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A congressional committee hearing on June 12, 2012, became a milestone event when Kylar Broadus became the first transgender person to testify before the U.S. Senate. In his testimony, Broadus asked members of the Senate Health Education Labor and Pensions (HELP) Committee to vote in favor of the proposed Employment Non-Discrimination Act (ENDA).
“Transgender people lose their careers and a chance to make a decent living because of discrimination in the workplace,” testified Broadus, who is an attorney and founder of the Trans People of Color Coalition. “It’s over when people find out you’re transgender.”
Broadus described how he lost a well-paying job as an attorney for an insurance company when he announced that he would make the transition from a woman to a man.
“I knew my whole life that I was male, and my employer had no problem with me being a masculine female,” he said. “I had stellar job appraisals for seven years up to the point I announced my transition. After that things went downhill rapidly, and I was called irresponsible, lazy [and] shiftless and eventually I was fired.”
Gender Identity Protection
ENDA would provide protections from workplace discrimination to lesbian, gay, bisexual and transgender (LGBT) employees. In addition, the bill (S. 811) would protect workers from discrimination based on gender identity.
“This legislation is about extending fundamental fairness to all workers, and isn’t that what America is truly about?” said Sen. Tom Harkin, D-Iowa, who serves as chairman of the HELP Committee.
Harkin acknowledged that Broadus was the Senate’s first transgender witness. Harkin remarked that Broadus’ appearance before the committee marked a “true milestone in the history of the U.S. Senate.”
“I commend you for your bravery and hard work and promise that we will do our best to get this bill passed,” Harkin said.
In addition, Harkin mentioned a letter that the committee received signed by 90 “major corporations” that support ENDA. While many employers have expressed support for the bill, some business groups have objected to a provision that would offer protections for transgender status and gender identity.
Opponents of the bill say the gender identity provision would create major headaches for employers because workers would essentially self-identify their protected status. Supporters of the bill, however, point to the fact that 16 states and the District of Columbia have enacted laws that provide workplace protections for transgender status and gender identity without any major ill effects.
“States with similar laws in place have not seen the flood of litigation that many predicted would happen,” said Lee Badgett, an economist and director of the Center for Public Policy and Administration at the University of Massachusetts Amherst. “In fact, the number of employment discrimination claims filed in these states remains relatively low and proportional to the population of LGBT workers.”
Other witnesses at the hearing agreed. Kenneth Charles, vice president of global diversity and inclusion for General Mills, told the committee that his employer suffered no undue hardships or administrative problems after implementing a corporatewide policy that prohibits discrimination based on an employee’s sexual orientation.
“It just makes good business sense for us to create a workforce that represents all of the varied consumers and their unique perspectives,” Charles said. “We can’t win if we only access a portion of the strong American talent pool. It is critical that we eliminate barriers that allow an individual’s sexual orientation or gender identity to be a consideration for employment, promotion or compensation.”
Charles noted that nearly 90 percent of Fortune 500 corporations prohibit discrimination on the basis of sexual orientation and that approximately 45 percent of them have policies protecting workers from bias based on gender identity.
“General Mills was among the first Fortune 500 companies to have these type policies in place, and we are proud to be recognized as a leader in progressive diversity and inclusion policies,” Charles said.
One witness at the hearing did object to ENDA, claiming that the bill would create major problems for religious organizations. Craig Parshall, senior vice-president and general counsel for National Religious Broadcasters, told the committee that the measure could create confusion and generate more discrimination claims involving religious groups under Title VII of the Civil Rights Act.
“The legislation will invite courts to engage in inquiries into the beliefs and doctrines of religious employers regarding homosexuality, lesbianism, bisexuality and transgenderism,” he testified.
According to Parshall, this could prompt courts to weigh if employment discrimination was based on religious beliefs or based on the sexual orientation of the worker. Complaints of workplace discrimination against religious groups could hinge on this crucial point, Parshall claimed.
“If a court determines that a religious organization made an employment decision based on an employee’s sexual orientation and not their religious beliefs, then under ENDA that organization could possibly be open to claims of discrimination,” Parshall asserted.
Other witnesses said that 40-plus years of case law had determined and defined the exemptions given to religious organizations under Title VII clearly.
Sen. Jeff Merkley, D-Ore., a chief co-sponsor of the bill, stated that Oregon had placed similar exemptions for religious groups into a state law to protect LGBT workers from employment discrimination. Merkley said that he was familiar with the law and was not aware of claims of discrimination generated by confusion over the statute’s religious exemptions.
Merkley asked the witnesses about the experiences of the other states that have enacted laws similar to ENDA. Parshall mentioned a court case that had advanced to the Maryland State Supreme Court, but other witnesses testified that they weren’t aware of any other cases.
As the hearing concluded, Harkin promised that the HELP Committee will soon vote on the proposed legislation and move it to the Senate floor for debate. ENDA could face a filibuster from opponents to the bill. However, GOP Sens. Susan Collins and Olympia Snowe of Maine and Mark Kirk of Illinois have signed on as sponsors.
S. 811 would face a major roadblock in the Republican-led House. Even supporters of the bill concede privately that ENDA most likely won’t gain approval in either house of Congress before the presidential and congressional elections in November 2012.
Bill Leonard is a senior writer for SHRM.
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