Dr. Jillian T. Weiss

ENDA Hearing Witnesses: Who Are They And What Will They Say?

Filed By Dr. Jillian T. Weiss | September 22, 2009 10:30 AM | comments

Filed in: Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, ENDA

The Congressional hearing on ENDA this Wednesday, September 23, at 10:00 am ET, before the Committee on Education and Labor, is crucial to its passage.

The hearing by the full Committee on Education and Labor will be available to watch online live by going to http://bit.ly/bxyfr.On the top right-hand side of the page, an inch down, click on "Live Webcast." I encourage everyone to watch it, and to call the members of the Committee who are not supporting ENDA. (Click here for names and contact info.)

A partial witness list was announced yesterday:

  • U.S. Rep. Tammy Baldwin (D-WI)
  • U.S. Rep. Barney Frank (D-MA)
  • Hon. Stuart J. Ishimaru, EEOC Acting Commissioner
  • William Eskridge, Yale Law School
  • Vandy Beth Glenn, fired from her Georgia state legislative job
  • Camille Olson, partner, Seyfarth Shaw LLP
  • Craig Parshall, National Religious Broadcasters Association
  • Rabbi David Saperstein, director, the Religious Action Center
  • Brad Sears, Williams Institute, UCLA School of Law

Information about the witnesses after the jump.

I can't promise to tell you exactly what the witnesses will say, but I can give you some background information, and suggest some of the things they might say.

U.S. Rep. Tammy Baldwin (D-WI):

Her testimony from 2007 suggests that she will discuss, among other things, her experience as a lawyer in employment discrimination cases, and the importance of the Wisconsin statute prohibiting sexual orientation discrimination, as well as the meaning and relevance of gender identity inclusion. Here's what she said about gender identity in 2007.

U.S. Rep. Barney Frank (D-MA)

In 2007, when the ENDA bill was split into "sexual orientation" only and "gender identity" only bills, Representative Frank chose to testify on the "gender identity" bill. Despite my disagreement with his political tactics in separating the bills, I thought his testimony was eloquent. His testimony, as a Representative now generally acknowledged to be one of the most powerful in the House, will send a strong signal to wavering Members. Here's his testimony from 1997. (Warning: May Contain Unintended Humor)

Hon. Stuart J. Ishimaruishimaru.jpg

Mr. Ishimaru is the Acting Commissioner, U.S. Equal Employment Opportunity Commission. A press release at the time of his appointment said the following: "Ishimaru, whose term expires on July 1, 2012, has been a Commissioner since November 2003. He was confirmed by the U.S. Senate for a second term at the EEOC in December 2007. During his tenure, Ishimaru has primarily focused on large, systemic cases and in reinvigorating the agency's work on race discrimination issues. He also played an instrumental role in the EEOC's adoption of groundbreaking guidance on gender discrimination against workers with caregiving responsibilities."

More significantly, here's what he said in his 2005 article in the University of Memphis Law Review, "Fulfilling the Promise of Title VII of the Civil Rights Act of 1964:"

In the last forty years, society's view of gays and lesbians has changed significantly, yet legal protections have been slow to follow. To achieve fully Title VII's promise of equal opportunity in the workplace, we must provide protections for individuals based on their sexual orientation. Because the text of Title VII does not contain an explicit prohibition against discrimination based on sexual orientation, several courts have held that Title VII affords no such protection. Short of amending Title VII or passing other legislation, there may be some protection for gays and lesbians under Title VII through the Supreme Court's gender stereotyping analysis in Price Waterhouse v. Hopkins and its same-sex harassment analysis in Oncale v. Sundowner Offshore Services, Inc. In cases with clear evidence of harassment based on homophobia, courts have concluded that Title VII protections will apply and that anti-gay harassment is evidence that the defendant has engaged in prohibited stereotyping based on gender. Moreover, Title VII's language prohibiting discrimination "because of sex" can and should be extended to protect individuals based on their sexual orientation. The gender stereotyping analysis in Price Waterhouse can be applied to homosexual men and women who, by the mere fact of their sexual orientation, violate the stereotypes society holds about sexual norms.

A bold statement on behalf of job equality, indeed.

William Eskridge

Mr. Eskridge is John A. Garver Professor of Jurisprudence at Yale Law School.
Professor Eskridge is generally acknowledged as one of the foremost scholars of law and sexuality. I had the pleasure of hearing him speak, at an impromptu round table over the refuse container in the foyer at the recently held National LGBT Bar Association Conference (often called the "Lavender Law" conference). I didn't know who he was, though I've read everything he's written. But I was rendered unable to resist this unbelievably eloquent speaker in the bow tie (and quite handsome I must perforce add). Wow. If there is a rock star law professor, this is he.

He has written many words about ENDA, and it would be hard to pick out a few and say they are representative of his work. But one point that I think it important to make about him is that he has long understood the importance of an inclusive ENDA. Here he is in 1994, in his book "Gaylaw: Challenging the Apartheid of the Closet", before the word "transgender" had even sprung into popular use:

Is there a principled reason to exclude transsexual and transvestite orientations from ENDA or from Title VII? I am dubious for discrimination against them rests upon hysterical and narcissistic sentiments associated with antigay prejudice.

Here he is at the Federalist Society in 2008. He doesn't say anything about ENDA, but you get an idea of his speaking style and how his mind works. The issue he's discussing is why the Supreme Court's use of "tradition" to dismiss gay rights is problematic. He gets into his stride about 1:30:00:

Vandy Beth Glenn

Ms. Glenn was fired from her Georgia state legislative job when she told her supervisor she was transitioning from male to female.

Lambda Legal details the legal situation here. Part of the importance of her testimony is related to the section of ENDA that includes government workers, like Ms. Glenn. There is some controversy about that because of the 11th Amendment to the US Constitution, which gives immunity to the states from prosecution in federal court. However, the Supreme Court has ruled that the 14th Amendment trumps the 11th Amendment. The Court said that Congress has the right to pass laws subjecting states to liability in cases involving equal protection and due process. Nonetheless, the issue remains a sensitive one in federal-state relations. The hearing will seek to show that state governments can discriminate like any other employer, and there should be restrictions on its ability to do so.

You can see her speak on Lambda Legal's recent ad at 1:20

Camille Olson
olson camille.jpg

Ms. Olson is an employment practice partner at the big law firm of Seyfarth Shaw LLP, which represents corporations. She testified in 2007 at a Senate hearing against the liberalization of the Americans With Disabilities Act. I was unable to find anything by her or about her discussing ENDA, sexual orientation or gender identity.

Craig Parshallparshall.jpg

Mr. Parshall is senior vice president and general counsel of the National Religious Broadcasters Association. He is quoted as saying: "The pro-homosexual lobby claims that there is "religious exemption" language present in ENDA, but as NRB's General Counsel Craig Parshall notes, that language is "insufficient, overly complex and vague".

Rabbi David Sapersteinsaperstein.jpg

Rabbi Saperstein is the director of the Religious Action Center. Here's what he said in 1999: "On behalf of the 875 congregations of the Union of American Hebrew Congregations, the 1,800 rabbis of the Central Conference of American Rabbis, and the 1.5 million Reform Jews across the nation, I am pleased to announce our full support of the Employment Non-Discrimination Act.."

Brad Searssears.jpg

Mr. Sears is the executive director of the Williams Institute, UCLA School of Law. He has been quoted as saying that ENDA is needed because "over 3 million LGBT workers make their livelihoods in states that do not provide such protections. As the debate surrounding the necessity of LGBT workplace protections begins again in Congress we must keep in mind the fragile economic position of these LGBT employees and their families."

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Vandy will do real well. She is one smart woman.

Jillian, thanks for the update.

Can you help me understand something though? When I see articles like this about bills moving through Congress, sometimes I hear about "hearings" where witnesses are called; and sometimes I hear about a process where the committee takes a bill, considers amendments to it, and after amendments votes the bill out of committee. These don't seem to be the same thing. Does the second process have a name? Does the first one lead to the second in some way? Do the "hearings" in general serve any procedural purpose, or are they just something a bill's proponents/opponents use to promote/attack a bill? And is there any idea on what kind of schedule the House committee might get to that second step of amending and voting on ENDA?

I'm not sure of the names of the procedures or the differences between them, if any. I'll try to find out and post some info.

The second process is called a mark up. I don't know that any significant piece of legislation would not go through a mark up and ENDA certainly qualifies as significant. Hearings are an opportunity for proponents and opponents to comment on a bill on way or the other and provide their justifications for or against as well as suggest changes to make it better (or worse)as possible ammendments. As I understand it, there is a minimum period of time required to announce a mark up and there are plans to make such an announcement soon after tomorrow's hearing. Mark up could be as soon as next week. Committee vote comes after mark up. So this part could go pretty quickly. Then the question, not yet answered, is when will it go to the floor for a full House vote?

Here is a very cool link from the Task Force. If you click on it, and tell them your cellphone number and your zip code, your phone rings, and after a short message from the Task Force, tells you your Congressmember's name and connects you to the office. How cool is that? Click here for the link.

Do you know if this is being broadcast on the net? If so, do you have a link?

Yes, it is! And we're liveblogging it too!

Join me at 10am until about noon to view and liveblog the Congressional Hearing on the Employment Non-Discrimination Act. You'll be able to watch, comment, and interact with other viewers.

If you've been waiting for the Administration to do something, this is your moment.

Click here for more information: http://bit.ly/18XWHW