Facing congressional opposition, Obama leaves office without ENDA enacted
Back when Barack Obama was making his first run for president in 2008, he promised to "place the weight of (his) administration behind … a fully inclusive Employment Non-Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity."
That was a pretty bold stance at the time. In fact, in his first presidential run, Obama was unwilling to back same-sex marriage. "I believe marriage is between a man and a woman," he said in November 2008. "I am not in favor of gay marriage."
Obama eventually became a vocal supporter of same-sex marriage. And he also spent years of his tenure in the White House championing employment non-discrimination.
His highest-profile support came on behalf of the Employment Non-Discrimination Act, a bill that was offered in various incarnations for several Congresses running. After years without success, the 2013 version of the bill passed the Senate, 64-32, with the help of 10 Republicans. But in the Republican-controlled House, the GOP leadership kept it from advancing to a vote.
The White House lent its support to the 2013 bill, releasing an official statement of administration policy that said it "strongly supports Senate passage" of the bill. "Workers should not fear being fired from their jobs, harassed at their workplaces, or otherwise denied the chance to earn a living for themselves and their families, simply because of sexual orientation or gender identity," the statement said.
For the next Congress, sponsors changed the name of the bill to the Equality Act due to the addition of several new protections, including in the areas of housing, access to public places, federal funding, credit, education and jury service.
The Obama administration supported the new bill as well. The administration "strongly supported and aggressively pushed for the passage" of the Equality Act, said Michael Sparks, a spokesman for Rep. Jared Polis, D-Colo., who was a leading Democratic supporter of several of the non-discrimination bills.
However, with the Senate newly joining the House under Republican control after the 2014 midterms, the Equality Act did not advance to a vote in either chamber.
To get around congressional opposition, Obama used other tools at his disposal instead.
On July 21, 2014, Obama signed Executive Order 13672, which prohibited federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity. The resulting regulations took effect on April 8, 2015.
And on a related issue, in May 2016, the Justice and Education departments said that public schools must let transgender students use their choice of gender-divided facilities such as bathrooms and locker rooms. The administration threatened to withhold federal funds from states that did not comply with this policy, but more than a dozen states objected, and U.S. District Court Judge Reed O'Connor of the Northern District of Texas issued an injunction against the government. Separately, the Justice Department challenged North Carolina's HB 2 "bathroom bill." The issue may eventually be decided by the Supreme Court.
Despite these accomplishments, the reality is that, due to congressional opposition, Obama's extensive advocacy efforts ultimately failed to result in a non-discrimination legislation that included sexual orientation and gender identity for the entire population. This means the promise has not been fulfilled, so it rates a Promise Broken.
Senate roll call vote on Employment Non-Discrimination Act, 2013
Labor Department, "Amended Regulations: Executive Order 11246 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity," accessed Dec. 8, 2016
Human Rights Campaign, "White House Announces Support for Equality Act," Nov. 10, 2015
Reuters, "U.S. judge blocks Obama transgender school bathroom policy," Aug. 22, 2016
Politico, "North Carolina drops suit against Obama administration over 'bathroom bill,' Sept. 19, 2016
Email interview with Michael Sparks, spokesman for Rep. Jared Polis, D-Colo., Dec. 8, 2018
Email interview with David Stacy, government affairs director for the Human Rights Campaign, Dec. 8, 2016
Senate moves ahead on measure to stop job discrimination against gays and lesbians
The last time we looked at this promise from Barack Obama, it was the end of 2011, and the Employment Nondiscrimination Act, or ENDA, seemed to be nowhere near passage. We rated it Promise Broken.
Things have changed since then, though.
For one thing, it's a new session of Congress, and Senators who support a federal law to protect gays and lesbians from workplace discrimination brought the measure back up.
On Nov. 4, 2013, 61 senators voted in favor of beginning debate on the legislation, which would prohibit employers from discriminating on the basis of an individual's actual or perceived sexual orientation or gender identity. Seven Republicans joined with 52 Democrats and two independents to move the bill forward. The measure is now able to proceed to a vote on final passage.
While some states and localities have laws that prohibit employment discrimination based on sexual orientation or gender identity, there is no current federal law that would apply to all.
To be clear, there's still a ways to go before Obama could claim full credit for this promise. Senators say they expect attempts to amend the bill to address concerns of religious employers, and that could become a contentious issue. Also, the bill would face an uphill battle in the U.S. House of Representatives, where the Republican leadership controls whether the bill would get a vote or not.
Still, the Senate vote is an important step toward enactment, and Obama strongly supported the measure. On the day of the vote, the White House released the following statement:
"This bipartisan legislation is necessary to ensure that strong federal protections exist for lesbian, gay, bisexual, and transgender workers no matter where they live. Workers should not fear being fired from their jobs, harassed at their workplaces, or otherwise denied the chance to earn a living for themselves and their families, simply because of sexual orientation or gender identity. This legislation would, for the first time in this Nation's history, make explicit in federal law such guarantees, which are consistent with America's core values of fairness and equality. Passage of this bill is long overdue."
Obama's promise is back in play. We move the meter to In the Works.
THOMAS, Employment Non-Discrimination Act of 2013, accessed Nov. 5, 2013
U.S. Senate, roll call vote 229, Nov. 4, 2013
The White House, Statement of Administration Policy, S. 815 – Employment Non‑Discrimination Act, Nov. 4, 2013
New York Times, Senate Vote 229 - Votes to Proceed on Measure to Ban Workplace Bias Based on Sexual Orientation and Gender Identity, Nov. 4, 2013
New York Times, Bill Advances to Outlaw Discrimination Against Gays, Nov. 4, 2013
Bill highly unlikely to pass Congress
One of Barack Obama's promises to the lesbian, gay, bisexual and transgender community was to support Congressional passage of the Employment Non-Discrimination Act (supporters refer to is as ENDA). This bill would forbid discrimination of workers based on their sexual orientation or gender identity.
A version of the ENDA has been introduced in almost every session of Congress since the early 1990s. Rep. Barney Frank, D-Mass., sponsored a new version of the bill last spring. Sen. Jeff Merkley, D-Ore., followed shortly thereafter with a new version in the U.S. Senate. Both bills have been stuck in committee and show no signs of moving any time soon.
Will the ENDA actually become law during the 112th Congress?
We talked to Jennifer Pizer, Legal Director at the Williams Institute on Sexual Orientation Law and Public Policy. She told us that, given the Republican Party"s control of the U.S. House of Representatives, it is extremely unlikely that ENDA will wind up on President Obama"s desk anytime soon. The ENDA is nowhere near the top of the Republican Party"s priorities. Even if this were not the case, Congress is currently entrenched in budgetary and fiscal issues.
If the Democratic Party could not pass ENDA given its majorities from 2009-2010, then it"s even more unlikely for the legislation to succeed in the current Congress. The Obama administration may support ENDA, but given current political realities, it's highly unlikely to pass. We rate this a Promise Broken.
Ending employment discrimination for gays and lesbians will have to clear a Republican House
Elections on Nov. 2 turned over control of the U.S. House of Representatives to the Republican Party. That means tougher passage for legislation supporting gay and lesbian rights, such as the Employment Non-Discrimination Act, called ENDA.
Gay rights supporters have been trying to pass such a law passed for more than a decade. Broadly speaking, it would make it illegal to fire, refuse to hire or refuse to promote an employee based on the employee's sexual orientation or gender identity. Obama supported it during his campaign. Rep. Barney Frank, D-Mass., introduced a bill in June 2009 that won 203 co-sponsors (197 Democrats and six Republicans). The bill was referred to committee, but never came up for a vote on the House floor.
On the day after the election, Obama spoke optimistically about passing a repeal of "Don't Ask, Don't Tell," the policy that prevents gays and lesbians from serving openly in the military. Obama said he hoped it would be able to pass during the lame duck session of Congress, before a new group of legislators take their seats in 2011.
But there's little optimism among gay advocacy groups that other legislation would pass during the lame duck session, which means bills like ENDA wil face higher hurdles to passage during the next session of Congress, when Republicans will control the U.S. House of Representatives.
"The shift in the balance of power will be a very real challenge to advancement of lesbian, gay, bisexual and transgender (LGBT) rights legislation in Congress," said Inga Sarda-Sorensen, communications director with the National Gay and Lesbian Task Force. "Despite that, we will continue to identify and work with fair-minded members of Congress who are willing to support and defend equality for LGBT people."
To be clear, we're not saying it's impossible for the Employment Non-Discrimination Act to pass a Republican House. But even the bill's advocates acknowledge that it will be more difficult. And for that reason, we move this promise Stalled.
The White House, Press conference by the president, Nov. 3, 2010
The Human Rights Campaign, 2010 Post Election Analysis
Thomas, the Employment Non-Discrimination Act, accessed Nov. 4, 2010
E-mail interview with Michael Cole, spokesperson for the Human Rights Campaign
E-mail interview with Inga Sarda-Sorensen, communications director, National Gay and Lesbian Task Force
Employment Non-Discrimination Act ready for consideration in House, Senate
As a candidate, Barack Obama promised to "place the weight of (his) administration behind ... a fully inclusive Employment Non-Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity." This summer, lawmakers in the House and Senate introduced legislation to do just that.
The bills, known as ENDA for short, have been bubbling in Congress in one form or another for more than a decade. Broadly, the bills would make it illegal to fire, refuse to hire or refuse to promote an employee based on the employee's sexual orientation or gender identity.
Federal law already affords protections on the basis of race, religion, sex, national origin, age and disability; ENDA would have its most direct impact on the 29 states that do not offer any workplace discrimination protections for sexual orientation and the 38 states that offer no protections for transgender individuals. Exemptions are included for businesses with fewer than 15 employees, religious organizations and uniformed military personnel. It also precludes affirmative action and preferential treatment, and would not apply retroactively.
The gender identity provision is considered especially notable. In 2007, after the Democrats took the majority in the House, they offered legislation that included protections for transgender individuals as well as on the basis of sexual orientation, but after that provision sparked opposition, the sponsors removed the gender identity language. While some advocates for lesbian, gay, bisexual and transgender individuals complained about that move, the resulting bill passed the House by a 235-184 margin. The measure died when the Senate failed to act.
Now, with the election of a Democratic president who has expressed support for a more expansive bill, lawmakers in both chambers have offered ENDA bills with gender-identity provisions intact.
Rep. Barney Frank, D-Mass., is the primary sponsor of the House version, H.R. 3017. The measure had 117 original co-sponsors, including five Republican lead co-sponsors — Reps. Ileana Ros-Lehtinen of Florida, Mike Castle of Delaware, Mark Kirk of Illinois, Todd Platts of Pennsylvania and Leonard Lance of New Jersey.
The Senate version, S. 1584, is sponsored by Democratic Sen. Jeff Merkley of Oregon. It has been backed by two Republicans, Susan Collins and Olympia Snowe of Maine, with 38 original co-sponsors in all.
The House version is set to have a hearing at the House Education and Labor Committee on Sept. 23, 2009. An aide to Frank said the panel is expected to mark up and vote on the measure "soon after the hearing." No action has been scheduled in the Senate.
Both measures are still a long way from being ready for the president's signature — they must be passed in committee, approved by each chamber, and reconciled between the two chambers if necessary, all despite a crowded congressional calendar. In addition, conservatives are sure to raise concerns, particularly on the gender-identity provisions. Still, the groundwork has been laid for Obama's promise to become reality, so we consider it to be In the Works.
Rep. Barney Frank, "Reps. Frank, Baldwin and Polis Lead Introduction of the Employment Non-Discrimination Act (ENDA)"
, June 24, 2009
Sen. Jeff Merkley, "Merkley, Collins, Kennedy, Snowe Introduce Legislation To End Workplace Discrimination" news release , Aug. 5, 2009
Human Rights Campaign, "Employment Non-Discrimination Act Introduced in U.S. House" news release , July 24, 2009
Human Rights Campaign,
on the Employment Non-Discrimination Act (S. 1584/H.R. 3017), accessed Sept. 21, 2009
Washington Blade, " Merkley introduces ENDA in Senate ," Aug. 5. 2009
E-mail interview with Harry Gural, spokesman for Rep. Barney Frank, Sept. 21, 2009
E-mail interviews with Inga Sarda-Sorensen, director of communications with the National Gay and Lesbian Task Force, September 2009