By Richard Hankins

This week, the full House of Representatives is expected to vote on H.R. 3685, the revised version of the proposed Employment Non-Discrimination Act of 2007 (ENDA) that would prohibit employment discrimination based on sexual orientation but does not include protections for gender identity .

Overview of the Bill

ENDA would make it an unlawful for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation.

The bill would also prohibit discrimination “based on the actual or perceived sexual orientation of a person with whom the individual associates or has associated” and would forbid retaliation against individuals who oppose practices made unlawful by ENDA or who participate in investigations or legal proceedings under the Act.

Procedure

Much of the scheduling of the House’s consideration of the bill is expected to take place behind the scenes, and even the schedule ultimately released by the Clerk’s office can be quite fluid.

House procedure calls first for the Rules Committee, headed by Rep. Louise Slaughter (D-KY) to propose a rule that will govern consideration of the bill. Such rules can include how many amendments will be permitted, determinations of what types of amendments are “germane,” the amount of debate allowed, and other points of order. The rule is then debated and voted on by the House. Sometimes debates about the merit of the bill can creep into rule debates. The rule process typically takes about an hour.

Bill managers can call up the bill anytime after the rule has been passed. Depending on the rule, certain amendments can be proposed, and such amendments could include those that were rejected by the House Committee on Education and Labor. Debate then begins on the bill and any amendments, after which a vote will be scheduled and conducted.

Gender Identity Amendment

One amendment that is certain to be offered would re-insert the prohibition against discrimination based on actual or perceived gender identity that had appeared in the original version of ENDA. The original bill defined “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.”

In addition to the expected values-based objections to providing such statutory protections, a number of practical legal issues related to the gender identity provisions were pointed out during the September 5, 2007 House Health, Employment, Labor, and Pensions Subcommittee Hearing.

As we have noted in earlier posts (HERE and HERE), the decision by Rep. Barney Frank (D-MA) to offer an alternative version of ENDA that did not include gender identity protection has caused a great deal of controversy among Lesbian, Gay, Bisexual, and Transgender (LGBT) advocates. Rep. Tammy Baldwin (D-WI) has announced an intention to offer the gender identity amendment, and most Democratic leaders in the House are expected to support it.

If, as expected, the amendment fails, there is likely to be some suggestion that supporters of LGBT rights should vote against the bill. Rep. Robert Andrews (D-NJ), chairman of the House Health, Employment, Labor, and Pensions Subcommittee, recently addressed this dilemma:

“A lot of [GLBT] groups in New Jersey say they don’t want a bill that leaves people out, Andrews said. “I will vote, speak and work for the Baldwin amendment.”

But he added that he will “part company with my friends in New Jersey” who advocate voting against a sexual-orientation-only version. Andrews said he believes it’s better to provide protection for some than none.

Religious Organization Exemption

In addition to the gender identity amendment, it is likely that the House will be asked to consider broadening the bill’s exemption for religious organizations. There was a considerable amount of controversy over the original bill’s language, which set forth the following, fairly narrow religious exemption:

(a) In General- This 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.

(b) Certain Employees- For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this 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 participation in religious ritual or worship.

(c) Conformity to Religious Tenets- Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. 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. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act.

Regarding this language, one Catholic legal analyst argued:

So . . . the Act would apply to parochial-school teachers, unless they are "religion" teachers? It would apply to (pretty much) any employee of, say, Catholic Charities? . . . [I]t strikes me as strange for the government to declare that a religious association's ability to hire (anyone?) be contingent on its identifying, for the government, those of its "tenets" (what is a "tenet", anyway?) it regards as "significant." (Are there insignificant "tenets"?)

The current version of the bill abandons the narrow approach and exempts all “religious organizations,” which it defines as:

(A) a religious corporation, association, or society; or

(B) a school, college, university, or other educational institution or institution of learning, if—

(i) the institution is in whole or substantial part controlled, managed, owned, or supported by a particular religion, religious corporation, association, or society; or

(ii) the curriculum of the institution is directed toward the propagation of a particular religion.

Nevertheless, during committee mark-up, an amendment was offered to expand the exemption to include organizations with a “faith-based mission.” A similar amendment may be offered on the House floor.

Other Possible Amendments

Three proposed amendments offered in Committee by Rep. Mark Souder (R-IN) could also be raised during the floor debate. One such amendment would have removed the prohibition on discrimination based on “perceived” sexual orientation. Another would have removed a provision that prevents employers from using being married, or being able to get married, as a basis for an adverse employment decision. The third would have protected employees from adverse treatment by their employers “if, because of their sincerely held religious beliefs, they refused to consent to a company’s anti-discrimination policy or refused to participate in a diversity training program.”

• WATCH LIST:  Employment Non-Discrimination Act of 2007