The U.S. Senate took a step closer today to passing legislation that would prohibit employment discrimination on the basis of sexual orientation or gender identity.
The vote was 61-30, with seven Republicans joining Democrats to secure the 60 votes needed on a procedural vote to advance the legislation, S. 815. The bill, known as the Employment Non-Discrimination Act, or ENDA, would extend protections to lesbian, gay, bisexual and transgender workers.
Gay-rights advocates have made ENDA their top priority on Capitol Hill since the Supreme Court’s June 26 ruling that struck down the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages.
“In 33 states lesbian, gay, bisexual, and transgender people can be fired and harassed just for being who they are,” Majority Leader Harry Reid, a Nevada Democrat, said on the Senate floor today. “It’s time for Congress to pass a federal law that ensures all Americans, regardless of where they live, can go to work unafraid to be who they are.”
The Senate’s vote on final passage is expected later this week. Only a simple majority will be needed to send the measure to the House, where Republican opposition could keep the measure from reaching the floor.
Michael Steel, a spokesman for Speaker John Boehner, said today in an e-mail that the Ohio Republican “believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”
Among the Republican senators voting to advance the measure was Ohio’s Rob Portman, who made headlines in March when he announced his support for same-sex marriage. Portman disclosed that one of his sons, Will, is gay.
The legislation would prohibit most employers from firing or refusing to hire someone based on his or her actual or perceived sexual orientation or gender identity. It would apply to businesses with at least 15 employees, as well as to federal, state and local governments.
It wouldn’t affect uncompensated volunteers, nor would it apply to religious organizations already exempt from certain discrimination provisions under existing civil rights laws.
Entities that aren’t primarily religious in purpose and character would have to comply with the measure’s provisions. That means discrimination would be prohibited at a non-religious business where a boss may have a deeply held belief against homosexuality or against other individuals covered by the legislation.
Democratic leaders promised votes on two amendments dealing with the religious exemptions in the legislation to win the support of three Republicans who voted to advance the legislation, according to a Senate Democratic aide who spoke on condition of anonymity because the agreement on amendments wasn’t public.
Senator Pat Toomey of Pennsylvania would propose a change to the definition of religious groups to provide for a broader exemption, the aide said. Portman and Kelly Ayotte of New Hampshire would offer an amendment to ensure that state and federal governments can’t take action against entities covered by the religious exemption.
“I am pleased that the bill’s authors have decided to allow a vote on my amendment to prevent retaliation against religious organizations,” Portman said in a statement after the vote.
The term “gender identity” is defined in the bill as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” “Sexual orientation” would refer to homosexuality, heterosexuality and bisexuality.
Twenty-one states and the District of Columbia have passed laws banning employment discrimination based on sexual orientation, and 17 states and D.C. also prohibit gender-identity discrimination, according to the Human Rights Campaign, a Washington-based organization that supports the rights of lesbian, gay, bisexual and transgender individuals.
The advocacy group lists more than 100 businesses, including Citigroup Inc. (C), Goldman Sachs Group Inc. (GS), Alcoa Inc. (AA) and Dow Chemical Co. (DOW), as members of the Business Coalition for Workplace Fairness, which backs the legislation. Dan Rafter, a spokesman for the Human Rights Campaign, said 69 of those were Fortune 500 companies. The U.S. Chamber of Commerce said it is neutral on the legislation.
The White House Office of Management and Budget said in a statement of administration policy that the Obama administration “strongly supports” the bill’s passage, adding: “Workers should not fear being fired from their jobs, harassed at their workplaces, or otherwise denied the chance to earn a living for themselves and their families, simply because of sexual orientation or gender identity.”
OMB said the bill’s provisions “are consistent with America’s core values of fairness and equality” and called passage of the legislation “long overdue.”
The legislation is opposed by groups that advocate for what they describe as traditional values. “ENDA not only adds more costs to businesses but tells them how they can and cannot practice the faith of their owners and managers,” Tony Perkins, the president of the Family Research Council, said in a statement.
Lawmakers have considered extending civil rights protections to gay and lesbian workers since 1994 and to transgender employees since 2007. In 1996, a version of the bill that didn’t include a gender-identity provision fell one vote short of Senate passage. In 2007, the House passed a version with only the sexual-orientation component; it died in the Senate.
Workers could file claims with the Equal Employment Opportunity Commission under the Senate bill and a related measure in the House and could sue if they believe that an employer discriminated against them for being, or appearing to be, lesbian, gay, bisexual or transgender.
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