckeyes. Her business has been recognized by Business Week, 

Working Women, Inc., and Interactive Week and, in the past year, 

has been acknowledged by the Ohio Chamber of Commerce as the 

best place to work in Ohio. Congratulations. 

And, Rich Neal, welcome to the committee. I understand you 

have a very special constituent that you are going to introduce. 

And, frankly, once that introduction is done, Officer Carney, if 

you would like to proceed with your testimony. 

Let me just say one thing. You will notice the battery of lights 

in front of you. The yellow light indicates that you have 1 minute 

of your 5 left. The red light means we would like you to wrap up 

and conclude. 

Your written statements have been included, without objection, 

in the record of the hearing. So we would ask you to summarize 

your written statements so we can get on to questions from the 

panel. 

And as soon as our friend, Rich Neal, is done with an introduction of Officer Carney, we will proceed. 

Rich, welcome. 

Mr. NEAL. Thank you very much, Mr. Chairman, and to members 

of the subcommittee. 

Let me begin by thanking you, Mr. Chairman, for embracing that 

notion of moving swiftly to the second panel. [Laughter.] 

21

After 19 years here, I am indeed grateful for that position you 

have taken. 

Mr. Chairman, it is a pleasure for me today to not only introduce 

a constituent, Michael Carney, but also to certainly embrace the 

Employment Non-Discrimination Act. 

I have known Mike Carney’s parents for many, many years. And, 

indeed, they have been unyielding in their support for me over 

those years. 

His sister worked for me when I was mayor of the city of Springfield. And his brother-in-law, to this day, remains one of my closest 

advisors. The Carneys are a first-class family. 

And for the 30 years that I have known Officer Carney, I knew 

him simply as a guy who had the same aspirations in our neighborhood as many do who embrace being police, fire, teachers, telephone company employees, gas company employees. I have known 

him just as a regular neighborhood guy, always pleasant when I 

saw him, kind, and always very, very decent. And I am happy that 

he is here today to offer his own testimony before your subcommittee. 

Mike Carney has a very compelling story to tell. I took the time 

to read that testimony that he is about to offer, last evening. And 

it is very important testimony because it reflects the transition 

that many neighborhoods across America find themselves in. 

Like most of us in this Congress, peer review is very important. 

We all know who the good members of Congress are, just as teachers know who the good teachers are, good firefighters know who 

the good firefighters are, and yes, good patrolmen and women know 

who the good patrolmen and women are. That peer review still in 

our lives counts for something. And if you were talking to the men 

and women of the Springfield Police Department, they would confirm my assessment that Mike Carney is a good police officer. 

He currently does outreach within the Springfield Police Department. He has been great for me to work with over many years. He 

is a gentleman. He is a very decent public servant. And I am glad 

that I had the opportunity today to introduce him to all of you. 

Thank you, Mr. Chairman. 

Chairman ANDREWS. Thank you very much, Rich. 

And, Officer Carney, if you would take your place at the table, 

we would proceed with your testimony. And we welcome each of 

the witnesses. 

STATEMENT OF MICHAEL CARNEY 

Mr. CARNEY. Thank you. 

Good morning. And thank you, Congressman Neal and Congressman Frank and Chairman Andrews. I am honored and privileged 

to be here this morning. 

The bill you are debating, which is so important to the gay and 

lesbian, bisexual and transgender community, is even more important to America. 

As a first-generation Irish-American, I grew up hearing stories 

that when the Irish looked for jobs in the United States, they found 

signs that said, ‘‘Irish not need apply.’’ I was also told that those 

days were behind us, that I could be anything that I wanted to be 

in America. 

22

I found out the hard way that that is not true. Today, there remains an invisible and just insidious obstacle to employment that 

cuts across all racial and ethnic lines in America. 

I realized soon after graduating the police academy, because I 

was gay, my safety as a police officer and my future as a public 

servant was seriously jeopardized. 

After a classmate and his work partner were gunned down and 

murdered on the streets of Springfield, it forever changed the way 

that I viewed my job as a gay cop. Every time my partner and I 

rolled into a domestic or a gun call, all I would think of was who 

would notify my life partner. Would he first learn of my shooting 

on the 11 o’clock news? How would he be treated by my colleagues 

at my funeral? 

I am a good cop, but I have lost 21⁄2 years of employment fighting 

to get that job back, because I am gay. And I never would have 

been able to do that had I not lived in Massachusetts or in one of 

the handful of other states that protect gay employees from discrimination. In fact, if I were a federal employee living in Massachusetts, I would not be covered at all. 

Discrimination impacts the lives of everyone. It not only deprives 

people of jobs and safe working conditions, it also robs our most 

vulnerable citizens of the vital services that they would have received from talented and dedicated gay workers. 

Throughout America, men and women from all backgrounds benefit from the talents and the dedication of gay employees. Many of 

these employees work without protection because they live in states 

that have no such guarantees. The Employment Non-Discrimination Act would guarantee that America’s gay, lesbian, bisexual and 

transgender workforce would never again fear that they might not 

be hired or be able to keep their jobs solely because of their sexual 

orientation or their gender identity. 

I am proud to be Irish-American. I am proud to be gay. And I 

am proud to be a cop in Springfield, Massachusetts. 

I want to thank the panel for allowing me to testify today. And, 

please, put an end to this kind of employment discrimination that 

I have had to endure. 

Thank you. 

[The statement of Mr. Carney follows:]

Prepared Statement of Officer Michael P. Carney, Springfield, 

Massachusetts Police Department 

Thank you for the opportunity to tell you why the bill you are debating—which 

is so important to the Gay, Lesbian, Bisexual and Transgender community—is even 

more important to America. 

As a first generation Irish-American, I grew up hearing stories from my Mom and 

Dad that when the Irish looked for work in the United States, they found signs that 

said, ‘‘Irish not need apply.’’

I was also told that those days were behind us. That I could be anything I wanted 

to be in America. 

Well, as luck would have it, I always wanted to be a police officer. You’d think 

that of all the things an Irish-American boy wanted to be, becoming a cop would 

be a slam-dunk. 

But there was an invisible, but just as insidious obstacle that I confronted—one 

that cuts across all racial and ethnic lines in America. 

I was gay. 

And there was nothing I could do about it. I didn’t choose to be gay. I just was. 

It doesn’t affect job performance, but it continues to affect the employability of 

millions of people in America. 

23

Here’s how it affected me: 

On April 9, 1979 I joined the Springfield Police Department as a Police Cadet. 

It enabled me to work in every facet of policing while I obtained my college degree. 

In September of 1982, after I graduated from the police academy, I was appointed 

as a police officer. I felt I had no choice but to keep my personal life a secret from 

my co-workers and supervisors. Not being able to share my personal life with those 

I spent so much time with was extremely painful. 

Can you imagine going to work every day and avoiding any conversations about 

with whom you had a date * * * or a great weekend * * * or an argument—basically not sharing any part of your personal life for fear of reprisal or being ostracized. 

I did this in a career that prides itself on integrity, honesty and professionalism—

and where a bond with one’s colleagues and partner is critical in dangerous and potentially deadly situations. 

At my police graduation, a colleague’s sexual orientation was the topic of conversation because he brought a man to our graduation party. Although he told everyone he was just a friend, by the end of the evening the police officer was assaulted by a police supervisor. 

That evening, I got an early lesson on how police officers like me are punished 

on the job, so I did everything in my power to be ‘‘one of the boys’’ and hide. 

A few years later, another classmate and his work partner were gunned down—

murdered on the street. It forever changed the way I viewed the job as a gay cop. 

Every time my partner and I rolled into a domestic or a gun call, all I could think 

of was who would notify my life partner? Would he first learn of my shooting on 

the 11 o’clock news? How would he be treated by my colleagues at my funeral? 

The more I thought of these things, the more isolated and insecure I felt; the more 

singled-out and second-class I realized I truly was. 

I was beginning to feel like my grandfather’s generation must have felt—that I 

wasn’t good enough, that I was a second-class citizen. 

And then the irony hit me: wasn’t it my job to ensure the rights of all citizens? 

Wasn’t I sworn to uphold the constitution of the United States—a document anchored in the fundamental principle that all men are created equal, that they are 

endowed, by their Creator, with certain inalienable rights; that among these are life, 

liberty, and the pursuit of happiness? 

Every day, I felt the disconnect, the irony. The pain was deep. I felt ashamed. 

I kept thinking, what would happen if they found out? What would they do? 

In 1989, after years of pain and self-abuse from drinking I hit bottom. I could not 

face my peers. I felt like I didn’t fit in. I was humiliated. I was afraid. I resigned 

as a police officer. 

Three months later, it turned out to be the turning point of my life. I got professional help. I’ve been sober ever since. 

A close friend of mine told me, ‘‘the truth will set you free.’’ A year later, I was 

on the road to a new life as a sober gay man. For the first time in my life I was 

honest with my family and friends and lived openly as the person God created. 

In 1991 I helped co-found the Gay Officers Action League of New England, a support group for gay law enforcement officers. 

Our organization struck a responsive chord with the law enforcement community. 

Not only did I meet hundreds like me, our organization began getting requests from 

police chiefs around the country asking for training and practical advice. 

I found the support that I needed, and in 1992 I decided to return to the job I 

loved. I received news that the police department was taking back officers for reinstatement, so along with four colleagues, I applied. 

I was granted an interview, and this time I decided to be honest with them and 

tell them who I really was. I came out in that interview. Three days after my interview, I was notified that I was denied reinstatement. 

I was dumbfounded. I could not believe this was happening. I retained an attorney and he spoke with city officials. He told me to reapply. I did and a week later 

I received a letter stating that I was denied again. My four colleagues were all reinstated. 

I felt like I was kicked in the gut. But this time, I was also furious. I asked my 

lawyer to file a complaint with the Massachusetts Commission Against Discrimination for employment discrimination based on my sexual orientation. 

My lawyer talked me out of it. He said, ‘‘your friends and family members know 

about you, but if you file this complaint, it will be a public document and everyone 

will know.’’

He then talked to the Mayor. The Mayor agreed that I should be granted another 

interview and called the chairman of the Police Commission. He complied. During 

the interview, the Police Chief told the Police Commission that I did a ‘‘commendVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
24

able job as a police officer.’’ The Sheriff of Hampden County also spoke on my behalf. 

I felt uplifted and finally believed I would get my job back. 

Three days later, I received a letter from the Police Commission. I opened it nervously. I could not believe what I read. I was denied again. I immediately went to 

the Massachusetts Commission Against Discrimination and filed the first case of 

sexual orientation discrimination against a law enforcement agency in Massachusetts. 

A few days later it hit the media. I was out publicly. The Police Commission later 

defended its position, claiming that ‘‘other candidates were more enthusiastic and 

more forthright.’’

The Massachusetts Commission Against Discrimination’s investigation took two 

and half years of my life—two and half years that I could not be a police officer. 

I felt so humiliated, so lost. I wondered if I did the right thing. 

In 1994, citing the police commission’s rationale for my rejection ‘‘as pretext,’’ the 

Massachusetts Commission Against Discrimination ruled probable cause that discrimination did in fact occur. 

On September 22, 1994, the City settled my case and at a press conference held 

by the Massachusetts Commission Against Discrimination. My parents, who were 

73 years of age at that time, stood by my side as the settlement announcement was 

made. I will never forget how proud they were of me and how grateful I was that 

they understood why I put myself and them and my City through all of this. 

I just wanted to be a cop. I’ve always wanted to be a cop. 

I returned to work, and since then I have worked as a police academy instructor, 

a detective in the youth assessment center, a detective in the narcotics division, as 

an aide to the Chief of Police and, most proudly, I am now assigned to the uniform 

division. 

I’ve been recognized for saving a man who jumped from a bridge into the Connecticut River in a suicide attempt. I’ve received letters of recognition for a youth 

mentorship program that I co-founded, as well as a letter of commendation from the 

Police Commission for outstanding police work in capturing a bank robber. In 1997, 

I was a guest at the White House Conference on Hate Crimes. I served from 1996 

to 2002 on the Governor’s Hate Crimes Task Force under three governors in Massachusetts. 

I have been honored and blessed to serve my department and the citizens of my 

community. 

I’m a good cop. But I had to fight to get my job because I’m gay. And I never 

would have even been able to do THAT—had I not lived in Massachusetts or in one 

of the handful of other states that protect gay people from discrimination. 

In fact, if I were a federal employee living in Massachusetts I would not be protected at all. 

Had I not been successful in fighting the bias that tried to prevent me from working, all the good that I have done for some of the most vulnerable people in my community would never have happened. 

Discrimination impacts the lives of everyone. It not only deprives people of livelihoods and safe working conditions, it also robs the public of vital services they 

would have otherwise received from talented and dedicated workers. 

Throughout America, men and women of all backgrounds benefit from the talent 

and dedication of gay employees. Many of these employees work without protection 

because they live in states that have no such guarantees. 

The Employment Non-Discrimination Act would guarantee that America’s Gay, 

Lesbian, Bisexual and Transgender workforce would never again fear that they 

might not be hired or might not be able to keep their jobs solely because of their 

sexual orientation or gender identity. 

I’m proud to be Irish. I’m proud to be gay. I’m proud to be a cop in Springfield, 

Massachusetts. And I’m grateful for the opportunity to tell you my story. 

Please put an end to the kind of employment discrimination that I have had to 

endure. 

Chairman ANDREWS. Thank you, Officer Carney, for your testimony and for your service to the community. It is very much appreciated. 

Mr. CARNEY. Thank you. 

Chairman ANDREWS. Ms. Kramer, welcome to the committee. 

25

STATEMENT OF NANCY KRAMER, FOUNDER AND CEO, 

RESOURCE INTERACTIVE 

Ms. KRAMER. Thank you. Thank you, Chairman Andrews and the 

members of the subcommittee. I am very happy to be here to 

present my point of view about a topic for which I am very passionate. 

As a business owner and entrepreneur, I am here to talk about 

the importance of creating this workplace that we are talking about 

that welcomes people from all walks of life. 

Discrimination against gay, lesbian, bisexual and transgender 

workers deprives American business of too many talented and hard 

working people, quite frankly. In my 26 years running a business, 

I have learned that an inclusive workplace which judges people on 

their merits, not on unrelated matters like sexual orientation or 

gender identity, is the key to success in a competitive, ever-changing marketplace. 

When I started Resource Interactive as a traditional marketing 

services company with two partners in 1981, the working world 

was very different. The Internet, the basis for our entire business 

today, wasn’t even conceived. 

We were lucky to start with an innovative and progressive client, 

Apple Computer. And that set the tone for our culture from day 

one. 

But I, as a woman, experienced discrimination in the business 

world. When I bought out my partners in 1984, I couldn’t even get 

a basic line of credit for the business without my then-husband cosigning on the loan. In fact, over the years as a woman in business, 

I have been second-guessed, underestimated, and even propositioned more often than I care to remember. I understand what it 

means to be discriminated against in the workplace. 

Looking back, it is hard to believe that my gender potentially 

stood in the way of my success as a business person. It is equally 

baffling to me today that members of the GLBT community see 

their desire to simply do a job, and do it well, thwarted by being 

who they are. 

As the world changes, business leaders know they must also 

change to remain competitive. My company has embraced new 

technologies and become a leading digitally-focused marketing firm, 

growing from just three people in 1981 to over 200 associates 

today. 

Along the way, we have acquired some great clients, including 

Hewlett-Packard, Procter & Gamble, Best Buy, and L.L.Bean. Like 

us, these corporations recognize the key to success is to create an 

environment that recruits, retains and rewards talented associates, 

regardless of characteristics unrelated to their job performance. 

This simple premise has led nearly 90 percent of Fortune 500 companies to adopt nondiscrimination policies that include sexual orientation, with a quarter of them including provisions for gender 

identity. 

I have had the great fortune to lead a small business to success 

and to be recognized for those efforts. 

I was honored to have recently been appointed by Governor Ted 

Strickland as chairperson of the Governor’s Workforce Policy Advisory Board for the state of Ohio. 

26

My business, Resource Interactive, has received numerous national recognition for its innovative workplace environment from 

sources as varied as Business Week, Working Woman, Inc. magazine, and Interactive Week. And, as Chairman Andrews was saying, we were recently honored by the Ohio Chamber of Commerce 

as best place to work in the state of Ohio. 

Over the years, I have learned that living a secret life is not good 

for anyone. In fact, it is highly destructive, especially in the workplace. I am extremely proud of the fact our company’s culture encourages people to be the same person on the outside that they are 

on the inside and to not live in secret. 

Preparing for today, I was reflecting on some of our past and 

present Resource associates. There are at least a half a dozen examples of folks who entered our business projecting the acceptable 

sexual orientation, but eventually realized being who they are was 

not only accepted at Resource, but embraced. 

As a CEO, as a public board director, and as an entrepreneur, 

I know you need every talented person you can hire. Passing the 

Employment Non-Discrimination Act will not create a burden on 

business, large or small. Instead, it will ensure that the hard working GLBT Americans can earn a living, provide for their families, 

and contribute to the innovation and creativity that makes American business great. And it is simply smart business. 

Two of my daughters are here with me here today. I am grateful 

that, because laws have changed, they won’t have to face the same 

discrimination I faced 26 years ago today. 

I have always taught them that every person has value and 

should be judged on his or her merit. I brought them to Washington with me today in hopes that they might witness this first 

step toward eliminating workplace discrimination for all those 

Americans in the GLBT community. 

Thank you for your time. And I strongly encourage passage of 

this important legislation. 

[The statement of Ms. Kramer follows:]

Prepared Statement of Nancy Kramer, Founder and Chief Executive 

Officer, Resource Interactive 

Thank you to Chairman Andrews and the members of the subcommittee for inviting me to present my point of view about a topic for which I am very passionate. 

As a business owner and entrepreneur, I am here to talk about the importance of 

creating a workplace that welcomes the best and the brightest, from all walks of 

life. Discrimination against gay, lesbian, bisexual and transgender workers deprives 

American business of too many talented and hardworking people. In my twenty-six 

years running a business, I have learned that an inclusive workplace, which judges 

people on their merits, not on unrelated matters like sexual orientation or gender 

identity, is the key to success in a competitive, ever-changing marketplace. 

When I started Resource Interactive as a traditional marketing services company 

with two partners in 1981, the working world was very different. The Internet, the 

basis for our entire business today, wasn’t even conceived. We were lucky to start 

with an innovative and progressive client—Apple Computer—that set the tone for 

our culture from day one. But I, as a woman, experienced discrimination in the business world. When I bought out my partners in 1984, I couldn’t even get a basic line 

of credit for the business without my then husband as a co-signer. In fact, over the 

years, as a woman in business, I’ve been second-guessed, underestimated, and even 

propositioned more often than I care to remember. I understand what it means to 

be discriminated against in the workplace. 

Looking back, it is hard to believe that my gender potentially stood in the way 

of my success as a businessperson. It is equally baffling that, today, members of the 

27

GLBT community see their desire simply to do a job, and do it well, thwarted by 

being who they are. 

As the world changes, business leaders know that they must also change to remain competitive. My company has embraced new technologies and become a leading digitally-focused marketing firm, growing from just the three of us in 1981 to 

over 200 employees today. Along the way we have acquired great clients like Hewlett-Packard, Procter & Gamble, Best Buy and L.L. Bean. Like us, these corporations recognize that the key to success is to create an environment that recruits, 

retains and rewards talented associates regardless of characteristics unrelated to job 

performance. This simple premise has led nearly 90% of Fortune 500 companies to 

adopt nondiscrimination policies that include sexual orientation, with a quarter of 

them also including gender identity. 

I have had the great fortune to lead a small business to success, and to be recognized for those efforts. I was honored to have recently been appointed by Governor 

Ted Strickland as Chairman of the Governor’s Workforce Policy Advisory Board for 

the State of Ohio. 

My business, Resource Interactive, has received national recognition for its innovative workplace environment from sources as varied as Business Week, Working 

Woman, Inc. magazine and Interactive Week; and just this past year, was recognized by the Ohio Chamber of Commerce as Best Place to Work in the State of Ohio. 

Over the years, I have learned that living a secret life is not good for anyone; in 

fact it’s highly destructive—especially in the workplace. I am extremely proud of the 

fact that our company’s culture encourages people to be the same person on the outside that they are on the inside, not live in secret. Preparing for today, I was reflecting on some of our past and present Resource associates. There are at least a half 

dozen examples of folks who entered our business projecting the ’acceptable’ sexual 

orientation, but eventually realized being who they really are was not only accepted 

at Resource, but embraced. 

As a CEO, public board director, and entrepreneur, I know you need every talented person you can hire. Passing the Employment Non-Discrimination Act will not 

create a burden on businesses, large or small. Instead, it will ensure that hardworking GLBT Americans can earn a living, provide for their families, and contribute to the innovation and creativity that makes American business great. And, 

it’s simply smart business. 

Two of my daughters are here with me today. I am grateful that, because laws 

have changed, they won’t have to face the same discrimination I faced 26 years ago. 

I have always taught them that every person has value and should be judged on 

his or her merit. I brought them to Washington with me today in hopes they might 

witness the first step toward eliminating workplace discrimination for all those 

Americans in the GLBT community. I thank you for your time and I strongly encourage you to pass this extremely important legislation. 

Chairman ANDREWS. Ms. Kramer, thank you. At the risk of destroying your credibility as a mom of teenage girls, could we ask 

you to name your daughters and have them stand so they can be 

introduced? 

Ms. KRAMER. Yes. My daughter, Marika Kramer Verog, is a junior in high school. And my daughter, Anna Kramer Verog, is a 

freshman in high school. 

Chairman ANDREWS. Welcome. And if they need a note from the 

committee to excuse them from Social Studies, we—Mr. Kline——

[Laughter.] 

Ms. KRAMER. The school was quite excited about this opportunity. 

Chairman ANDREWS. Okay. 

Ms. KRAMER. So, thank you. 

Chairman ANDREWS. Thank you. And welcome, young ladies, to 

the committee, as well. 

Brooke Waits has come a long way to tell the story she is going 

to tell today. She is typical of a lot of women in this country who 

have—and men—who have had to deal with the pain of discriminaVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
28

tion and risen above it to be strong. We are very fortunate she is 

with us today. 

Ms. Waits, welcome. 

STATEMENT OF BROOK WAITS 

Ms. WAITS. Thank you. 

I want to begin today by thanking you, Chairman Andrews, for 

the opportunity to come and testify about my personal experience 

with the kind of discrimination that shockingly still affects people 

across the country. 

Like so many other gay, lesbian, bisexual and transgender victims of workplace discrimination, I didn’t lose my job because I was 

lazy, incompetent, or unprofessional. Quite the contrary. I worked 

hard and did my job very well. 

However, that was all discarded when my boss discovered that 

I am a lesbian. In a single afternoon, I went from being a highlypraised employee to out of a job. The experience has been very, 

very difficult for me, as it has altered not only how I feel about the 

world, but also how I feel in the world. 

Work was more than work to me. It was part of what I know 

about myself, how I feel about myself. I never went to work simply 

to get through another day. I went to work to be a rock star. How 

I feel today is vastly different. 

Up until a month ago, I had not been employed full-time since 

the summer of 2006. For a few hours a week, I did some bookkeeping and taxes for my father’s small business. Working parttime and earning less than half the money I had still felt better 

than an atmosphere of contempt. 

Cellular Sales of Texas hired me in March of 2006 for the position of inventory control manager. I was responsible for all the 

stores throughout Texas and Oklahoma. My job was a position of 

trust: keeping track of valuable and frequently-stolen electronics. I 

was excited to take on a position of such importance and responsibility. 

I spent hours, even before the work day started, implementing a 

control system to help the store manage its inventory. I was frequently praised by my supervisor for dedication and quickly received praise for my job performance. 

But there was a negative side to my workplace, the side that 

kept me, an otherwise open lesbian, from being honest about myself with my coworkers. It wasn’t long before I began to hear male 

coworkers making jokes and other derogatory comments about gay, 

lesbian and bisexual, transgender people. A fellow female employee 

told me that my walk was not too feminine. 

I did not want to create any problem in this new job. In conversation, I tried to stay engaged, while carefully avoiding all pronouns, in particular, ‘‘she.’’ I spoke very generally, never using my 

girlfriend’s name. Instead, I used things like my better half. 

But that was not enough to keep my sexual orientation from 

costing me my job. Ironically, my cell phone proved to be the problem. Like many people, I had a photo of me and my girlfriend sharing a midnight kiss at a New Year’s Eve party saved as my cell 

phone screen saver. 

29

One day, in May 2006, my manager came into the back office to 

ask me a question. I was across the room sending a fax, but my 

manager stopped at my desk, noticing my cell phone sitting on it. 

Out of what I can only imagine was innocent curiosity, she opened 

my phone and exclaimed, ‘‘Oh, my.’’

I turned and looked at her. She didn’t even make eye contact before snapping her phone and rushing back into her office. She 

avoided me for the rest of the day, and I overheard her telling a 

coworker that she knew there was something off about me. 

I dreaded coming to work the next day and, to my dismay, my 

manager was already there 3 hours earlier than she usually arrived. As I passed her office door, she called me in, stood up, and 

without the slightest hesitation, told me that she was going to have 

to let me go. When I asked why, she told me that they needed 

someone more dependable in the position. 

I was shocked. I had arrived at work an hour early for weeks, 

not only implementing a brand new inventory system, but programming it and drafting instructions on how to use the software. 

When I defended myself, she simply repeated, ‘‘I am sorry. We 

just need to let you go.’’

I realize a law still won’t change the way some people like my 

employer feel about other people and certain issues. However, there 

is a sense of security knowing that the other hardworking Americans like me are protected under a law from situations like this 

from happening again. 

I do not believe that anyone should be exposed to a workplace 

where they have to worry about being who they are costing them 

their livelihood. Congress has the power to help stop the devastating effects of discrimination against gay, lesbian, bisexual and 

transgender people. Please pass the Employment Non-Discrimination Act. 

[The statement of Ms. Waits follows:]

Prepared Statement of Brooke Waits 

I want to begin by thanking Chairman Andrews and the members of subcommittee for giving me the opportunity to testify today about my personal experience with a kind of discrimination that, shockingly, still affects people across the 

country. Like so many other gay, lesbian, bisexual and transgender victims of workplace discrimination, I didn’t lose my job because I was lazy, incompetent or unprofessional. Quite the contrary—I worked hard and did my job well. 

However, that was all discarded when my boss discovered that I am a lesbian. 

In a single afternoon, I went from being a highly praised employee to out of a job. 

The experience has been very difficult for me, as it has altered not only how I feel 

about the world but also, how I feel in the world. Work was more than work to me; 

it was a part of what I know about myself and how I feel about myself. I never went 

to work simply to get through another day; I went to work to be a rock star. 

How I feel today is vastly different. Up until a month ago, I had not been employed full-time since the summer of 2006. For a few hours a week I did the bookkeeping and taxes for my father’s small business. Working part-time and earning 

less than half the money I had still felt better than an atmosphere of contempt 

Cellular Sales of Texas hired me in March of 2006 for the position of inventory 

control manager. I was responsible for all stores throughout Texas and Oklahoma. 

My job was a position of trust—keeping track of valuable, and frequently stolen, 

electronics. I was excited to take on a position of such importance and responsibility. 

I spent hours, even before the workday started, implementing a control system to 

help the store manage its inventory. I was frequently praised by my supervisor for 

my dedication, and quickly received a raise for my job performance. 

But there was a negative side to my workplace, a side that kept me, an otherwise 

open lesbian, from being honest about myself with my co-workers. It wasn’t long beVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
30

fore I began to hear male coworkers making jokes and other derogatory comments 

about gay, lesbian, bisexual and transgender people. A fellow female employee told 

me my walk was ‘‘not too feminine’’. I did not want to create problems in a new 

job, so, in conversation, I tried to stay engaged while carefully avoiding all pronouns, in particular, ‘‘she.’’ I spoke very generally, never using my girlfriend’s name. 

Instead I said things like, ‘‘my better half.’’

But that was not enough to keep my sexual orientation from costing me my job. 

Ironically, my own cell phone proved to be the problem. Like many people, I had 

a photo of me and my girlfriend—sharing a midnight kiss at a New Year’s Eve 

party—saved as my cell phone screensaver. One day in May 2006, my manager 

came into the back office to ask me a question. I was across the room sending a 

fax, but my manager stopped by my desk, noticing my cell phone sitting on it. Out 

of what I can only imagine was innocent curiosity, she opened my phone and then 

exclaimed ‘‘Oh my!’’ I turned and looked at her. She didn’t even make eye contact 

before snapping my phone shut, tossing it back on my desk and rushing back to her 

office. She avoided me for the rest of the day, but I overheard her tell a coworker 

that she ‘‘knew there was something off’’ about me. 

I dreaded coming to work the next day and, to my dismay, my manager was already there, three hours earlier than she usually arrived. As I passed her office 

door, she called me in, stood up and, without the slightest hesitation, told me that 

‘‘she was going to have to let me go.’’ When I asked why, she told me that they needed someone more ‘‘dependable’’ in the position. I was shocked—I had arrived at 

work an hour early every day for weeks, not only implementing a brand new inventory system, but programming it and drafting instructions on how to use the software. When I defended myself, she simply repeated, ‘‘I’m sorry, we just need to let 

you go.’’

I realize a law still won’t change the way some people, like my former employer, 

feel about other people or certain issues. However, there is a sense of security, 

knowing that other hardworking Americans like me are protected under law from 

situations like this happening again. I do not believe that anyone should be exposed 

to a workplace where they have to worry that simply and honestly being who they 

are could cost them their livelihood. Congress has the power to help stop the devastating effects of discrimination against gay, lesbian, bisexual and transgender people. Please, pass the Employment Non-Discrimination Act. 

Chairman ANDREWS. Ms. Waits, thank you very, very much for 

something I know that was difficult to do, but so very necessary for 

us to hear. And you did a great job, and we are so fortunate you 

are here today. Thank you. 

Ms. WAITS. Thank you. 

Chairman ANDREWS. Ms. Baker, welcome to the committee. We 

are happy to have you. 

STATEMENT OF KELLY BAKER, VICE PRESIDENT OF 

DIVERSITY, GENERAL MILLS, INC. 

Ms. BAKER. Thank you. 

Thank you, Chairman Andrews, and greetings to Ranking Member Kline from our mutual home state of Minnesota. And thank 

you to all of the distinguished members of the subcommittee for the 

opportunity to speak about the Employment Non-Discrimination 

Act of 2007. 

My name is Kelly Baker. I am the vice president of diversity at 

General Mills. We make Cheerios, Green Giant vegetables, 

Progresso soups, Pillsbury baked goods, and Yoplait yogurt, just to 

name a few of our household brands. 

We have over 28,000 employees. About 18,000 of those employees work in the United States. And we have sales of about $13.4 billion. 

We market our products to everyone. Today, 98 percent of U.S. 

households have a General Mills product within their kitchen. So 

31

it just makes good business sense for us to value all of our consumers, and we do. 

It also makes good business sense for us to create a work environment where every employee is respected, valued, challenged, 

and rewarded for their contributions and their performance each 

and every day. 

A diversity of opinions is vital for an innovative company like 

ours that creates hundreds of new products every year. A culture 

of respect and inclusiveness is also important to retaining top talent and recruiting new stars. The bottom line is that a respected 

employee is a productive employee. 

Our work environment was built on the foundation of our equal 

employment opportunity policy, which prohibits the discrimination 

of anyone based on age, race, color, religion, sex, national origin, 

marital status, disability, citizenship, military service, sexual orientation and gender identity, and any other characteristic that is 

protected by law. Sexual orientation has been part of our policy 

since the early 1990s. And we added gender identity to our policy 

in 2004. 

We know our policy and, more importantly, our company culture 

exemplifies the spirit of the Employment Non-Discrimination Act. 

In fact, 94 percent of our employees say that General Mills provides a working environment that is accepting of differences in 

backgrounds and lifestyles. 

As proud as I am of that statistic, I am even more proud when 

I walk around our campus and look at the varied pictures of families and the various compositions of families on all of our employees’ desks. 

Our culture of inclusion has been regularly recognized by external groups. Just last week, for example, LATINA Style Magazine 

named us once again as one of the top 50 companies for Latinas 

in America. 

We have also achieved 100 percent on the Human Rights Campaign Corporate Equality Index. And we are very proud of that. It 

recognizes our policies and practices that support our GLBT employees. 

We have also been honored by other organizations from Working 

Mother to Business Ethics to Fortune magazine. We are very proud 

of that. 

In addition to promoting diversity because of its benefits to our 

business, we also support this legislation because we believe it is 

the fundamental right of all American citizens to be treated fairly, 

with respect and dignity in their workplace, regardless of their sexual orientation or gender identity. 

Our support mirrors the state in which we are headquartered, 

Minnesota. We believe federal protection of our citizens will be a 

symbolic and effective means to deliver civil rights to everyone. 

We know that providing an environment where people of different backgrounds and lifestyles can grow and thrive is essential 

to our long-term success. In our business, innovation is key. People 

with diverse experiences and backgrounds bring different and 

uniquely valuable perspectives and solutions. This diversity drives 

innovation. That is why we support any practice or policy that encourages bringing more diversity to the table. 

32

Internally, we have done several things to encourage diversity, 

including the creation of several employee networks that we visibly 

and financially and through our senior leadership support. These 

affinity groups include our Black Champions Network, our Hispanic Network, our American Indian Council, our South Asian Employee Network, our Asian American Employee Network, our Women’s Leadership Group, and Betty’s Family, which is our GLBT network. 

Betty’s Family is named after one of our key icons, Betty Crocker. The mission of this network is to create a safe, open and productive environment for General Mills GLBT employees. One of our 

most senior executives helped co-found this network and has commented frequently on the powerful impact this network has on our 

ability to attract and retain top talent across the company. 

We know that these networks, in addition to our other policies 

and practices, are a tangible demonstration of our commitment to 

attracting, developing and advancing every unique employee at our 

company. 

We know that establishing a culture of respect is just a baseline 

for our employment standards. Beyond that, we strive to be an employer of choice, a place where we demonstrate a support for the 

personal needs of our employees, allowing them to be fully committed to work. And in 1999, we did introduce domestic partner 

benefits. 

In closing, please let me reiterate why General Mills believes this 

legislation is good for business and good for America. It will help 

businesses attract and retain top talent. It will help provide a safe, 

comfortable and productive work environment free from any form 

of discrimination. And it will help create a culture that fosters creativity and innovation that is vital to the success of all businesses. 

Thank you so much for the opportunity to speak today. 

[The statement of Ms. Baker follows:]

Prepared Statement of Kelly Baker, Vice President, Diversity, General 

Mills, Inc. 

Thank you Chairman Andrews and Ranking Member Kline for the opportunity to 

speak today in support of the Employment Non-Discrimination Act of 2007 (H.R. 

2015). And thank you distinguished members of the Subcommittee on Health, Employment, Labor and Pensions. My name is Kelly Baker and I am vice president of 

Diversity at General Mills. We make Cheerios, Green Giant vegetables, Progresso 

soups, Pillsbury baked goods and Yoplait yogurt, to name a few of our household 

brands. We have 28,500 employees—about 18,000 work in the United States—with 

annual sales of $13.4 billion. 

We market our products to everyone. Today, 98 percent of all U.S. households 

have at least one General Mills product in their kitchen. So it just makes good business sense to value all of our customers, which we do. But it also makes good business sense to create a work environment where every employee is respected, valued, 

challenged and rewarded for their individual contribution and performance. Because 

when you do this, good things happen. 

A diversity of opinions is vital for an innovative company like ours that creates 

hundreds of new products each year. A culture of respect and inclusiveness is also 

important for retaining top talent and recruiting new stars. The bottom line is that 

respected employees are productive employees. Our work environment was built on 

the foundation of our Equal Employment Opportunity policy, which prohibits discrimination based on age, race, color, religion, sex, national origin, marital status, 

disability, citizenship, sexual orientation, gender identity, military service, or other 

characteristic protected by law. Sexual orientation has been a part of our policy 

since the early 1990s and we added gender identity in 2004. 

33

We know our policy and, more importantly, our company culture exemplifies the 

spirit of the proposed Employment Non-Discrimination Act (ENDA). In fact, 94 percent of our employees say General Mills provides a working environment accepting 

of differences in background and lifestyle. As proud as I am of that statistic, I’m 

even prouder when I see this diversity prominently represented by all kinds of family pictures proudly displayed in peoples’ offices at General Mills. 

Our culture of inclusion has been regularly recognized by a variety of external 

groups. Just last week, for example, Latina Style magazine once again named General Mills as one of the top 50 companies in America for Latinas. We also achieved 

a 100 percent score on the Human Rights Campaign’s Corporate Equality Index, 

which recognizes the policies and practices we have that are supportive of our GLBT 

employees. We have also been honored as one of the: 

• 100 Best Companies to Work For, Fortune 2006, 2005, 2004

• 100 Best Corporate citizens, Business Ethics magazine, 2006, 2005, 2004, 2003

• 100 Best Companies for Working Mothers, Working Mother magazine, 11 

straight years 

• Top 50 Companies for Diversity, DiversityInc, 2007, 2005, 2004

DiversityInc said that for the fourth year in a row, its Top 50 companies—expressed as a stock index—beat the S&P 500, Dow Jones Industrial Average and the 

Nasdaq on a 10-, five- and one-year basis. That performance underscores the link 

between good diversity management, excellent corporate governance and return on 

equity for shareholders. 

In addition to promoting diversity because of its benefits to our business, we support the ENDA legislation because we believe it is a fundamental right of all American citizens to be treated fairly, with respect and dignity in the workplace, regardless of their sexual orientation or gender identity. Our support mirrors the state in 

which we are headquartered, Minnesota, which is one of 20 states to adopt legislation preventing discrimination on the basis of sexual orientation and gender identity. We believe federal protection of our citizens will be a symbolic and effective 

means to deliver civil rights to all. 

We know that providing an environment where people of different backgrounds 

and lifestyles can grow and thrive is essential to our long-term success. In our business, innovation is the key to survival. People with diverse experiences and backgrounds bring different and uniquely valuable perspectives and solutions. This diversity drives innovation. That’s why we support any practice or public policy that 

encourages bringing diversity to the table. 

Internally, we’ve done several things to encourage diversity. In the mid-1990s, we 

created our GLBT network, Betty’s Family, named after one of our key icons—Betty 

Crocker. This network’s mission is to create a safe, open and productive environment for General Mills’ GLBT employees. One of our most senior executives helped 

found this network and has commented frequently on the powerful impact it has 

had on our ability to recruit and retain top talent. We know this network, in addition to our six other affinity groups, is a tangible demonstration of our commitment 

to attracting, developing and advancing every unique employee. 

One of our newer employees, a marketing manager recruited from Northwestern’s 

Kellogg School of Management’s MBA program, said one of the reasons she chose 

to join General Mills, among many opportunities, was because of our dedicated 

GLBT network. She told me that any company can claim to have a GLBT network 

on their corporate Web site. But after talking with one of our employees who described how active our network is, she made her decision to join General Mills. 

We also understand that establishing a culture of respect is a baseline for our employment standards. Beyond that, we strive to be an employer of choice—a place 

where we demonstrate support for the personal needs of our employees to allow 

them to be fully committed to their work. In 1999, we introduced Domestic Partner 

benefits, another demonstration that we are committed to providing equality to our 

GLBT employees in all of our employment benefits. 

In closing, let me just reiterate why General Mills believes this legislation is good 

for business and good for America. It will: 

• Help businesses attract and retain top talent. 

• Help provide a safe, comfortable and productive work environment, free from 

any form of discrimination. 

• Help create a culture that fosters creativity and innovation that is vital to the 

success of all businesses. 

Thank you for the opportunity to speak to you today. I would be happy to take 

any questions. 

34

Chairman ANDREWS. Ms. Baker, thank you very, very much for 

your very thorough testimony. 

Mr. Lorber, we are fortunate you are bringing your wealth of experience to the committee this morning. Thank you and welcome. 

STATEMENT OF LAWRENCE LORBER, PARTNER, PROSKAUER 

ROSE, LLP 

Mr. LORBER. Thank you, Chairman Andrews, Ranking Member 

Kline. I appreciate the opportunity to testify before you. 

As Mr. Kline stated in his opening comments, words have meaning. And what I would like to do in this legislative hearing is to 

comment on the proposed language in H.R. 2015 and suggest that 

there may be some issues which this committee might want to consider as it considers this legislation. 

While I do bring experience here as an employment law practitioner, I am not testifying today on behalf of my law firm, clients 

or other affiliations. 

Let me begin by going through some of the sections of the act 

and highlight issues which I think may be subject to some consideration as you consider this bill. 

Sections 4(a)(1) and (2) are the nondiscrimination provisions of 

ENDA. They do incorporate within it the concept of gender identity, first introduced in this version of ENDA, which appears in 

Section 3(a)(6), which gives a definition of gender identity. However, this is a definition, frankly, without much meaning and without reference to a characteristic or status which is normally the 

basis upon which employment discrimination laws are passed. 

Employers have to know what they are dealing with in order to 

comply with the law. And to put a burden on an employer to deal 

with somebody’s innate personal consideration of their gender identity, without any reference to any specific action or status, places 

that employer in an extraordinarily difficult position. 

To the extent to which gender identity talks about sexual mannerisms, I would simply point out to the committee that in 1989 

the Supreme Court, in the Price Waterhouse v. Hopkins decision, 

held, in part—and really the key to its decision—that sexual 

stereotyping manifested by assumptions as to proper behaviors 

would form a basis for a Title VII violation. 

This has been the law since 1989. The Congress in 1991 in the 

Civil Rights Act, in fact, put that provision into Title VII. 

So now we have not a conflict, but we have a protection already. 

And to read gender identity now you have to read it to mean something else. And that something else is simply unclear. 

Let me address Section 4(g), which is the disparate impact section. 

Congressman Frank said that this bill does not require affirmative action. And I think it is appropriate, as the congressman 

noted, why it should not. However, 4(g), which is clear and unambiguous on its face, seems to be excepted specifically by Section 

8(a)(5), which creates an exception for the condition of marriage or 

marriageability. 

Quite candidly, it is absolutely unclear what Section 8(a)(5) 

means and how it can be applied in the context of this act. If, in 

fact, it is meant to prevent a consideration of a condition as a preVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
35

text for discrimination, a disparate treatment issue, then there is 

no need to except it from the prohibition against disparate impact 

under Section 4(g). 

So, too, Section 8(a)(1) can be construed as incorporating concepts of disparate impact in the treatment of employer rules and 

policies. While the legislation allows employers to establish their 

rules and policies, it does have a provision that none of those rules 

should circumvent the purposes of the act. If, for example, the committee might wish to add the word ‘‘intentionally’’ before ‘‘circumvent the purposes of the act,’’ I think it would be clear as to 

what this provision means and make it clear that the 4(g) prohibition on disparate impact would not apply. 

Let me briefly talk about Section 8(a)(3), which is the provision 

requiring adequate shower or dressing facilities. 

Again, it is unclear whether or not this would require employers 

to establish either additional facilities or to triage the use of facilities, particularly when you are talking about gender identity, 

which, as I noted, is not a status or a characteristic. Therefore, it 

is unclear to an employer what it must do. And it is absolutely unclear how this provision would apply. 

Let me move to Section 8(b). 

This is a section which states that nothing in this act shall require an employer to provide benefits on the basis of marriage. 

Nevertheless, Section 8(b), in the second clause of Section 8(b), I 

think represents an absolutely dramatic change in our understanding and the 33-year history of employment law, particularly 

ERISA preemption. 

There is no basis to this. I think this is not the purpose to talk 

about ERISA preemption. Quite frankly, that would take a hearing 

which might last days to examine. 

But, nevertheless, it seems to me that including this provision in 

this act, in this legislation, which will have the effect of eroding 

ERISA preemption, at least for the narrow purposes of ENDA, 

makes absolutely no sense. 

In conclusion, I do believe that the issues I have raised are appropriate for this committee as it works its way through this legislation. 

I would note that my own experience in dealing with employers 

is that the concern is to attract and retain the most competent, efficient and productive employees, without regard to personal characteristics and which do not have anything to do with the person’s 

sexual orientation. It is hoped that this committee will focus on 

this and work constructively with employer and interest groups to 

craft a statute consistent with sound employment policy and sound 

public policy. 

Thank you very much. 

[The statement of Mr. Lorber follows:]

Prepared Statement of Lawrence Z. Lorber, Partner, Proskauer Rose, LLP 

Chairman Andrews, Ranking Member Kline, members of the Committee, I am 

pleased to be invited to testify before you today on H.R. 2015, the Employment NonDiscrimination Act of 2007, ‘‘ENDA’’. 

My own background may be relevant to my comments on this legislation. I have 

been a labor law practitioner for 35 years starting in the Solicitor’s Office at the 

Department of Labor. I am a labor and employment partner in the Washington DC 

36

office of Proskauer Rose, LLP. In 1975 I was appointed by Secretary of Labor John 

Dunlop as a Deputy Assistant Secretary of Labor and Director of the Office of Federal Contract Compliance Programs, OFCCP, which enforces the various non-discrimination and affirmative action laws applicable to government contractors. In 

that capacity, the first regulations enforcing section 503 of the Rehabilitation Act 

were issued as well as the first comprehensive review of the E.O. 11246 regulations 

was undertaken. In private practice, I have represented and counseled employers 

on various issues relating to equal employment matters. In 1989 I was asked to represent various employer groups with respect to the consideration and ultimate passage of the Americans with Disabilities Act, and in 1991 I was counsel to the Business Roundtable during the consideration of the Civil Rights Act of 1991. In 1995 

I was honored to be appointed as a Member of the first Board of Directors of the 

Office of Compliance, which enforces the Congressional Accountability Act, applying 

11 employment and labor laws to the Congress. I have been management co-chair 

of the federal legislation committee of the Labor Section of the ABA and am chair 

of the EEO subcommittee of the US Chamber of Commerce. Over the years I have 

been asked to testify on various employment issues being considered by the Congress. 

The Employment Non-Discrimination Act of 2007

My purpose here today is not to recommend whether this Committee or the Congress should ultimately decide to pass this legislation but rather to offer comments 

on the latest version, and highlight issues which may warrant the attention of this 

Committee as it examines the legislation. While I do bring extensive experience as 

an employment law practitioner, I am not testifying today on behalf of my law firm, 

clients or other affiliations. 

The 2007 version of ENDA represents a continuation of the examination of the 

issues involving the consideration of sexual orientation under our federal employment laws and potential legislative responses. However, as I will highlight, the 2007 

version does contain several significant changes from prior versions which should 

be closely examined as they represent potentially far reaching changes in accepted 

employment law and may well have significant impact upon employers and employees. As a preliminary matter, it should be noted that without categorizing one or 

another of the laws as necessary or superfluous, there are probably more and different employment laws impacting upon the workplace, including federal, state and 

local than apply in other regulated areas. Some cover the same areas but have different administrative or enforcement procedures. Others include overlapping federal, state and local requirements but differ in scope, procedure or administration. 

And still others overlap within the same jurisdiction, so that one federal law implicates another. And it should be noted that the greatest single area of growth in federal civil litigation involves employment and labor law. Therefore the Congress 

should be cautious in adding to this growing and complex list of laws, and thereby 

the potential for increased litigation. And while section 15 of ENDA provides that 

nothing in this legislation, or law if it becomes enacted will invalidate or limit the 

rights under any other federal, State or local law, in fact there are some examples 

in the 2007 version of ENDA in which the plain meaning of the draft language will 

serve to circumvent or change other laws. Thus may I suggest that the Committee 

carefully weigh the impact of ENDA and its requirements on how the regulated 

community must adopt to its proscriptions and how the protected community will 

understand their rights. 

Section 4(a)(1)(2) 

The analysis of ENDA should begin with Section 4 (a)(1) and (2), the core description of unlawful employment practices. There is a major new issue raised in this 

section which the Committee may wish to focus on. For the first time, a new protected category, Gender Identity, has been introduced into the legislation. The term 

is defined in section 3 (a) (6) as ‘‘the gender related identity, appearance, or mannerisms or other gender-related characteristics of an individual, without regard to the 

individual’s designated sex at birth.’’ While gender identity may be viewed as a 

manifestation of an individual’s sexual orientation as defined in section 3 (a)(9), gender-identity, as defined in the bill does not seem to relate to any discernable innate 

characteristic or sexual orientation. Rather, as used in section 4 (a) it appears to 

relate to actions or representations of an individual perhaps related to sexual orientation or perhaps not. Thus, it stands as an independent protected classification 

not grounded in any discernable characteristic or status which is the basis for all 

of the non-discrimination legislation. I would suggest that the Committee examine 

in more detail how an employer might deal with this issue and insure that it does 

not violate the law. While, for example, section 8 (a)(4) permits employers to estabVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
37

lish neutral reasonable dress or grooming standards, might not the requirement to 

accommodate an individual’s gender identity, which may or may not have relationship to the individual’s sexual orientation or gender transition, undermine the protection of section 8 (a)(4)? It is unclear why this new protected classification was 

added to ENDA when the protection for sexual orientation would seem to encompass 

activities and mannerisms related to orientation. And further, existing Title VII 

case law and statute would seem to adequately deal with the issue raised by the 

addition of gender identity into the proposed legislation. In Price Waterhouse v Hopkins, 490 US 228 (1989), the Supreme Court held in part that improper sexual 

stereotyping manifested by assumptions as to ‘‘proper behaviors’’ based upon sex 

could well form the basis for a Title VII action. The Hopkins decision was further 

clarified in Section 107 of the 1991 Civil Rights Act, see 42 USC §2000e-2(m) which 

codified the plurality holding in Hopkins regarding mixed motive cases. 

Section 4(e) 

I would note as well that section 4 (e) of the legislation which prohibits association discrimination also includes gender identity. Section 4 (e) is modeled after the 

ADA,42 USC sect 12112 (b)(4) and is understandable when applied to defined characteristics. It is less than clear, however, when applied to non- inherent characteristics which may be self-perceived by the individual but not apparent to the employer. 

This will seem to create the potential for difficult enforcement and even more potentially difficult litigation since the underlying issue may be ephemeral or not readily 

apparent to the employer. Again, understanding the law makes compliance with the 

law an acceptable undertaking. 

Section 4(g), Section 8 (a)(5)), Section 8(a)(1) 

Section 4 (g) appropriately provides that only disparate treatment and not disparate impact claims may be brought under this Act. I would suggest that direct 

reference be made to section 42 USC §2000e-2(k) which is the first statutory definition of disparate impact so that the concept of disparate impact is clearly understood. 

However, I must note that while section 4 (g) seems clear and unambiguous, it 

is excepted by section 8 (a)(5), which seems to prohibit any employer action based 

upon the legal status of marriage and is expressly distinguished from section 4 (g). 

It is not clear at all what is meant by this section, particularly as section 8 (b) 

states that notwithstanding section 8 (a)(5), employee benefits conditioned on marriage are not affected by this Act. If this section is meant to clarify the concept of 

pretext under traditional disparate treatment analysis, then certainly there is no 

basis to exempt it from the prohibition against considering disparate impact claims 

under this statute. However, if section 8(a)(5) calls for some form of disparate impact analysis, then I think it is both inappropriate in the context of the legislation 

as drafted and subject to a great deal of confusion. I am not aware of any employer 

which requires employees to be married, nor would I believe such a requirement 

would stand analysis under existing employment law. So too section 8(a)(1) could 

be construed as incorporating concepts of disparate impact in its treatment of employer rules and policies. In particular, the Committee might wish to add the word 

‘‘intentionally’’ before ‘‘circumvent the purposes of this Act’’ to insure that this language is not used to attack neutral policies which may be perceived to violate the 

Act, which would directly import disparate impact into the Act. 

Section 5

Section 5 prohibits retaliation against an individual who opposes any practice 

made unlawful by this Act, or who makes a charge or testifies pursuant to this Act. 

Prohibition against retaliation is well understood in the broad context of employment law and appropriate to be included in ENDA. However, since the concept of 

retaliation is well understood in employment law, the Committee might want to insure that the definition in section 5 is compatible with existing law rather than establish different concepts or use language not grounded in established precedent. 

Section 6

Section 6 of ENDA deals with the application of the proposed statute to Religious 

Organizations. While I understand that this issue will be specifically addressed in 

this hearing, I do believe it important to note that religious organizations or religious affiliated organizations are employers and there seems to be a degree of uncertainty as to the precise meaning of section 6 particularly as it differs in structure 

from the analogous provision in Title VII. Therefore, it would seem appropriate for 

the Committee to undertake a careful examination of the exemption to assure that 

it is appropriately drafted to achieve its intended purpose. 

38

Section 8(a)(3) 

Section 8(a)(3) requires an employer to provide adequate shower or dressing facilities to employees undergoing transgender transition. The committee should address 

whether this section creates the requirement for the provision of additional facilities 

or the requirement that use of certain facilities be timed to insure employee comfort 

for all employees. In addition, section 8(a)(3) as drafted requires that facilities not 

only accommodate employees who have undergone or are undergoing gender transition, but to accommodate the employees self-perceived gender identity. This would 

seem to present an extremely difficult standard for employers to meet and in fact 

would seem to require an employee to register his or her gender identity with the 

employer at the time of employment which seems to be highly intrusive to both employer and employee. 

Section 8(a)(4) 

Section 8(a)(4) provides that an employer may apply reasonable dress code and 

grooming requirements. However, now that the concept of gender identity as a protected classification has been added to the bill, there are now certain issues which 

must be addressed. It is simply unclear how a reasonable dress code can coexist 

with the added, indefinite classification of self-perceived gender identity. This exception seems to negate any meaning for the rule. This differs from the consideration 

for employees who have undergone or are undergoing gender transition. Again, the 

practical implications of this provision should be carefully examined. 

Section 8(b) 

Section 8 (b) of the 2007 version of ENDA contains a significant change from prior 

versions of ENDA and which creates a substantial issue. Section 8(b) specifically 

permits a State or a subdivision of a State to pass a law or establish a requirement 

impacting an employee benefit notwithstanding any other law. Simply put, this section will overturn, in the circumstances of this Act only, the long standing concept 

of ERISA preemption. Without getting into the nuances and particulars, ERISA preemption has received solid Supreme Court approval , see e.g. Shaw v Delta Airlines, 

463 US 85 (1983) and has been universally deemed to be the bedrock of national 

benefits policy. It would therefore seem to be highly questionable to cavalierly overturn that 33 year old concept in the context of this Act and for an undefined reason. 

This section should be carefully reviewed as it appears to directly contradict ERISA, 

undermine established precedent and, I believe, would engender significant opposition to the legislation.. 

Conclusion 

I believe that the issues I have raised are appropriate as this Committee works 

its way through this legislation. I would note that my own experience in dealing 

with employers is that the concern is to attract and retain the most competent, efficient and productive employees without regard to personal characteristics and which 

do not have anything to do with a person’s sexual orientation It is hoped that the 

Committee will focus on this and work constructively with employer and interest 

groups to craft a statute consistent with sound employment policy and sound public 

policy. 

Thank you. 

Chairman ANDREWS. Mr. Lorber, thank you for your very 

thoughtful testimony. It gives the committee a lot of good issues to 

consider. Thank you very, very much. 

Professor Badgett, welcome to the committee. 

STATEMENT OF M.V. LEE BADGETT, ASSOCIATE PROFESSOR 

OF ECONOMICS, UNIVERSITY OF MASSACHUSETTS; RESEARCH DIRECTOR, THE INSTITUTE FOR GAY AND LESBIAN 

STRATEGIC STUDIES 

Ms. BADGETT. Thank you. 

Good morning, Chairman Andrews and members of the committee. 

Today, I want to make three main points to document the need 

for the Employment Non-Discrimination Act. 

39

My first point is that decades of social science research have uncovered evidence of discrimination in employment against lesbian 

and gay, bisexual and transgender Americans—whom I will call, if 

you will, LGBT Americans, for short—in workplaces across the 

country. 

Two recent national surveys give the clearest overall picture of 

discrimination. In 2000, a Kaiser Family Foundation survey found 

that 18 percent of LGBT people living in urban areas reported experiences of employment discrimination. In a 2005 survey, 16 percent of lesbians and gay men and 5 percent of bisexual people reported employment discrimination. 

There were also many, many local community surveys of nonrandom samples of LGBT people that also find evidence of unequal 

treatment in the workplace. 

Similar national studies have not been done on gender identity 

discrimination, unfortunately. However, 11 recent local surveys of 

transgender people have found that at least 20 percent, and as 

many as 57 percent, report having experienced some form of employment discrimination. 

From another angle, in the states that already outlaw sexual orientation discrimination, we have seen that LGBT people are as 

likely to file discrimination complaints as are people in other 

groups that are currently protected under federal law. 

My colleague, William Rubenstein, has shown that the annual 

rate of sexual orientation complaints was 3 per 10,000 LGBT people, on average, in these states. And I will point out that figure is 

quite similar to the number of sex discrimination complaints per 

woman, which is about 9 per 10,000 women, and race-related complaints per person of color, which is about 8 per 10,000 people. 

A third way to identify the extent of discrimination is to create 

experiments to see if LGBT people and heterosexual job applicants 

are treated equally. All three such experiments in the U.S. have 

found evidence of unequal treatment of gay applicants in a variety 

of job situations. 

Another way to measure discrimination is to compare the earnings of people who have different personal characteristics, like sexual orientation, but have the same productive characteristics to see 

if employers are paying people in those two groups equally. 

Twelve studies conducted in the U.S. over the last decade show 

a significant pay gap for gay men. Gay and bisexual men earn from 

10 percent to 32 percent less than similarly qualified heterosexual 

men. Now, economists and sociologists would interpret that wage 

gap as evidence of discrimination by employers. 

Those studies also lead to my second main point, which is that 

sexual orientation discrimination results in economic harm to 

LGBT people, reducing their earnings by thousands of dollars. We 

have no similar studies related to gender identity, but the surveys 

I mentioned earlier do show that transgender people report very 

low incomes, often below the poverty line. 

Although discrimination hurts, the good news is that nondiscrimination laws appear to help. Two very recent and, as yet, 

unpublished studies by my UCLA colleagues, find that state-level 

nondiscrimination laws reduce the wage gap for gay men. 

40

My third and final point is that America’s businesses are also 

likely hurt by the direct and indirect effects of discrimination in 

the workplace. 

Economists and employers have long argued that businesses will 

be most successful when they recruit, hire and retain employees on 

the basis of ability, not personal characteristics like sexual orientation or gender identity that have no impact on an employee’s job 

performance. You have heard several direct testimonies to that effect. 

Employers would also gain from having LGBT workers who no 

longer need to conceal their sexual orientation or gender identity 

out of fear of discrimination. Employers have a stake in these individual decisions because research suggests that greater openness 

improves LGBT workers’ well being and their job performance. 

Perhaps the best evidence that nondiscrimination policies are 

good for business comes from the fact that many companies have 

voluntarily added sexual orientation and gender identity to their 

nondiscrimination policies. 88 percent of the Fortune 500 policies 

include sexual orientation and a quarter have added gender identity. 

Despite that progress, however, only 17 percent of American 

workers are employed by companies with those policies, and only 

29 percent of Americans live in states that prohibit both sexual orientation and gender identity discrimination, leaving a big hole in 

the legal protection for millions of other workers. 

To sum up decades of research document discrimination based on 

sexual orientation and gender identity, our country’s employers 

would be better off with an LGBT workforce that no longer fears 

discrimination. Passing the Employment Non-Discrimination Act 

would serve to benefit both employees and employers. 

Thank you. 

[The statement of Ms. Badgett follows:]

Prepared Statement of M.V. Lee Badgett, Associate Professor of Economics, 

University of Massachusetts 

Good morning, Chairman Andrews and members of the committee. I am an economist and the research director of the Williams Institute on Sexual Orientation Law 

and Public Policy at UCLA, and I also direct the Center for Public Policy and Administration at the University of Massachusetts Amherst. I have studied employment discrimination based on sexual orientation, race, and gender for more than fifteen years and have published two books and numerous studies on this topic. 

Today I am here to speak to you about HR 2015, the Employment Non-Discrimination Act of 2007. As you know, this bill would outlaw discrimination in hiring and 

other employment decisions based on sexual orientation and gender identity. I want 

to make three main points to document the need for this legislation. 

First, decades of social science research have demonstrated that employment discrimination against lesbian, gay, bisexual, and transgender (LGBT) Americans occurs in workplaces across the country. This evidence comes from many different 

methods of studying discrimination, including self-reported experiences on surveys, 

official complaints of discrimination in states that already ban it, experiments to 

measure the treatment of LGBT job applicants, and comparisons of wages earned 

by LGBT people and heterosexual people. Together these sources provide ample evidence that employment discrimination based on sexual orientation and gender identity is a serious problem in the United States. 

Many academic researchers and community groups have surveyed lesbian, gay, bisexual, and transgender individuals. I have reviewed more than 35 such studies 

that have been conducted over the last two decades. Each survey documents numerous experiences of being fired, being denied a job, or some other form of unequal 

41

treatment in the workforce that stemmed from these individuals’ sexual orientation 

or gender identity. 

Two fairly recent national surveys of random samples of the LGB population give 

the clearest overall picture of sexual orientation-related discrimination. In 2000, a 

survey by the Kaiser Family Foundation found that 18% of LGB people living in 

urban areas reported employment discrimination. Heterosexuals surveyed in a companion study agree that LGB people are vulnerable: more than three-quarters of 

heterosexuals surveyed by the Kaiser Family Foundation believed that LGB people 

commonly experience employment discrimination. More recently, a 2005 survey by 

Dr. Gregory Herek found that 16% of lesbians and gay men and 5% of bisexual people reported having experienced employment discrimination. A quarter of LGB people disagreed with a statement asserting that most employers in their areas would 

hire openly LGB people if they are qualified for the job. Numerous local community 

surveys of nonrandom samples of LGBT people find that sexual orientation discrimination is also commonly reported in those areas. 

Similar national studies have not been conducted related to discrimination based 

on gender identity, unfortunately. However, eleven recent local surveys of 

transgender people have found that at least 20% and as many as 57% report having 

experienced some form of employment discrimination. 

A different source of data supports the finding that discrimination based on sexual orientation is common, and perhaps as common as other kinds of discrimination. 

The GAO has collected the numbers of sexual orientation discrimination complaints 

in states that outlaw such treatment. The GAO reported that the number of complaints is relatively small compared with the overall level of complaints filed at 

state agencies. However, my colleague William Rubenstein has shown that in the 

1990’s the annual rate of complaints was 3 per 10,000 LGB people on average in 

these states (assuming that LGB people are 5% of the U.S. population). That figure 

is quite similar to the number of sex discrimination complaints per woman (nine per 

10,000 women) and race-related complaints per person of color (8 per 10,000). In 

other words, LGB people are about as likely to file discrimination complaints as are 

people in groups that are currently protected against discrimination under federal 

law. 

Another method of identifying the extent of discrimination is to create experiments in which some people are coded as LGB on a resume when they apply for 

a real or hypothetical job, and their experience is compared with that of an otherwise identical heterosexual applicant. Three such studies in the United States found 

evidence of unequal treatment of gay applicants in a variety of job situations. 

An additional way that economists and sociologists look for evidence of discrimination is to compare the earnings of people who have different personal characteristics, such as sexual orientation, but the same productive characteristics. If there is 

a wage difference after controlling for all of the factors that we reasonably expect 

to influence wages, such as education and experience, then most of us would conclude that discrimination is likely the reason for the wage gap for the disadvantaged 

group. 

We now have more than a decade of research and twelve studies that compare 

earnings by sexual orientation in the United States. All twelve studies show a significant pay gap for gay men when compared to heterosexual men who have the 

same productive characteristics. Depending on the study, gay and bisexual men 

earn from 10% to 32% less than similarly qualified heterosexual men. Lesbians generally earn the same as or more than heterosexual women, but lesbians earn less 

than either heterosexual or gay men. 

The studies showing wage gaps also lead to my second main point: sexual orientation discrimination results in economic harm to LGB people, reducing their earnings 

by thousands of dollars. We have no similar studies related to gender identity, but 

the studies I mentioned earlier show that transgender people report very low incomes, often below the poverty line. 

Discrimination hurts, but nondiscrimination laws appear to help. Two very recent 

and as-yet unpublished studies by my UCLA colleagues find that state-level nondiscrimination laws reduce this wage gap for gay men and lesbians when compared 

with heterosexual men. These studies drew on data from the 2000 Census and found 

that gay men and lesbians earned 2-4% higher wages when they lived in states with 

sexual orientation nondiscrimination laws. 

My third and final point is that America’s businesses are also likely hurt by the 

direct and indirect effects of discrimination in the workplace. Economists and businesses have long argued that businesses will be most successful when they recruit, 

hire, and retain employees on the basis of talent, not personal characteristics that 

have no impact on an employee’s ability to perform a job well. 

42

Beyond that most basic reason to forbid discrimination, the evidence suggests that 

employers would also gain in other ways if ENDA were passed. Numerous studies 

from various academic disciplines suggest that LGBT workers will be healthier and 

more productive workers if they have legal protection from discrimination. 

The key link here is between discrimination and disclosure of one’s sexual orientation or gender identity. Many studies have demonstrated that discrimination keeps 

LGBT workers from revealing their sexual orientation in the workplace. Although 

having experienced discrimination directly is a powerful reason for some to ‘‘stay in 

the closet,’’ many studies show that LGBT people who fear discrimination are also 

less likely to reveal their sexual orientation to co-workers and supervisors. 

Employers have a stake in these individual decisions, since disclosure has potentially positive benefits to LGBT workers’ well-being and job performance. Studies 

find that people who have come out report lower levels of anxiety, less conflict between work and personal life, greater job satisfaction, more sharing of employers’ 

goals, higher levels of satisfaction with their co-workers, more self-esteem, and better physical health. 

On the flipside, when fear of discrimination causes LGBT employees to conceal 

their sexual orientation or gender identity, employers experience negative costs 

along with LGBT people themselves. The time as well as social and psychological 

energy that is required to maintain a hidden identity would, from an employer’s perspective, be better used on the job. 

As in the case of wage gaps, nondiscrimination policies can improve the workplace 

climate and influence choices about disclosure and concealment. Several studies 

have found higher levels of disclosure in workplaces when employers have their own 

non-discrimination policies that include sexual orientation. And one study found 

that LGBT people who live in places covered by a nondiscrimination law had higher 

levels of disclosure than those in unprotected locations. 

Perhaps the best evidence that nondiscrimination policies are good for business 

comes from the fact that many companies have voluntarily adopted such a policy. 

The most recent tally shows that 88% of the Fortune 500 companies have added sexual orientation to their nondiscrimination policies, and 25% have added gender identity. Despite that progress, only 17% of American workers are employed by companies with those policies, leaving a big hole in the legal protections provided for millions of other workers. 

To sum up, decades of research show that discrimination based on sexual orientation and gender identity exists in our nation’s workplaces. This discrimination hurts 

LGBT people in their paychecks and in their health and workplace experiences. Our 

nation’s employers would be better off with an LGBT workforce that no longer fears 

discrimination. Passing the Employment Non-Discrimination Act would serve to 

benefit both employees and employers. 

Chairman ANDREWS. Professor, thank you very much for giving 

us that context for the consideration of our deliberations here. 

Mr. Fahleson? Professor Fahleson, welcome to the committee. We 

look forward to your testimony. 

STATEMENT OF MARK FAHLESON, REMBOLT LUDTKE, LLP; 

ADJUNCT PROFESSOR OF EMPLOYMENT LAW, THE UNIVERSITY OF NEBRASKA COLLEGE OF LAW 

Mr. FAHLESON. Not professor. 

Mr. Chairman, Ranking Member Kline, members of the committee, again, my name is Mark Fahleson. I am an employment 

law practitioner from America’s heartland in Lincoln, Nebraska. 

And I am here today as an employment law practitioner, someone 

whose clients are primarily small-and medium-sized businesses. 

In addition, my practice includes representing a number of religious institutions and faith-based organizations. We currently provide legal services to a number of religious colleges and universities, high schools, elementary schools, as well as faith-based employers. 

Like Mr. Lorber, I do not appear on behalf of my law firm, any 

particular client or organization, but rather testify as an employVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
43

ment law practitioner who spends the bulk of his day on the telephone, answering emails and questions from clients as they try to 

navigate the myriad employment laws with which employers must 

deal with on the local, state and federal level. 

Unfortunately, in its current form, H.R. 2015 would add yet another layer of confusion for these employers, especially religious 

and faith-based organizations. 

I generally concur with the analysis of Mr. Lorber, both in his 

written testimony, as well as that here today. Consequently, my remarks this morning will focus on Section 6, which is the so-called 

religious exemption. 

As the ranking member noted in his opening comments, predecessor legislation to H.R. 2015 contained a blanket exemption for 

religious organizations. 

For example, H.R. 3285 introduced in the 108th Congress by Mr. 

Frank and Mr. Shays expressly provided that the legislation shall 

not apply to a religious organization, which the legislation broadly 

defined to include religious corporations, associations, societies, 

schools, colleges, universities and educational institutions. 

Again, while H.R. 2015 has a section entitled ‘‘Exemption for Religious Organizations,’’ it is really no meaningful exemption at all. 

Essentially, Section 6 contains two very narrow avenues under 

which a religious organization or a faith-based organization or individuals employed by such may not be covered. 

First is what I will call the religious enterprise exemption. And 

that provision, which is 6(a), states that the act shall not apply to 

the employment practices of a religious corporation, association, 

educational institution, or society which has as its primary purpose 

religious ritual or worship or the teaching or spreading of religious 

doctrine or belief. 

The second exemption is in Section 6(b), which I will call the limited individual exemption, which applies to a narrow subset of individuals who are employed by employers who are not already exempt under the limited religious enterprise exemption in 6(a). That 

exemption states that the act shall not apply with respect to the 

employment of individuals whose primary duties consist of teaching or spreading of religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participating in religious ritual or worship. 

This individual exemption appears to codify a judicially-created 

exception called—and, unfortunately misnamed—the ministerial 

exception. 

The proposed limited religious enterprise and individual exemptions raise a number of issues that would be of tremendous concern 

to the religious and faith-based employers that I represent. I have 

set forth a number of real-life hypotheticals in my written testimony. Let me highlight a couple of those here this morning. 

First, is a Catholic high school that markets itself as a collegepreparatory learning institution deemed under this legislation to 

have as its primary purpose religious ritual or worship or the 

teaching or spreading of religious doctrine or belief and is, therefore, exempt under the enterprise exemption? If the answer is no, 

then would the limited individual exemption apply to the volleyball 

44

coach at that same Catholic high school who, in addition to coaching and mentoring student athletes, also leads the team Bible 

study? 

Would a Lutheran university with undergraduate and graduate 

degree programs ranging from art to chemistry to business to theology fall under the limited religious enterprise exemption? And if 

the answer is no, would the individual exemption apply to, for example, the Lutheran university provost, whose duties include administration of the academic, as well as ministry, programs? 

As these hypotheticals point out, the exemptions are far too narrow to adequately cover these religious institutions. Moreover, the 

focus on the terms of primary purpose or primary duties are vague 

and highly fact specific, making it extremely difficult to advise religious and faith-based clients as to their duties and obligations. 

In addition, the proposed primary purpose and primary duties 

test raise significant constitutional issues that must be addressed. 

The question for this subcommittee and committee is whether government should play a role in the selection of religious organization 

employees and whether this anticipated entangling of government 

into religious affairs is constitutionally permissible. 

Obviously, the blanket exemption for religious organizations 

found in prior versions is preferred. 

With that, I will conclude my testimony. 

[The statement of Mr. Fahleson follows:]

Prepared Statement of Mark A. Fahleson, Rembolt Ludtke, LLP; Adjunct 

Professor of Employment Law, the University of Nebraska College of Law 

Mr. Chairman and members of the Committee, I want to thank you for this opportunity to share my views with respect to H.R. 2015—The Employment Non-Discrimination Act of 2007, or ‘‘ENDA’’—as it is currently drafted. 

First, a little background about myself and why I am here. I practice employment 

and labor law in Lincoln, Nebraska, and have served as an adjunct professor teaching employment law at the University of Nebraska College of Law. Most of my clients are small to medium-sized employers. We also represent several religious-affiliated organizations, including religious colleges and universities, high schools and elementary schools, as well as faith-based employers. Today I do not appear on behalf 

of any particular client or organization but, rather, to testify as an employment law 

practitioner who spends the bulk of his day answering questions from clients about 

how to navigate the myriad employment laws and regulations that employers must 

deal with on a daily basis. Unfortunately, in its current form H.R. 2015 would add 

yet another layer of confusion for these employers, especially religious and faithbased organizations. 

Is a Federal Remedy Necessary? 

At the outset, I believe it is appropriate to ask the question: is a broad, new federal remedy for sexual orientation and gender identity employment discrimination 

such as that embodied in H.R. 2015 necessary at this time? As the Committee is 

aware, a significant number of employers have voluntarily adopted policies barring 

discrimination on the basis of sexual orientation and transgender status. In addition, several states and municipalities have enacted local regulatory schemes addressing sexual orientation and/or transgender discrimination in the workplace. For 

the last 32 years legislation has been introduced in Congress seeking to prohibit 

sexual orientation discrimination in employment. Meanwhile, it appears that the 

free market and local regulators are already addressing the issues raised by this 

legislation. 

Purported Exemption for Religious Organizations and Certain Employees Unnecessarily Narrow 

Predecessor legislation to H.R. 2015 provided blanket exemptions for religious organizations. For example, H.R. 3285 introduced in the 108th Congress by Messrs. 

Shays and Frank expressly provided that the legislation ‘‘shall not apply to a religious organization,’’ which was broadly defined to include religious corporations, asVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
45

sociations, societies, schools, colleges, universities and educational institutions. Although H.R. 2015 contains a section entitled ‘‘Exemption for Religious Organizations,’’ in reality it contains no meaningful exemption at all. 

Section 6 contains two exceptionally narrow avenues under which a religious or 

faith-based organization or individuals employed by such an organization may not 

be covered. 

First, Section 6(a) contains what I will call the limited Religious Enterprise Exemption. This provision states that the ‘‘Act shall not apply to any of the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or 

spreading of religious doctrine or belief.’’

Second, Section 6(b) contains what I will call the limited Individual Exemption, 

which applies to a narrow subset of individuals who are employed by employers not 

wholly exempt under the limited Religious Enterprise Exemption. The limited Individual Exemption provides that the ‘‘Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious 

doctrine or belief, religious governance, supervision of a religious order, supervision 

of persons teaching or spreading religious doctrine or belief, or supervision or participating in religious ritual or worship.’’ This appears to be an attempt to partially 

codify what is (inaccurately) called the ‘‘ministerial exception.’’ Rayburn v. SeventhDay Adventists, 772 F.3d 1164, 1169 (4th Cir. 1985). 

It is important to note that the limited Religious Enterprise Exemption is far narrower than the religious exemption currently found in Title VII with respect to 

claims of religious discrimination:

Title VII H.R. 2015

This subchapter shall not apply to * * * a religious corporation, association, educational institution, or society 

with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational 

institution, or society of its activities.’’

42. U.S.C. §2000e-1. 

This Act shall not apply to any of the employment practices of a religious corporation, association, educational 

institution, or society which has its primary purpose religious ritual or worship or the teaching or spreading 

of religious doctrine or belief.

Section 6(a) (emphasis added). 

The proposed limited Religious Enterprise and Individual Exemptions raise a 

number of issues that would be of tremendous concern to religious and faith-based 

employers such as those I represent. Consider the following real life hypotheticals: 

• Is a Catholic high school that markets itself as a ‘‘college preparatory learning 

institution’’ deemed to have as ‘‘its primary purpose religious ritual or worship or 

the teaching or spreading of religious doctrine or belief’’ and therefore exempt under 

the limited Religious Enterprise Exemption? 

• If the answer is ‘‘no,’’ then would the limited Individual Exemption apply to the 

volleyball coach at that same Catholic high school who, in addition to coaching and 

mentoring student-athletes, also leads the team Bible study? 

• Would a Lutheran university, with undergraduate and graduate degree programs ranging from art to chemistry to business to theology, fall under the limited 

Religious Enterprise Exemption? 

• If the answer is ‘‘no,’’ then would the limited Individual Exemption apply to the 

Lutheran university provost position, whose essential duties include the administration of university’s academic as well as ministry programs? 

• Would a Jewish child care, affiliated with and housed adjacent to a Jewish synagogue, have as ‘‘its primary purpose religious ritual or worship or the teaching or 

spreading of religious doctrine or belief’’ and therefore be exempt under the limited 

Religious Enterprise Exemption? 

• If the answer is ‘‘no,’’ then would the limited Individual Exemption apply to the 

child care teacher assigned to the three-year olds? 

• Does the limited Religious Enterprise Exemption cover a social services organization affiliated with the Southern Baptist Church whose mission statement is ‘‘to 

bring compassion and justice to the world’s poorest people’’? 

• How would caregiving employees for the Red Crescent Society, a Muslim-affiliated charitable organization, be treated under the Act? 

• Would a charitable foundation affiliated with a Christian congregation have as 

‘‘its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief’’ and therefore be exempt under the limited Religious Enterprise Exemption? 

• If the answer is ‘‘no,’’ then would the limited Individual Exemption apply to the 

development director employed by that same charitable foundation if her primary 

46

duties are to advise potential donors on estate planning issues and raise funds for 

the foundation, which benefits the Christian congregation? 

These scenarios all seek to highlight some of the problems with the two limited 

exemptions as currently drafted. The most important flaw that needs to be addressed is each exemption’s reliance on a ‘‘primary purpose’’ or ‘‘primary duties’’ 

test. Both of these tests are vague and highly fact-specific, thereby making it extremely difficult to advise religious and faith-based clients as to their duties and obligations. A similar ‘‘primary duty’’ standard has been used for purposes of the Part 

541 overtime exemptions for the Fair Labor Standards Act, see 29 C.F.R. §541.700 

(2006), and has been the source of significant uncertainty, high noncompliance rates 

and endless litigation. Use of the same or similar standard for purposes of the religious exemptions in H.R. 2015 will likely have the same costly result. 

In addition, the proposed ‘‘primary purpose’’ and ‘‘primary duties’’ tests raise significant constitutional issues that must be considered. Courts generally recognize 

that government probing or examination of the affairs of religious organizations is 

to be avoided. Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.3d 360 

(8th Cir. 1991). Given the vague and fact-specific nature of these two tests, it is inevitable that courts will be called upon to delve into church or religious matters to 

determine the ‘‘primary purpose’’ of a religious organization or the ‘‘primary duties’’ 

of a particular employee of a faith-based organization. Whether this anticipated entangling of government in religious affairs is constitutionally permissible must be 

addressed. 

Finally, it is curious why the limited Religious Enterprise Exemption, unlike the 

Title VII religious exemption, exempts the ‘‘employment practices’’ of the religious 

organizations rather than the religious organizations themselves. The intent of this 

distinction requires exploration. 

Obviously, the blanket exemption for religious organizations found in prior 

versions of ENDA provides greater certainty and is less problematic for religious 

and faith-based employers, as well as the judiciary. 

While the main focus of my testimony is the problems I have identified with the 

purported religious exemptions, I do wish to comment on a few other issues with 

respect to the proposed legislation. 

Definition of ‘‘Gender Identity’’ is Vague and Overly Broad 

Unlike prior versions of this legislation, H.R. 2015 seeks to add a new protected 

class for actual or perceived ‘‘gender identity.’’ The term ‘‘gender identity’’ is defined 

by the legislation as ‘‘the gender-related identity, appearance, or mannerisms or 

other gender-related characteristics of an individual, with or without regard to the 

individual’s designated sex at birth.’’ This definition is exceptionally vague and 

problematic. 

For example, based upon the proposed definition, it appears that an employee can 

self-identify what their gender is, and that this subjective declaration can change 

an unlimited number of times without notice to the employer. Moreover, the expansiveness of this new protected class is demonstrated by protection of individuals because of a ‘‘perceived’’ gender identity. 

The amorphous nature of the definition of ‘‘gender identity’’ is further compounded by the legislation’s prohibition on ‘‘association’’ discrimination. Section 4(e) 

of H.R. 2015 prohibits adverse employment actions being taken against ‘‘an individual based on the actual or perceived sexual orientation or gender identity of a 

person with whom the individual associates or has associated.’’ Thus, in addition to 

protecting individuals based on their actual or perceived gender identity, the legislation protects individuals who presently associate or at some point in time associated 

with that individual. 

Shared Shower or Dressing Facilities Requirement Problematic 

Section 8(a)(3) of H.R. 2015 establishes requirements for covered employers with 

respect to access to certain shower or dressing facilities based on an individual’s actual or perceived gender identity. Specifically, this section provides that it is not ‘‘an 

unlawful employment practice based on actual or perceived gender identity due to 

the denial of access to shared shower or dressing facilities in which being fully 

clothed is unavoidable, provided that the employer provides reasonable access to 

adequate facilities that are not inconsistent with the employee’s gender identity as 

established with the employer at the time of employment or upon notification to the 

employer that the employee has undergone or is undergoing gender transition, 

whichever is later.’’ This provision is problematic in at least two respects. 

First, this provision requires an employer to accommodate an employee undergoing or having undergone gender transition. However, there is no requirement for 

the employee to provide advance notice to the employer of the gender transition so 

47

that adequate time exists for the employer to provide the required ‘‘reasonable access to adequate facilities * * * ‘‘ Moreover, the Committee should give consideration to adopting an ‘‘undue hardship’’ exception patterned after that found in the 

Americans with Disabilities Act under which such reasonable access could be denied 

where it would pose an ‘‘undue hardship’’ for the employer. 

Second, at a minimum the phrase ‘‘in which being seen fully unclothed is unavoidable’’ should be deleted. Certainly there are shared shower or dressing facilities 

where being seen ‘‘fully unclothed’’ is not unavoidable, but where the presence of 

an employee undergoing gender transition may prove problematic for an employer. 

Significant Regulatory Cost for Employers 

If adopted in its current form, H.R. 2015 represents a significant new regulatory 

burden and cost for covered employers. In far too many instances the legislation 

adopts subjective or fact-specific standards that are subject to multiple interpretations. For example, as previously discussed, what is a particular organization’s ‘‘primary purpose’’ for purposes of the limited Religious Enterprise Exemption. What is 

a particular employee’s ‘‘primary duties’’ for purposes of the limited Individual Exemption? What exactly qualifies as association discrimination based upon the gender identity of someone the individual previously associated with? Under Section 

8(a)(4), what is a ‘‘reasonable dress or grooming standard’’ that an employer may 

permissibly adopt? Why does Section 5 expand traditional retaliation protections to 

protect employees who oppose any practice the individual ‘‘reasonably believed’’ was 

unlawful under H.R. 2015, even though it perhaps was not? Because of this uncertainty and subjectivity, employers will be forced spend scarce resources seeking 

legal guidance on employment actions. Furthermore, given the fact-specific and subjective standards, it would be more difficult for employers to have meritless litigation under the Act dismissed prior to incurring the cost of a full-blown trial. While 

the cost is not insurmountable for large companies—many of which have voluntarily 

adopted protections based on sexual orientation—it could prove to be for employers 

of 20, 50 or even 100 employees, and especially those religious and faith-based organizations that have been swept within the Act’s coverage. 

Conclusion 

I would like to thank the Committee for the opportunity to present my views on 

H.R. 2015 as currently drafted. 

I strongly urge the Committee to give due consideration to returning to the broad 

blanket exemption for all religious organizations that was used in prior versions of 

this legislation. In addition, I urge the Committee to eliminate, where possible, the 

vague, fact-specific and subjective standards found throughout the bill. 

Thank you. 

Chairman ANDREWS. Mr. Fahleson, thanks very much. And 

thanks for including those provocative examples in your testimony. 

I am sure it will give the committee and the panel a lot to talk 

about. Thank you. 

Professor Norton, welcome to the committee. 

STATEMENT OF HELEN NORTON, ASSOCIATE PROFESSOR, 

UNIVERSITY OF COLORADO SCHOOL OF LAW 

Ms. NORTON. Good morning. 

Thank you, Mr. Chairman, members of the committee. And 

thank you for the opportunity to testify today. 

My name is Helen Norton, and I am an associate professor at the 

University of Colorado School of Law. My testimony here draws not 

only from my work teaching and writing about employment discrimination as a law professor, but also from my experience as a 

deputy assistant attorney general in the Department of Justice, 

where my duties included supervising the Civil Rights Division’s 

enforcement of Title VII. 

Current federal law prohibits job discrimination on the basis of 

race, color, sex, religion, national origin, age and disability. These 

statutes provide many valuable safeguards for American workers. 

48

But federal law currently fails to protect gay, lesbian, bisexual, 

or transgender workers from discrimination on the basis of sexual 

orientation or gender identity. In fact, the case law is replete with 

decisions where federal judges have characterized egregious acts of 

discrimination targeted at gay, lesbian, or transgender workers as 

morally reprehensible yet utterly beyond the law’s reach. 

You have heard some powerful examples already today. In the 

interest of time, I will focus on just one for now, but I refer you 

to my written testimony for further examples. 

Michael Vickers, a private police officer employed by a Kentucky 

medical center, alleged that his coworkers subjected him to harassment on a daily basis for nearly a year after they learned that he 

had befriended a gay colleague. 

According to Mr. Vickers, his coworkers repeatedly directed sexual slurs and other derogatory remarks at him. They placed irritants and other chemicals in his food and in his personal property. 

And they engaged in physical misconduct that included a coworker 

who handcuffed Mr. Vickers and then simulated sex with him. All 

because of Mr. Vickers’ perceived sexual orientation. 

Just last year, the Sixth Circuit’s Court of Appeals dismissed his 

claim, concluding. ‘‘While the harassment alleged by Vickers reflects conduct that is socially unacceptable and repugnant to workplace standards of proper treatment and civility, Vickers’ claim 

does not fit within the prohibitions of the law.’’

To be sure, some states have tried to fill these significant gaps 

in federal law by enacting important antidiscrimination protections. Eleven states and the District of Columbia currently prohibit 

job discrimination on the basis of sexual orientation, as well as 

gender identity. And I note that the definition of gender identity 

in H.R. 2015 tracks the definition that a number of these state 

laws use and have enforced for a number of years. 

Another eight states bar job discrimination on the basis of sexual 

orientation. 

But employers in the majority of states remain legally free to 

fire, refuse to hire, harass, or otherwise discriminate against individuals because of their sexual orientation or their gender identity. 

As a result, current law, both federal and state, leaves unremedied 

a wide range of injuries and injustices. 

H.R. 2015 would fill these gaps by clearly articulating for the 

first time a national commitment to equal employment opportunity 

regardless of sexual orientation or gender identity. H.R. 2015 does 

this while accommodating concerns that it would interfere with a 

religious institution’s ability to make employment decisions consistent with their religious beliefs. In fact, H.R. 2015 not only incorporates Title VII’s existing approach to issues involving religious 

institutions, it goes considerably further in accommodating such 

concerns. 

First, the bill completely exempts from its reach those religious 

institutions primarily engaged in worship or the spreading of belief. 

This includes churches, mosques, synagogues, and other houses of 

worship, as well as parochial schools and religious missions. 

Second, the bill further exempts an entire class of positions at 

other religious institutions: those jobs involving spiritual teaching 

or ministerial governance, such as chaplains or teachers of canon 

49

law at religious institutions that are not primarily engaged in worship or the spreading of belief, and these might include religiouslyaffiliated hospitals, social service organizations, and religious universities. 

Third, and finally, the bill makes clear that those religious institutions that are not primarily engaged in worship or the spreading 

of belief may still require that employees, even in nonministerial 

positions, conform to the institution’s significant religious tenets, 

including tenets prohibiting same sex sexual activity. For example, 

if a religiously-affiliated hospital chooses to require that its doctors 

and nurses conform to its declared religious tenet against same sex 

sexual conduct, H.R. 2015 does not bar that hospital from firing or 

refusing to hire doctors or nurses who engage in such relationships. 

H.R. 2015 accommodates other concerns, as well. And in the interest of time, I will reserve my discussion of them for any questions that you might have. 

And thank you, again, for the chance to join you today. 

[The statement of Ms. Norton follows:]

Prepared Statement of Helen Norton, Associate Professor, University of 

Colorado School of Law 

Thank you for the opportunity to testify today. My name is Helen Norton, and 

I am an Associate Professor at the University of Colorado School of Law. My testimony here draws from my work as a law professor teaching and writing about employment discrimination issues, as well as my experience as a Deputy Assistant Attorney General for Civil Rights in the Department of Justice during the Clinton Administration, where my duties included supervising the Civil Rights Division’s Title 

VII enforcement efforts. 

Current federal law prohibits job discrimination on the basis of race, color, sex, 

national origin, religion, age, and disability.1 While these statutes provide many valuable safeguards for American workers, federal law currently fails to protect gay, 

lesbian, bisexual, and transgender (‘‘GLBT’’) employees from discrimination on the 

basis of sexual orientation and gender identity. Indeed, the case law is replete with 

decisions where federal judges have characterized egregious acts of discrimination 

targeted at GLBT workers as morally reprehensible yet utterly beyond the law’s 

reach. Consider just a few examples: 

Michael Vickers, a private police officer employed by a Kentucky medical center, 

alleged that his co-workers subjected him to harassment on a daily basis for nearly 

a year after learning that he had befriended a gay colleague.2 According to Mr. Vickers, they repeatedly directed sexual slurs and other derogatory remarks at him, 

placed irritants and chemicals in his food and personal property, and engaged in 

physical misconduct that included a co-worker who handcuffed Mr. Vickers and then 

simulated sex with him—all because of Mr. Vickers’ perceived sexual orientation.3

In dismissing his claim just last year, the Sixth Circuit Court of Appeals concluded: 

‘‘While the harassment alleged by Vickers reflects conduct that is socially unacceptable and repugnant to workplace standards of proper treatment and civility, Vickers’ 

claim does not fit within the prohibitions of the law.’’ 4

Postal worker Dwayne Simonton, a gay male, reported that co-workers targeted 

him for ongoing abuse because of his sexual orientation by directing obscene and 

derogatory sexual slurs at him and by placing pornographic and other sexually explicit materials in his worksite.5 The alleged harassment was so severe that Mr. 

Simonton ultimately suffered a heart attack.6 The Second Circuit Court of Appeals 

stated: ‘‘There can be no doubt that the conduct allegedly engaged in by Simonton’s 

co-workers is morally reprehensible whenever and in whatever context it occurs, 

particularly in the modern workplace.’’ 7 The court went on, however, to reject his 

claim, concluding that ‘‘[t]he law is well-settled in this circuit and in all others to 

have reached the question that Simonton has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.’’ 8

Robert Higgins, a gay male, brought a Title VII challenge to a workplace environment that the First Circuit Court of Appeals characterized as ‘‘wretchedly hostile.’’ 9

Mr. Higgins alleged that his co-workers targeted him for both verbal and physical 

harassment because of his sexual orientation: he reported not only that they diVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
50

rected threats, sexual epithets, and other obscene remarks at him, but also that 

they poured hot cement on him and assaulted him by grabbing him from behind 

and shaking him violently.10 The court nonetheless affirmed summary judgment 

against Mr. Higgins: ‘‘We hold no brief for harassment because of sexual orientation; 

it is a noxious practice, deserving of censure and opprobrium. But we are called 

upon here to construe a statute as glossed by the Supreme Court, not to make a 

moral judgment—and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual 

orientation.’’ 11

To be sure, a few courts have broadly interpreted Title VII’s prohibitions on sex 

discrimination to bar certain misconduct targeted at GLBT workers, such as sexual 

assault and other unwelcome physical conduct of an explicitly sexual nature by opposite-sex or same-sex co-workers, as well as employment decisions that punish 

workers who are perceived as failing to conform to certain gender stereotypes.12 But 

even those federal courts that have acknowledged the availability of these theories 

have noted Title VII’s substantial limits in addressing discrimination experienced by 

GLBT Americans in the workforce.13

To fill these significant gaps in federal law, some states have enacted important 

antidiscrimination protections for GLBT workers: indeed, eleven states and the District of Columbia have enacted statutes that currently prohibit job discrimination 

on the basis of sexual orientation as well as gender identity,14 while another eight 

states bar job discrimination on the basis of sexual orientation alone.15 But employers in the majority of states remain free to fire, refuse to hire, or otherwise discriminate against individuals because of their sexual orientation and/or gender identity. 

As a result, current law—both federal and state—leaves unremedied a wide range 

of injuries and injustices suffered by GLBT workers. H.R. 2015 would fill these gaps 

by clearly articulating, for the first time, a national commitment to equal employment opportunity regardless of sexual orientation and gender identity.16 More specifically, it forbids such discrimination in decisions about hiring, firing, compensation, and other terms and conditions of employment.17 H.R. 2015 also incorporates 

the remedies and enforcement mechanisms available under Title VII.18

H.R. 2015 accomplishes antidiscrimination law’s twin purposes of compensating 

victims of discrimination for their injuries and deterring future acts of bias while 

accommodating concerns that ENDA would interfere with religious institutions’ ability to make employment decisions consistent with their religious beliefs. Indeed, 

H.R. 2015 not only incorporates Title VII’s existing approach to issues involving religious institutions, but goes considerably further in accommodating such concerns. 

First, section 6(a) of H.R. 2015 entirely excludes from the legislation’s reach any 

employment action by ‘‘a religious corporation, association, educational institution, 

or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief.’’ 19 In other words, an entire class 

of religious employers—including houses of worship, parochial schools, and religious 

missions—is completely exempt from this bill.20

Second, section 6(b) further excludes from the bill’s coverage an entire class of positions at other religious institutions: those positions ‘‘whose primary duties consist 

of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious 

doctrine or belief, or supervision or participation in religious ritual or worship’’ at 

religious corporations, associations, educational institutions, or societies that are not 

already completely exempt under section 6(a). In other words, H.R. 2015 also completely exempts from ENDA scrutiny those jobs involving spiritual teaching or ministerial governance—such as chaplains and teachers of canon law—at religious institutions that are not primarily engaged in worship or the spreading of belief—such 

as religiously-affiliated hospitals, social service agencies, and religious universities.21

Third and finally, section 6(c) makes clear that those religious institutions that 

are not primarily engaged in worship or the spreading of belief may still require 

that employees in non-ministerial positions conform to the institution’s significant 

religious tenets—including such tenets regarding same-sex sexual activity.22 For example, if a religiously-affiliated hospital chooses to require that its doctors and 

nurses conform to its declared religious tenet against same-sex sexual conduct, H.R. 

2015 does not bar it from firing or refusing to hire doctors or nurses who engage 

in such relationships. 

H.R. 2015 accommodates other concerns as well. For example, section 8(a)(4) 

makes clear that employers remain free, during work hours, to require ‘‘reasonable 

dress or grooming standards not prohibited by other provisions of Federal, State, or 

local law.’’ In other words, employers remain free to establish and enforce otherwise 

lawful personal appearance standards in the workplace.23 The section further makes 

51

clear that an employee who notifies the employer that the employee has undergone 

or is undergoing gender transition must be held to otherwise lawful dress or grooming standards for the gender to which the employee has transitioned or is 

transitioning. For example, a transgender person designated female at birth must 

comply with the employer’s otherwise lawful workplace grooming standards for men 

once he notifies his employer that he is transitioning. But while this section allows 

transgender employees to follow the standards established for the gender with 

which they identify, it does not protect employees who refuse to conform to those 

standards or who change their gender presentation from day to day. 

H.R. 2015 similarly permits employers to respond to the privacy concerns of 

transgender employees and their co-workers by addressing access to sex-segregated 

facilities—like locker rooms and shower facilities—where being seen unclothed is 

unavoidable. Section 8(a)(3) permits employers to deny or limit access to such facilities ‘‘based on actual or perceived gender identity’’ so long as the employer ‘‘provides 

reasonable access to adequate facilities that are not inconsistent with the employee’s 

gender identity. * * *’’ Examples include installing privacy screens or curtains in 

existing facilities or setting aside a time to provide a transgender employee sole access to an existing facility. 

In sum, H.R. 2015 proposes to fill significant gaps in existing federal and state 

antidiscrimination law by clearly articulating, for the first time, a national commitment to equal employment opportunity regardless of sexual orientation and gender 

identity while accommodating concerns raised by religious institutions and other 

employers. Again, thank you for the opportunity to testify here today. I look forward 

to your questions. 

ENDNOTES

1 42 U.S.C. §§ 2000e-2000e-17 (Title VII of the Civil Rights Act of 1964); 29 U.S.C. §§ 621-

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

12213 (Americans with Disabilities Act). 2 Vickers v. Fairfield Medical Center, 453 F.3d 757, 759 (6th Cir. 2006), cert. denied, 127 S.Ct. 

2910 (2007). 3 Id. at 759-60. 

4 Id. at 764-65. 

5Simonton v. Runyon, 232 F.3d 33, 34-35 (2nd Cir. 2000). 

6 Id. at 34. 

7 Id. at 35. 

8 Id. 

9 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999). 

10 Id. at 257. 11 Id. at 259. For just a sampling of additional cases in this vein, see Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) (rejecting heterosexual woman’s 

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

construe Ms. Medina’s argument as alleging that she was discriminated against because she is 

a heterosexual. Title VII’s protections, however, do not extend to harassment due to a person’s 

sexuality.’’); Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001) 

(‘‘Harassment on the basis of sexual orientation has no place in our society. Congress has not 

yet seen fit, however, to provide protection against such harassment.’’) (citations omitted); Ulane 

v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984); cert. denied, 471 U.S. 1017 (1985) 

(rejecting transgender employee’s Title VII claim: ‘‘While we do not condone discrimination in 

any form, we are constrained to hold that Title VII does not protect transsexuals.’’). 12 E.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th Cir. 2004) (holding that 

transgender employee sufficiently alleged Title VII cause of action for sex discrimination with 

his claim that he suffered adverse employment actions based on ‘‘his failure to conform to sex 

stereotypes concerning how a man should look and behave’’); Rene v. MGM Grand Hotel, Inc., 

305 F.3d 1061, 1064-66, 1068 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 922 (2003) (holding that gay male plaintiff had stated a claim for Title VII sex discrimination based on his allegations that co-workers had physically and sexually assaulted him and had singled him out for 

harassment because he failed to conform to gender stereotypes of how men should behave). 13See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2nd Cir. 2005) (rejecting lesbian 

plaintiff’s claim of Title VII discrimination: ‘‘Like other courts, we have therefore recognized that 

a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation 

into Title VII.’ ’’) (citation omitted); Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 

1063 (7th Cir. 2003) (rejecting plaintiff’s Title VII claim by concluding that co-workers’ alleged 

harassment of him was based on his perceived sexual orientation rather than on sex-based 

stereotypes). 14 Along with the District of Columbia, those states are: California, Colorado, Illinois, Iowa, 

Maine, Minnesota, New Jersey, New Mexico, Rhode Island, Vermont, and Washington. Oregon’s 

legislation banning job discrimination on the basis of sexual orientation and gender identity will 

become effective in January 2008. 15Those states are Connecticut, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, 

New York, and Wisconsin. 16See H.R. 2015, § 2. 17See id. at § 4. 

52

18See id. at § 10. 19 Id. at § 6(a). 20 Note that, at the time of its debate, Title VII faced similar objections from those who feared 

that its ban on religious discrimination would intrude upon religious institutions’ ability to hire 

members of their own faith. Title VII similarly accommodated this issue by protecting the ability 

of ‘‘a religious corporation, association, educational institution, or society’’ to make employment 

decisions on the basis of religion. 42 U.S.C. §2000e-1(a). Such religious institutions are not, however, generally exempt from Title VII’s prohibitions on discrimination on the basis of race, color, 

sex, or national origin. See id. 21This section codifies for ENDA purposes the ‘‘ministerial exception’’ adopted by most courts 

when considering Title VII’s application to religious institutions’ decisions about their spiritual 

leaders. Recognizing the significant constitutional and other interests involved, these courts 

have interpreted Title VII to exclude religious institutions’ employment decisions involving 

‘‘ministerial’’ positions. See, e.g., McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896 (1972) (rejecting plaintiff minister’s claim of sex discrimination by holding 

that Title VII does not apply to religious institutions’ employment decisions regarding ministers 

and similar spiritual leaders); EEOC v. Catholic University of America, 83 F.3d 455 (D.C. Cir. 

1996) (rejecting plaintiff’s claim of sex discrimination by holding that the ministerial exception 

exempts tenure decisions involving teachers of religious canon law from Title VII). 22 H.R. 2015, § 6(c). 23 Note that § 8(a)(4) insulates only personal appearance standards that apply ‘‘during the employee’s hours at work.’’ H.R. 2015’s general prohibition of job discrimination based on gender 

identity prohibits employers from discriminating against individuals based on their off-the-job 

expression of gender identity. 

Chairman ANDREWS. Professor Norton, thank you for bringing 

your experience to bear on this discussion. 

Let me thank each of the witnesses for very edifying testimony, 

also very succinct, because now that gives us a chance to interact 

with each other and ask questions. 

So start the clock, Carlos, I am on the clock here. 

Ms. Waits, thanks again for what had to be a very difficult personal experience, which you handled just so courageously. 

Do you know what would have happened to you if you had been 

fired from your job because of your religion? Do you know what 

legal rights you would have? 

Ms. WAITS. What would have happened to me——

Chairman ANDREWS. Had you been fired because of your religion. 

Ms. WAITS. I could have sued, I guess. 

Chairman ANDREWS. You could have sued because there is a federal law that protects you that prohibits what happened to you because you were Baptist or Catholic or whatever. 

In Texas, which is where you live, where this happened, your 

state does not have a law which prohibits a person from being dismissed because of their sexual orientation. 

Mr. Fahleson, in your testimony, one of the issues you raise is 

whether a federal remedy is necessary. But, you know, there are 

31 states where what happened to Ms. Waits could happen to a 

person because there is no federal protection. Don’t you think that 

a federal remedy is necessary because of that significant vacuum 

that exists? 

Mr. FAHLESON. Certainly that is a policy decision for the subcommittee, committee and Congress to make. 

I will tell you, however, in advising employers, they are already 

burdened with the significant number of local, state and federal 

laws with which they must deal. And, again, Fortune 500 companies, they have HR departments, legal departments, who can handle those things. 

Chairman ANDREWS. Yes. 

53

Mr. FAHLESON. But the bulk of my practice, again, is that employer of 20, 50, or 100 employees. And it is very difficult for them 

to have yet another regulatory burden heaped upon them. 

Chairman ANDREWS. I say this with respect. We don’t really view 

it as a burden to look at a qualified person and say, ‘‘We don’t care 

what your sexual orientation is, we are going to hire you because 

you are qualified.’’ We don’t really think that that is a burden. And 

I think the employer witnesses would echo that. 

Let me ask you a question about the religious exemption. And I 

want to go to your example about the volleyball coach at the religious high school. 

Now, putting aside for a moment whether the school would be 

exempt under subsection 6(a), which I frankly think it would, but 

putting that aside for a minute and putting aside whether the 

volleyball coach would be excluded under Section 6(b), which I 

think there is a strong argument that he or she would be included, 

let me ask you to analyze this fact pattern under Section 6(c), 

which I note you do not mention in your testimony. 

If the high school in its job wanted ad said that anyone applying 

for a coaching position or anyone that interacts with the students 

must be a heterosexual because it is part of the religious tenets of 

the school that heterosexuality is the right way to live, would the 

school be justified in refusing to hire a gay person? 

Mr. FAHLESON. The discussion that we are having here today is 

the problem that I have identified in my testimony. 

You know, my job on a day-to-day basis is to advise that school 

who happens to call me and says, ‘‘Okay. Is this particular coach 

covered by this exemption?’’

Chairman ANDREWS. Right. 

Mr. FAHLESON. And I respectfully disagree with you that it is as 

clear as to whether that individual falls under (a) or (b). 

Chairman ANDREWS. No, I—but what is the answer under Section 6(c)? 

Mr. FAHLESON. Okay. 

Chairman ANDREWS. If the school did that, what would you advise your client? What——

Mr. FAHLESON. Again, I don’t fully understand 6(c)——

Chairman ANDREWS. Okay. 

Mr. FAHLESON [continuing]. And its terms. And, also, I find it incongruous in its current form that it clearly states that the declaration by the religious corporation essentially shall not be subject to 

judicial or administrative review, whereas subsections (a) and (b) 

clearly invite judicial or administrative review when it comes to 

what is a primary purpose or primary duties. And so——

Chairman ANDREWS. No——

Mr. FAHLESON [continuing]. My point is——

Chairman ANDREWS. Primary purpose and primary duties are 

not in Section 6(c). What it says is if the religious organization says 

that in similar positions people have to conform to religious tenets 

they announce. And they say one of our tenets is that we think 

that homosexuality is wrong. And so we don’t want anybody who 

is a homosexual coaching one of our teams. And they put it in the 

want ad. Isn’t it very clear under Section 6(c) they have the right 

to do that? 

54

Mr. FAHLESON. If that is your reading of it. Again, I find it rather confusing. 

Chairman ANDREWS. What is yours? 

Mr. FAHLESON. My reading——

Chairman ANDREWS. Why would yours disagree with that? 

Mr. FAHLESON. Okay, a couple points. 

One, it is unclear that—it says, under this act a religious corporation—so I assume we have now already excluded what is already exempt under (a), and it talks about applicants for similar 

positions—I am not sure what is meant by similar positions—conform—is this requiring an inquiry by the school to then actually 

evaluate what this individual is engaged in——

Chairman ANDREWS. Well, I don’t think so because under the 

facts that I gave you, first of all, it is an educational institution. 

That covers the school. The similar position is coaching. They say 

anybody who is a coach that interacts with the students has to be 

a heterosexual. And they declare that as one of the tenets of their 

religion. Don’t they have the right to do that under Section 6(c)? 

Mr. FAHLESON. Again, if that—I think that that is a reasonable 

reading, as you have indicated. However, again, my concern is that 

religious institution is going to have to hire a lawyer, have someone 

interpret, when, in fact, a very broad prohibition which apparently 

was acceptable to the sponsor in prior versions of this legislation 

would be much more clear. 

Chairman ANDREWS. Well, with all due respect, I think that if—

and I see my time is up—but if the prior language you make reference to were there, they would probably have to hire a lawyer for 

that, as well. I mean, statutes are never case specific looking into 

the future. Thank goodness people have to hire lawyers. It is good 

for both you and me, Mr. Fahleson. [Laughter.] 

I turn to my friend, the ranking member. 

Mr. KLINE. Thank you, Mr. Chairman. 

We are so often in this subcommittee in a discussion about lawyers and what is good for them. And apparently most legislation 

that comes from here is good for lawyers. 

And I always make the point with some pride that I am not a 

lawyer, but nevertheless, we are in the business of making law 

here that affects the American people—employees and employers—

and we want to make sure that we make good law. 

Let me just thank all the witnesses. 

I won’t have a chance to ask all of you questions, but certainly, 

Ms. Baker, it is very nice to have someone from Minnesota here 

and representing such a great Minnesota company. 

And I just make the comment that you have put in place—General Mills has put in place—policies which seem to be working very 

well for the company without the mandate of federal law. You have 

done that on your own. 

And one of the things we want to explore is when we make federal law, will you be able—and other companies—be able to implement policies in the way you would like to that would further your 

human resources capability, or does it, in fact, get perhaps too complicated? 

55

In a previous panel, our colleague and good friend, Emanuel 

Cleaver, talked about theological difficulties with perhaps not supporting this legislation. 

I just make a note that I know that there are many people who 

have some theological difficulties with the legislation as it is, and 

we won’t have an opportunity to explore that today. But he did 

bring it up, and I think we ought to make note of that as we go 

forward. I am sure there will be some discussion of that. 

Speaking of theologies and religious institutions, I am going to 

go back to Mr. Fahleson for some more study of the sections, including 6(c). 

But before I do that, Mr. Chairman, I would like to ask unanimous consent to be included in the record this letter to you and me 

and the other members of the committee from the General Conference of Seventh Day Adventists, the Union of Orthodox Jewish 

Congregations, and the U.S. Conference of Catholic Bishops. 

Chairman ANDREWS. Without objection. 

[The letter follows:]

56

Mr. KLINE. Thank you. 

Now, Mr. Fahleson, going back, what is always concerning to me 

in this discussion with lawyers and about lawyers, and you are sitting in battery there—a whole bunch of you. You have different interpretations of what this language is today. 

And I think that part of our job is to make public policy that is 

understandable by all of those who have the job of implementing 

it and enforcing it. And so we want to make it as clear as possible. 

Going back to Section 6(c) that the chairman was talking about, 

part of the language in 6(c), it says: This would allow a religious 

employer to require that applicants for employment conform to 

those religious tenets that the religious employer ‘‘declares significant.’’ And I think it is the ‘‘declares significant’’ that is part of the 


klin-12.eps
57

issue here. And I want to ask you what you think that means and 

how this differs from other law, other policy. 

Mr. FAHLESON. Right. 

Mr. KLINE. Would you expand on that because we got kind of cut 

off there when——

Mr. FAHLESON. Sure. 

Mr. KLINE [continuing]. The chairman correctly limited himself 

to 5 minutes. 

Mr. FAHLESON. Again, it is my preference as an employment law 

practitioner in advising religious institutions and faith-based organizations for the blanket prohibition. For me, as an attorney, it is 

much easier for me to understand and to communicate that to my 

clients. 

The three subsections set forth therein—we have heard several 

times during this hearing that words have meaning—all of the 

words in those exemptions have meanings. Again, the more words, 

the more potential interpretations by lawyers, both on the committee, as well as here on the panel. 

With respect to the reference to ‘‘declares significant,’’ I have a 

concern. I do not profess to be a constitutional lawyer. But I have 

concerns as to whether Congress can mandate that a religious institution declare certain things to be significant or not. 

Again, at what point does that institution have to declare that 

significant—and, again, I have concerns about why the religious organization should have to go to this length in essence to say, ‘‘Here 

are the 10 things that we believe in,’’ and ‘‘Oh, by the way, it must 

be set forth in writing herein.’’

Moreover, as I stated in my prior discussion, there is an incongruity in how the statute or the exemption is currently drafted in 

that it says under subsection (c) that that will not be subject to judicial review or administrative review, yet the other two exemptions clearly invite such review by the use of the terms ‘‘primary 

purpose’’ or ‘‘primary duties.’’

So I believe the entire exemption—a, b and c—is vague, is concerning, and I believe—again, I would encourage the committee to 

accept Congressman Frank’s invitation to work with those who represent religious organizations to try and clarify some of these 

issues. 

Chairman ANDREWS. Are you finished, Mr. Kline? 

Mr. KLINE. Yes, and I yield back. 

Chairman ANDREWS. Thank you. 

Mr. KLINE. Thank you very much. 

Chairman ANDREWS. I would ask unanimous consent—one of the 

issues Mr. Lorber had raised, which is about the preemption issue, 

ERISA preemption—unanimous consent that a letter dated August 

7 from Congressman Frank to the committee be entered into the 

record. 

The Congressman frankly agrees with your assessment, Mr. 

Lorber, at least agrees with your identification of the problem. And 

it is something we are going to work on trying to fix. 

[The letter follows:]

58

U.S. HOUSE OF REPRESENTATIVES, 

Washington, DC, August 7, 2007. 

DEAR COSPONSOR: On rereading the Employment Nondiscrimination Act that you 

have cosponsored, I realized that we had included a provision that, while I support 

it as a matter of public policy, is not properly part of this bill in terms of the arguments we have made for it. I am referring specifically to section 8, subsection 5(b), 

which would in effect amend ERISA. As you know I am myself a supporter of full 

partnership rights for people of the same sex, including marriage. But we have always been clear to differentiate that issue, including domestic partnerships, from 

the basic principle of opposing discrimination. While nothing in the language as 

drafted would have compelled the recognition of domestic partnerships, it would in 

effect amend a provision of ERISA that now governs what states can do in compelling the recognition of domestic partnerships by companies within their boundaries. 

This should not have been included and I write to notify you of my intention to request that the Education and Labor Committee strike this provision from the bill 

when it is considered. 

Thus, if you are asked about this provision between now and the time of the committee markup, I hope you will feel free to note that it will not be part of the final 

bill, and that no one should decide to be against the basic nondiscrimination bill 

because of its inclusion. I and others will be pursuing the right of people of the same 

sex to have their relationships fully recognized, but in other contexts, and not here 

where it would not be legislatively appropriate nor helpful to getting the bill passed.

BARNEY FRANK. 

Chairman ANDREWS. The chair recognizes the gentleman from 

Michigan, Mr. Kildee, for 5 minutes. 

Mr. KILDEE. Thank you, Mr. Chairman. 

Officer Carney, I share the same Irish heritage that you share. 

My grandmother was born in Cork and my grandfather in Donegal. 

And my son used to live near Boston, up there near you. 

I have served in Congress, Officer Carney, for 31 years. And I 

have, at various times, had homosexuals on my staff. 

I hired some aware of that fact. Some I became aware after they 

were hired. And some I became aware after they had left my staff 

to go on to better jobs. And some I am sure I never have learned 

of their orientation because it was not significant to me. 

They were very good staff members whether they were heterosexual or homosexual. My staff has always served me well. 

And I think those of us in Congress—I am cosponsor of this bill. 

I think it is long overdue. I have been cosponsor for too many 

years. I think it is time to move this bill this year. 

But, you know, we deal with about 660,000 people we represent. 

We are kind of a small business in the sense of our size of our offices. I have about 16 people working for me. 

And I have never considered sexual orientation one of the criteria 

by which I judge whether the person is a good employee or not. The 

time that they arrive in my office, generally on time, do their work, 

that is the main consideration I have in serving the 660,000 people 

that I work for myself. 

And it has always baffled me why people get so concerned about 

what people do outside the office and what they do in their bed—

when they are in their bedroom or with whom they do it. It just 

baffles me. And it is an injustice. 

And we are told that we are to be seekers after justice. One of 

the great things of John XXIII, he said: If you are to be a seeker 

after justice, you have to pursue your own justice. And I think that 

we certainly have a moral and legal obligation to remedy these injustices. 

59

Just a question to you, Officer Carney. How does the Gay Officers Action League of New England help build a more just society? 

And does it play any role in making the public aware that a police 

department should better reflect the full society? 

Mr. CARNEY. Over the years, the last 16 years, the Gay Officers 

Action League has prided itself on professionalism and outreach to 

other law enforcement agencies throughout New England, in fact, 

throughout the country. 

We have been invited guests to speak to the International Chiefs 

of Police. We have held conferences so other law enforcement agencies will know how to interact with the gay and lesbian community, 

in fact, how to act and work with your gay and lesbian, bisexual 

and transgender employees. And we have been called upon by literally chiefs across America. 

I personally, acting as vice president, cofounder, president of the 

organization, I have been contacted by many chiefs throughout the 

United States who have issues where they don’t have knowledge. 

They never had an issue with a gay employee before. They may 

have never met, that they are aware of, a gay employee before. So 

we have acted in that capacity. 

We have trained many law enforcement officers. Proudly enough, 

we train many recruits. We train recruits in police academies, as 

well as state police academies. 

And we try to work with the law enforcement community to 

know how to better serve our community and how our community 

can better interact with the police department. 

If anybody knows anything about the gay and lesbian civil rights 

era, it started back in the late 1960s, and it started in New York 

City. And it started over the way that the NYPD interacted with 

the gay community. And, in fact, it wasn’t a pleasant interaction. 

Sadly enough, the gay bars were raided. People were outed on 

TV and through the newspaper when they were arrested for whatever they were arrested for, when they got in the bars. 

And the community fought back. That started the civil rights era 

which is now known as the month of pride, June 27th, and why 

we celebrate. Often people want to know why we celebrate, you 

know, who we are. 

We have been through a lot. We have been treated differently. 

And interesting enough, now we are law enforcement officers. We 

are out of the closets. Some are still hidden. Often I feel like I 

speak for them because they are not here to speak for themselves. 

So when I am here today as a voice for myself or the Gay Officers Action League, I represent, I feel, hundreds and thousands of 

employees who work for law enforcement agencies, who are firefighters, who work for federal agencies, who can’t come here and 

can’t sit here and tell their personal story like I can. 

I am blessed that I have a law in the Commonwealth of Massachusetts that protects me. But, as I indicated earlier, if I was a federal employee, if I was an FBI agent or a CIA agent, I would not 

be covered. 

Mr. KILDEE. Thank you very much for what you are doing. 

Thank you very much. 

Chairman ANDREWS. The gentleman’s time is expired. 

60

The chair is pleased to recognize the gentleman from Georgia, 

Dr. Price? 

Dr. PRICE. Thank you, Mr. Chairman. I want to thank you and 

Ranking Member Kline for holding this hearing. 

I want to thank each of the witnesses for coming and for your 

testimony, oftentimes heartfelt and many personal stories. And I 

for one appreciate that. 

Mr. Chairman, you have mentioned a couple times that we appreciate the comments that were made by the panel because we 

were going to deliberate and it would give us much to talk about. 

That would be a welcome addition to this committee, that is, to 

have the majority side and minority side deliberating and having 

much to talk about and having input into the process. And so I look 

forward to that, and I will hold you to that, I hope, as we move 

forward with this issue. 

I want to thank Mr. Fahleson for your hypotheticals because I 

think they are very instructive. And I think the chairman mentioned that, as well. 

I would note, Professor Norton, that one of the examples that you 

gave about tainted food and handcuffing of an individual, I am not 

an attorney, don’t know the case. But it strikes me that that kind 

of affront to an individual in the workplace would fall under other 

law, as well: assault or kidnapping, or I don’t know what it would 

be. But it seems to me that it would fall under somewhere else. 

And if that individual, in fact, didn’t bring those kinds of charges, 

then it may be that the attorney needs to be talked with, which 

brings me to attorneys. 

The chairman made the comment that, ‘‘Thank goodness they 

have to hire a lawyer,’’ when it comes to this proposal. I would suggest that that may be the title of this hearing: Thank goodness 

they have to hire a lawyer. 

But I think what we are here to do is to determine whether or 

not some type of federal action is needed. And if federal action is 

taken, what would the potential unintended consequences be of 

that federal action? 

I would like to address the ERISA provision, the Section 8(b) provision. And I presume that the attorneys on the panel agree that 

that section that was identified by Chairman Frank, 8(b), ought to 

be stricken from the bill. 

Is that accurate, Professor Norton? Do you agree with that? 

Ms. NORTON. Do I agree that that provision should be stricken 

from the bill? 

Dr. PRICE. Yes. 

Ms. NORTON. I agree that ERISA preemption is a large and complicated problem that probably deserves a comprehensive solution. 

I agree with that statement. And whether or not it is addressed in 

this bill or some other context, I agree that it was a preemption 

that should be looked at more broadly. 

Dr. PRICE. So you don’t necessarily agree that it ought to be 

stricken. 

Mr. Fahleson, do you agree? 

Mr. FAHLESON. I concur wholeheartedly. 

Dr. PRICE. Professor Badgett, I presume you agree? 

61

Ms. BADGETT. I am not an attorney. I am going to defer to my 

lawyer colleagues on that. 

Dr. PRICE. There we go. 

Mr. Lorber, I suspect you agree? 

Mr. LORBER. Yes, yes, I do. 

Dr. PRICE. Any other attorneys down here? 

Ms. Baker, I just want to commiserate with you about Saturday’s 

game. It was an awful, awful occurrence. 

I think the chairman mentioned that he would respect—actually, 

entered Mr. Frank’s letter into the record. And in that letter, Mr. 

Frank says that, ‘‘This should not have been included.’’ He also 

says, ‘‘It will not be part of the final bill,’’ which strikes me as interesting, as well, about the conversation about deliberation and 

having input. But I hope that it won’t be part of the final bill. 

Let me switch, if I may, for a moment to the religious exemption, 

which I think is problematic. 

I would agree about the definition. I think the definitions are a 

challenge. 

The language about ‘‘declares significant’’ that it puts the onus 

upon the institution to declare what is significant in their belief 

system. I would suggest it puts the federal government in a position that then requires them to determine what each religious entity declares significant, which I would suggest is an unintended consequence that I am not sure we want to head toward. 

I would ask anybody to comment, though, if we believe that 

church-related organizations, religious organizations, ought to be 

able to have this exemption, I guess that is the question. 

Professor Norton, do you believe that religious entities ought to 

be able to have this exemption? 

Ms. NORTON. I believe that there should be a combination of religious institutions’ interest in being able to make employment decisions consistent with their religious beliefs. Yes. 

Dr. PRICE. And so if we are going to allow religious institutions 

to respond to their moral principles, does it follow that we ought 

to allow nonreligious employers to adhere to their moral principles? 

Ms. NORTON. Well, Congressman Price, I would remind you that 

the same sets of objections were raised to Title VII back in 1964, 

that employers argued that having to associate with African Americans or folks of other religions—private employers, folks that were 

not members of religious institutions, argued that having to associate with these folks would violate their religious or moral precepts. And Congress made the determination that the national interest in equal opportunity outweighed those concerns about association. 

And as Congressman Frank pointed out, there is an important 

distinction between economic relationships, jobs, the income that 

jobs bring, and intimate, personal, private associations, who you 

spend time with away from work. And I think Title VII struck the 

correct balance there. And I think H.R. 2015 strikes the correct 

balance, as well, by requiring private employers who are not religious institutions to adhere to nondiscrimination principles. 

Dr. PRICE. I appreciate that. 

My time is—I do have some other questions, and I hope that we 

will be able to submit them for the record. 

62

Chairman ANDREWS. Of course, without objection. 

I would want the record to reflect that my comments that I am 

glad people are hiring lawyers are just the nature of my sunny disposition and good humor. It is not a literal position that I am taking. [Laughter.] 

You notice I left that ambiguous, though. 

The chair is pleased to recognize the gentleman from Illinois, Mr. 

Hare, for 5 minutes. 

Mr. HARE. Thank you, Mr. Chairman. And thank you very much 

for having the hearing. 

And let me just say from the very beginning here, I am honored 

to be a cosponsor of this piece of legislation. 

Just, in this country, it is still amazing to me that we have to 

have hearings and have laws to treat people as equals. I sometimes 

just shake my head on this. 

I just want to say, Mr. Fahleson, to you, I was a little troubled 

when you said about the extra—your comment about the extra burden that it would place on some people. I think, if you take a look 

at the testimony of Ms. Waits and Officer Carney, I think a lot of 

undue burden was put on those two people and thousands of other 

people, too. 

So, with all due respect, I would just say that, when this bill 

passes and is signed into law, and I believe that it will be, I think 

what we ought to do is be very mindful of the fact that there are 

people who are wonderful people and should never be judged. And 

if it is a burden on the business community to treat people as 

equals, then I would submit that irregardless of who they are, what 

they are, I would submit to you that perhaps that burden, you 

know, may have to be borne. 

But this is the United States of America. And we shouldn’t be 

tolerating what happened to two of our witnesses today ever. 

So I also just want to say to both of you who lost your jobs, I 

find it amazing that we have people—employers in this country—

that are so narrow minded and so afraid—and my friend, Mr. Kildee, and I think share the same thing—I for the life of me don’t 

get what everybody is so nervous about and worried about and 

scared about. I shake my head in disbelief. 

So I just want to say to you particularly, Ms. Waits, I am sorry 

this happened to you. I wish there was a way you could sue this 

employer because if anybody deserved to get sued, and I am not an 

attorney either, I would like to take this one up for you because 

I cannot believe—how many years did you work for that company? 

Ms. WAITS. It was less than a year. It was just a couple months. 

Mr. HARE. But everything was going good before this happened, 

right? 

Ms. WAITS. Yes. It was great. I got a raise within the first 2 

weeks I was there. And, yes, I got a lot of praise. 

I was setting up their system for them. Their company had never 

even seen their inventory system before because nobody had ever 

done it until I started, so. 

Mr. HARE. And, Officer Carney, I am assuming, you know, before 

you said it was 21⁄2 years you had to fight to get your job back? 

Mr. CARNEY. Correct. 

63

Mr. HARE. And during that period of time, I mean, you had to 

feel, besides anger, I am just kind of interested in how you felt 

about how this ever happened and what you went through, just 

emotionally and mentally. 

Mr. CARNEY. The pain was very deep. I felt ashamed. I often was 

humiliated. 

For me, it allowed me to hit a bottom that—to seek some help. 

To find out who I really am, and, more importantly, it is okay who 

I am. And it is okay to be a gay American. And now, it is okay, 

with laws in place in the Commonwealth of Massachusetts, to work 

for my agency and very proudly to do so. 

As you know, I am here today in full uniform. My police commissioner is well aware that I am here testifying. 

And in the article that Congressman Frank spoke about today, 

spoke about my work ethic. And I am honored to serve my department and the gay and lesbian community, bisexual and 

transgender to be here to testify. 

Mr. HARE. Well, I just want to let you know I appreciate everything you and your fellow officers do. And, you know, I don’t know 

where this nation would be without our first responders. And to 

have to fight to get your job back for 21⁄2 years, for that, to me, I 

think is just appalling. 

I just want to ask maybe one question, if I could, of you, Ms. 

Baker. 

Again, I appreciate the testimony you gave today, and I really 

commend General Mills for doing what they have done. And it appears that General Mills was way ahead of the curve when it 

comes to adopting policies. 

I am wondering if you could explain how these policies, you 

know, came about. And is there more that you might be able to say 

to the business community about why these policies are good for 

not only General Mills, but for the employees? 

Ms. BAKER. Sure. We included sexual orientation in our equal 

employment opportunity policy in the early 1990s and then adopted 

gender identity in 2004. 

I can talk very specifically to the gender identity addition. And 

that came, one, from just our recognition throughout the United 

States that this was an issue. But it also came from very active 

and very vocal members of our Betty Family, the employee network 

that I referred to earlier, which is the employee network for our 

GLBT employees, that felt very comfortable approaching management and approaching our company about this very important 

issue to that community. So we partnered with the community and 

learned more and decided to adopt that policy. 

Mr. HARE. Thank you very much. 

I yield back. 

Chairman ANDREWS. The gentleman’s time has expired. 

The chair recognizes Mr. Walberg for 5 minutes. Welcome. 

Mr. WALBERG. Thank you, Mr. Chairman. 

And I apologize for being late, so I have not had the pleasure of 

hearing all the testimony from the individuals who took their time 

to be here today. I did come in on the final testimony. 

And, Professor Norton, I thank you for your testimony. It suggests, though, that Section 6 seems to be very clear that the conVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
64

cerns of religious organizations are met. I think there has been, 

from what I have heard, extensive disagreement on that on this 

committee, as well as in the panel, as well as the clear directives 

of a number of religious organizations who have concerns with this 

bill. 

As I read it myself, I see that, while it may give opportunity for 

a very clearly defined church or religious organization that has a 

very unique purpose of directly displaying their beliefs and spreading the gospel, so to speak, of their particular tradition, yet I think 

there are still questions and concerns. 

For instance—and I guess I would ask you to respond to this—

if there were a science teacher at a religious school—again, a 

science teacher responsible for teaching science—would they be 

protected under this act? 

Ms. NORTON. Just so I am clear, Congressman. The question is 

would H.R. 2015 scrutinize this religious school’s decision about 

who to hire as a science teacher. Is that——

Mr. WALBERG. Scrutinize the decisions of hiring, but also the 

teacher themselves in working with other employees in the school 

in their personal-held beliefs that would run amok of this act if it 

were implemented. 

Ms. NORTON. First, if the high school is a religious school that 

is primarily engaged in spreading belief, and if this school is dedicated to spreading religious doctrine and belief, in other words, students are required to attend worship services and the curriculum 

has a religious tenor, this school is completely exempt under 6(a) 

as a religious educational institution primarily engaged in worship 

or the spreading of belief. 

If it is not—say it is a religiously-affiliated educational institution, like Georgetown University, it certainly has a close religious 

affiliation, but it is not primarily engaged in the spreading of belief, the curriculum——

Mr. WALBERG. Well, I would contend to you that the majority of 

Christian schools, religious schools, parochial schools aren’t primarily engaged in spreading a belief, but rather, educating with a 

set of principles that underlie the approach that they take. 

Ms. NORTON. Yes. 

Mr. WALBERG. And as I understand that, those schools would 

certainly not be protected or be very unclear that they would be 

protected under this piece of legislation. In fact, I don’t know of any 

school in my district that is a parochial, Christian, religious school 

that its primary purpose is to propagate their belief system, but 

rather, within their belief system, to do a good educational process. 

Ms. NORTON. I don’t know if I agree with that characterization 

of many religious schools. But even if I am wrong, if it is a religious school that does not characterize its primary purpose as 

spreading of belief, if it chose to require that its science teachers 

or any other teachers or any other employees must conform to their 

church’s teaching on same sex sexual behavior, they could require 

conformance to that teaching as a condition of employment. 

Mr. WALBERG. What about a religious publisher? 

Ms. NORTON. Again, the first question——

Mr. WALBERG. Again, they are publishing documents, books, materials. They are not necessarily in the purpose as a religious orgaVerDate 0ct 09 2002 18:01 Apr 14, 2008 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-60\HED248.020 HBUD1 PsN: DICK
65

nization teaching or propagating their faith, but they are a publisher. 

Ms. NORTON. Right. 

Mr. WALBERG. What about their hiring practices? 

Ms. NORTON. They, too, would, under 6(c), could require that particular employees or all employees conform to their religion’s teachings, including their religion’s teaching on same sex sexual behavior. 

Mr. WALBERG. Thank you. 

Mr. Fahleson, would you agree with that? 

Mr. FAHLESON. I do not. 

One point I want to highlight that I forgot to mention earlier. 

Under this 6(c), which, again, I fail to fully comprehend, it states 

that this declaration of what is significant is not subject to review. 

So the school that you mentioned may declare it requires employees to sign something that a faithful adherence to the Bible is, you 

know, something they want them to adhere to. But whether that 

individual conforms to that can be subject to judicial review. That 

is not exempt. 

And so, therefore, a very strict reading of 6(c) would indicate that 

courts are now going to determine whether that employee has 

strictly adhered to the Bible for this particular position. 

Again, this is a very—with no disrespect to those who worked on 

the section—the section is a mess from a legislative standpoint. 

And I would strongly encourage the committee to look at going to 

the language that was in previous versions, which is the very broad 

blanket exemption. 

Mr. WALBERG. Okay. Thank you. 

Thank you, Mr. Chairman. 

Chairman ANDREWS. The gentleman’s time has expired. 

It is my sad duty, at this point, to interrupt the hearing briefly 

to announce some really terrible news which just came to us. 

We are told that our friend and colleague, Congressman Paul 

Gillmor of Ohio, has just passed away of a heart attack; someone 

who was well known to many members of this committee as a very 

jovial, collegial person. 

So I would ask if we could just observe a moment of silence to, 

each of us in our own way, contemplate his passing. 

(MOMENT OF SILENCE) 

Chairman ANDREWS. The committee will resume, and, obviously, 

our heartfelt condolences to our friend’s family and staff and constituents on this very, very considerable loss. 

The chair recognizes the gentleman from Iowa, Mr. Loebsack, for 

5 minutes. 

Mr. LOEBSACK. Thank you, Mr. Chair. 

I, too, want to apologize to all of you for not having been here 

during your testimony. And I don’t have any questions at this 

point. 

I just want to—and I was at an Armed Services Committee hearing, where we are listening to the comptroller general, David Walker. As a new member, I quickly became all too aware of sort of the 

complicated nature of this job, and hearings being scheduled 

against one another. But I was over there. 

But I just want to state very briefly. 

66

First of all, Ms. Baker, I am happy that there is a General Mills 

plant in Cedar Rapids, in my district. And I really appreciate all 

that General Mills is doing on this particular issue. 

And I am very happy and proud to cosponsor this legislation. I 

am doing what I can with Congresswoman Baldwin to try to gain 

some more support for this measure here in Congress. I just think 

it is an absolutely critical thing. 

I don’t believe that we should, in fact, ever discriminate on the 

basis of race or gender or religion or sexual orientation or gender 

identity. 

I am happy to be a representative of a state, Iowa, which is one 

of the few that does, in fact, now have a law that protects folks on 

the basis of gender identity, as well as sexual orientation. 

So I don’t want to take up a lot of time. I just want to thank 

those on the previous panel who spoke in favor of this piece of legislation and those who spoke in favor of it, as well, here. 

And I will yield back the balance of my time. Thank you, Mr. 

Chair. 

Chairman ANDREWS. The gentleman’s time has expired. Thank 

you. 

The chair recognizes the gentlelady from California, Ms. 

Sanchez, for 5 minutes. 

Ms. SANCHEZ. Thank you, Mr. Chairman. 

I just sort of want to start out by dispelling a myth that has sort 

of cropped up here this morning. 

Contrary to popular belief, we don’t write legislation to create job 

opportunities for attorneys. And I say that because I don’t want us 

to lose sight of the forest for the trees. 

We write legislation to try to address problems and to try to find 

solutions for those problems. And sometimes, yes, there is a little 

complexity that comes into the legislation that we write. And if a 

little complexity is the price that we have to pay for trying to make 

sure that this country creates equality and equal opportunity for 

everybody, then it is a price that I think is well paid. 

If, you know, if we just gave up on writing legislation every time 

it seemed hard or every time it seemed that it might be a little 

more complex, you know, we would have given up on great things 

like the Civil Rights Act, and other pieces of legislation, that really 

say a lot about the country that we are and the kind of people that 

we are and the beliefs and the values that we hold dear. 

So, yes, we do try to craft legislation in a way that is very 

thoughtful and that avoids needless complexity. But, you know, discrimination is a pretty complex issue. And so, you know, sometimes 

the answers have to be a little bit complex. 

And now I am going to step off my soapbox. And I am going to 

ask some questions of the panelists. 

My first question is for Professor Norton. 

I believe that there are some in the Congress and, in fact, maybe 

even, in fact, on this committee who would like to broaden the religious exemption in ENDA to allow employers to discriminate 

against employees if they have ‘‘religious objections’’ to hiring 

LGBT persons. 

Does Title VII have a religious exemption? And do you believe 

that adding such an exemption to ENDA would swallow the rules? 

67

Ms. NORTON. First, Congresswoman, let me make sure I understand. Some folks are proposing that there be an exemption for private employers who have religious——

Ms. SANCHEZ. Correct. Religious——

Ms. NORTON [continuing]. Religious objections. 

Ms. SANCHEZ [continuing]. Objections to hiring. 

Ms. NORTON. Title VII exempts religious corporations, associations, societies, and educational institutions from the prohibition on 

religion discrimination. In other words, religious institutions can 

prefer members of their own religion under Title VII. However, 

Title VII requires those employers, those religious institutions, to 

comply with the remainder of Title VII, meaning its prohibitions on 

race discrimination, sex discrimination, and national origin discrimination. 

Those institutions, including churches, cannot discriminate on 

the basis of race, sex, et cetera, with the exception of certain ministerial employees. Courts have recognized that churches, mosques, 

synagogues, and other houses of worship should have the freedom 

to choose their spiritual leaders free from Title VII scrutiny. 

But with respect to all other hires by those religious employers, 

janitors, accountants, et cetera, et cetera, Title VII requires that 

they comply with the prohibition on race discrimination, sex discrimination, and national origin discrimination. 

H.R. 2015 tracks the exemption for religious institutions in Title 

VII and significantly expands it. 

Houses of worship and other religious institutions dedicated to 

the spreading of belief are exempted entirely. Other religious institutions, like religiously-affiliated hospitals, social service agencies 

that are not primarily dedicated to the spread of belief, their decisions about ministerial employees, spiritual leaders, are exempted 

entirely. And their decisions about all other employees are exempted so long as that employer requires conformance with their religious tenets, including a religious tenet prohibiting same sex conduct as a condition of employment. 

That is significant expansion on the prohibitions available under 

Title VII. But neither Title VII nor this bill would exempt private 

employers, employers that are not religious corporations, associations, societies of educational institutions from the antidiscrimination principles. 

Ms. SANCHEZ. So do you believe that H.R. 2015 accommodates, 

where necessary, religious institutions, et cetera, in their hiring 

practices in a way that is a workable solution? 

Ms. NORTON. I do. 

Ms. SANCHEZ. Okay. And it is your opinion, I take it—and I 

think you may have mentioned this in your testimony—that private employers who conduct business for profit should not be exempted from the requirements of 2015. 

Ms. NORTON. They are not exempted under Title VII, and they 

should not be exempted from this bill. 

Ms. SANCHEZ. Thank you. 

One of your fellow panelists this morning mentioned the potential mountain of litigation that ENDA might cause, with respect to 

enforcing the protections on gender identity. Do you agree with 

that analysis? Do you think that the provisions on gender identity 

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are too vague, or do you think that they are sufficiently stated in 

the legislation? 

Ms. NORTON. The definition of gender identity that appears in 

this bill is drawn from the definition that appears in state legislation that has been on the books and enforced for a number of years. 

The General Accounting Office has engaged in a study of state 

laws prohibiting sexual orientation and gender identity and have 

found them to be quite workable. In fact, that the levels of litigation and complaints are comparatively low. So there seems to be 

no reason to fear that there would be a problem when that definition is used in this bill. 

And, again, as Congressman Frank and Congresswoman Baldwin 

pointed out, the point of the gender identity protections is to protect the very real employment concerns faced by transgender employees who do face very real and often very egregious discrimination. 

Ms. SANCHEZ. Thank you. 

I see that my time has expired. I just want to thank all of the 

witnesses for their testimony today. 

Chairman ANDREWS. Thank you. The gentlelady’s time has expired. 

The chair is pleased to recognize the gentlelady from New York, 

Ms. Clarke, for 5 minutes. 

Ms. CLARKE. Thank you. Thank you very much, Mr. Chairman. 

And I want to thank all of the folks who have come to testify before us today. 

I, too, am a proud cosponsor of this legislation. 

And in 1995, there was a very distinguished New Yorker, a Congresswoman named Bella Abzug, who first introduced legislation to 

address sexual orientation discrimination in America. 

This legislation is modeled after the succession of civil rights 

bills previously passed that prohibited employment discrimination 

based on race and sex. The Employment Discrimination Act of 

2007, also known as ENDA, is the culmination of the work of Bella 

Abzug and many other like-minded crusaders for social justice and 

equity champions. 

As we are all aware, the Employment Non-Discrimination Act of 

2007 prohibits employment discrimination on the basis of sexual 

orientation and, for the first time, includes a prohibition against 

employment discrimination on the basis of gender identity and sexual orientation. The act also prohibits preferential treatment and 

retaliation. And finally, the act provides broad exemptions for the 

armed forces and religious organizations, such as churches, whose 

purpose is purely religious. 

I am proud to carry the torch first lit in 1975 by Bella Abzug in 

support of civil rights. And I wholeheartedly support the Employment Non-Discrimination Act of 2007, a bill that is long overdue. 

And I just wanted to add that, you know, this legislation, I believe, is very sensitive, and I would call it a real 21st century piece 

of legislation. It is closing the gap in favor of the expansion and 

inclusion of everyone in our human family. 

I, too, am not a lawyer like many of my colleagues here. But I 

have full faith in the attorney world that they will refine Section 

6(c) so that those those who have had the concern of interpretation 

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will use their best instinct, intuition and intellect to work this out. 

Otherwise, I know that perhaps this is something that our Supreme Court will bring to closure and make sure that our human 

family is indeed embraced and addressed in the way that it should 

in the 21st century. 

Let me ask the panel. 

Congress has historically given employment protection to the victims of discrimination in employment. The protections have been 

hailed as advancements in civil rights. They have also led to diversity in the workplace, which most agree has broad benefit. 

I am making the positive assumption that everyone on the panel 

supports employment protections for victims of discrimination, such 

as members of racial minorities, religious minorities, and women. 

Here is my question: Why should individuals discriminated 

against based on sexual orientation and gender identity not receive 

the same protections as others under civil rights protections? 

Is there a reason why they should not? 

Am I getting unanimous consent here? 

Mr. CARNEY. If I may. I just find it twisted and ironic that I go 

to work every day to uphold the law and the civil rights of many 

others. Some of those civil rights I don’t have as a gay American. 

Ms. CLARKE. I appreciate your response, Officer Carney. Let me 

just ask a follow-up question. 

ENDA has the support of the labor community, as well as many 

of the large businesses, such as Levi Strauss and, as we see, General Mills. This is one of the few areas where these two communities find common ground. In fact, 90 percent of Fortune 500 companies have adopted antidiscriminatory policies based on sexual 

orientation and approximately one-third have adopted antidiscrimination policies based on gender identity. 

If these types of employment discrimination policies would have 

the negative consequences, such as significant increases in regulatory costs, that some have suggested, why do you think these 

companies have chosen to adopt these policies? 

I want to present that to the lawyers because they seem to be 

concerned about that. 

Mr. Fahleson? 

Mr. FAHLESON. Can you summarize your question? 

Ms. CLARKE. Sure. 

If the major corporations, so many of them that are multinational in nature, have no problem in implementing this policy 

and have not seen a significant decrease in their bottom line, it has 

not adversely impacted their growth and development, why do you 

think that these companies have chosen to adopt these policies? 

Why was it a business decision to do so? 

Mr. FAHLESON. Right. And those are voluntary decisions. 

Obviously, the resources that a Fortune 500 company, such as 

General Mills, has differs greatly from that of an employer of say 

20 employees, who doesn’t have an HR department, can’t afford to 

hire a lawyer. And so, it is simply a difference of resources. 

That is the reason why many of our federal, state and local employment laws have different thresholds as to which is applicable. 

That is why the Family Medical Leave Act kicks in at 50 employees 

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for private sector employers. And so, I think there is a difference 

between large and small. 

Ms. CLARKE. Yes. But you know what? All larger companies start 

small. And part of how they become successful is embracing the 

growth and development of our society. So perhaps they need to 

look at some of the models that these multinationals have started 

if they plan to stay in business in the United States. 

Thank you very much, Mr. Chairman. 

Chairman ANDREWS. Thank you. 

I would ask unanimous consent that the record reflect a list of 

the Business Coalition for Workplace Fairness, a list of many firms 

that support this legislation, without objection. 

[The information follows:]


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Chairman ANDREWS. I would turn to my friend and ranking 

member, Mr. Kline, for any concluding remarks he would choose to 

make. 

Mr. KLINE. Thank you, Mr. Chairman. These will be concluding 

and brief. 

Let me say, just because I can’t pass it up, that I do not share 

Ms. Clarke’s faith in attorney world. [Laughter.] 

But it is an interesting concept. 

And just a comment, if I could. 

First of all, let me say thank you to all of the panelists. It has 

really been an excellent panel with a great deal of expertise and 

a great deal of passion that we have heard. And so I want to thank 

you all for that. 


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Just a comment about the complexity and burdens issue, and it 

relates to the Fortune 500 and the big companies like General 

Mills. 

General Mills has implemented a very successful policy. And 

they have done it without federal regulation. 

And so they are not complying with federal law. They don’t have 

any of those issues of whether or not they are complying. They are 

simply putting forward policy which they believe is good policy and 

is working for them. When you add federal regulation, that complexity and burden can become a factor, and particularly for small 

businesses. 

So I think it is incumbent upon this subcommittee and this committee and this Congress to do everything we can to make sure 

that the legislation is as clear and uncomplex and doesn’t impose 

undue burdens as we go forward. 

So, with that parting comment, Mr. Chairman, just let me again 

thank the witnesses and thank you for holding this hearing. 

I yield back. 

Chairman ANDREWS. Well, I want to thank my friend for his 

comments. 

And just to reflect my own views on that. The bill in front of us 

does not apply to employers with fewer than 15 employees, a very 

small employer. 

And second, my own view is this. That if someone comes to work 

for you and they want to, as I say, they want to be a bank teller 

or bus driver or computer programmer, I think you are already 

asking them, ‘‘How good are you at that job? What experience do 

you have?’’ And that is all you have to do. It just says that if they 

are the right person for the job, you hire them, without having to 

worry about or asking about how they conduct their personal lives. 

So I think this doesn’t create a burden. I think it lifts a burden 

on people who have been unfairly burdened under the law. 

I also want to add my appreciation to each of the witnesses here 

today. You have given us an excellent mix of the theoretical and 

legal issues raised by this bill and then the very real-life implications of the problem this bill is trying to resolve and some of the 

solutions. 

I would particularly like to thank the employer business witnesses for discussing the real-life impact in their very successful 

enterprises, one very large, one rather small, of a policy of inclusion, of letting all talents be included in the conduct of the enterprise. 

So, again, you have done us a great service here on the committee and in the Congress, and we thank you for the inconvenience and time you have had to give us today. 

As previously ordered, members will have 14 days to submit additional materials for the hearing record. Any member who wishes 

to submit follow-up questions in writing to the witnesses should coordinate with the majority staff within 14 days. 

Without objection, the hearing is adjourned. 

[Additional submission by Mr. Andrews follows:]

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INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 364, 

SPRINGFIELD, MA, POLICE DEPARTMENT, 

September 1, 2007. 

Re: Written Testimony in Support of H.R. 2015—Employment Nondiscrimination Act

I write in support of H.R. 2015 because it fulfills our Union’s fundamental position that employment decisions such as hiring, firing, promotion and compensation 

should never be based on our member’s sexual orientation or gender identity. 

H.R. 2015 strengthens our Union’s ability to collectively bargain for the welfare 

of all of our members which is critical to labor’s commitment to our membership. 

And it strengthens our ability to negotiate labor issues when equal treatment is 

threatened by discrimination based on sexual orientation or gender identity. 

Our union urges the Committee to report out H.R. 2015 with a favorable vote. 

It is time to prohibit discrimination based on sexual orientation and gender identity 

and to provide basic protection to ensure fairness in the workplace for Americans 

who are currently denied equal protection under the law. 

Respectfully Submitted, 

THE MEMBERS OF THE EXECUTIVE BOARD OF LOCAL 364, 

THOMAS M. SCANLON, President, 

Local 364/IBPO, Springfield MA Police. 

[Additional submissions by Mr. Kline follow:]

September 14, 2007. 

Hon. JOHN KLINE, Ranking Minority Member, 

Subcommittee on Health, Employment, Labor, and Pensions, Education and Labor 

Committee, U.S. House of Representatives, Longworth House Office Building, 

Washington, DC. 

Re: H.R. 2015, Employment Non-Discrimination Act of 2007

DEAR CONGRESSMAN KLINE AND SUBCOMMITTEE MEMBERS: The American Association of Christian Schools writes to oppose the Employment Non-Discrimination Act 

of 2007 (ENDA). This legislation would have a deleterious effect on the ability of 

religious Americans to follow the dictates of their respective faiths while still in accordance with the law. 

The issue of homosexuality is a contentious one in American society. The Bible, 

the Torah, and the Qu’ran all explicitly condemn homosexual behavior, and millions 

of Americans recognize these religious texts as the foundation for their beliefs regarding human conduct. 

However, the AACS opposition to ENDA does not find its basis primarily in the 

moral questionability of the bill. Rather AACS objects to the bill on the grounds that 

it undermines the very foundation of our free society: religious liberty. The last four 

decades have seen a concerted effort to marginalize religion in the public sphere. 

This is unfortunate—both for the religious and non-religious who benefit equally 

from the contributions of people motivated by their faith to meet the needs of their 

neighbors and communities. Discrimination is an important issue in modern American society and with good reason. But any actual or perceived discrimination 

against certain communities is not wisely dealt with by restricting the freedoms of 

others and jeopardizing the religious freedom of an entire country. 

In 1620, three ships left England for a new world. The non-separatists on board 

the Mayflower assuredly thought that the Pilgrims were strange, but the success 

of the journey to forming their new society was inextricably tied to the notion of 

religious freedom. Compulsion is not a hallmark of the American experience. Sadly, 

we have arrived at the point in American society where tolerance, rather than freedom, has become the highest value of our land. Proponents of this bill seem to be 

saying that religion is a fine thing as long as there is no clash with popular culture. 

ENDA contains an exemption clause, Section 6, designed to offer a semblance of 

tolerance to religious organizations, but the exemption is flawed and presents no 

meaningful protection for religious organizations. 

AACS has over 1100 schools in 46 states. Although it is the goal of our school 

teachers to conduct all education through the prism of a Biblical worldview, the 

main purpose of our schools is education rather than strictly religious propagation. 

Consequently, our schools would not qualify as ‘‘wholly’’ exempt entities. Only our 

school principals, administrators, and religious instructors would qualify. 

This partial exemption would infringe on the ability of our schools to maintain 

their distinctive religious character. Schools would not have the freedom to follow 

the principles of their faith when hiring teachers for science, history, math, English, 

or other subjects that are not specifically religious in nature. If Christian schools 

74

cannot require their faculty and staff to follow the tenets of their faith, then they 

have lost the very reason for their existence. 

Proponents of H.R. 2015 point to Section 6(c) as the escape clause because it 

states that religious organizations would still be allowed to require employees to 

‘‘conform’’ to ‘‘significant’’ tenets of the organization/school’s religious faith. However, 

nowhere in the document does it address what constitutes ‘‘conformity’’ or ‘‘significance’’ according to the schools’ policies. 

Section 6 (c) states that ‘‘Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review.’’ This 

last clause appears confusing and disingenuous. By the very nature of the narrow 

exemption, religious schools and organizations would be forced to undergo both administrative and judicial review of their beliefs and policies to determine whether 

current and potential employees are covered by the exemption. 

If the Non-Employment Discrimination Act of 2007 (H.R. 2015) is passed by Congress and signed into law, religious organizations and religious people would be 

compelled to act in conflict with their deeply-held religious beliefs. It is no exaggeration to say that ENDA is a direct repudiation of the Free Exercise Clause of the 

First Amendment to the U.S. Constitution. 

Sincerely, 

DR. KEITH WIEBE, President, 

American Association of Christian Schools. 

Prepared Statement of Diane Gramley, President, American Family 

Association of Pennsylvania 

Mr. Chairman and Members of the Subcommittee: Americans expect to feel safe 

within their work places. The passage of the Employment Non-Discrimination Act 

could present certain safety issues and employee relations problems to small and 

large businesses alike: • When in our nation’s history has the government forced employers to permit 

men to use the women’s restroom or vice versa? As a woman, I would not want to 

enter a restroom and encounter a man using the facilities. 

• H.R. 2015 would only prohibit transsexuals from using showers and dressing 

rooms ‘where being seen fully unclothed is unavoidable’; thus, forcing employers to 

expend money to provide accommodations to such individuals. [Referenced in the 

proposed bill, ‘‘* * * provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity.’’] 

• This will place a serious financial strain on small businesses which, according 

to the Small Business Association website, represent 99.9 percent of the 26.8 million 

businesses in the United States. 

Previously, Representative Barney Frank opposed the inclusion of ’gender identity’ in such employment non-discrimination laws because he knew that radical 

transgender activists would demand to use shower facilities in the workplace. To 

date, there has yet to be sufficient evidence that this issue has been addressed. If 

this bill passes, radical transgender activists will still cry ’discrimination’ and demand full ’inclusion’ in all shower facilities, etc. Passage of H.R. 2015 would be a 

‘‘foot in the door’’ to requiring businesses to allow transgender individuals full access 

to showers and dressing rooms where ‘‘being fully unclothed is unavoidable.’’

There also exists major safety issues—not to mention financial burdens—involved 

with the passage of ENDA: 

• In Allentown, PA (Lehigh County) revised their human relations ordinance by 

adding ’sexual orientation and gender identity’ in 2002. The following year, a podiatrist brought suit against St. Luke’s Hospital saying he had been discriminated 

against because he had announced he was transitioning to a female. The podiatrist 

continued on with the hospital, but says his contract as program director was terminated. Apparently, the hospital was concerned how their patients would take the 

news that Dr. Gary Greenberg was going to become Dr. Gwen Greenberg. The settlement forced the hospital to expend money to offer education to hospital staff on 

gender identity and sexual orientation issues. 

• In 2003, in neighboring Carbon County, a prison guard announced he was 

transitioning into a woman and expected to be accommodated. Security concerns 

prompted the prison to relieve the guard of duty. Because his union is 

headquartered in Allentown, he sued the prison and as a result was reinstated. Carbon County Prison now has a man dressed as a woman for a corrections officer. The 

obvious questions posed here are strip searches, restroom and locker room situations. How should the prison handle these daily situations? 

75

Yes, Americans are fair-minded, but Americans demand common sense. 

When the average American citizen is presented with ALL the facts about this 

bill and its subsequent ramifications—and not the facade now being offered by its 

supporters—they will undoubtedly oppose its passage. 

September 14, 2007. 

Hon. JOHN KLINE, Ranking Minority Member, 

Subcommittee on Health, Employment, Labor, and Pensions, Education and Labor 

Committee, U.S. House of Representatives, Longworth House Office Building, 

Washington, DC. 

Re: H.R. 2015, Employment Non-Discrimination Act of 2007

Dear Representative Kline and Subcommittee Members: On behalf of Concerned 

Women for America, I would like to request your assistance to ensure that the attached letter is included in the printed hearing record for the hearing held on 

Wednesday, September 5, 2007, by the Health, Employment, Labor and Pensions 

Subcommittee on H.R. 2015, the Employment Non-Discrimination Act of 2007. 

Sincerely, 

WENDY WRIGHT, President, 

Concerned Women for America. 

September 14, 2007. 

Hon. JOHN KLINE, Ranking Minority Member, 

Subcommittee on Health, Employment, Labor, and Pensions, Education and Labor 

Committee, U.S. House of Representatives, Longworth House Office Building, 

Washington, DC. 

Re: H.R. 2015, Employment Non-Discrimination Act of 2007

Dear Representative Kline and Subcommittee Members: On behalf of Concerned 

Women for America (CWA) and our over 500,000 members nationwide, I am writing 

to oppose H.R. 2015, the Employment Non-Discrimination Act (ENDA). 

ENDA will force employers and employees with moral or religious beliefs regarding homosexuality or bisexuality to disavow these convictions, a violation of the 

right to conscience. Such efforts are a misguided infringement upon our constitutional rights to religious freedom. This legislation will be used as a tool to punish 

businesses that have moral standards. 

It will also overturn the historical basis of protected class status by adding ‘‘sexual orientation’’ and ‘‘gender identity’’ to civil rights law. Unlike the currently protected classes of race, age and gender in employment, ‘‘sexual orientation’’ is behavioral. ENDA affords special protection to a group that is not disadvantaged. Homosexuals as a group have higher income, education and wield considerable political 

influence. 

Marriage as an institution will be undermined if ENDA is enacted by pronouncing 

traditional sexual morality a form of discrimination in America. This legislation may 

inevitably lead to employers being required to offer marriage-like benefits to homosexual employees. 

Proponents of ENDA falsely claim that the bill contains a religious exemption. 

But this exemption is entirely illusory. At best, churches, and essentially pastors, 

could be exempt from the provisions of ENDA, but that’s not guaranteed. All other 

faith-based organizations, even those which are tax exempt, would be discriminated 

against under this bill. Groups such as Christian schools, Christian camps, faithbased soup kitchens and Bible book stores would be forced to adopt a view of human 

sexuality which directly conflicts with fundamental tenets of their faith. 

If H.R. 2015 is passed by Congress and signed into law, the U.S. government will, 

in effect, become an adversary to moral sexuality and religious conviction. Please 

do not punish Americans who believe that it is important to apply their moral convictions in the workplace. 

Sincerely, 

WENDY WRIGHT, President, 

Concerned Women for America. 

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THE TRADITIONAL VALUES COALITION, 

Washington, DC, September 14, 2007. 

Hon. ROBERT E. ANDREWS, Chairman, 

Hon. JOHN KLINE, Ranking Member, 

Subcommittee on Health, Employment Labor and Pensions, Committee on Education 

and Labor, Ford House Office Building, Washington, DC. 

DEAR REPRESENTATIVES ANDREWS & KLINE: Traditional Values Coalition requests 

that this letter and the attached documents: (1) The TVC Special Report on H.R. 

2015, the Employment Non-Discrimination Act (ENDA) and (2) 30 Sexual Orientations be placed into the record for the hearing held on Wednesday, September 5, 

2007, by the Health, Employment, Labor and Pensions Subcommittee on H.R. 2015, 

the Employment Non-Discrimination Act of 2007. 

Traditional Values Coalition opposes passage of any version of ENDA. 

We have many problems with the bill. We are outlining two of them here. One 

of our major concerns involves the vague term called ‘‘gender identity.’’ Our other 

concerns are outlined in greater detail in the attached report. 

Congress is attempting to pass a law to protect ‘‘gender identity’’ but the proponents of the legislation are doing their best to keep members of this soon-to-be 

protected federal minority out of sight. Why? 

During the hearing on ENDA every pro-ENDA panelist carefully avoided mentioning the fact that protecting ‘‘gender identity’’ in the law will force businesses and 

non-profits to cater to the whims of cross-dressers, transsexuals, drag queens, and 

she-males. 

Chief sponsor of ENDA, homosexual activist legislator Barney Frank (D-MA), for 

example, referred to emotionally troubled individuals with a different gender identity than their birth sex as ‘‘these people,’’ and pleaded for federally-protected status 

for them. Yet, ‘‘these people’’ were never permitted to sit on the panel nor to discuss 

why they think businesses should bow to their wishes on restroom and shower policies. 

Apparently, Rep. Frank believes that ‘‘these people’’ should remain invisible until 

ENDA is passed. His attitude towards these troubled individuals was demeaning 

and shocking to us. 

ENDA will provide federally-protected status for ‘‘sexual orientation,’’ which is defined in the bill as heterosexuality, bisexuality and homosexuality; and ‘‘gender 

identity,’’ which is the sense of how a person ‘‘feels’’ about his or her birth sex. Individuals with a Gender Identity Disorder (GID) think they’re really the opposite sex. 

GID is still considered by the American Psychiatric Association to be a treatable 

mental condition. Transgender activists, however, claim that having a different gender identity than their birth sex is perfectly normal and deserves federal protection. 

The bill limits ‘‘sexual orientation’’ to heterosexuality, bisexuality, and homosexuality, while the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) lists 30 bizarre sexual orientations, including 

pedophilia and bestiality. These are sexual attractions or orientations toward children and animals. 

And, on the issue of ‘‘gender identity,’’ one doesn’t have to be a psychiatrist or 

psychologist to clearly understand that if a person rejects his birth sex, he is experiencing disordered thinking. Members of Congress should understand this. Disordered thinking is treatable. It should not be granted minority status under federal 

law. 

Dr. Paul McHugh, for example, became the psychiatrist-in-chief at Johns Hopkins 

University in 1975 and put an end to the practice of providing sex-change operations for patients. Writing in his essay, Surgical Sex for First Things in 2004, 

McHugh observed: ‘‘We have wasted scientific and technical resources and damaged 

our professional credibility by collaborating with madness rather than trying to 

study, cure, and ultimately prevent it [GID].’’

Dr. McHugh believes that psychiatrists are collaborating with a mental illness by 

performing sex change operations on individuals. The problem is one of the mind, 

not the body. A person who has a gender identity disorder needs therapy—not surgery. 

Rep. Barney Frank and other proponents of ENDA should be open and honest 

with the American people about exactly who and what ENDA will ‘‘protect’’ in federal law. 

In future discussions about ENDA, Rep. Frank should invite several male-to-female, female-to-male or she-males to testify as to how this legislation will benefit 

them. 

If Americans see what these poor gender confused individuals look like—and what 

impact they will have on business practices, they’d be outraged. Imagine being 

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forced to hire or retain a person who goes through half of a so-called sex change 

operation? Should a business really have to deal with she-male demands? Or, to hire 

or retain a person who just ‘‘thinks’’ he’s the opposite sex, but doesn’t ‘‘transition’’ 

into another sex. The legal problems for employers will be insurmountable. 

Another major concern is over the phony religious exemption in the legislation. 

ENDA ostensibly provides a ‘‘religious exemption’’ for denominations or organizations operated by denominations—but not other non-profit Christian or other religious organizations. The bill says in Section 6, ‘‘Exemption for Religious Organizations’’ that a ‘‘religious corporation, association, educational institution, or society 

which has as its primary purpose religious ritual or worship or the teaching or 

spreading of religious doctrine or belief’’ is exempt from ENDA. 

This is a phony religious exemption. A Christian school, for example, would probably not be exempt under ENDA because its primary purpose is education, not the 

teaching or spreading of religious doctrine. A Christian day care center would not 

be exempt from ENDA; nor any Christian-owned for-profit business such as a Bible 

or book publisher. 

TVC calls upon Congress to reject any version of ENDA legislation offered that 

will make ‘‘sexual orientation’’ or ‘‘gender identity’’ into federally-protected minorities. The phony religious exemption is only designed to silence people of faith. We 

can see through this ruse. Our opposition to ENDA—in any form—is absolute. 

Sincerely, 

REV. LOUIS P. SHELDON, Chairman, 

ANDREA LAFFERTY, Executive Director, 

Traditional Values Coalition. 

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[Whereupon, at 12:58 p.m., the subcommittee was adjourned.]

Æ


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