Keri Renault

What Does an Inclusive ENDA Really Mean?

Filed By Keri Renault | July 28, 2009 9:30 AM | comments

Filed in: Living, Politics, Politics, Transgender & Intersex

Who can forget the infamous family feud over the highly touted "inclusive" ENDA of 2007? At the time a carefully negotiated LGBTQ alliance promised an employment non-discrimination act to protect both sexual orientation and gender identity classes.

That unified alliance didn't last long, fracturing into a house divided as contentious debate resulted in the unceremonious exclusion of gender identity. The rest as they say is history. In the regrettable aftermath lay a tainted bill that failed to pass the Senate, an emotionally toxic LBGTQ alliance and a stunned transgender community once again left in the cold.

Two years later LGBTQ allies have regrouped. Gay representatives Barney Frank (D-Mass), Tammy Baldwin (D-WI), Jared Polis (D-CO) and 140-plus House Reps have signed on to advocate passage of HR 3017, the currently proposed version of ENDA. 2009 proponents appear ready to play team ball, poised for victory after learning the bitter lessons of going solo.

Unfortunately, ENDA still falls short of being truly "inclusive."

The answer rests remarkably undisturbed, 45 years in America's legislative past. In my mind, ENDA always will fall short of true "inclusion" as long as it's governed under the existing code of Title VII of the Civil Rights Act of 1964.

The purpose of Title VII--as I understand it from my layperson's perspective--is to protect employees against discrimination in the workplace. But there are several notable exceptions. That's where the rub begins.

Religious organizations and the armed forces are exempt. Not a big shock there. Like many in the community, I'm acutely aware of the religious exemption. Should we expect anything else from the oppressive, religious right? I wasn't as informed on the armed forces exemption which I pulled from an early July post on Employment Law. Yet, those two misfits pale in comparison to the small business exemption. Don't let the implication of diminutive size fool you. The "small" business exemption is small in name only.

As is the case in most everything governed by law, the devil is in the details. The Title VII exemption for small business reads like this in Wikipedia:

"Title VII applies only to employers who employ 15 or more employees for more than 19 weeks in the current or preceding year."

I'm not sure about you, but I needed more clarification than that to make sense of who is or more importantly who is not potentially covered by ENDA. I found a surprising answer hidden in a matrix of statistics deep within the US Census Bureau.

Specifically, the 2006 County Business Patterns survey category of "employment size." When I added all workers employed by firms with less than 15 employees, I discovered almost a whopping 23 million employees would be excluded under Title VII of the Civil Rights Act of 1964, and by definition, not protected under an "inclusive" ENDA of any kind. That's a lot of exemptions to my way of thinking. And remember, it doesn't include religious or military exemptions proposed for ENDA, making that staggering exemption figure even higher.

The US unemployment rate currently teeters between 9.5 and 10% and Americans are rightfully alarmed if not outraged. Yet, I've never seen, heard or read anything about the 19% of American employees who would be excluded from protections under ENDA based on its application under Title VII of the Civil Rights Act of 1964.

Every LGBTQ advocate, ally, equality organization and concerned citizen that has campaigned tirelessly for civil rights equality since ENDA was first proposed in 1994 deserves tremendous credit. It's an incredibly monumental and worthy goal. The road to equality for LGBTQ America has been long and winding to say the least. But as potential victory finally comes within view in 2009, it's critical we recognize this is still only the beginning. Securing human rights protections for every American must be the mandate that carries forward.

There should be no rest as long as even one citizen in the LGBTQ community is left behind.

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