This guest post comes to us from Congressman Barney Frank (D-MA). Congressman Frank is one of two openly gay House members, is the Chair of the Financial Services Committee, and has been a leader in the development of the Employment Non-Discrimination Act (ENDA). Congressman Frank guest posted last week about his decision to split ENDA into two separate bills.
Lambda Legal’s analysis of the bill I have reintroduced to outlaw sexual orientation discrimination contains one essential error, and two misunderstandings of where we are in the legislative process.
First, Lambda asserts:
In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians and gay men who may not conform to their employer's idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.
The ‘also’ in this phrase is wrong. The second bill does omit reference to people who are transgender, but it makes no other change in the wording on this point. It neither adds nor deletes any reference to how employer’s rights to fire people based on how they appear.
The sexual orientation language in H.R. 3685 is the same language that has been in every version of ENDA since its first introduction in 1994. There is nothing in case law or in ENDA’s history to indicate that absent gender identity coverage, the bill would inadequately protect gay, lesbian and bisexual people from discrimination. In addition, there are eight states with laws covering sexual orientation but not gender identity, and I am not aware of any instances where anti-gay discrimination, even based to some degree on gender non-conformity, was not covered.
Asserting that this allows gay men and lesbians to be fired because they are too effeminate or masculine is an invitation to bigots to try to get around the law. Fortunately, as Felix Frankfurter once said, the Constitution outlaws sophisticated as well as simple-minded forms of discrimination, and so do statutes specifically banning sexual orientation. Lambda Legal itself would easily defeat such an attempted end-run around the sexual orientation language.
Second, Lambda notes that in the reintroduced bill, the provision that would override federal law preventing states from passing laws involving employee benefits has been dropped. That is true. In the bill that I had introduced earlier this year, I noted that the drafters had included for the first time in the history of ENDA a provision that would have amended the ERISA law. ERISA law preempts all state efforts to mandate employee benefits and this preemption is a deeply held principle for all of the employer organizations in America. It was a mistake to try to slip that into ENDA. We have in fact insisted all along that ENDA was only about job discrimination in the sense of firing, hiring, promotion etc., and was not an effort to get domestic partner benefits, civil unions etc. This provision contradicted that assurance and guaranteed that we would have the vigorous opposition of the Chamber of Commerce, the National Federation of Independent Business, and a large number of other business organizations. Once again this would have guaranteed the defeat of the bill. But it is not the case that it was dropped out quietly as I reintroduced the bill. I’m enclosing a copy of a letter I wrote long before the bad news on the transgender issue came to us in which I advised Members of the Committee to drop this provision. The decision to drop out the domestic partnership benefits provision was based on a political calculation wholly apart from the transgender issue, and my decision to do it, as I was strongly urged by Members of the Committee who will be voting on this bill, was taken in early August. The new bill simply reflects that decision.
Similar facts apply with regard to the religious exemption. The fairly broad religious exemption that is in the new bill I recently introduced is essentially the same broad exemption that we had to give religious groups in previous years. We did make an effort to narrow it in the first ENDA bill this year, and a very good job of rewriting this was done with my strong support. But once again we found that this would simply engender a degree of opposition from religious groups that would keep the bill from going forward. In both cases – the employee benefits piece and the religious exemption piece – we had letters of opposition from some of the most politically influential organization in the United States. We therefore in both of these cases decided outside completely of the transgender issue that we had to go back to the earlier ENDA form.
To summarize, the one change that is made substantively from the old bill to the new one that I reintroduced is to drop gender identity. No words have been added or subtracted that make it easier to fire a gay man because of some effort to transform homophobia into dislike of effeminacy and I believe the law continues to be a strong bulwark against that. Beyond that, in the cases of employee benefits and religious exemption, the efforts we made to try to increase our scope ran into insuperable opposition and the changes I made in the bill that was reintroduced simply reflect changes that would have been made in the original bill in the Committee markup. I should note that in both cases, all of those involved in the drafting of the bill were aware that we were going to have to make those changes and I am not aware of anyone who raised any objection because the case for doing so was so overwhelming. What we have now is exactly what we introduced in past years that had widespread support.