The proposed federal Employment Non-Discrimination Act (ENDA) is one of the most persistent pieces of would-be legislation in US history: The measure, which would make it illegal for most American businesses to deny employment on the basis of sexual orientation or gender identity, was first introduced in 1994 and has been brought up in almost every Congress since.
Senate leaders announced they would finally hold a vote in November, but the initial predictions have set lobbyists and co-sponsors hunting for elusive quarry: one more Republican senator whose vote will be needed to overcome a filibuster.
Most Americans—as many as 90 percent, according to some polls—assume that such a law exists already. In a survey conducted by Republican pollster Alex Lundry this year, only eight percent of those questioned were aware that there is no federal mandate against LGBT hiring discrimination. But while seventeen states and the District of Columbia forbid denying employment for being gay or trans* and four states lack protections for trans employees but do protect gay hires, a federal law on par with Title VII of the Civil Rights Act has been in the works since the 70s without ever manifesting.
The present version of the bill seems to enjoy as close to universal approval as is possible in this day and age: Civil Rights-era liberal activist Mandy Carter, for example, told 429Magazine she was “incredibly pissed off” that ENDA has yet to pass, while on the other side of the political fence Gregory Angelo, executive director of the Log Cabin Republicans, told us ENDA was “extraordinarily important” to the LCR, characterizing it as “part of a larger economic and jobs policy that puts LGBT Americans to work.”
The appeal of a bill that could unite such disparate political entities doesn’t stop at Carter and Angelo: A Center for American Progress poll in 2011 found that 73 percent of Americans support such a law (once they were told that it didn’t already exist), including a majority of self-described conservatives and even a majority of respondents who characterized themselves as hostile to LGBT people in general. The Lundry poll from this year described the law in more specific terms that winnowed the number of supporters a bit but still found 68 percent support, including 56 percent of Republicans.
The Senate’s Democratic Caucus largely supports the measure, and with the swearing-in of New Jersey Senator Cory Booker this week the party enjoys a 55-seat majority. Two Republicans—Mark Kirk of Illinois and Susan Collins of Maine—co-sponsored the bill.
Commenting through her spokesperson, Collins told 429Magazine the bill was simply recognition that “individuals’ [employment]should be based solely on their skills,” and that the lack of a federal LGBT discrimination shield was a “gap in civil rights laws.” She cited the hiring standards of “nearly 90 percent of Fortune 500 companies,” which prohibit discriminatory policies through internal rules, as proof that such most of the public support the bill’s ends.
Two other Republicans, Alaska’s Lisa Murkowski and Utah’s notably conservative Orin Hatch, voted in favor of ENDA in committee this summer. “That proves this isn’t just wishful thinking anymore,” Ian Thompson, an ACLU legislation representative, told 429Magazine. “If Hatch and Murkowski can come out of deep-red states and vote for this that shows how close we are. The seeds for this were sown in the 70s and we’re right on the cusp.”
Teddy Basham-Witherington, chief marketing officer for workplace advocacy group Out & Equal, tells us that the emerging rightward acceptance of ENDA isn’t surprising if you look at it from a business point of view: “While it does at first blush seem contrary, there’s a growing awareness that if you want to be successful you have to retain the best talent, which means that diversity and an accepting work environment are good for business.” The US Chamber of Commerce has remained neutral on ENDA—a victory in its own right to some, as the group rarely passes up a chance to oppose new federal regulation.
But even if all fifty-five Democrats plus the four presumed Republican votes come through, that still leaves at least one more Republican necessary to secure the sixty votes needed to sidestep a filibuster.
Prominent senators like Arizona’s John McCain are already closing ranks against ENDA. McCain told Politico.com that he was concerned about the potential for “reverse discrimination.” Rob Portman of Ohio made a stunning endorsement of marriage equality this year after learning that his son is gay, but he remains on the fence about ENDA.
ENDA lobbyists consider Dean Heller of Nevada a potential vote in favor, but Heller’s spokesperson Chandler Smith would tell 429Magazine only that the senator was “reviewing the legislation carefully” and “listening to his constituents and colleagues.” Smith confirmed that Heller would be meeting with Senator Jeff Merkeley of Oregon, the bill’s primary architect.
Opposition to ENDA has come mostly from religious and openly anti-gay groups, as well as some libertarians and small-government activists. No one at the Heritage Foundation, one of the most vocal critics of the bill, was available for comment, but they referred to Heritage fellow Ryan Anderson’s opinion piece in the National Review Online, which calls the bill an assault on civil liberties, religious freedoms, and traditional values.
“ENDA could require employment policies that undermine common sense about a host of workplace conditions,” Anderson writes. “Issues of sex and gender identity are psychologically, morally, and politically fraught. Students could be prematurely exposed to questions about sex and gender if, for example, a male teacher returned to school identifying as a woman.”
Under ENDA, religious organizations would be exempt from LGBT hiring regulations, as would business with fewer than fifteen employees. Some previous versions of the bill only afforded protection on the grounds of sexual orientation, but the version going before the Senate includes protections related to gender identity. A cloture vote is scheduled for November 4.