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Myths And Facts About The Employment Non-Discrimination Act (ENDA)

July 08, 2013 12:59 pm ET

With the Senate Health, Education, Labor and Pensions Committee poised to vote on the Employment Non-Discrimination Act (ENDA) on July 10, anti-LGBT activists are ramping up their misinformation campaign against the legislation, which would prohibit employers from discriminating against employees and job applicants based on sexual orientation or gender identity.

What Is ENDA?

ENDA Would Ban Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity. According to the Huffington Post:

ENDA would bar companies from factoring sexual orientation or gender identity into employment decisions. Employers are already prohibited by federal law from discriminating over race, religion, age, gender or disability. The proposal exempts businesses with fewer than 15 employees as well as religious organizations. [Huffington Post, 4/25/13]

ENDA Has Been Introduced In Congress By A Bipartisan Group Of Senators. According to the Huffington Post:

Hoping to get a lift from the changing tides on gay marriage, a bipartisan group of senators introduced legislation Thursday that would ban job discrimination based on sexual orientation or gender identity.

The Employment Non-Discrimination Act, or ENDA, has been introduced in Congress regularly since the mid-1990s without ever being passed. But given the public discussion on gay rights over the past year, Sen. Jeff Merkley (D-Ore.), a co-sponsor, told HuffPost he thinks the bill has about as good a shot as ever in the Senate. [Huffington Post, 4/25/13]

Most States Still Allow Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity. According to the Center for American Progress:

[Center for American Progress, 10/18/12]


Myth: ENDA Forces Religious Organizations To Hire LGBT People

FRC: Christian Organizations Will Be Forced To Employ People Who "Parade Their Proclivities Into The Workplace." In an Action Alert posted on its website, the Family Research Council (FRC) claimed that ENDA would force religious organizations to employ LGBT workers:

It will force Christian schools and colleges, Christian-owned businesses, day care centers, and other organizations to employ people who make their sexual behavior an issue as they parade their proclivities into the workplace. [FRC Action Alert, 3/5/13]

TVC: Religious Organizations Will Be Forced To Hire People "Whose Behavior Is In Violation Of Their Religious Tenets." According to a Traditional Values Coalition (TVC) brief on ENDA:

The threat from ENDA doesn't stop there. The religious liberty of citizens who disagree with allowing transgenders to teach children in the classroom is also at risk, and it's not just the classroom that's impacted. If ENDA passes, Christian businesses, Christian camps, Christian counselors, Christian child care, Christian bookstores, and Christian TV and radio stations will be forced by ENDA to hire individuals whose behavior is in violation of their religious tenets. [TVC Brief, October 2012]

Fact: ENDA Includes Exemptions For Religious Organizations

CAP: ENDA's Religious Exemption Is Broader Than Religious Exemptions From Other Title VII Protections. According to a report from the Center for American Progress (CAP):

[J]ust as religious organizations may take into account an individual's religion with respect to employment decisions, ENDA's religious exemption allows religious organizations to also take into account an individual's sexual orientation or gender identity. In other words ENDA gives religious organizations a legal right to discriminate on the basis of sexual orientation and gender identity.

By contrast, Title VII does not permit religious organizations to discriminate on the basis of an individual's race, color, sex, or national origin. Going back to our earlier example, under Title VII a Lutheran school can hire or fire a teacher for being a Mormon, but not for being a woman or for being Asian American. If ENDA passed, a Lutheran school would also be able to fire or not hire a teacher for being gay or transgender, but would still not be able to do so for being a woman or for being Asian American. In this way ENDA's religious exemption is broader than that found in Title VII. [Center for American Progress, 6/11/12, emphasis added]

ENDA Includes An Explicit Exemption For Religious Organizations. According to Section 6 of ENDA:

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

This Act 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 pursuant (42 U.S.C. 2000e et seq.) to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)). [S.815, Employment Non-Discrimination Act of 2013, accessed 7/2/13]

Myth: ENDA Creates Special Protections For LGBT Workers

WND: ENDA Enshrines "Special Protections" For LGBT Employees. According to a June 14 article in WND:

A Senate committee, for the first time in years, is giving serious consideration to the Employment Non-Discrimination Act, which in spite of its title is intended to provide special "protections" for homosexuals and transgender persons in workplaces across America. [WND.com, 6/14/12]

FRC: ENDA Gives "Special Rights" To LGBT People. According to FRC's March 5 Action Alert:

ENDA-the Employment Non-Discrimination Act-is dangerous. It feeds on freedom, primarily the freedom of religion and speech: not in theory, but on a practical, everyday level. It leaves few freedoms behind.

Yes, the bill has a fair-sounding name, but in fact, ENDA would give special rights to men and women who engage in homosexual behavior. [FRC Action Alert, 3/5/13]

FRC: ENDA Gives "Special Rights And Protections" Based Solely On Sexual Behavior. According to a February 25 FRC mailer to supporters:

Certainly to you and me, the very idea of ENDA-giving special rights and protections to people based solely on their sexual behavior-is outrageous. But to this pro-homosexual President and the totalitarian homosexual lobby, it's a reasonable way to advance their cause-and crush the biblical view that stands in their way of fundamentally transforming America. ENDA is massive leap forward in redefining America, undercutting traditional morality, and investing unprecedented power in the homosexual minority. [FRC Mailer, via Right Wing Watch, 2/25/13]

Fact: ENDA Extends Already Existing Civil Rights Protections To LGBT People

HRC: ENDA Extends Already Existing Employment Protections To Include Sexual Orientation And Gender Identity. According to the Human Rights Campaign:

What ENDA Does

- Extends federal employment discrimination protections currently provided based on race, religion, gender, national origin, age and disability to sexual orientation and gender identity. Thus, ENDA extends fair employment practices -- not special rights -- to gay, lesbian, bisexual and transgender people.

- Prohibits employers, employment agencies, and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion, or compensation.

- Prohibits covered entities from subjecting an individual to different standards or treatment based on that individual's actual or perceived sexual orientation or gender identity or discriminating against an individual based on the sexual orientation or gender identity of those with whom the individual associates.

- Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. [Human Rights Campaign, accessed 7/3/13, emphasis original]

NAACP: ENDA Extends Current Protections That Prohibit Discrimination On The Basis Of Race, Gender, Religion, Etc. According to an Action Alert from the National Association for the Advancement of Colored People (NAACP):

This legislation would extend civil rights protections that are currently based on race, religion, gender, national origin, age and disability to include gays and lesbians. It would prohibit employers from making decisions about hiring, firing, promoting or compensating an employee based solely on their perceived sexual orientation or gender identity. [NAACP Action Alert, 5/7/13]

Fact: ENDA Prohibits Preferential Treatment For LGBT Employees

ENDA Prohibits Preferential Treatment, Quotas For LGBT Individuals. According to Section 4 (f) of ENDA:

(f) No Preferential Treatment or Quotas.--Nothing in this Act shall be construed or interpreted to require or permit--

(1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of actual or perceived sexual orientation or gender identity employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area; or

 (2) the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity. [S.815, Employment Non-Discrimination Act of 2013, accessed 7/2/13]

Myth: ENDA Requires Employers To Abandon Dress Codes

FRC's Sprigg: ENDA Bans Employers From Enforcing "Reasonable Dress" Codes. In his CNN.com column, FRC Senior Fellow for Policy Studies Peter Sprigg wrote:

The gender identity provisions, meanwhile, undermine the right of employers to impose reasonable dress and grooming standards, by forbidding employers to use the most fundamental standard of all -- that people be dressed and groomed in a way that is culturally appropriate for their biological sex. [CNN.com, 3/22/13]

Fact: ENDA Allows Employers To Maintain Dress Codes

ENDA Allows Employers To Continue To Implement Dress Codes. According to Section 8 (a) of ENDA:

Nothing in this Act shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning. [S.815, Employment Non-Discrimination Act of 2013, accessed 7/2/13]

Myth: ENDA Increases The Risk Of Sexual Assault In Workplace Restrooms

Liberty Counsel's Staver: ENDA Would Cause Bathroom Sexual Assault. During the June 12 edition of VCY America's Crosstalk, Liberty Counsel Chairman Mat Staver claimed ENDA would put "individuals at risk" of being sexually assaulted, which could "result in significant damage and even death":

So you can go into these restrooms or changing rooms, if you're a man, and want to go in and molest, or watch, or sexually assault young girls. So, I mean, the absurdity of this is just beyond understanding how someone could be in favor of it. This will ultimately, in addition to colliding with religious liberty, in addition to forcing a radical agenda on people, this also will put individuals at risk and ultimately result in significant damage and even death of some individuals. [VCY America's Crosstalk, via Right Wing Watch, 6/12/12]

Fact: Employment Discrimination Laws Haven't Led To Increased Rates Of Sexual Assault

Gender Identity Expert: "Zero" Cases Of Inappropriate Bathroom Behavior As A Result Of Gender Identity Protections. According to Dr. Jillian T. Weiss, professor of law and society at Ramapo College of New Jersey specializing in gender identity issues:

The logic of the argument that allowing transgender people to use a bathroom consistent with their gender will create a risk to women's safety rests upon an assumption that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This assumption is disproven by experience.

There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S.

How many cases involving transgender people in bathrooms have there been in any year? Zero. How many false claims of gender identity transition have there been in order to commit sexual assault in any year? Zero.

Enough said. [Bilerico Project, 10/4/09]

Myth: ENDA Causes Discrimination Against Religious Employees

FRC: Employee With Bible On Desk Could Be Fired Because Of ENDA. According to a February 25 FRC mailer to supporters:

But if ENDA becomes a federal law, I have no doubt activists will use it to provoke a confrontation-and try to silence us through legal action. If they silence us, they silence you!

So I strongly urge you to take decisive action today.

To keep Christians from being fired for their faith...

[...]

To keep a Christian from being terminated for "anti-gay harassment" simply because he kept a Bible on his desk....[FRC Mailer, via Right Wing Watch, 2/25/13]

FRC's Sprigg: ENDA Causes "Reverse Discrimination" Against People Who Oppose Homosexuality. In his CNN.com column, FRC's Peter Sprigg wrote:

ENDA prepares the way for a form of reverse discrimination -- against anyone who expresses disapproval of homosexual behavior. The more open homosexuals become, the more people with traditional values will be forced to conceal their views. This can happen even if the employee's views are expressed outside of work (as happened to Allstate's Matt Barber, who was fired), and when no reference is made to sexual orientation (as happened to the City of Oakland's Good News Employee Association, which was forbidden to speak about "family values"). [CNN.com, 3/22/13]

Fact: ENDA Only Requires Employers To Prevent Harassment Of LGBT Employees

Gender Identity Expert: There Is A "Clear Line" Between Religious Belief And Anti-LGBT Harassment. According to Dr. Weiss:

It is true that employers will be required to take action against harassers, regardless of whether their motivation is religious or not. There is, however, a clear line between belief and harassment. No one is going to take away your Bible. But you can't hit me over the head with it, either.

ENDA cannot tell anyone what to believe, nor can employers. At the same time, gay employees have the right to live free from harassment on the job. In fact, it is now the law and has been since 1964 that people of all religions and walks of life have the right to be free from harassment on the job based on religion.

Co-workers who want to march up to you and say "You are going to hell to burn in the eternal lake of fire!" are not be free to do so. Will this prohibit a private employer from having a Christmas tree, because some Christian sects condemn homosexuals? No. Will it prohibit a co-worker from saying "I'm a Christian."? No. But it will prohibit an attack on someone whether that attack is religiously motivated or not.

Anti-gay harassment is not an issue of freedom of religion. [Bilerico Project, 10/4/09]

Myth: Employment Discrimination Isn't A Problem Anymore

Reason.com's Shackford: Workplaces Have "Evolved" To The Point Where Anti-LGBT Employment Discrimination Is No Longer A Serious Issue. In a blog post for Reason.com, associate editor Scott Shackford wrote:

Yes, there is a lengthy history of anti-gay employment discrimination in the United States that goes back decades. But workplaces have "evolved" far faster than the government has. Even if we were to set aside libertarian support for freedom of workplace association and distrust of expanding government regulation (and I'm not suggesting you do), it's still worth asking the question of whether ENDA would actually accomplish anything culture and business economics isn't managing on its own. [Reason.com, 4/25/13]

Fact: LGBT People Continue To Face High Rates Of Workplace Discrimination

Williams Institute: "Widespread Discrimination" Against LGBT Employees Continues. According to the executive summary of a July 2011 report by UCLA's Williams Institute on Sexual Orientation Law and Public Policy:

 [T]his research shows that widespread and continuing employment discrimination against LGBT people has been documented in scientific field studies, controlled experiments, academic journals, court cases, state and local administrative complaints, complaints to community-based organizations, and in newspapers, books, and other media. Federal, state, and local courts, legislative bodies, and administrative agencies and [sic] have acknowledged that LGBT people have faced widespread discrimination in employment. Research shows that discrimination against LGBT people has negative impact in terms of health, wages, job opportunities, productivity in the workplace, and job satisfaction. [Williams Institute, July 2011]