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10 Things to Know About the Employment Non-Discrimination Act

SOURCE: AP/ Tom Harkin

Senate Health, Education, Labor, And Pensions Committee Chairman Sen. Tom Harkin (D-IA) speaks to reporters on Capitol Hill. Sen. Harkin has promised to bring the Employment Non-Discrimination Act before the Senate for a vote.

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* Author’s note, May 14, 2013: This column reflects a clarification regarding the religious exemption language in the Employment Non-Discrimination Act.

It currently is perfectly legal in America to fire someone for being lesbian, gay, bisexual, and transgender, or LGBT. Rather than being evaluated on their skills, qualifications, and ability to contribute to the job, LGBT workers are all too often not hired, not promoted, or, in the worst cases, fired from their jobs solely due to their sexual orientation and gender identity—characteristics completely irrelevant to job performance. And in a majority of states and under federal law, these employees have no legal recourse to challenge this discrimination.

This week, however, a bipartisan group of senators and representatives are planning to introduce a bill to change that. If passed and signed into law, the Employment Non-Discrimination Act of 2013, or ENDA, would prohibit most employers from discriminating against employees based on sexual orientation or gender identity. It would finally put in place uniform and comprehensive protections for the LGBT workforce in all 50 states.

Considering the high rates of discrimination that LGBT workers experience, this law is sorely needed. Discrimination can force LGBT workers into unemployment, leaving them without an income to pay the mortgage, buy groceries, and otherwise make ends meet. Workplace discrimination is not only a problem for workers though; it also presents problems for businesses by introducing inefficiencies and costs that cut into profits and undermine businesses’ bottom lines.

While ENDA has been introduced in every session of Congress save one since 1994, the last time it received a vote in the Senate was in 1996. More than a decade and a half later, there still isn’t a federal law in place protecting LGBT workers from bias and discrimination. Luckily, earlier this year Sen. Tom Harkin (D-IA) vowed as Chairman of the Senate HELP committee—which oversees ENDA’s introduction—to move the bill forward this year. It’s high time the senate takes up this important bill once again for a vote.

With the bill’s introduction this week, here are the top 10 things you need to know about the Employment Non-Discrimination Act.

LGBT workers experience high rates of discrimination

LGBT employees continue to face widespread discrimination and harassment in the workplace. Studies show that anywhere from 15 percent to 43 percent of gay, lesbian, and bisexual people have experienced some form of discrimination and harassment in the workplace. Specifically, 8 percent to 17 percent of LGB workers report being passed over for a job or being fired because of their sexual orientation; 10 percent to 28 percent received a negative performance evaluation or were passed over for a promotion because they were LGB; and 7 percent to 41 percent of LGB workers encountered harassment, abuse, or antigay vandalism on the job. Rates of discrimination are especially high among people of color who identify as LGBT.

Transgender workers in particular experience high rates of employment discrimination. An astonishing 90 percent of transgender people report some form of harassment or mistreatment on the job or report having taken action such as hiding who they really are to avoid it. As with LGB employees, rates of employment discrimination are especially pronounced among transgender people of color.

Employment discrimination is bad for both employers and employees

Employment discrimination is a lose-lose situation for both the employees who are discriminated against and for the employers who allow discrimination to go unchecked.

For employees, discrimination often means being forced into the ranks of the unemployed, leaving them without an income to support themselves and their families. In this way, discrimination is largely to blame for many of the economic insecurities among LGBT families, who, contrary to commonly held stereotypes, report lower annual earnings and higher rates of poverty than non-LGBT families.

For employers, discrimination is an economically unwise business practice. Discrimination cripples a businesses’ ability to recruit and retain the best and the brightest. It diminishes overall job performance and productivity and closes businesses off to potentially profitable consumer markets.

The vast majority of Fortune 500 companies support these policies

When you consider the fact that discrimination hurts businesses, it is not surprising that nearly all Fortune 500 companies have taken steps to protect their workers. Companies that don’t protect and support LGBT workers are increasingly out of step with corporate America. Of the Fortune 500 companies, 87 percent of businesses have established nondiscrimination policies that include sexual orientation, and 56 percent include gender identity. That number increases as you climb the fortune ladder: Of the Fortune 100 companies, 93 percent include sexual orientation and 82 percent include gender identity in their corporate nondiscrimination policies.

No federal law prevents workers from being fired because they are LGBT

No federal law currently exists to prohibit employers from discriminating against LGBT people. Unfortunately, 9 out of 10 voters mistakenly believe LGBT workers already have federal protections against employment discrimination. A majority of states similarly do not offer employment protections to the LGBT workforce. Only 21 states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation; 16 and the District of Columbia do so on the basis of gender identity.

ENDA would provide comprehensive protections to LGBT workers in all 50 states

If passed and signed into law, the Employment Non-Discrimination Act would protect private and public employees from employment discrimination on the basis of perceived or actual sexual orientation and gender identity. ENDA is similar to Title VII of the Civil Rights Act of 1964, which already protects workers on the basis of race, color, religion, sex, and national origin, as well as to the Americans with Disabilities Act of 1990, which protects against employment discrimination based on disability status. ENDA would only apply to employers with 15 or more employees, and the Equal Employment Opportunity Commission, or EEOC, would enforce it.

Small businesses report having LGBT-inclusive nondiscrimination policies

A Center for American Progress poll reveals that many small businesses already have policies in place that prohibit discrimination against LGBT employees. Seven out of 10 small businesses prohibit discrimination on the basis of sexual orientation, and 6 out of 10 small businesses already prohibit discrimination on the basis of gender identity. What’s more, small-business owners report that there were virtually no costs associated with implementing and maintaining these nondiscrimination policies. In fact, most research indicates that nondiscrimination policies are a net positive for large and small businesses.

ENDA enjoys broad public support

In a Center for American Progress poll, nearly three-fourths—73 percent—of the American public supports protecting LGBT people from workplace discrimination. This support cuts across political party affiliation, with 81 percent of Democrats, 74 percent of independents, and 66 percent of Republicans supporting workplace nondiscrimination laws for LGBT people. Looking at key demographic groups, Catholics and seniors solidly favor employment protections based on sexual orientation or gender identity with 74 percent support and 61 percent support, respectively. Even among people who identify themselves as feeling generally unfavorable toward gay people, a full 50 percent support workplace nondiscrimination protections for the LGBT population. The small business community also strongly supports enacting ENDA: 63 percent of small-business owners have voiced their support for the bill.

ENDA contains an exemption for religious organizations*

Section 6 of ENDA provides religious organizations, which are broadly defined, with a substantial exemption that allows them to continue to take sexual orientation and gender identity into account when making employment decisions. In this way, ENDA’s religious exemption is broader than other laws that provide exemptions to religious organizations with respect to employment—and in fact is broader than any religious exemption in our federal civil rights laws. Given this, claims that ENDA harms religious liberty are misplaced.

ENDA explicitly prohibits quotas, preferential treatment, and federal data collection

Looking technically at the bill, Section 8 of ENDA explicitly prohibits employers from giving preferential treatment to LGBT workers. It similarly prevents employers from establishing quotas for employment based on sexual orientation and gender identity. It simply protects LGBT workers from unfair or biased decision making in matters of employment, which would level a currently very uneven playing field.

ENDA also prohibits the EEOC from collecting data about employees’ sexual orientation or gender identity. It’s worth noting, however, that the bill does not prohibit employers from collecting data about their LGBT employees themselves. Should they choose to do so—as some businesses in the private sector already do—they can then provide those statistics to the EEOC.

President Obama can sign an executive order prohibiting federal contractors from discriminating against LGBT workers

While the Senate can and should vote on ENDA in this session, it is unlikely that the conservative House of Representatives will take up this critical piece of legislation, let alone put it to a vote. Given ENDA’s dismal chance of becoming law in the near future, President Barack Obama can and should issue an executive order prohibiting federal contractors from discriminating against LGBT workers. Presidents from both political parties have issued similar executive orders that prohibit federal contractors from discriminating on the basis of race, color, religion, sex, or national origin. As the chief executive of the federal government, President Obama should make it clear that discrimination against LGBT workers will not be tolerated if you want to do business with the government.

At its core, ENDA’s premise is simple: Nobody should be denied employment or forced out of a job due to their sexual orientation and gender identity. Americans from all demographic and political backgrounds support this bill. It’s time for Congress to take action and finally turn it into law.

Winnie Stachelberg is the Executive Vice President for External Affairs and Crosby Burns is a Policy Analyst at the Center for American Progress.

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