By Lisa Keen
Restrooms and religion arose as the only objections on Nov. 5 during the U.S. Senate’s first hearing on the inclusive Employment Non-Discrimination Act. And the testimony from the Obama administration struck an unusually ironic note just two days after Maine voters rejected an equal marriage law there.
The 2009 version of ENDA is different from a 2002 version that also received a Senate hearing in that it includes a prohibition based on both sexual orientation and gender identity.
The only one of seven witnesses to speak against the bill was Craig Parshall, Senior Vice President and General Counsel for the National Religious Broadcasters Association. He raised the concern about religious exemptions, as he did in September when the House held a hearing on the bill.
Section 6 of the bill, S.1584, provides that the legislation “shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.
Title VII of the Civil Rights Act prohibits employers from making any negative hiring decision against an individual based on his or her “race, color, religion, sex or national origin.” And it provides an exemption for “a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.”
Parshall said his organization “strongly opposes ENDA” because it would “impose a substantial, unconstitutional burden on religious organizations.”
Parshall said the “purported exemption for religious organizations” in Section 6 is “fatally insufficient.” Because it exempts only those organizations identified in Title VII of the Civil Rights Act, he said, ENDA will leave it to the courts to examine the “beliefs and doctrines of religious employers regarding homosexuality, lesbianism, bisexual, transgenderism and similar issues.”
Camille Olson, a Chicago attorney with experience in representing corporations in employment discrimination cases, also reiterated concerns she raised at the House hearing in September. She did not take a position for or against ENDA, but urged the Committee to make sure the legislation provides clear guidance regarding whether employers are required to modify existing restroom facilities.
The law states that it does not apply to “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable.” It does, however, require the employer to provide “reasonable access to adequate facilities” for any transgender employees.
Olson said it is “absolutely critical to have clarity” on when such facilities must be modified.
Sen. Tom Harkin (D-Iowa), chairman of the Senate Committee on Health, Education, Labor and Pensions, said “no legislation can cover every conceivable” scenario that might arise out of a claim of discrimination.
Harkin called ENDA “one of the most important issues of our day” and said the legislation must give “broad guidance to the courts” and strike a “balance” between the competing needs to address discrimination based on sexual orientation and gender identity and the need to protect the free exercise of religion.
Only three of the committee’s 23 members showed up for the hearing, which ran from 10 a.m. until just past noon. Others included the bill’s sponsor, Jeff Merkley (D-Ore.), and Al Franken (D-Minn.).
‘We can’t remain silent’
The irony of the hearing was testimony provided by the Department of Justice’s Assistant Attorney General, Tom Perez, who heads the Civil Rights Division. Perez urged the committee to support the inclusive ENDA bill, a position that was taken by President Obama during last year’s presidential campaign.
“We cannot in good conscience stand by and watch unjustifiable discrimination against lesbian, gay, bisexual and transgender individuals occur in the workplace without redress,” said Perez. “We have come too far in our struggle for ‘equal justice under the law’ to remain silent or stoic when our LGBT brothers and sisters are still being mistreated and ostracized for reasons that have absolutely nothing to do with their skills or abilities and everything to do with myths, stereotypes, fear of the unknown and prejudice.”
Although President Obama has made clear he does not personally support gay marriage, he did promise to use the bully pulpit of the White House “to urge states to treat same-sex couples with full equality.” President Obama said nothing to Maine voters to urge them to treat same-sex couples with full equality – either before Tuesday’s vote or to comment on that vote afterwards.
Perez said his department “regularly” receives complaints about sexual orientation and gender identity discrimination.
“It is painfully disappointing to have to tell these working men and women that, in the United States of America in 2009, they may well be without redress because our federal employment anti-discrimination laws either exclude them or fail clearly to protect them.”
Others testifying on behalf of ENDA Thursday included Illinois Attorney General Lisa Madigan and Springfield, Mass. police officer Mike Carney, who suffered years being in the closet until he filed a discrimination complaint and was able to serve openly.
Human Rights Campaign President Joe Solmonese praised the committee for holding the hearing.
“For the first time in history, the Senate is moving forward with legislation to protect Americans from arbitrary discrimination in the workplace based on sexual orientation and gender identity,” said Solmonese in a statement. “Like our neighbors and coworkers, LGBT people simply want a fair chance to succeed and support our families.”