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- Weekly ENDA Update: What Did The Senate Hearing Accomplish?
- Liveblogging the Senate ENDA hearing Thursday, 10am ET
- What's Happening On ENDA?
- Arguments Against ENDA: Inquiries Into Employee Sexual Orientation
- Arguments Against ENDA: Flood of Litigation
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The Senate held hearings to a nearly empty Committee chamber last week regarding the Employment Non-Discrimination Act. Only five Senators showed up, all Democrats, including the Chair of the Committee, Senator Harkin, the lead sponsor, Senator Merkley, and three other Senators, Senators Franken, Casey and Bennet. It left me with some fundamental questions about the process.
There was a stark difference between the House hearings, held in September, and the Senate hearings. The House testimony took a broad approach, full of stories by LGBT employees and statistics regarding discrimination, as well as discussions about various potential objections to the bill. The Senate hearing, to the contrary, was more narrowly focused on business and religious objections to the bill. There was one gay witness and no transgender witnesses. There were two government witnesses, a law prof, one witness from industry, and two witnesses who presented objections to the bill.
The question I...
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I will be liveblogging the Senate ENDA hearing Thursday
morning at 10am ET at http://bilerico.com Please join us then to view the video of the hearing and commentary on events as they unfold.
ENDA, of course, is the Employment Non-Discrimination Act, the bill to prohibit job discrimination because of sexual orientation and gender identity. The hearing is being held by the Senate Committee on Health, Education, Labor and Pensions (the "HELP" Committee).
I am not yet sure where the HELP Committee hearing will be broadcast, am looking into it and will tell you when I find out. During the liveblog, we will provide you with instantaneous information about the Committee members as they speak, the witnesses as they testify, and references to specific issues in the bill as they are raised. You will see comments from some well-known members of our community in the hearing room via Twitter. Tweeters from the hearing room will include Kerry Eleveld, reporter for The Advocate, and...
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What's happening on ENDA? The House is practically on board, and the vote will happen in the next few weeks. My calculations, as shown in the Inclusive ENDA House spreadsheet, show 212 likely yes votes, with another 6 needed for passage. They are 98% of the way there.
The real fight on ENDA is in the Senate, where there are only 49 confirmed yes votes. That's only 82% of the way there. Another 7 are likely yes votes, but they're not saying. Even so, 4 more votes will be needed to get ENDA passed.
If you're interested in specifics, let me say that there are 16 Senators who are on the fence about ENDA. Political calculations and more after the jump at Bilerico.com.
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Some are concerned that ENDA will require employers to begin inquiring into their employee's sexual orientation and gender identity, in order to avoid lawsuits alleging discrimination if there are few LGBT employees in the workplace. This concern is misplaced for several reasons. However, it has led some legislators to express concern about ENDA, including Senator Richard Lugar of Indiana. Senator Lugar seemed supportive of ENDA in the past, but recently released a letter expressing his reservations. One of his concerns was that ENDA will lead employers to probe their workers.
ENDA Will Not Lead Employers To Probe Their Employees
Senator Lugar's letter said: "I also am concerned that ENDA would induce employers to probe the sexual orientation of their employees as a means of preparing for or preventing potential lawsuits or EEOC actions. Such a development would not be positive for employee privacy or workplace dynamics, and it could have unpredictable consequences for the...
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An often used argument against proposed legislation is that it would unleash a flood of litigation that will overwhelm courts and businesses. This argument has been raised against ENDA. However, the available evidence suggests that ENDA is unlikely to cause a flood of litigation.
The argument has nonetheless caused some concern among legislators. Senator Richard Lugar of Indiana has released a letter in which he raises this issue as a potential point of contention. A letter from Senator Lugar argues that ENDA would unduly increase litigation.
Point I: ENDA Would Not Unduly Increase Litigation
Senator Lugar says: "However, I remain concerned that ENDA would unduly increase litigation, create momentum for additional contentious protected employee classifications, and adversely affect the enormous number of small businesses not covered by the bill's 15-employee exemption."
The available evidence suggests that ENDA is not likely to unduly increase litigation.
...
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