Last week, the House Health, Employment, Labor & Pensions (HELP) Subcommittee held hearings entitled, "An Examination of Discrimination Against Transgender Americans in the Workplace."  Back in November of 2007, by a vote of 235-184, the House passed H.R. 3685, the Employment Discrimination Act of 2007 (ENDA).  The ENDA would prohibit employment discrimination on the basis of actual or perceived sexual orientation.

An earlier version of the bill, H.R. 2015, would have also prohibited discrimination on the basis of "gender identity."  Fearful that this expanded ENDA would not have passed, sponsor Rep. Barney Frank (D-MA) introduced H.R. 3685.  Rep. Tammy Baldwin (D-WI) introduced an amendment prior to the floor vote, seeking to re-insert the transgender protections, but withdrew it in the 11th hour.  Thus, with the more limited bill potentially heading toward the Senate in the future, these hearings discussed whether there is a pressing need for federal legislation to address "gender identity" discrimination as well.

The Baldwin amendment -- and the original text of H.R. 2015 -- define "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.

The Subcommittee heard testimony from four transgendered individuals and the chairman of Dow Chemical's internal LGBT advocacy network in favor of the legislation; and, two attorneys opposed for differing reasons.  All testimony, as well as the introductory statements of the Subcommittee Chairman and Rep. Baldwin are available at the HELP website here.

Although Sen. Edward Kennedy (D-MA) has expressed support for the version of ENDA that has passed the House, it is unclear whether the Senate intends to consider either version of the bill prior to the 2008 elections.  Kennedy's health, politics, a shrinking legislative calendar, and a veto threat all mitigate the chances. 

Still, employers must track this issue closely.  In addition to representing a further erosion of the "employment at will" doctrine, expansion of the ENDA to protect broadly defined "gender identity" rights will create significant challenges.  For example, what is a "gender-related mannerism"?  How does one even consider defining such a term without perpetrating the very stereotypes these laws are intended to combat?  If this law is passed, employers will need significant additional guidance in designing and enforcing workplace policies.

Congressional Republican leaders today unveiled a new website and report entitled: “Death by a Thousand Cuts: Democrats’ War on American Jobs,” which it describes as “a new report cataloging a Democratic agenda that threatens millions of U.S. jobs and family budgets at a time when many Americans are grappling with the rising cost of living and record tax burdens.”

The 58-page report covers a host of issues, such as tax increases and spending measures, that the authors contend will cripple an already “vulnerable economy.” It also makes clear the positions of the Republican leadership on a number of bills on the WorkplaceHorizons.com Watch List.

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The U.S. House of Representatives today passed H.R. 3685, the Employment Discrimination Act of 2007 (ENDA) by a vote of 235-184. If the bill becomes law, employers would be prohibited from employment discrimination on the basis of actual or perceived sexual orientation. An earlier version of the bill (H.R. 2015) would have also prohibited discrimination on the basis of gender identity.

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The House Rules  Committe,  by a vote of 9 to 3,  passed a structured rule providing debate on the Employment Non-Discrimination Act of 2007 (ENDA).  The Committee sent the following Notice to House members:

FOR MEMBERS’ IMMEDIATE ATTENTION

November 5, 2007

Dear Colleague:

The House Rules Committee met today and reported a structured rule providing for consideration of H.R. 3685, the Employment Non-Discrimination Act of 2007. It is anticipated that the rule and the bill will be on the House floor later this week. The rule will be managed by Representative Castor.

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WorkplaceHorizons.com has learned that the  House Rules Committee has scheduled an emergency session for 5:00 p.m. today to discuss H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA).  This could lead to floor action as early as tomorrow.  While there is still no word on the fate of the Baldwin amendment, Rep. George Miller (D-CA) has offered a revised version of his earlier amendment.  The revised version appears to broaden the exemptions for religious organizations.

• WATCH LIST: Employment Non-Discrimination Act of 2007

Window Media reporter Lou Chibbaro, Jr. has been one of the most reliable reporters on the Employment Non-Discrimination Act of 2007.  In today’s Washington Blade, Mr. Chibbaro gives readers an update:

“We’re hopeful for floor consideration on ENDA next week,” said Drew Hammill, press secretary for Speaker of the House Nancy Pelosi (D-Calif.).

But Hammill declined to say why Pelosi and other House Democratic leaders were not ready to make a definitive commitment for an ENDA vote next week or any time this year.

 

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A spokesperson for Sen. Edward Kennedy (D-Mass.) said last week that Kennedy was expected to introduce a Senate version of ENDA this week. A spokesperson for Kennedy’s office told the Blade this week that he will wait to see how the House proceeds before moving a bill forward in the Senate.

• WATCH LIST: Employment Non-Discrimination Act of 2007

The usual Congressional spokespersons have been remarkably silent on ENDA this week.  However, in ENDA Rumors Swirl, the Bay Area Reporter notes:

Rumors abounded this week over the viability of an amendment to add "gender identity" back into the Employment Non-Discrimination Act, including one rumor that adding a trans-inclusive amendment to the legislation might be introduced and debated, but then withdrawn.

• WATCH LIST: Employment Non-Discrimination Act of 2007

Lou Chibbard Jr. of Southern Voice Online reports that spokespersons for House Speaker Nancy Pelosi (D-CA) and Tammy Baldwin (D-WI) are declining to comment on Thursday’s report in TheHill.com that House leadership had decided not to bring the Baldwin amendment up for a vote. The amendment would re-insert protections for gender identity discrimination into the Employment Non-Discrimination Act of 2007. According to Mr. Chibbard:

A coalition of more than 300 gay and transgender groups has stepped up their lobbying campaign against any version of ENDA that does not include trans protections. In a development seen as a further split within the gay rights movement, other activists and bloggers have challenged the United ENDA Coalition, saying it does not represent the sentiment of the majority of the nation’s gay community.

Unconfirmed reports surfaced late this week that support by Pelosi and other House Democratic leaders for a gay-only version of ENDA was wavering and that Democrats were considering withholding any vote on ENDA until 2009. Sources familiar with the debate have said House Democratic leaders were expected to decide whether to hold a vote on ENDA by early next week.

 

• WATCH LIST: Employment Non-Discrimination Act of 2007

TheHill.com is reporting that House Education and Labor Committee Chairman George Miller (D-CA) has told Speaker Pelosi that the Baldwin amendment, which would re-insert gender identity protections to the Employment Non-Discriination Act, " did not have the votes to pass and would not be brought to the House floor."

• WATCH LIST: Employment Non-Discrimination Act of 2007

The Congressional Budget Office has released its cost estimate for H.R. 3685 – the version of the Employment Non-Discrimination Act of 2007 that does not include gender identity protection. CBO estimates that the U.S. Equal Employment Opportunity Commission would experience a 5% increase in caseload, requiring the hiring of 60-80 additional staff. The cost is projected to be $4 million in 2008 and $6 million each year from 2009 to 2012. Without ENDA, the EEOC’s anticipated budget for 2008 is $339 million.

• WATCH LIST: Employment Non-Discrimination Act of 2007