No ENDA in sight – Employment Non-Discrimination Act of 1996
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
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.”
The HRC poll, though, may paper over some important distinctions. A November 1996 Gallup Poll found that when asked if “homosexuals should” be hired for a variety of occupations, support ranges from 90% for salesperson to only 55% for elementary-school teacher. William Schneider, a political analyst for the American Enterprise Institute, says that while Americans are indeed sensitive to employment discrimination, their support still depends on the type of employment in question.
“When people are asked in the abstract whether they oppose discrimination in the workplace, especially when you are talking about lawyers and accountants, they, don’t have a big problem,” Schneider says. “But when it comes to jobs with more personal contact, like teachers, it gets very complicated very quickly. That allows opponents to bring up extreme cases to shoot down the legislation as a whole.”
It is precisely these weaknesses that right-wing pressure groups, still reeling from the unexpected support for ENDA last year, will exploit. In February the Family Research Council, an ultraconservative fund-raising group based in Washington, D.C., distributed “The Other Side of `Tolerance’: Victims of Homosexual Activism” to every member of Congress. The 49-page report, which chronicles 31 allegations of anti-Christian bias in the workplace, asserts that what “appears to be a harmless gesture of `tolerance’ toward homosexuals in the workplace actually is a mighty weapon against employers who would no longer be allowed to take their most deeply held beliefs into account in personnel matters.”
But after the drubbing some right-wing legislators took in the 1996 election, many members may choose to shy away from the Family Research Council’s rhetoric as well. Rich Tafel, executive director of the gay group Log Cabin Republicans, says even some well-known congressional conservatives are seeking to avoid the taint of zealotry.
In late March, for instance, Tafel held a warm meeting with aides to Rep. John Linder (R-Ga.), the powerful chairman of the executive committee of the National Republican Congressional Committee and a Gingrich ally. “In a funny way Republicans are looking to Log Cabin as inoculation against extremism,” Tafel says. “They want to be able to go home and say, `I worked with a gay group; how extreme could I really be?’ That’s a lot different from when we arrived here four years ago.”
Frank agrees that there have been subtle climatic shifts. Two years ago, he says, Representative Shays politely declined his request to cosponsor ENDA. “Chris has been attacked in his district for being too close to Gingrich, ” he says. “Though he’s always been supportive, he now feels comfortable asserting his independence by taking a more visible role on gay issues. Republicans have lost the revolutionary fervor of two years ago.” Seth Amgott, press secretary for Shays, puts it this way: “[President] Lyndon Johnson needed votes from Northern Republicans to pass the great civil rights legislation of the 1960s. Chris knows that ENDA will also require Republican votes for passage, and he wants to make sure that happens some day.”
If gay lobbyists can keep the debate focused on the need to address antigay discrimination and avoid a shouting match with the Right, Tafel says, that day may come sooner than some skeptics predict. “I don’t want to wave the flag of victory prematurely,” he says, “but the debate on both sides is getting both more concrete and sophisticated. In the long run that can’t help but pay dividends.”
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