Parents, Families and Friends of Lesbians and Gays (PFLAG) National
Committee on Education and Labor
United States House of Representatives
H.R. 3017, Employment Non-Discrimination Act
Rayburn House Office Building
September 23rd, 2009
Mr. Chairman and Members of the Committee:
On behalf of Parents, Families and Friends of Lesbians and Gays (PFLAG) National’s more than 200,000 members and supporters, I am pleased to submit written testimony expressing our support for the Employment Non-Discrimination Act of 2009 and urge the Congress to support workplace fairness for all Americans by addressing the issue of widespread employment discrimination. I would like to especially thank Chairman Miller along with Ranking Members for convening the hearing, H.R. 3017, Employment Non-Discrimination Act, before the United States House of Representatives Committee on Education and Labor. It is imperative that the Committee explore employment discrimination as a critical barrier to workplace fairness, and support the passage of ENDA in an effort to guarantee workplace fairness.
Problem Statement and Background Information
Every year, qualified, hard-working Americans are denied job opportunities, terminated, or experience on-the-job discrimination just because they are lesbian, gay, bisexual or transgender (LGBT). This occurs in both public and private sector workplaces, both large and small. Although all arbitrary discrimination is reprehensible, workplace discrimination is especially egregious because it threatens the well-being and economic survival of American workers and their families. Often, LGBT employees attempt to protect themselves against discrimination by hiding their sexual orientation or gender identity. This requires carefully self-policing of even the most casual conversations, and banishes almost all acknowledgment of family and friends from the workplace. In addition to being difficult to do, hiding one's sexual orientation or gender identity takes a terrible psychological toll, and often results in co-workers building walls between each other. In addition to the emotional stress inflicted on LGBT employees, the necessary subterfuge and dishonesty works to distance co-workers from one another, harming the workplace environment and work products.
The threat of discrimination based on sexual orientation and gender identity has a very real presence in American workplaces. I have met countless parents, families and friends of LGBT people and have heard too many tragic stories of LGBT employees being harassed, fired, not hired, and passed over for advancement without regard to their merit. That treatment would not be permissible if ENDA were law. A 2007 report of more than 50 studies compiled by the Williams Institute indicates that 16 to 68 percent of LGBT people reported experiencing employment discrimination. In a separate survey, 15 to 57 percent of transgender individuals reported experiencing employment discrimination. In addition, many heterosexual coworkers reported witnessing sexual orientation discrimination in the workplace. In another 2007 nationwide survey, 28 percent of LGBT workers reported that they have experienced discrimination or unfair treatment in the workplace; one-in-four said they experience it on a weekly basis.
Studies also show that discrimination robs LGBT employees of the ability to earn incomes equal to those of their heterosexual counterparts. The 2007 Williams Institute report documented that gay men earn 10 to 32 percent less than similarly-qualified heterosexual men. A 2002 study showed that gay men earn from 11 to 27 percent less and lesbians earn 5 to 14 percent less than the national average. And, while no detailed wage and income analyses of transgender employees have been conducted to date, the Williams study documented that transgender people report high rates of unemployment and very low earnings.
These wage studies confirm that LGBT discrimination is not benign. Lower incomes and difficulty in getting and keeping a job create direct and immediate financial disadvantages for LGBT employees, just as they do for other American workers who are lucky enough to be protected by federal law. The National Commission on Employment Policies calculated that discrimination against LGBT employees translated into a $47 million loss in profits attributable to training expenditures and unemployment benefits alone. Not including outright terminations, it has been proposed that hostile work environments cost companies $1.4 billion in lost output each year because of a reduction in LGBT workers' productivity.
Employment Protections Supporting Workplace Fairness for All
ENDA is a federal bill that would prohibit discrimination in the workplace based on a person’s sexual orientation or gender identity. It would address discrimination in the workplace by making it illegal to fire, refuse to hire, or refuse to promote an employee based solely on that person’s sexual orientation or gender identity. ENDA would make it illegal for employers to discriminate on those bases, including, for example, refusing to hire an applicant or firing an employee who is lesbian, gay, bisexual, transgender, or heterosexual. This legislation closely follows the model of existing federal civil rights laws, including Title VII of the Civil Rights Act of 1964, and, therefore, would affect private employers with 15 or more employees, as well as federal, state, and local governments, unions, and employment agencies. The U.S. military and certain religious organizations would be exempt, as would employment issues such as quotas, disparate impact claims and domestic partner benefits. The bill defines sexual orientation as “homosexuality, heterosexuality, or bisexuality” and gender identity as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”
Why Is ENDA Needed?
In 29 states it is legal to discriminate based on sexual orientation, and in 38 states discrimination based on gender identity is legal. The lack of state and local protections exacerbate the widespread discrimination that LGBT workers experience by all types of employers, including private employers, local governments, state governments, and companies large and small. These affected employees have no adequate remedy in federal law. ENDA would provide critically needed job protections for the entire community – including those most vulnerable to discrimination.
Only 12 states and the District of Columbia currently have laws that specifically ban workplace discrimination based on sexual orientation and gender identity. Another nine states have laws that ban discrimination based on sexual orientation, but don’t include gender identity. This patchwork of laws is inadequate to prevent and remedy the serious discrimination against LGBT employees that takes place across the country.
ENDA is a comprehensive remedy to address the lack of protection afforded to American LGBT workers. This legislation does not create special rights; rather, it reflects a bedrock American principle that working men and women should be judged solely on the basis of their job performance. Specifically, ENDA:
- Prohibits Employment Discrimination: Prohibits public and private sector employers from making decisions about hiring, firing, promotion or compensation based on sexual orientation or gender identity. It applies only to discrimination in employment and only to employers with 15 or more employees.
- Prohibits Preferential Treatment: Strictly prohibits preferential treatment based on quotas, and mandates that no claims will be permitted based on statistics.
- Includes Broad Exemptions: Exempts members of the Armed Forces and veteran preference organizations, as well as religious organizations or religious schools.
- Excludes Domestic Partnership Benefits: Does not require employers to provide benefits to domestic partners.
Who Supports ENDA?
In addition to significant bipartisan support in both the House and Senate, most of America’s leading businesses have adopted anti-discrimination policies similar to ENDA. Business leaders understand that a person’s sexual orientation or gender identity has nothing to do with their job performance. That is why 423 (85 percent) of Fortune 500 firms have extended protections based on sexual orientation and 176 (more than one-third) extended protections based on gender identity, according to the Human Rights Campaign Foundation’s 2009 Corporate Equality Index (CEI). Moreover, 98 percent of the Fortune 50 prohibits discrimination based on sexual orientation, and nearly 50 percent prohibit discrimination based on gender identity.
The Business Coalition for Workplace Fairness, made up of some of the largest corporations in America, has endorsed ENDA. Some of those coalition members include: The Coco-Cola Company, General Motors Corporation, Dow Chemicals, General Mills Inc., J.P. Morgan Chase & Co., Marriott International, Microsoft Corporation, Morgan Stanley, and Nike Inc. More than 30 major U.S. businesses joined this coalition during the first five months of 2007.
Federal law has also been outpaced by the actions of state and local leaders. Thirty-seven percent of the country—twenty-one states and the District of Columbia—have laws protecting lesbian, gay and bisexual people from employment discrimination; 12 states and the District of Columbia, along with over 100 localities, have laws that also protect transgender people. Without ENDA, employers are able to discriminate against a segment of their workforce with impunity, unless those workers are lucky enough to live in one of the few states or localities that make such behavior illegal.
Not only does the federal government lag behind corporate American and state and local policies, but it is also lags behind public support for ENDA. A 2007 Gallup poll found that 89 percent of Americans believe that lesbian and gay employees should have equal rights in the workplace, and a 2007 Peter D. Hart Research Associates survey indicated that 58 percent of respondents believe workplace protections should also extend to transgender employees.
PFLAG’s Unique Role
PFLAG promotes the health and well-being of lesbian, gay, bisexual and transgender persons, their families and friends through: support, to cope with an adverse society; education, to enlighten an ill-informed public; and advocacy, to end discrimination and to secure equal civil rights. PFLAG provides opportunities for dialogue about sexual orientation and gender identity, and acts to create a society that is healthy and respectful of human diversity.
As part of PFLAG’s commitment to the health and well-being of LGBT individuals, PFLAG supports efforts to eliminate barriers to workplace equality, such as those that create employment discrimination. PFLAG parents, families and friends, whose own loved ones endure workplace discrimination, are striving to secure support for LGBT equality in their local communities and workplaces through workplace trainings and panel presentations. Working with corporate and community leaders, volunteers, and diversity groups, PFLAG connects straight allies with the mission and vision of LGBT equality by encouraging them to speak up, educate other allies, and engage in the pursuit of equality. ENDA represents a significant opportunity for the Congress to participate as allies of all workers in ensuring an end to workplace discrimination.
In the past, Congress has had the vision and courage to enact laws that ban employment discrimination based on other protected classes. We now have a historic opportunity to expand the law to ensure that everyone can enter and succeed in the workplace without regard to sexual orientation or gender identity. I would again like to thank Chairman Miller and Ranking Member Kline again for bringing much needed visibility to the problems of employment discrimination and the terrible consequences that often result when left unchecked. We encourage and welcome the Committee to meet with PFLAG members and supporters and staff in our national office who are committed to supporting LGBT Americans who experience employment discrimination. I believe their personal stories will be enormously helpful in your efforts to make a difference in the lives of those who experience employment discrimination.
Again, I thank you for holding this important hearing and allowing us to submit a written testimony supporting the Employment Non-Discrimination Act of 2009. On behalf of all of our members and supporters, I am grateful for your dedicated work in helping foster workplace fairness for all Americans, including efforts to address employment discrimination. If you have any questions related to our ongoing work, please be sure to contact our Field and Policy Manger, Rhodes Perry at 202-467-8180 x 221 or firstname.lastname@example.org.
Jody M. Huckaby