No ENDA in sight - Employment Non-Discrimination Act of 1996

Advocate, The, May 13, 1997 by Chris Bull

Everybody's got to work for a living

Among the rights lesbians and gay men are fighting for--same-sex marriage, the ability to be out in the military, domestic-partner benefits, and the outlawing of job discrimination--the last is clearly the most critical. Regardless of relationship status or level of patriotism, all gays need a livelihood. In April the Employment Non-Discrimination Act was to be introduced in Congress for the second time.

The following articles explore the bill's chance of passing and what has happened in states with similar laws.

When a bill to protect gays in the workplace is introduced in Congress, lawmakers may not listen to the majority of Americans, who support it

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When the Senate came within one vote of approving the Employment Non-Discrimination Act in 1996, gay lobbyists declared that it was no longer a question of if antigay discrimination in the workplace would be outlawed but when. Now, though, with both houses of Congress and their Republican majorities no more disposed to the legislation, its prospects appear dim, leaving activists seeking new GOP inroads.

"The current climate on the Hill is inhospitable to civil rights legislation of any kind, especially gay rights," says Norman Orenstein, a congressional scholar at the American Enterprise Institute, a policy-research group. "In a time of low unemployment, Americans are not seeing people suffer from job discrimination. So even potentially sympathetic legislators are asking, `Why bother?'" For a federal gay rights bill to have a fighting chance in Congress, Orenstein says, "a lot of things will have to change, including the majority party." Still, the bill's House cosponsors, Barney Frank (D-Mass.) and Christopher Shays (R-Conn.), and Senate cosponsors, Edward Kennedy (D-Mass.) and James Jeffords (R-Vt.), were scheduled to introduce ENDA before Congress by the end of April.

Drafted in 1994, ENDA marked a historic shift in strategy for achieving gay civil rights. For the previous years activists had sought general civil rights protection for gays. But in response to polls suggesting that voters are more likely to support specific job protections than broad safeguards, ENDA's sponsors focused only on workplace discrimination. The bill is worded so that it would prohibit sexual-orientation discrimination in workplaces with more than 15 employees; there are certain exemptions for religious organizations.

ENDA's language did, in part, help bring it to a vote. But the bill's surprising showing last year was due largely to the proposal of the Defense of Marriage Act, which bans federal recognition of same-sex marriages. Gay lobbyists pushed, with Senator Kennedy's help, to have both bills voted on simultaneously in the Senate. The strategy was to juxtapose ENDA with the volatile issue of same-sex marriage so that the more benign bill might seem less threatening.

In fact, the tactic almost worked. While the antigay DOMA passed easily, 85-14, ENDA lost by the slimmest of margins, 49-50. ENDA might even have prevailed if Democrat David Pryor of Arkansas, absent because of his son's cancer surgery, had voted for it as he had promised. On the day of the vote, September 10, Vice President Al Gore was prepared to return to Washington from a campaign swing through Pennsylvania to cast a tie-breaking vote in favor of ENDA.

"DOMA served as a stop-loss order for members of the Senate," says Frank. "In the past they always feared that if they voted for gay rights they would be accused of supporting a much broader gay agenda. When they voted for DOMA and ENDA, they could go home and say, `Don't tell me I voted for the gay rights agenda. I voted to ban gay marriage.' Members don't have this kind of cover this year."

In the House, where support is already far short of the numbers necessary for passage, ENDA's chances-are further damaged by ongoing warfare among Republicans. Angry at speaker Newt Gingrich because of his retreat from tax cuts and from his pledge to eliminate the National Endowment for the Arts, the Republican right wing has threatened to mount a challenge to his leadership. "Gingrich will try to keep the Right at bay by feeding them homophobia," says Frank. "ENDA is red meat in this battle."

To address the obstacle presented by congressional conservatives, gay lobbyists will try to make the case that the Republican Party is out of step with the mainstream of American voters. A November 1996 exit poll conducted by Greenberg Research Inc. and commissioned by the Human Rights Campaign, a gay political group, indicated that 70% of voters oppose employment discrimination on the basis of sexual orientation. Support for ENDA in particular increased from 55% to 63% when voters were informed that such discrimination is legal in all but nine states.

"Republicans realize that numbers are moving in our direction," says Winnie Stachelberg, legislative director of HRC. "We have made progress in both the Senate and the House, and this year we expect to make even more. As recently as last year it was unthinkable that we would have gotten 49 votes in the Senate." To win new Republican converts and avoid antigay amendments attached to the bill, she says, "we have to reach out to Republicans in order to raise their comfort level."

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No ENDA in sight - Employment Non-Discrimination Act of 1996

Advocate, The, May 13, 1997 by Chris Bull

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