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A History of the Employment Non-Discrimination Act

It’s Past Time to Pass This Law

SOURCE: AP/Josh Reynolds

Rep. Barney Frank (D-MA), pictured above, and 146 co-sponsors introduced the latest version of ENDA in the House in April of this year. With strong public support for workplace discrimination laws for gay and transgender workers, it is time for Congress to finally move this bill forward.

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The gay and transgender community made significant progress over the past year in the fight for equality. Congress voted to repeal “Don’t Ask, Don’t Tell.” President Barack Obama and his administration determined the Defense of Marriage Act is unconstitutional. And New York recently passed a law with bipartisan support that will allow loving gay and lesbian couples to marry. But another important issue—ending workplace discrimination—remains outside of the media and public’s attention despite the fact that gay and transgender employees are fired, not hired, and harassed on the job at alarmingly high rates.

The Employment Non-Discrimination Act, or ENDA, would make it illegal under federal law to discriminate in any aspect of employment based on someone’s actual or perceived sexual orientation and gender identity. It also protects workers from discrimination because of associating with other workers who are gay, lesbian, bisexual, or transgender, and protects all workers from retaliation if they complain about sexual orientation or gender identity discrimination.

These protections would extend to all federal, state, and local government agencies; employment agencies; unions; and private employers with 15 or more employees. ENDA includes explicit exemptions for religious organizations and religiously affiliated entities, including all houses of worship, missions, or schools that have the purpose of religious worship or teaching religious doctrines.

A patchwork of state and local laws currently provide gay and transgender workers some protections from employment discrimination. Twenty-one states and the District of Columbia currently prohibit discrimination on the basis of sexual orientation, and 15 of those states also prohibit employment discrimination on the basis of gender identity. But that means it remains legal in 29 states to fire employees because they are gay, and in 35 states because they are transgender.

Passage of federal legislation, such as ENDA, is the only way to ensure these protections are extended across all states and to all workers.

ENDA’s premise is simple enough. But nothing about passing ENDA has been simple, as a review of its history shows. A bipartisan group of lawmakers recently introduced ENDA in both houses of Congress but more public education and advocacy likely needs to be done before the bill becomes law.

Past attempts to pass ENDA

Initial congressional efforts to end gay and transgender discrimination grew out of increasing activism on the part of gay and transgender people following a series of protests across the nation against police harassment and brutality directed at the LGBT population. The most famous of these protests was the Stonewall Rebellion where a group of gay and transgender patrons at the Stonewall Inn in New York City fought back against a police raid, following a long history of harassment and arrests by city cops.

Shortly after this series of protests, Reps. Bella Abzug (D-NY) and Ed Koch (D-NY) introduced the Equality Act of 1974, which sought to ban discrimination against gay and lesbian individuals, unmarried persons, and women in employment, housing, and public accommodations such as restaurants, hotels, museums, libraries, and retail stores. The act marked the first-ever national piece of proposed legislation that would end discrimination against gays and lesbians in the United States. It did not, however, include transgender people.

Hopes were high for passage when the act was introduced because of the increased and unprecedented media coverage gay rights issues were receiving. Also, along with the protests mentioned above, the early 1970s saw the establishment of new gay rights organizations and the first pride parades, which took place in Los Angeles, Chicago, and New York.

Further, the overall climate in the country seemed ripe for the expansion of civil rights with the passage of the Civil Rights Act of 1964 and congressional passage of the Equal Rights Amendment, which would have prohibited the denial of equal rights under the law on the basis of sex. (The ERA ultimately failed to be ratified by enough states to be added to the U.S. Constitution).

Unfortunately, the Equality Act of 1974 never earned enough support to make it out of committee in the House, and it was never introduced in the Senate. Similar bills and efforts also failed in the late 1970s.

The momentum that propelled the introduction of the Equality Act would not be seen again until the late 1990s. This was not due to lack of effort, according to the National Gay and Lesbian Task Force, but rather to three political and social factors that prevented these equality measures from gaining traction nationally in the 1980s and early 1990s:

  • Well-organized antipathy toward gay and transgender individuals (for example, Anita Bryant’s anti-LGBT “Save Our Children Campaign” and Pat Buchanan’s “culture war”)
  • The emergence of AIDS, which diverted gay activists’ time, money, and attention away from other issues affecting the population
  • The takeover of the federal government, beginning in 1994, by lawmakers who were beholden to socially conservative voters who demanded opposition to equality claims for women, racial minorities, immigrants, and gay and transgender individuals

While the Equality Act of 1974 was broad, ENDA is narrowly focused on a single issue: employment discrimination. Lawmakers first introduced ENDA in 1994. That version of the law would have made it illegal to discriminate against employees in all aspects of employment based on a person’s actual or perceived sexual orientation (gender identity would not be added until 2007). Both the House and Senate versions of ENDA died in committee that year, a story that would be repeated for the next several years (though in 1996 ENDA received a floor vote in the Senate but failed by a one-vote margin). After 1996 a version of ENDA was introduced in every session of Congress except the 109th.

In 2007 members of Congress introduced the first version of ENDA that included discrimination prohibitions on the basis of both sexual orientation and gender identity. Unfortunately, this inclusive version of ENDA died in committee. Rep. Barney Frank (D-MA) made a second attempt at moving the bill through, this time without the provisions protecting transgender workers from discrimination.

That year the House passed ENDA by a vote of 235 to 184. In the Senate, however, the bill was not referred to a committee or brought to the floor for a vote. ENDA likely failed to come to a vote in the Senate due to the exclusion of gender identity from Rep. Frank’s bill.

Following the 2007 House vote on ENDA, a general consensus emerged among advocates that all future versions of ENDA must include language that prohibits discrimination on the basis of gender identity. As such, members of the next Congress introduced ENDA in both the House and Senate that included both sexual orientation and gender identity in 2009.

Both the House and Senate held hearings on the issue but a crowded legislative calendar made ENDA difficult for Congress to prioritize, especially given the debates surrounding health care, reforming financial regulations, the Bush tax cuts, “Don’t Ask, Don’t Tell” repeal, and the passage of the gay and transgender inclusive hate crimes law in 2009.

The latest version

Rep. Barney Frank (D-MA) and 148 co-sponsors (as of July 19, 2011) introduced the latest version of ENDA in the House in April of this year. Sen. Jeff Merkley (D-OR) and 39 co-sponsors (as of July 19, 2011) introduced a similar bill in the Senate around the same time.

At the time of House introduction, Rep. Frank said that it is highly unlikely ENDA will pass during this Congress because of the House’s conservative makeup. But he stressed that it was important for advocates to continue educating lawmakers and the public about the problem of gay and transgender workplace discrimination to increase the bill’s chances of passing in future sessions of Congress.

With strong public support for workplace discrimination laws for gay and transgender workers, it is time for Congress to finally move this bill forward. Rep. Frank’s assessment of the current conservative House is likely accurate but this issue is not one that should divide lawmakers. Equal opportunity in the workplace for all should be a basic tenet that even the most ideologically divided Congress can agree upon.

Jerome Hunt is a Research Associate at American Progress.

See also:

Endnotes

[1]. In this column, the term “gay” is used as an umbrella term for people who identify as lesbian, gay, or bisexual.

[2]. This includes Nevada and Connecticut, which both passed gender identity employment protection laws earlier this year. Republican Gov. Brian Sandoval signed Nevada’s bill into law, which will go into effect October 1, 2011. Democratic Gov. Dannel Malloy signed Connecticut’s bill into law, which will also go into effect October 1, 2011.

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