7 questions about the Employment Non-Discrimination Act you needed answered

Senate vote on ENDA could come as early as Monday night

November 04, 2013|By Michael Gold, The Baltimore Sun

Republican Senator Dean Heller, the junior Senator from Nevada, announced Monday his support for the Employment Non-Discrimination Act (ENDA), which likely makes him the crucial 60th vote in Senate Majority Leader Harry Reid's attempt to get the bill approved by the Senate.

The battle to get ENDA passed during the current session of Congress has been long and protracted, with the legislation receiving bursts of media attention that punctuate long waiting periods. Reid's attempt to set up a cloture vote — which would prevent an attempted filibuster that could kill the bill — brought the most recent flurry of updates. But if you haven't been following the bill closely, the sudden surge in ENDA mentions could be a little disarming.

Since this blog was part of the problem last week, allow us to be part of the solution. Here are the basic things you've likely wondered about ENDA, along with some relatively simple answers.

1. What is ENDA?

ENDA is an acronym for the Employment Non-Discrimination Act, a bill intended to prohibit discrimination based on sexual orientation or gender identity in hiring and employment. As it reads now, the legislation would apply to civilian employers with at least 15 employees -- although there are some exceptions that we'll get to later.

The recent form of ENDA was introduced in April 2013 by two Democrats in Congress, Colorado Rep. Jared Polis and Oregon Sen. Jeff Merkley.

2. These protections don't already exist?

Not on a national level, no. And that's not for lack of trying. A bill with the ENDA name has been introduced in nearly every Congress since 1994 (the exception is the 109th Congress, which governed in 2005 and 2006).

But attempts to pass the legislation haven't been successful. In the previous nine Congress sessions during which ENDA was introduced, the bill has come to a vote only twice. Most recently, in 2007, the bill was approved in a Democrat-controlled House of Representatives on a 235-184 vote but stalled in a Democrat-led Senate. In 1996, the bill died in the Senate on a 50-49 vote after being introduced by Massachusetts Senator Ted Kennedy. In most of the other cases, ENDA hasn't made it out of committee or subcommitee.

That said, many states have started to fill in the gaps while national lawmakers debate the details over ENDA.

3. Oh, OK. So where do things stand for LGBT job applicants and employees?

At the moment, 21 states and D.C. offer protections that prohibit employment discrimination based on sexual orientation. Of those 21, only 17 states also prohibit employer discrimination based on gender identity. Most ENDA supporters point to the 33 states without legislation protecting transgender workers when discussing the potential impact of the bill.

There are a handful of asterisks on those numbers. At least 10 states have laws or administrative orders that protect public employees from discrimination based on sexual orientation and/or gender identity. Also, a handful of municipalities have passed local non-discrimination laws that go beyond what their states have passed.

4. And where does my state fit?

Well, our home state of Maryland is one of the four states that protects workers based on sexual orientation but not gender identity. The other three are Wisconsin, New Hampshire and New York.

Wisconsin, by the way, was the first state with an employment non-discrimination protection, passing its law in 1982. Geographically the states that have passed job discrimination bills follow similar patterns to marriage equality states: The entire Northeast region except Pennsylvania, a cluster in the western Great Lakes states (Minnesota, Iowa, Wisconsin and Illinois), the West Coast (Washington, Oregon, California) and some outliers in the Southwest (Nevada, Colorado and New Mexico).

Live in the South? Unless you're a public employee in Kentucky or Missouri, you're not protected by state laws.

5. If states have been passing these laws, why am I suddenly hearing about ENDA now?

At the heart of ENDA's current momentum is the same thing powering the marriage equality movement: Despite increasing nationwide support for an LGBT employment non-discrimination law, the majority of states don't have protections in place. Polls taken over the past several years show that most Americans think a bill like ENDA already exists.

Several high-profile lawmakers, particularly Reid and President Barack Obama, have latched onto popular opinion and made passing ENDA one of their top objectives before the current Congressional session ends in 2014. It was Reid's promise to bring ENDA to the Senate floor before Thanksgiving that put the bill back in the news this month.

6. If ENDA is supported by the majority of Americans, why do some oppose it?

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