29–010 

Calendar No. 184 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–105 

THE EMPLOYMENT NON-DISCRIMINATION ACT OF 2013 

SEPTEMBER 12, 2013.—Ordered to be printed 

Mr. HARKIN, from the Committee on Health, Education, Labor, and 

Pensions, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 815] 

The Committee on Health, Education, Labor, and Pensions, to 

which was referred the bill (S. 815) to prohibit employment discrimination on the basis of sexual orientation or gender identity, 

having considered the same, reports favorably thereon with an 

amendment in the nature of a substitute and recommends that the 

bill (as amended) do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 2 

II. Legislative History ......................................................................................... 2 

III. Section-by-Section Analysis and Explanation of the Legislation ............... 6 

IV. Committee Action .......................................................................................... 11 

V. Cost Estimate ................................................................................................. 11 

VI. Regulatory Impact Statement ....................................................................... 13 

VII. Application of Law to the Legislative Branch ............................................. 14 

VIII. Need for the Legislation ................................................................................ 14 

IX. The Visibility of ENDA’s Protections Will Make a Difference in the 

Lives of LGBT People ................................................................................ 21 

X. Constitutional Authority ............................................................................... 22 

XI. Additional Views ............................................................................................ 24 


smartinez on DSK6TPTVN1PROD with REPORTS
2 

1 California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, 

Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, 

Vermont, and Washington have laws barring discrimination in employment based on sexual orientation and gender identity. 2Maryland, New Hampshire, New York, and Wisconsin have laws barring employment discrimination based on sexual orientation, but not gender identity. 3 42 U.S.C. §§2000e–2000e–917 (Title VII). 4Gay Rights—U.S.: Sex Discrimination in Employment, Before the S. Comm. on Labor and 

Human Res., 103d Cong. 103–703 (1994). For a discussion of the history of the ENDA in the 

House of Representatives, see H. Rep. 110–406 (2007). On October 18, 2007, the Committee on 

I. PURPOSE AND SUMMARY

Millions of lesbian, gay, bisexual, transgender (‘‘LGBT’’) and heterosexual Americans today face the possibility of being fired from 

their jobs, refused work, paid less, or otherwise being subjected to 

employment discrimination because of their actual or perceived 

sexual orientation or gender identity. Currently, 18 States and the 

District of Columbia explicitly prohibit firing someone based on 

their sexual orientation or gender identity.1 Another four States explicitly prohibit firing someone based on their sexual orientation, 

but do not explicitly protect employees based on gender identity.2

The Employment Non-Discrimination Act (‘‘ENDA’’ or ‘‘Act’’) is 

intended to address this discrimination and explicitly protect all 

Americans who are or may be perceived to be lesbian, gay, bisexual 

or transgender. 

The legislation extends Federal employment protections to LGBT 

workers similar to those protections provided to a person based on 

race, color, sex, national origin, religion, age or disability. The Act 

prohibits an employer from using an individual’s sexual orientation 

or gender identity as the basis for employment decisions, such as 

hiring, firing, promotion or compensation. ENDA also creates a 

cause of action for any individual—whether actually homosexual, 

heterosexual, or transgender—who is discriminated against because that individual is ‘‘perceived’’ as homosexual or transgender. 

ENDA provides for similar procedures, while giving some more 

limited remedies, as those under Title VII of the Civil Rights Act 

of 1964 (‘‘title VII’’).3 ENDA applies to Congress and the Federal 

Government, as well as to State and local governments. 

The Act does not require employers to collect statistics on actual 

or perceived sexual identity or gender identity of its employees, and 

it expressly prohibits the Equal Employment Opportunity Commission (‘‘EEOC’’) from requiring the collection of such statistics by an 

employer. The Act also prohibits the imposition of affirmative action and the adoption of quotas or granting of preferential treatment to an individual by any employer on the basis of sexual orientation or gender identity. Religious organizations are exempt 

from coverage under ENDA. The relationship between the armed 

services and its uniformed service members is also not subject to 

the Act. 

II. LEGISLATIVE HISTORY

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

the Employment Non-Discrimination Act of 1994, S. 2238. It was 

referred to the Senate Labor and Human Resources Committee, 

which held the first hearing on the issue titled ‘‘Employment NonDiscrimination Act of 1994’’ on July 29, 1994.4


smartinez on DSK6TPTVN1PROD with REPORTS
3 

Education and Labor met to markup H.R. 3685, the Employee Non-Discrimination Act of 2007. 

The committee reported the bill favorably by a vote of 27–21 to the House of Representatives. 5 Roll Call vote No. 281. 

6The Employment Non-Discrimination Act of 1997 Before the S. Comm. on Labor and Human 

Res., 105th Cong. 279 (1997). 

The hearing featured testimony from witnesses, including: The 

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

of New Mexico; Ms. Cheryl Summerville, Bremen, GA; Ernest Dillon, Detroit, MI; Mr. Justin Dart, Jr., chairman, President Bush’s 

Committee on Employment of People with Disabilities; Warren 

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

CEO and chairman, Dow Jones & Company, Inc.; Steven Coulter, 

vice president, Pacific Bell; and Richard Womack, director of Civil 

Rights, AFL–CIO; Mr. Joseph E. Broadus, George Mason School of 

Law; Robert H. Knight, Family Research Council; and Chai 

Feldblum, Georgetown University Law Center, on behalf of Leadership Conference on Civil Rights. 

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

Chafee, U.S. Senator from the State of Rhode Island; The Honorable Barry Goldwater, U.S. Senator from the State of Arizona; Reverend Edmond Browning, presiding bishop, Episcopal Church; Mrs. 

Coretta Scott King, president, Martin Luther King Jr. Center for 

Non-Violent Social Change; Ms. Mary Frances Berry, chairperson, 

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

chair, National Commission on Employment Policy. 

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

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

and Human Resources. 

On September 5, 1996, Senator Edward Kennedy (D–MA) introduced the Employment Non-Discrimination Act of 1996, S. 2056, 

which garnered three cosponsors. It was brought before the Senate 

by unanimous consent. The Senate narrowly rejected S. 2056 on 

September 10, 1996 by a 49–50 vote.5 It marked the first time that 

the idea of a Federal non-discrimination clause protecting gays and 

lesbians in employment was voted on in the Congress. 

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

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

and Human Resources. 

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

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

presented testimony: Ms. Kendall Hamilton, Oklahoma City, OK; 

Mr. David N. Horowitz, Phoenix, AZ; Raymond W. Smith, chairman of the board and CEO, Bell Atlantic Corporation, Arlington, 

VA; Mr. Thomas J. Grote, chief operating officer, Donato’s Pizza, 

Blacklick, OH; Mr. Herbert D. Valentine, executive presbyter, Baltimore Presbytery, Moderator of the 203d General Assembly, the 

Presbyterian Church (USA); National Council of the Churches of 

Christ in the U.S.A.; Mr. Oliver Thomas, special Counsel for Civil 


smartinez on DSK6TPTVN1PROD with REPORTS
4 

7The Employment Non-Discrimination Act Before the S. Comm. on Health, Educ., Labor, and 

Pensions, 107th Cong. 307 (2002). 8S. Rep. No. 107–341 (2001). 

and Religious Liberties; Ms. Chai Feldblum, associate professor of 

law, Georgetown University Law Center; American Civil Liberties 

Union; Ann McBride, president, Common Cause; America Psychological Association; Elizabeth Birch, executive director, Human 

Rights Campaign; Parents, Families, and Friends of Lesbians and 

Gays. 

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

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

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

taken. 

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

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

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

The HELP Committee held a hearing on the legislation on February 27, 2002 titled ‘‘The Employment Non-Discrimination Act.’’ 7

The following persons presented testimony: Mr. Charles K. Gifford, 

president and CEO FleetBoston Financial, Boston, MA; Lucy 

Billingsley, partner, Billingsley Company, Carrollton, TX; Robert L. 

Berman, director of Human Resources and vice president, Eastman 

Kodak Company, Rochester, NY; Richard Womack, director, Department of Civil Rights, AFL–CIO, Washington, DC; Lawrence 

Lane, Long Island, NY; and Matthew Coles, director, National Lesbian and Gay Rights Project, American Civil Liberties Union, New 

York City, NY. 

Written statements were provided by: The American Psychological Association; Kim Wisckol, vice president and director of 

Human Resources of the Consumer Business Association, HewlettPackard Company; Elizabeth Birch, executive director, Human 

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

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

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

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

on the legislative calendar.8 However, no vote was taken in the 

Senate. 

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

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

On August 5, 2009, Senator Jeff Merkley (D–OR) introduced the 

Employment Non-Discrimination Act of 2009, S. 1584, which garnered 45 cosponsors. It was referred to the HELP Committee. The 

bill introduced in 2009 was the first version of ENDA introduced 

that prohibited discrimination based on sexual orientation and gender identity. 

On November 5, 2009, the HELP Committee held a hearing on 

‘‘Employment Non-Discrimination Act: Ensuring Opportunity for 

All Americans.’’ Witnesses testifying before the committee included: 

The Honorable Thomas E. Perez, Assistant Attorney General for 

Civil Rights; Mike Carney, police officer, city of Springfield police 

department; Helen Norton, professor of law, Colorado School of 


smartinez on DSK6TPTVN1PROD with REPORTS
5 

Law; The Honorable Lisa Madigan, Illinois attorney general; Virginia Nguyen, Nike, Inc., Diversity & Inclusion Team Member; 

Craig Parshall, senior vice president and general counsel of the National Religious Broadcasters Association; and Camille Olson, partner at Seyfarth Shaw, LLP. 

Written statements and letters were provided by: Eliza Byard, 

executive director of the Gay, Lesbian and Straight Education Network; Rea Carey, executive director, National Gay and Lesbian 

Task Force Action Fund; Jennifer Chrisler, executive director, 

Family Equality Council; Masen Davis, executive director, 

Transgender Law Center; Nancy Ratzan, president, National Council of Jewish Women; Joe Solmonese, president, Human Rights 

Campaign; African-American Ministers in Action; American Airlines; American Bar Association; American Psychological Association; American Civil Liberties Union; BMC Softward, Inc.; Business 

Coalition on Workplace Fairness; Center for American Progress Action Fund; Martha Coakley, Massachusetts attorney general; Gay 

& Lesbian Advocates & Defenders (‘‘GLAD’’); Sun Microsystems; 

Interfaith Alliance; Lambda Legal Defense and Education Fund; 

Marriott International, Inc.; National Center for Lesbian Rights; 

Nationwide Mutual Insurance Company; Parents, Families and 

Friends of Lesbians and Gay (‘‘PFLAG’’) National; Raytheon Company; Unitarian Universalist Association of Congregations; Chevron Corporation; National Center for Trangender Equality and the 

National Gay and Lesbian Task Force; and Meghan Stabler. 

On April 13, 2011, Senator Jeff Merkley (D–OR) introduced the 

Employment Non-Discrimination Act of 2011, S. 811, which garnered 43 cosponsors. It was referred to the HELP Committee. 

On June 12, 2012, the HELP Committee held a hearing on 

‘‘Equality At Work: The Employment Non-Discrimination Act.’’ Witnesses testifying before the committee included: M. V. Lee Badgett, 

research director of Williams Institute at the UCLA School of Law; 

Kylar Broadus, founder of Trans People of Color Coalition; Samuel 

Bagenstos, professor of law at Michigan Law School and former 

Principal Deputy Attorney General for Civil Rights in the Obama 

administration; Ken Charles, vice president of Diversity and Inclusion at General Mills; and Craig Parshall, senior vice president and 

General Counsel of the National Religious Broadcasters Association. 

Written statements and letters were provided by Camille Olson, 

partner at Seyfarth Shaw LLP, Log Cabin Republicans, Human 

Rights Campaign, Transgender Law Center, Interfaith Alliance, 

and the National Gay and Lesbian Task Force. 

On April 25, 2013, Senator Jeff Merkley (D–OR) introduced the 

Employment Non-Discrimination Act of 2013, S. 815, which currently has garnered 53 cosponsors. It was referred to the HELP 

Committee. 

On July 10, 2013, the HELP Committee met to markup S. 815, 

the Employee Non-Discrimination Act of 2013. The committee reported the bill favorably by a vote of 15–7 to the Senate. 


smartinez on DSK6TPTVN1PROD with REPORTS
6 

III. SECTION-BY-SECTION ANALYSIS AND EXPLANATION

OF THE LEGISLATION

Section 1. Short title 

This section designates the bill as the ‘‘Employment Non-Discrimination Act.’’ 

Section 2. Purposes 

This section sets forth the Act’s purposes: (1) to address the history and persistent, widespread pattern of discrimination, including 

unconstitutional discrimination, on the bases of sexual orientation 

and gender identity by private sector employers and local, State, 

and Federal Government employers; (2) to provide an explicit, comprehensive Federal prohibition against employment discrimination 

on the bases of sexual orientation and gender identity; (3) to provide meaningful and effective remedies against such discrimination; and (4) to invoke Congressional powers, including those pursuant to the Fourteenth Amendment of the Constitution, as well as 

the Commerce Clause and the Spending Clause. 

Section 3. Definitions 

This section defines key terms used in the Act. Most of the definitions come directly from existing Federal civil rights laws, primarily title VII. The definitions of ‘‘employee’’ and ‘‘employer’’ exclude volunteers and private membership clubs from the coverage 

of the Act. 

The committee believes the terms sexual orientation and gender 

identity, contained in section 4(7) and (10), are clear, and the terms 

homosexuality, bisexuality, heterosexuality and bisexuality are well 

understood in the courts and by the American people. Laws like 

ENDA exist in 22 States, including the District of Columbia, and 

hundreds of municipalities in this country and the definitions of 

sexual orientation and gender identity have not presented employers or the courts with any difficulty. 

With respect to gender identity, the committee notes that gender 

transition is the process of a transgender individual publicly changing his or her gender presentation to be consistent with his or her 

gender identity. This process usually involves changes to name, 

personal appearance, voice and mannerisms. In some cases, it could 

mean medical procedures, including hormone therapy, sex-reassignment surgeries, and other procedures that are generally conducted 

under medical supervision. The committee emphasizes that an individual’s gender transition is unique and personal to each 

transgender employee. State laws that prohibit discrimination 

based on sexual orientation or gender identity do not include language defining gender transition; nor do they otherwise prescribe 

what steps a transgender employee must take in order to be treated in a nondiscriminatory manner that is consistent with his or her 

gender identity. The committee notes that every gender transition 

is unique. Therefore, it is the committee’s intent that nothing in 

this Act be read as establishing what an individual’s gender transition must entail. 

If an employee has undergone a gender transition prior to the 

time of employment, the duty of nondiscrimination applies on the 

basis of the employee’s gender as established at the time of employVerDate Mar 15 2010 00:26 Sep 17, 2013 Jkt 029010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\SR105.XXX SR105

smartinez on DSK6TPTVN1PROD with REPORTS
7 

9See, e.g., Detroit Coil Co. v. Int’l Ass’n of Machinists & Aerospace Workers, 594 F.2d 575, 

580 (6th Cir. 1979) (‘‘the word ‘notified,’ in its ordinary usage, means the completed act of bringing information to the attention of another’’). 10See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (concluding 

that the ADA does not require an employee to use any ‘‘magic words’’ when notifying an employer of his or her disability and request for reasonable accommodations); Sarnowski v. Air 

Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007) (concluding that the FMLA does not 

require an employee to use any ‘‘magic words’’ when notifying an employer of his or her request 

to take leave for a serious health condition); EEOC Compliance Manual 12–IV.A.1 (‘‘the applicant or employee must provide enough information to make the employer aware that there exists a conflict between the individual’s religious practice or belief and a requirement for applying 

for or performing the job’’). 11See e.g., Americans with Disabilities Act, 42 U.S.C. §12112(b)(4) (2012); Halcomb v. Iona 

Coll., 521 F.3d 130 (2d Cir. 2008) (Title VII); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, 

& GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999) (same); Drake v. 3M, 134 F.3d 878 (7th Cir. 

1998) (same); McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) (same); Parr v. 

Woodmen of World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986)(same).

ment. The employer need not inquire, and the employee need not 

disclose, information regarding the employee’s transition. The employer’s obligation is simply not to discriminate in the event that 

the past transition comes to the employer’s attention. 

However, the term ‘‘notified’’ in section 8(a) indicates that an employee who undergoes gender transition on the job must take some 

affirmative step to communicate the matter to the employer.9 Notification may be written or oral, and need not be in any specified 

form or use any ‘‘magic words,’’ so long as it is sufficient for the 

employer to understand.10

Section 4. Discrimination prohibited 

This section prohibits employers, employment agencies, labor organizations, and joint labor-management committees from discriminating in employment or employment opportunities on the basis of 

actual or perceived sexual orientation or gender identity. Employment opportunities include hiring, firing, compensation and other 

terms, conditions, or privileges of employment or union membership. 

Similar to a similar provision of the Americans with Disabilities 

Act (‘‘ADA’’) and case law under title VII, this section also prohibits 

discrimination based on the perceived sexual orientation or gender 

identity of an individual. The use of the term ‘‘perceived’’ is intended to address employment discrimination directed at individuals because of their presumed sexual orientation or gender identity, whether or not that presumption is correct. It ensures that 

ENDA’s prohibitions reach all discriminatory actions of an employer, regardless of whether the assumptions upon which the employer bases his or her discrimination are accurate. 

Also consistent with the ADA and case law under title VII, this 

section additionally prohibits discrimination against an employee 

because of whom he or she associates with.11 It is the intent of the 

committee that this provision be construed consistently with the 

associative discrimination jurisprudence developed under the ADA 

and title VII. 

Section 4(f) prohibits quotas and preferential treatment based on 

sexual orientation or gender identity. 

Section 4(g) makes clear that disparate impact claims are not 

available under this Act. Thus, ENDA does not require employers 

to justify neutral practices that may result in a disparate impact 

against people of a particular sexual orientation or gender identity. 

Evidence of disparate impact may be introduced in a proceeding to 


smartinez on DSK6TPTVN1PROD with REPORTS
8 

12Gross v. FBL Financial, 557 U.S. 167 (2009). 13 Ensuring Fairness for Older Workers: Hearing Before the Senate Health Educ., Labor, and 

Pensions Committee, 111th Cong. (2010) (written testimony of Helen Norton); see also, Gross, 557 U.S. at 190–91 (Breyer, J., dissenting). 14 Ensuring Fairness for Older Workers: Hearing Before the Senate Health Educ., Labor, and 

Pensions Committee, 111th Cong. (May 6, 2010) (Senator Harkin’s Questions for the Record for 

Professor Helen Norton). 15 EEOC v. Townley, 859 F.2d 610 (9th Cir. 1988). 

support a claim of disparate treatment, but there is no cause of action under ENDA for disparate impact. 

Section 4(h) provides that, consistent with title VII, in mixed motive cases, an unlawful employment practice is established when 

the complaining party demonstrates that sexual orientation or gender identity was a ‘‘motivating factor’’ for the adverse employment 

action, even if there were other factors motivating the adverse action. 

In doing so, the committee explicitly rejects the ‘‘but for’’ standard of proof enunciated in the Supreme Court’s decision of Gross 

v. FBL Financial.12 As Professor Helen Norton testified to the committee, ‘‘Gross entirely insulates from liability even an employer 

who confesses discrimination so long as that employer had another 

reason for its decision. By permitting employers to escape liability 

altogether even for a workplace admittedly infected by discrimination, with no incentive to refrain from similar discrimination in the 

future, the Gross rule thus undermines Congress’ efforts to stop 

and deter workplace discrimination.’’ 13

The committee believes requiring the plaintiff to prove ‘‘but for’’ 

cause in a mixed motive case is particularly difficult. In these 

cases, the employer, rather than the employee, is in a better position to reconstruct history and prove whether an employer who has 

been proven to have engaged in discrimination would have taken 

the same action unaffected by bias. Therefore, shifting the burden 

of proof to the defendant is appropriate where the plaintiff has 

demonstrated that discrimination was a ‘‘motivating factor’’ in the 

defendant’s employment decision. As Professor Norton testified, 

‘‘[s]uch burden shifting appropriately recognizes and responds to 

employers’ greater access to information that is key to proving or 

disproving an element of a particular claim. . . .’’14

Section 5. Retaliation prohibited 

This section prohibits retaliation against individuals because 

they oppose any practice prohibited by (or they reasonably believe 

to be prohibited by) the Act, or participate in an investigation or 

other proceeding authorized by the Act. This section is modeled directly on title VII’s retaliation prohibition. Therefore, retaliation 

claims under the Act should be treated like similar claims under 

title VII. 

Section 6. Religious organizations 

This section exempts from its coverage those religious institutions that are exempt under title VII’s prohibition on discrimination based on religion. Title VII’s language has been in effect since 

1972, and thus the committee believes it is simple for organizations 

to understand who falls under the exemption. 

ENDA would apply, however, to entities that are not primarily 

religious in purpose and character.15 A non-religious entity would 


smartinez on DSK6TPTVN1PROD with REPORTS
9 

16The committee further notes that the religious exemption contained in ENDA is broader 

than that contained in other civil rights laws. For example, under title VII, religious organizations are not permitted to discriminate based on race, sex and national origin. 

not be able to not hire, fire, or otherwise take an adverse employment action against someone because of their sexual orientation or 

gender identity, even if his or her boss has a deeply held belief 

against homosexuality. For example, an entity that is for-profit, 

produces a secular product and is not affiliated with a church 

would not be exempt from the law. 

Despite the Act’s religious exemption, some have expressed concern that the religious beliefs of employers and employees are not 

sufficiently protected. They argue that those whose religion dictates 

that homosexuality is wrong will be forced to hire or work with gay 

men and lesbians. Similar arguments are not new to the civil 

rights debate, but our Nation’s civil rights laws rightly require nonreligious organizations and entities, particularly those who participate in commercial activity, to adhere to broad principles of fairness and equality.16

Section 7. Nonapplication to members of the armed forces; veterans’ 

preferences 

This section makes clear that the Act does not apply to members 

of the Armed Forces. The Act does not affect current law, regulation or policies applicable to members of the military. In addition, 

this section further provides that the Act does not repeal or modify 

any other law that gives special preferences to veterans. 

Section 8. Construction 

Section 8(a) provides that an employer may establish and enforce 

reasonable and otherwise lawful dress and grooming standards for 

employees during work hours. Employers may require workers to 

abide by gender-specific dress codes and ensure that all employees 

dress in an office-appropriate manner. At the same time, the provision ensures that employees who have undergone or are undergoing gender transition are allowed to follow the dress code that 

applies to the gender to which they identify. 

Section 8(b) also provides that employers are not required to construct new or additional physical facilities in order to comply with 

the Act. 

Section 9. Collection of statistics prohibited 

This section expressly prohibits the EEOC or Department of 

Labor (‘‘DOL’’) from requiring employers to collect statistics on the 

sexual orientation or gender identity of employees pursuant to this 

Act. ENDA allows a company to provide data on its workforce to 

the EEOC or DOL on a voluntary basis. 

Section 10. Enforcement 

This section authorizes the same enforcement powers, procedures, and remedies that currently exist in Federal employment 

law. All individual relief that is available under title VII is available under ENDA, other than disparate impact claims as noted in 

section 4 above. 

Section 10(d) also clarifies that double-recovery of damages is not 

permitted. This provision is intended to be a restatement of current 


smartinez on DSK6TPTVN1PROD with REPORTS
10 

17See, e.g., EEOC. v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (‘‘It goes without saying 

that the courts can and should preclude double recovery by an individual.’’ (quoting Gen. Tel. 

Co. of the Northwest v. E.E.O.C., 446 U.S. 318, 333 (1980))) 

law. A wide range of conduct often violates more than one statute, 

and this provision does not modify current standards which permit 

a plaintiff to plead alternative claims that challenge the same conduct under different legal theories. For example, Congress does not 

intend to overrule, displace, or in any other way affect a plaintiff ’s 

ability to bring suit under title VII, particularly given that Federal 

courts have interpreted title VII in such a way that protects LGBT 

individuals on the basis of sex. 

The law is clear, however, that double recovery for claims based 

on the same facts is not permitted, and this provision restates that 

well established principle.17

Section 10(e) clarifies the availability of damages in mixed motive cases, as described in section 4. In a mixed motive case, if a 

plaintiff demonstrates that sexual orientation or gender identity 

was a ‘‘motivating factor’’ for the adverse employment action, but 

an employer demonstrates it would have made the same employment decision in the absence of discrimination damages are limited 

to injunctive and declaratory relief and attorney’s fees and costs. 

This is consistent with language currently in the Civil Rights Act 

of 1991 with respect to title VII. 

Section 11. State and federal immunity 

This section abrogates State sovereign immunity. It makes clear 

that States are not immune from suit for employment discrimination based on sexual orientation or gender identity against employees or applicants within any State program or activity that receives 

Federal financial assistance. 

This section is based on Congress’ enforcement power pursuant 

to section 5 of the Fourteenth Amendment to the U.S. Constitution, 

as well as Congress’ spending power under Article I. If the Federal 

Government or the States violate this Act, they are subject to the 

same action and remedies as other employers, except that punitive 

damages are not available. 

Section 12. Attorney’s fees 

This section provides that, subject to the same limits as existing 

in title VII, a successful party (other than the EEOC or the United 

States) is entitled to attorneys’ fees and litigation expenses. 

Section 13. Posting notices 

This section sets forth a covered entity’s duty to post notices describing the requirements of the law. ENDA allows employers to 

post an amended notice rather than posting a separate notice. 

Section 14. Regulations 

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

Section 15. Relationship to other laws 

This section preserves provisions in other Federal, State, or local 

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


smartinez on DSK6TPTVN1PROD with REPORTS
11 

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

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

LGBT individuals on the basis of gender. 

Section 16. Severability 

This section ensures that if one or more provisions of the Act are 

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

Section 17. Effective date 

This section provides that ENDA will take effect 6 months after 

its enactment and will not apply retroactively. 

IV. COMMITTEE ACTION

The committee met on July 10, 2013, to consider S. 815. The 

committee adopted an amendment in the nature of a substitute 

proposed by Senator Harkin. This amendment served as the original text for purposes of further amendment. The amendment clarified that disparate impact claims are not allowed under the Act; 

that a plaintiff cannot recover for the same offense under both title 

VII and ENDA; that it is sufficient for an employer to post an 

amended notice regarding antidiscrimination policy; that the only 

attorney fees allowed are those permitted under title VII; that neither the EEOC or Department of Labor is permitted to mandate 

the collection of statistics; and that in mixed motive cases, an employee only need establish that discrimination was a ‘‘motivating 

factor’’ for the adverse employment action. 

Three amendments were discussed but not offered, and an additional two amendments were filed and not offered. The bill, as 

amended, was adopted by rollcall vote of 15 ayes and 7 nays and 

the committee reported the bill favorably to the Senate. 

Amendments discussed during the markup 

1. Senator Alexander discussed an amendment to provide rules 

of construction regarding employer responsibilities with respect to 

individuals undergoing or having undergone gender transition. 

2. Senator Alexander discussed an amendment to limit the application of the Act with respect to gender identity until regulations 

defining the term ‘‘transition’’ are issued. 

3. Senator Alexander discussed an amendment to eliminate a 

provision regarding relief in motivating factor cases. 

V. COST ESTIMATE

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, September 11, 2013. 

Hon. TOM HARKIN, 

Chairman, Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 815, the Employment NonDiscrimination Act of 2013. 


smartinez on DSK6TPTVN1PROD with REPORTS
12 

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

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

can be reached at 226–2860. 

Sincerely, 

DOUGLAS W. ELMENDORF, Director. 

Enclosure. 

S. 815—Employment Non-Discrimination Act of 2013 

Summary: S. 815 would prohibit employment discrimination 

based on sexual orientation or gender identity. Assuming appropriation of the necessary amounts, CBO estimates that implementing S. 815 would cost $47 million over the 2014–18 period 

mostly for the Equal Employment Opportunity Commission 

(EEOC) to handle additional discrimination cases. 

The bill could affect direct spending, but we estimate that any 

such effects would be less than $500,000 annually. Because the legislation would affect direct spending, pay-as-you-go procedures 

would apply. S. 815 would not affect revenues. 

The bill would impose a number of intergovernmental and private-sector mandates on employers, employment agencies, and 

labor organizations. CBO estimates that the costs of complying 

with those mandates would not exceed the annual thresholds specified in the Unfunded Mandates Reform Act (UMRA) for intergovernmental or private-sector mandates ($75 million and $150 million in 2013, respectively, adjusted annually for inflation). 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 815 is shown in the following table. The costs 

of this legislation fall within budget function 750 (administration 

of justice). 

By Fiscal Year, in Millions of Dollars 

2014 2015 2016 2017 2018 2014– 

2018 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 1

Estimated Authorization Level .................................................................. 7 10 10 10 10 47 

Estimated Outlays .................................................................................... 7 10 10 10 10 47 

1 In addition to the bill’s discretionary cost, S. 815 could affect direct spending, but CBO estimates that any such effects would be less than $500,000 annually. 

Basis of estimate: For this estimate, CBO assumes that the necessary amounts will be appropriated near the start of each fiscal 

year and that outlays will follow the historical spending pattern of 

those activities. 

Spending Subject to Appropriation 

The EEOC expects that implementing S. 815 would increase its 

annual caseload (currently about 100,000 cases) by 5 percent and 

would require about 110 additional personnel. CBO estimates that 

the cost to hire those new employees would reach $9 million annually by fiscal year 2015, subject to the appropriation of the necessary amounts. For fiscal year 2013, the Congress provided $344 

million for EEOC operations. We expect that enacting S. 815 also 

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


smartinez on DSK6TPTVN1PROD with REPORTS
13 

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

agencies would not be significant because of the small number of 

additional cases likely to be referred to them. 

The additional cases resulting from S. 815 also would increase 

the workload of the Department of Justice’s Civil Rights Division. 

Based on information from the Department of Justice, CBO estimates that it would cost about $1 million annually for additional 

attorneys and support staff. 

Direct Spending 

Enacting S. 815 could increase payments from the Treasury’s 

Judgment Fund for settlements against Federal agencies in discrimination cases based on sexual orientation or gender identity. 

However, CBO estimates that any increases in direct spending 

would be less than $500,000 because of the small number of such 

payments that are likely to occur. 

Pay-as-you-go considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget-reporting and enforcement procedures 

for legislation affecting direct spending or revenues. CBO estimates 

that the legislation would have an insignificant impact on direct 

spending. 

Intergovernmental and private-sector impact: S. 815 would prohibit public and private employers, employment agencies, and labor 

organizations from discriminating against any employee, member, 

and applicant on the basis of sexual orientation or gender identity. 

The bill also would require those public and private entities to post 

notices displaying the Federal laws that prohibit such discrimination. Those prohibitions and requirements would be intergovernmental and private-sector mandates as defined in UMRA. 

The costs of the mandates would include the costs of modifying 

employment procedures and posting notices to avoid discriminatory 

practices. CBO assumes that changes to employment procedures 

would likely build on ongoing training and updates to personnel 

manuals. Similarly, the costs of notices would probably be relatively minor and would be made in the course of other routine updates. Therefore, CBO estimates that the costs of complying with 

these mandates would not exceed the annual thresholds specified 

in the UMRA for intergovernmental or private-sector mandates 

($75 million and $150 million in 2013, respectively, adjusted annually for inflation). 

Estimate prepared by: Federal Costs: Mark Grabowicz and Martin Von Gnechten; Impact on State, Local, and Tribal Governments: 

Melissa Merrell; Impact on the Private Sector: Vi Nguyen. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

VI. REGULATORY IMPACT STATEMENT

The Act prohibits employers (including government employers), 

employment agencies, labor organizations, and joint-labor management committees from engaging in intentional discrimination in 

employment on the basis of sexual orientation or gender identity. 

The Act’s requirements and enforcement mechanisms are similar to 

those found in title VII, and accordingly, its impact on individuals 

and businesses is similar. The direct impact would equal the value 

of the resources used by employers and others to become familiar 


smartinez on DSK6TPTVN1PROD with REPORTS
14 

18 As the Connecticut Supreme Court noted with respect to discrimination based on sexual orientation, ‘‘[t]he characteristic that defines the members of this group—attraction to persons of 

the same sex—bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.’’ Kerrigan v. Comm’r of Pub. Health, 957 A.2d 

407, 432 (Conn. 2008). 19 Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009); accord Kerrigan, 957 A.2d at 434 

(‘‘There is no question. . . . that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.’’); see also 

In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2009) (‘‘[S]exual orientation is a characteristic 

. . . associated with a stigma of inferiority and second-class citizenship, manifested by the 

group’s history of legal and social disabilities.’’). 20For a historical overview of discrimination based on sexual orientation, see, e.g., S. Rep. 

107–341; H. Rep. 110–406. See generally, Russell J. Davis, Refusal to Hire, or Dismissal From 

Employment, On Account of Plaintiff ’s Sexual Lifestyle or Sexual Preference as a Violation of 

with the law, post notices, and, if necessary, modify employment 

procedures to conform with the requirements of the Act. 

VII. APPLICATION OF THE LAW TO THE LEGISLATIVE BRANCH

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

the bill to the legislative branch. Consistent with the CAA’s mandate that civil rights laws be applied to the legislative branch, 

ENDA prohibits employers—including those in the legislative 

branch—from engaging in intentional discrimination in employment on the basis of sexual orientation or gender identity. 

VIII. NEED FOR THE LEGISLATION

A. DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER

IDENTITY IS WIDESPREAD AND PERSISTENT

Thousands of hardworking Americans have lost their livelihoods 

simply because of who they are or who they love, and millions more 

go to work every day facing that threat. The committee believes the 

Federal Government should not permit unfettered bigotry to go unchecked, leading to the loss of jobs, fear in the workplace, economic 

instability, and personal hardship, while allowing employers and 

the economy to lose competent, qualified workers. 

Employment decisions should be made on individual merit and 

performance, not extraneous factors such as sexual orientation or 

gender identity. The committee believes that sexual orientation and 

gender identity are irrelevant to a person’s ability to do his or her 

job and they only become factors when people’s biases and prejudices determine employment actions such as hiring and firing.18

Just as it is unacceptable to fire or refuse to hire a person based 

on his or her race, sex, national origin, religion, age or disability, 

it is unacceptable to base employment decisions on an employee’s 

or applicant’s sexual orientation or gender identity. 

Nevertheless, workplace discrimination targeting LGBT Americans, as well as those perceived to be LGBT, has been persistent 

and widespread. Indeed, there has historically been severe discrimination based on sexual orientation and gender identity in both 

the State and private employment contexts. As the Iowa Supreme 

Court recently noted, ‘‘The County does not, and could not in good 

faith, dispute the historical reality that gay and lesbian people as 

a group have long been the victims of purposeful and invidious discrimination because of their sexual orientation.’’ 19 And, in many 

instances, such discrimination was a matter of policy by public entities throughout the country.20


smartinez on DSK6TPTVN1PROD with REPORTS
15 

Federal Constitution or Federal Civil Rights Statutes, 42 A.L.R. Fed. 189 (1979); Robin Cheryl 

Miller, Federal and State Constitutional Provisions As Prohibiting Discrimination in Employment on the Basis of Gay, Lesbian or Bisexual Orientation or Conduct, 96 A.L.R. 5th 391 (2002); 

The Human Rights Campaign, Documenting Discrimination (2001); William D. Rubenstein, Do 

Gay Rights Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65 (2001); Edmund Reutter, 

Jr., The Law of Public Education, Fourth Edition 657 (New York Foundation Press, 1994) (describing discrimination faced by LGBT teachers due to State licensing requirements that included morality fitness tests); Laura S. Fitzgerald, Towards a Modern Art of Law, 96 Yale L. 

J. 2051 (1987). 21For recent examinations of the widespread and persistent discrimination in the workplace 

that LGBT Americans face, see Movement Advancement Project, Center for American Progress, 

Human Rights Campaign, A Broken Bargain: Discrimination, Fewer Benefits and More Taxes 

for LGBT Workers (2013); Brad Sears & Christy Mallory, Williams Institute, Documented Evidence of Employment Discrimination & Its Effects on LGBT People (2011); Brad Sears, et al., 

Williams Institute, Documenting Discrimination on the Basis of Sexual Orientation & Gender 

Identity in State Employment (2009); M.V. Badgett et al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998–2008, 84 Chi. Kent L. Rev. 

559 (2009); Jaime M. Grant, et al., Injustice at Every Turn: A Report of the National 

Transgender Discrimination Survey (2011). 22 Injustice at Every Turn, supra note 21 at 3. 23 U.S. Gov’t Accountability Office, GAO–13–700R, Update on State Statutes and Administrative Complaint Data on Employment Discrimination Based on Sexual Orientation and Gender 

Identity (2013); U.S. Gov’t Accountability Office, GAO–10–135R, Sexual Orientation and Gender 

Identity Employment Discrimination: Overview of State Statutes and Complaint Data (2009) 

(noting over 2,300 complaints filed between 2006–8 alleging discrimination based on sexual orientation or gender identity). 24 Brad Sears, et al., Documenting Discrimination, supra note 21; Employment Non-Discrimination Act: Ensuring Opportunity for All Americans Before the S. Comm. on Health, Educ., 

Labor, and Pensions, 111th Cong. 129–43 (2009) (statement of ACLU). See also supra at 147 

(written statement of Gay & Lesbian Advocates & Defenders (‘‘GLAD’’)) (listing examples of employment discrimination against State employees; supra at 164 (written statement of LAMBDA 

legal); supra at 177 (written statement of National Center for Lesbian Rights); supra at 79 (written statement of National Gay and Lesbian Task Force) (same). 

While much progress has been made, as the record demonstrates 

discrimination based on sexual orientation and gender identity remains widespread and persistent.21 For example: 

• According to a 2008 report, 42 percent of lesbian, gay, and bisexual people have experienced at least one form of employment 

discrimination because of their sexual orientation. 

• A 2011 report found that 90 percent of transgender Americans 

experienced harassment, mistreatment or discrimination at work 

because of their gender identity or took actions like hiding who 

they are to avoid it. Forty-seven percent of transgender Americans 

said they experienced an adverse job outcome, such as being fired, 

not hired or denied a promotion because they were transgender or 

gender non-conforming. Twenty-six percent of transgender Americans reported losing their jobs due to being transgender. Fifty percent of transgender Americans reported being harassed.22

• This year, the GAO found that in States that had laws protecting LGBT Americans from discrimination in the workplace, 

4,991 administrative complaints were filed between 2007–12 alleging discrimination based on sexual orientation.23

Importantly, this problem does not just impact the private sector. 

Twenty-five percent of lesbian, gay, and bisexual individuals who 

were employed by Federal, State, or local government reported having experienced employment discrimination because of their sexual 

orientation. A 2009 Williams Institute report found more than 380 

documented examples of workplace discrimination by State and 

local employers from 1980 through 2009. The American Civil Liberties Union (ACLU) identified 87 examples of discrimination from 

35 States, including inquiries from LGBT employees alleging 16 examples of discrimination by States and 48 stories of discrimination 

by municipalities in just one 18-month period.24


smartinez on DSK6TPTVN1PROD with REPORTS
16 

25 As just one example, in California, two-thirds of transgender Californians reported some 

form of workplace harassment or discrimination, but only 15 percent of those transgender Californians filed a complaint with the State. See 2009 Hearing, supra note 24 at 90–1 (written 

statement of Transgender Law Center); also Kerrigan, 957 A.3d at 446 n.40 (‘‘Because of the 

immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.’’ (quoting Rowland v. Mad River Local Sch. Dist., 470 U.S. 10009, 101 (1985) (Brennan, J., dissenting)); 2009 Hearing, supra note 24, at 164 (written statement of LAMBDA Legal) 

(‘‘For each year from 2004 to 2007, we received more calls regarding LGBT workplace discrimination than any other single issue. In each of those years, we received between 900 and 1,100 

employment discrimination calls. Based on our experience with our legal help desk, we can say 

with confidence that these remarkable figures certainly understate the prevalence of the problem. Over the years, we have learned many reasons why employees choose not to pursue legal 

action, including that many people know how few legal remedies exist in most jurisdictions, and 

many others are afraid to come out publicly and therefore refrain from even considering pursuit 

of legal action.’’) 

These statistics, moreover, grossly undercount the level of discrimination that exists. Since most States and localities do not explicitly provide redress for discrimination, most individuals have 

little reason to report discrimination. Moreover, even where there 

are laws and a complaint process, LGBT employees often are reluctant to use these processes because they must ‘‘out’’ themselves to 

members of the community or to future employers.25

To learn more about the widespread and persistent discrimination faced by LGBT Americans, in recent years the committee 

heard testimony from individuals who directly experienced discrimination. 

In 2009, the committee heard from Michael Carney, a highly 

decorated police officer who was denied reinstatement to the 

Springfield, MA, police department because he is gay. Despite his 

solid record as an officer, and despite the police chief ’s recommendation, Carney was denied re-instatement three times after 

informing the police commission that he was gay. Fortunately for 

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

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

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

government employers continue to discriminate against LGBT 

workers, even though such discrimination is completely irrational 

and serves no conceivable government purpose. 

The committee also heard from Kylar Broadus. Mr. Broadus 

worked for a major financial institution. After he announced his 

gender transition, within 6 months he was constructively discharged. He testified that he was harassed until he was forced to 

leave. He repeatedly received harassing telephone calls from his supervisor, received unrealistic work demands, and was even forbidden from talking with certain people. Mr. Broadus ultimately ‘‘was 

forced out and unemployed.’’ 

In addition to the financial and economic impact of the discrimination, including the difficulties of finding any employment once he 

was forced out, Mr. Broadus testified to the emotional consequences of the discrimination. As he said, 

‘‘I suffer from post-traumatic stress as a result of the harassment that I encountered in the workplace from my employer, 

from not being allowed to change my name or use the name 


smartinez on DSK6TPTVN1PROD with REPORTS
17 

26 Evidence that ENDA will make a difference: studies demonstrate that both a pay gap and 

the differential treatment of gay applicants is less in States that have ENDA type laws. See 

generally Equality at Work: The Employment Non-Discrimination Act, Before the S. Comm. on 

Health, Educ., Labor, and Pensions, 112th Cong. (2012) (testimony of M.V. Lee Badgett). 27M.V. Lee Badgett et al., Williams Institute, Bias in the Workplace: Consistent Evidence of 

Sexual Orientation and Gender Identity Discrimination (2007); see also Randy Albelda et al., 

Williams Institute, Poverty in the Lesbian, Gay, and Bisexual Community (2009). 28 Jamie M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 18 (2011). 29Movement Advancement Project, American Progress, and Human Rights Campaign. A BROKEN BARGAIN: Discrimination, fewer Benefits, and More Taxes for LGBTQ Workers 8 (June 

2013). 30 2009 Hearing, supra note 24, at 95. 

I used, not being allowed to wear my hair a certain way, not 

being allowed to dress as me.’’ 

He continued, 

‘‘I cannot emphasize this enough as I still sit here today without 

almost tears in my eyes, it is devastating, it is demoralizing, and 

dehumanizing to be put in that position.’’ 

As the record makes clear, cases such as these are not isolated. 

This widespread and persistent discrimination, moreover, has 

very real world consequences. 

First, as the record overwhelmingly demonstrates, intentional 

employment discrimination on the basis of sexual orientation and 

gender identity causes severe economic harm. LGBT workers experience significant wage disparities, higher unemployment rates, 

and inequitable benefits. For example: 

• Twelve studies conducted in the last decade show that gay 

male workers are paid less on average than their heterosexual 

male co-workers. The wage gap identified in these studies varies 

between 10 percent and 32 percent of the heterosexual men’s earnings.26

• Lesbian couples have a poverty rate of 6.9 percent compared 

to 5.4 percent for different-sex married couples. Poverty rates for 

children of same-sex couples are twice as high as poverty rates for 

children of married heterosexual couples.27

• Transgender respondents to a 2011 national survey were unemployed at twice the rate of the general population, and 15 percent reported a household income of under $10,000 a year, nearly 

four times the rate for the general population.28

• Studies find that lesbians are more likely to live in poverty 

than are heterosexual women. For example, 24 percent of lesbians 

and bisexual women are living in poverty, compared to 19 percent 

of heterosexual women.29

In addition, LGBT workers tend to experience a substantially impaired ability to obtain employment-related benefits, including 

health insurance. As just one example, transgender Americans are 

uninsured at the same rate of the general population, but only 40 

percent enjoy employer-based insurance coverage compared to 62 

percent of the population at large. Without stable employment, income and access to jobs, the effects of discrimination are therefore 

felt in almost every aspect of life.30

This economic impact of discrimination, moreover, does not just 

impact individual LGBT Americans. Data show that 37 percent of 

LGBT adults have had a child and between 2 million and 2.8 milVerDate Mar 15 2010 00:26 Sep 17, 2013 Jkt 029010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6601 E:\HR\OC\SR105.XXX SR105

smartinez on DSK6TPTVN1PROD with REPORTS
18 

31Movement Advancement Project, supra note 29 at 6. 32 2009 Hearing, supra note 24, at 89 (testimony of Jennifer Chrisler, executive director, Family Equity Council). 33 2012 Hearing, supra note 26 at 56. 34 2009 Hearing, supra note 24 at 186 (statement of Parents, Families and Friends of Lesbians 

and Gays (PFLAG) National). 

lion American children are being raised by LGBT parents.31 Like 

other parents, LGBT parents need to work to support their families. Nevertheless, substantial numbers live in States where there 

is no explicit protection from workplace discrimination based on 

sexual orientation and gender identity. For these families, workplace discrimination has devastating consequences for the families 

that depend on them.32

Such discrimination also impacts businesses and the economy as 

a whole. As Ken Charles, vice president of Diversity and Inclusion 

of General Mills, Inc., testified, 

‘‘[t]here is a real cost that all U.S. companies are paying 

right now in terms of loss of engagement when employees are 

in fear, loss of productivity when they cannot concentrate on 

bringing their whole self to their work every day, and loss of 

talent because of these artificial barriers to entry.’’ 33

The National Center on Employment Policies calculated that discrimination against LGBT employees translated into a $47 million 

loss in profits attributable to training expenditures and unemployment benefits alone. Not including outright terminations, it has 

been projected that hostile work environments cost companies $1.4 

billion in lost output each year because of a reduction in LGBT 

workers’ productivity.34

Second, in addition to severe economic consequences, the discrimination and/or fear of discrimination that LGBT workers face 

fosters hostile work environments and causes severe psychological 

impact. 

According to the American Psychological Association, researchers 

have found that LGBT workers suffer psychological distress because they are often persecuted and in constant state of fear of 

being discovered. ‘Research has indicated that social stigma based 

upon sexual orientation may be a risk factor for psychological depression, and anxiety.’’ Kylar Broadus testified that he continues to 

suffer from post-traumatic stress as a result of the harassment and 

discrimination he faced. 

B. EXISTING LAWS ARE NOT SUFFICIENT

Seventeen States and the District of Columbia currently explicitly prohibit workplace discrimination based on sexual orientation 

or gender identity. Another four States prohibit workplace discrimination based on sexual orientation but do not include a prohibition 

on gender identity. In addition, 88 percent of Fortune 500 companies include sexual orientation in their nondiscrimination policies, 

and 57 percent include gender identity. Many other companies, colleges, universities, State and local governments have non-discrimination policies encompassing sexual orientation and gender identity. 

These explicit State and local laws apply to only 40 percent of 

the population. This leaves 60 percent of Americans without critical, explicit job protections. 


smartinez on DSK6TPTVN1PROD with REPORTS
19 

35See, e.g., Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Kastl v. Maricopa Cnty Cmty 

Coll. Dist., 325 Fed. App’x. 492 (9th Cir. 2009); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th 

Cir. 2004); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008); Macy v. Holder, 2012 WL 

1435995 (E.E.O.C. April 20, 2012); Castello v. Donahoe, 2011 WL 6960810 (E.E.O.C. Dec. 20, 

2011); Veretto v. Donahoe, 2011 WL 2663401 (EEOC July 1, 2011). 36 Jeff Krehely, Center for American Progress, Polls Show Huge Public Support for Gay and 

Transgender Workplace Protections (June 2, 2011). 

Moreover, a number of Federal courts, and the EEOC, have 

found protections for some LGBT individuals under title VII’s prohibition on discrimination on the basis of sex.35 Nevertheless, there 

remains uncertainty in the courts regarding the protection of LGBT 

individuals under title VII. 

The committee believes that in order to provide clear and certain 

protection for all LGBT workers, such protections should be explicitly written into the law. 

C. ENDA HAS BROAD SUPPORT

Overwhelming majorities have indicated that they believe that 

LGBT Americans should have equal rights in terms of job opportunities, and that they support ENDA. In a 2011 poll, 73 percent of 

voters expressed support for LGBT workplace nondiscrimination 

protections. Indeed, 89 percent of Americans believe such protections already exist.36

In addition to the broad support this legislation enjoys among 

the American public, corporate America supports ENDA. Many of 

our Nation’s most successful companies have specifically endorsed 

the bill including: Accenture, Ltd., Alcoa Inc., American Eagle Outfitters Inc., American Institute of Architects, Ameriprise Financial 

Inc., Amgen Inc, AMR Corp. (American Airlines), Bank of America 

Corp., The Bank of New York Mellon Corp., Barclays, BASF Corp., 

Bausch & Lomb Inc., Best Buy Co. Inc, Bingham McCutchen LLP, 

BMC Software Inc., Boehringer Ingelheim Pharmaceuticals Inc., 

BP America Inc., Bristol-Myers Squibb Co., CA Technologies Inc., 

Caesars Entertainment Corp., Capital One Financial Corp., CC 

Media Holdings Inc. (Clear Channel), Charles Schwab & Co., Chevron Corp., Choice Hotels International Inc., Chubb Corp., Cisco 

Systems Inc., Citigroup, Clorox Co., The Coca-Cola Co., Corning 

Inc., Darden Restaurants Inc., Dell Inc., Deloitte LLP, Deutsche 

Bank, Diageo North America, Dow Chemical Co., Eastman Kodak 

Co., Electronic Arts Inc., Eli Lilly & Co., EMC Corp., Ernst & 

Young LLP, Expedia Inc., Gap Inc., General Mills Inc., General 

Motors Corp., GlaxoSmithKline, Goldman Sachs Group Inc., Google 

Inc., Hanover Direct Inc., Herman Miller Inc., Hewlett-Packard 

Co., Hillshire Brands Co., Hilton Worldwide, Hospira Inc., HSBC, 

Hyatt Hotels Corp., Integrity Staffing Solutions Inc., InterContinental Hotels Group Americas, International Business Machines 

Corp., Jenner & Block LLP, JPMorgan Chase & Co., Kaiser 

Permanente, KeyCorp, Kimpton Hotel & Restaurant Group, KPMG 

LLP, Levi Strauss & Co., Marriott International Inc., Marsh & 

McLennan Companies Inc., Merck & Co. Inc., Microsoft Corp., 

MillerCoors Brewing Co., Mitchell Gold + Bob Williams, Morgan 

Stanley, Motorola Inc., Nationwide, The Nielsen Co., Nike Inc., Oracle Corp., Orbitz Worldwide Inc., Pfizer Inc., PricewaterhouseCoopers LLP, QUALCOMM Inc., RBC Wealth Management, Replacements Ltd., Robins, Kaplan, Miller & Ciresi LLP, Ryder System Inc., Self-Help Credit Union Durham, SUPERVALU Inc., 


smartinez on DSK6TPTVN1PROD with REPORTS
20 

37 Indeed, adjusted for the population size of different groups, LGBT individuals are as likely 

to file complaints as women and people of color. The annual rate of complaints was 4.7 per 

10,000 LGBT people on average in the States with LGBT protections, a number similar to the 

number of sex discrimination complaints per woman (5.4 per 10,000 women) and race-based 

complaints per person of color (6.5 per 10,000). See 2012 Hearing, supra note 26 (statement of 

M.V. Lee Badgett). 

Teachers Insurance and Annuity Association, College Retirement 

Equities Fund, Tech Data Corp., Texas Instruments Inc., Thomson 

Reuters, Time Warner Inc., Travelers Companies Inc., US Airways 

Group Inc., WellPoint Inc., Wells Fargo & Co., Whirlpool Corp., 

Xerox Corp., and Yahoo! Inc. 

Corporate leaders believe that ENDA is not only the right thing 

to do, but is also good for business. Kenneth Charles, vice president 

at General Mills testified, 

‘‘ENDA will be good for business and good for American by 

helping businesses attract and retain top talent, helping provide a safe, comfortable and productive work environment, free 

from any form of discrimination, and helping create a culture 

that fosters creativity and innovation that is vital to the success of all businesses.’’ 

Likewise, Virginia Nguyen, vice president of Nike, testified that, 

‘‘ENDA is good for business.’’ Robb Webb, chief human resources officer at Hyatt, wrote, 

‘‘[W]e believe that including sexual orientation and gender 

identity protection in workplace non-discrimination legislation 

will have a positive impact on our country’s ability to compete 

on the world stage.’’ 

While small businesses with less than 15 employees are exempt 

from ENDA, small businesses also support ENDA. A 2013 poll 

found that 67 percent of small business owners support the bill. In 

fact, 81 percent of small business owners mistakenly believe that 

it is already illegal under Federal law to fire or refuse to hire someone because they are gay or lesbian. 

One reason businesses support ENDA is because, they note, the 

Act is unlikely to lead to excessive litigation. In a 2013 report, the 

General Accounting Office wrote, 

‘‘the administrative complaint data reported by States for 

2007 through 2012 show relatively few employment discrimination complaints based on sexual orientation and gender identity.’’ 

Indeed, LGBT people are about as likely to file discrimination 

complaints as are people in groups that are currently protected 

against discrimination under Federal law.37

Finally, while religious organizations are not covered by ENDA, 

many religious organizations also support enactment of this legislation. Nearly 50 religious organizations wrote to the committee endorsing the legislation. These organizations wrote: 

‘‘As a nation, we cannot tolerate arbitrary discrimination 

against millions of Americans just because of who they are. 

Lesbian, gay, bisexual and transgender (LGBT) people should 

be able to earn a living, provide for their families and contribute to society without fear that who they are or who they 

love could cost them a job. . . . We call on you to pass this important legislation without delay.’’ 


smartinez on DSK6TPTVN1PROD with REPORTS
21 

38See Letter from The Leadership Conference on Civil and Human Rights (July 8, 2013). 

These religious leaders also noted that, 

‘‘any claims that ENDA harms religious liberty are misplaced. ENDA broadly exempts from its scope houses of worship as well as religiously affiliated organizations. This exemption—which covers the same religious organizations already 

exempted from the religious discrimination provisions of Title 

VII of the Civil Rights Act of 1964—should ensure that religious freedom concerns don’t hinder the passage of this critical 

legislation.’’ 

The letter was signed by: Affirmation—Gay and Lesbian Mormons, African-American Ministers in Action, American Jewish 

Committee, Anti-Defamation League, The Association of Welcoming 

& Affirming Baptists, Bend the Arc Jewish Action, B’nai B’rith 

International, Brethren Mennonite Council for Lesbian, Gay, Bisexual and Transgender Interests, Call To Action, Central Conference 

of American Rabbis, Dignity USA, Disciples Home Missions, The 

Episcopal Church, Equally Blessed, Evangelical Lutheran Church 

in America, Friends Committee on National Legislation, The Global 

Justice Institute, Hadassah, the Women’s Zionist Organization of 

America, Inc., Integrity USA, Jewish Council for Public Affairs, 

Jewish Labor Committee, Jewish Women International, Keshet, 

Metropolitan Community Churches, More Light Presbyterians, 

Mormons for Equality, Mormons Building Bridges, Muslims for 

Progressive Values, Nehirim, New Ways Ministry, Presbyterian 

Church (U.S.A.), The Rabbinical Assembly, Reconciling Works, 

Lutherans for Full Participation, The Reconstructionist Rabbinical 

Association, Reconstructionist Rabbinical College, Religious Coalition for Reproductive Choice, Religious Institute, Sikh American 

Legal Defense and Education Fund (SALDEF), Soulforce, The 

Evangelical Network, The Fellowship of Affirming Ministries, The 

Interfaith Alliance, Union for Reform Judaism, United Church of 

Christ, Justice and Witness Ministries, United Church of Christ, 

Office for Lesbian, Gay, Bisexual and Transgender Ministries, 

United Church of Christ, Wider Church Ministries, United Methodist, General Board of Church and Society, United Synagogue of 

Conservative Judaism. 

ENDA has also been endorsed by civil rights, religious, labor, 

and women’s organizations.38

IX. THE VISIBILITY OF ENDA’S PROTECTIONS WILL MAKE

A DIFFERENCE IN THE LIVES OF LGBT PEOPLE

Apart from the legal remedies that ENDA will provide workers 

who have been wrongly discriminated against on the basis of sexual orientation and gender identity, the committee believes that 

passage of legislation that explicitly prohibits discrimination on the 

basis of sexual orientation and gender identity will send a strong 

signal that in American workplaces, people should be judged on 

their skills, abilities and accomplishments. 

The bill will clearly articulate a national commitment to equal 

employment opportunity regardless of sexual orientation and gender identity. And, just as passage of legislation such as title VII 

and the ADA helped to change attitudes and diminish the social acVerDate Mar 15 2010 00:26 Sep 17, 2013 Jkt 029010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\SR105.XXX SR105

smartinez on DSK6TPTVN1PROD with REPORTS
22 

39For a thorough discussion of Congress’ authority to enact ENDA, see S. Rep. No. 107–341; 

H. Rep. No. 110–406. 40 United States v. Georgia, 546 U.S. 151 (2006); Tennessee v. Lane, 541 U.S. 509 (2004); Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003); Fitzgerald v. Bitzer, 427 U.S. 445 

(1976). 41 City of Boerne v. Flores, 521 U.S. 507 (1997). 42Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). 43 City of Boerne, 521 U.S. at 518. 44 Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001). 

ceptability of bias, prejudice and bigotry, the committee believes 

passage of ENDA will make clear that lesbian, gay, bisexual and 

transgender Americans are equal, first-class citizens. They are fully 

recognized and welcomed as members of our American family. 

X. CONSTITUTIONAL AUTHORITY

Congress has the authority to enact ENDA through the Commerce Clause and the Fourteenth Amendment of the U.S. Constitution. In addition, the Act’s authorization of individual suits against 

State government employers is derived from Congress’ enforcement 

power under Section Five of the Fourteenth Amendment as well as 

Congress’ spending power under Article I.39

Section 11 of ENDA makes unmistakable congressional intent to 

abrogate State sovereign immunity. It makes clear that States are 

not immune from suit for employment discrimination based on sexual orientation or gender identity. The committee strongly believes 

that section 11 is a valid exercise of congressional power under Article I and Section Five of the Fourteenth Amendment (‘‘section 

five’’) and that ENDA properly abrogates sovereign immunity. 

Section Five gives Congress the power to enforce the substantive 

provisions of the Fourteenth Amendment: ‘‘The Congress shall have 

power to enforce, by appropriate legislation, the provision of this 

article.’’ Pursuant to this authority, the Supreme Court has recognized that section five is an affirmative grant of legislative power 

to Congress, and it is well established that when Congress enacts 

anti-discrimination legislation it has the power to abrogate State 

sovereign immunity in order to provide a private right of action for 

damages against States.40 Indeed, the Federal Government has 

long recognized that ensuring civil rights is essential to national 

citizenship and has properly enforced and protected those rights 

under section five. 

Notably, Congress may legislate, using its authority under section five, to deter or remedy Federal constitutional violations even 

if, in the process, the legislation prohibits conduct which itself is 

not unconstitutional.41 Further, Congressional legislative authority 

under section five is broader than the language of the Fourteenth 

Amendment itself. Thus, Congress has the ability to deter and remedy conduct which is not itself forbidden by the Fourteenth Amendment.42

The Supreme Court has recognized that section five authorizes 

Congress to adopt ‘‘[l]egislation which deters or remedies constitutional violation[s].’’ 43 In doing so, ‘‘Congress is not limited to mere 

legislative repetition of [the Supreme] Court’s constitutional jurisprudence.’’ 44 Congress’s power under section five ‘‘includes the authority both to remedy and to deter violations of rights guaranteed 

[by the Constitution] by prohibiting somewhat broader swath of 

conduct, including that which is not forbidden by the [Fourteenth] 


smartinez on DSK6TPTVN1PROD with REPORTS
23 

45Garrett, 531 U.S. at 365. 46Tennessee v. Lane, 541 U.S. 509, 520 (2004). 47Lane, 541 U.S. at 520. 48See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Higgins v. New Balance Shoe Co., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., Inc., 

187 F.3d 862 (8th Cir. 1999). 49The committee also notes the overwhelming evidence of discrimination by municipal and 

private actors as well, which are relevant to the section 5 inquiry. Lane, 541 U.S. 509 at 527 

n.16, 528. 50 Varnum, 763 N.W.2d at 889. 51Kerrigan, 957 A.2d at 434. 52See Lawrence v. Texas, 539 U.S. 558, 575–76 (2003) (‘‘The Texas criminal conviction carries 

with it the other collateral consequences always following a conviction, such as notations on job 

application forms).’’ 53See, e.g., Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984) (‘‘we 

see no constitutional problem in the statute’s permitting a teacher to be fired for engaging in 

‘public homosexual activity.’ ’’); States fired law enforcement officials. See, e.g., Clearfield City 

v. Dep’t of Employment Sec., 663 P.2d 440, 443 (Utah 1983). 

Amendment’s own text.’’ 45 Congress has ‘‘a wide berth in devising 

appropriate remedial and preventive measures for unconstitutional 

actions.’’ 46

Congress has the power to ‘‘enact prophylactic legislation proscribing practices that are discriminatory in effect, if not intent, to 

carry out the basic objectives of the Equal Protection Clause.’’ 47

And, here, the committee believes ENDA is centrally designed to 

prohibit violations of the Equal Protection Clause. Indeed, ENDA 

implicates discrimination based on sex 48 as well as discrimination 

based on sexual orientation and gender identity. 

LGBT Americans have been, and continue to be, subject to pervasive, purposeful unequal treatment based on characteristics that 

are beyond the control of such individuals and result from 

stereotypical assumptions irrelevant to an individuals’ ability to 

participate in, and contribute to, society. Such discrimination deprives hard-working Americans basic equal protection—the right to 

be judged on one’s merits and not upon irrelevant factors such as 

sexual orientation or gender identity. 

As is clear from the record and this report, there is overwhelming evidence of discrimination by State actors against LGBT 

individuals, which remains widespread and pervasive.49 As the 

Iowa Supreme Court recently noted, 

‘‘The county does not, and could not in good faith, dispute 

the historical reality that gay and lesbian people as a group 

have long been the victims of purposeful and invidious discrimination because of their sexual orientation.’’ 50

As the Connecticut Supreme Court also recognized, 

‘‘There is no question . . . that gay persons historically have 

been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.’’ 51

Indeed, until recently, State laws criminalized same-sex sodomy, 

which translated into barriers to employment.52 Additionally, 

States laws explicitly permitted employment discrimination based 

on sexual orientation and gender identity, for example in the context of public school teachers and law enforcement.53

Moreover, after reviewing the long history of discrimination by 

State and local employers, Congress finds that the States do not 

possess even a rational basis for discriminating against LGBT 

workers because of their sexual orientation or gender identity. Any 

such discrimination by State and local governments is completely 


smartinez on DSK6TPTVN1PROD with REPORTS
24 

54Lawrence, 539 U.S. 558. 

irrational. The intentional discrimination based on sexual orientation and gender identity in the State workforce is never justified 

by a legitimate State interest. 

The committee also believes ENDA is necessary to prohibit violations of the Due Process Clause. Indeed, the Supreme Court has 

ruled that LGBT Americans have a right to engage in intimate consensual sexual activity between adults, and such conduct falls 

within the liberty protected by the Due Process Clause of the Fourteenth Amendment.54

Moreover, the committee firmly believes abrogating immunity in 

private suits for damages under ENDA is congruent and proportional to the problem addressed by the Act. ENDA specifically targets the pattern of irrational and unconstitutional discrimination 

on the part of State and local employers and it is narrowly tailored. 

The Act exempts certain categories of employers from liability. 

ENDA has no application to the military. It exempts businesses 

with fewer than 15 employees. It exempts religious organizations. 

ENDA also prohibits the imposition of affirmative action and the 

adoption of quotas or granting preferential treatment. Moreover, 

plaintiffs cannot bring disparate impact claims. Further, with regard to money damages, ENDA provides for the same caps that 

exist in title VII and to which the States are already subject. It 

does not provide for punitive damages in suits against State employers. Finally, it requires State employees to exhaust all administrative remedies before bringing an action for money damages in 

court. 

In sum, these limitations demonstrate the Act’s concern for targeting conduct which is in need of redress and which serves no possible rational purpose. Thus, ENDA is a congruent and proportional response to the problem of workplace discrimination based 

on sexual orientation and gender identity. 

Finally, in addition to its authority under section five, Congress 

has the power to apply ENDA to States and localities under its 

Spending Power authority. States that wish to obtain Federal 

funds for their programs or activities must comply with reasonable, 

constitutional conditions placed on the receipt of such funds. 

Through this power, Congress has the authority to provide a private cause of action for damages against States to those State employees who are affected by discrimination based on their sexual 

orientation or gender identity. 

XI. ADDITIONAL VIEWS

SENATORS ALEXANDER, ENZI, ISAKSON, PAUL, ROBERTS AND SCOTT

We voted against this legislation when the committee considered 

it and continue to oppose this legislation. 

To begin with, the legislation has not proceeded through regular 

order, and as a result there are far too many unanswered questions 

about the text and its application to American workplaces. The 

HELP Committee held no hearing on S. 815. Instead, the bill proceeded directly to markup 3 months after it was introduced. This 

bypass of regular order deprived Senators of the opportunity to ask 


smartinez on DSK6TPTVN1PROD with REPORTS
25 

55Maine, Colorado and California. 

questions about the bill’s language and explain concerns about its 

real-world application. 

Although the committee has held hearings on similar legislation 

in past Congresses, the text of S. 815 is not identical to previous 

versions. Indeed, significant changes have been made. Further, the 

HELP Committee now has at least five members who were not 

committee members in these past Congresses. Therefore, they have 

had no opportunity to air concerns about any version of the bill. 

One such concern relates to the potential for fraudulent abuse of 

the protections this bill would provide. S. 815 makes no provisions 

for, nor seems to in any way acknowledge the potential for, nefarious abuse of employment protections and gender-specific area access privileges. This oversight creates a gaping hole which could 

leave employers powerless and confused about how to prevent 

abuse and protect fellow employees, customers, and others present 

at the workplace. 

Among other workplaces, we are concerned about the application 

of S. 815 in schools, preschools, and other institutions serving children. Issues with the use of shared facilities by transgender students have already arisen in several States 55 under State laws unrelated to ENDA. Under these State statutes the courts have largely dismissed the concerns of schools, teachers, parents, and fellow 

students regarding safety issues for the peers of transgender students, setting a precedent that leaves these groups powerless to 

raise or resolve such concerns.

We are concerned that this will be repeated in workplaces 

around the country. S. 815 would force employers to ignore and silence the concerns of fellow employees, customers, and other users 

of their facilities. The repercussions of disregarding such concerns 

could be devastating to an employer. 

The lack of a legislative hearing on S. 815 also reveals itself in 

the bill’s poorly defined or completely undefined terms. The bill 

language is too vague for employers to understand—specifically in 

regard to when mandated protections are triggered, what response 

is required by law, and the extent of the liability they may face. 

In general, we object to additional employer mandates that impose individual values upon society and send the bill to employers. 

By reporting out S. 815 without fully defining the terms used in 

the bill, or giving stakeholders a chance to ask about them during 

a legislative hearing, this committee has sent a disturbing message 

to employers, and we strongly disagree with it. 

For some employers, the mandates of this legislation would conflict with deeply held religious beliefs. As reported, the bill singles 

out specific classes of employers for total exemption based on religious beliefs, but disregards others whose religiously-based opposition to the bill’s mandates may be just as sincere. In our view, 

there is little basis for this distinction. 

The bill raises additional concerns with us because, in creating 

a new protected class, it actually affords that new class with rights 

that are elevated above those granted to existing protected classes 

of race, sex, national origin, religion, age and disability. In addition 

to creating a class based on what many consider to be non-immutable characteristics, the bill also codifies employment protection 


smartinez on DSK6TPTVN1PROD with REPORTS
26 

56Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (‘‘[D]iscrimination against a 

transgender individual because of her gender-nonconformity is sex discrimination, whether it’s 

described as being on the basis of sex or gender . . . These instances of discrimination against 

plaintiffs because they fail to act according to socially prescribed gender roles constitute discrimination under title VII according to the rationale of Price Waterhouse.’’); Barnes v. City of 

Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) (plaintiff ‘‘established that he was a member of 

a protected class by alleging discrimination against the city for his failure to conform to sex 

stereotypes’’); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (‘‘sex stereotyping based 

on a person’s gender non-conforming behavior is impermissible discrimination’’ under title VII); 

Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864 (9th Cir. 2001) (holding that an effeminate 

male employee who was abused by co-workers because of their belief, he ‘‘did not act as a man 

should act,’’ could claim actionable harassment under title VII); Koren v. Ohio Bell Tel. Co., 894 

F. Supp. 2d 1032 (N.D. Ohio 2012) (employer discriminated on the basis of sex because male 

employee took his husband’s last name). 

rights for people who are not members of this new protected class, 

but who simply associate or have associated with members of the 

protected class. 

Finally, we oppose S. 815 because the legislation is not necessary. As noted, 17 States and the District of Columbia have 

adopted similar legislation, as well as a number of cities. Some 

large employers have also adopted voluntary provisions. If accurate, the polling data cited in this report would seem to indicate 

that more States may choose to adopt such statutes. That is their 

choice, and in our system of government they are thankfully free 

to make it. However, in those States where the citizens do not see 

the need for such legislation, the Federal Government should not 

mandate it against their will. 

It is also noted that employment protections for LGBT individuals have been granted under Title VII of the Civil Rights Act of 

1964.56 Although not comprehensive, courts do have the power to 

extend such protections under certain circumstances. 

AMENDMENTS

During committee consideration of S. 815, five amendments were 

filed but not offered at the markup. 

To address the bill’s lack of direction on the use of shared facilities, an amendment was filed which would allow employers to view 

each situation individually and develop a resolution which the individual employer believes is least disruptive to the workplace. We 

would have supported this amendment. 

Since the bill’s drafters failed to define the various terms used 

in gender identity provisions of S. 815, an amendment was filed 

which would require the Equal Employment Opportunity Commission to issue regulations defining undefined terms in the bill before 

any employer could face liability. We would have supported that 

amendment. 

Another amendment was filed to strike language added in the 

manager’s amendment to allow lawsuits even when an employer 

had a legitimate reason for the employment action and would have 

taken the same action with or without the discrimination based on 

sexual orientation or gender identity. We would have supported 

that amendment. 

Senator Enzi filed an amendment which would exempt all 

schools from S. 815, and we would have supported that amendment. 

Senator Paul filed an amendment which would replace the bill’s 

selective religious exemption with a comprehensive religious exVerDate Mar 15 2010 00:26 Sep 17, 2013 Jkt 029010 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\SR105.XXX SR105

smartinez on DSK6TPTVN1PROD with REPORTS
27 

emption for religious employers. We would have supported that 

amendment. 

For these reasons, we voted against reporting out S. 815, and we 

continue to oppose the legislation. 

Æ 


smartinez on DSK6TPTVN1PROD with REPORTS