Susan Silber

For months now, we have been waiting for congressional action on the Employment Non-Discrimination Act (ENDA), (HR 3017) and (S1584), federal legislation to end workplace discrimination based on sexual orientation and gender identity. There has been a sense that action on this bill was due shortly after work was completed on the hate crimes bill, which was signed into law last month.

Recently, House and Senate Committees held hearings on ENDA. Testimony in both chambers in favor of this measure has been compelling, illustrating the nationwide problem of job discrimination against lesbian, gay, bisexual and transgender people, outlining the inadequacy of federal law to address the issue, delineating the inconsistent patchwork of state and local laws that presently exists, and demonstrating how enacting ENDA to include its provisions among our nation's existing system of non-discrimination laws would help correct these problems.

ENDA's provisions - banning discrimination in workplaces while protecting religious freedom by including the same religious exemption that currently exists in Title VII - strike the correct balance between the needs of employees and employers, between the need to end discrimination levied against people because of the bias of others while ensuring that businesses can function effectively with an appropriate focus on productivity and sustainability. For this reason, many corporations support ENDA, including those in states where business has experience with non-discrimination laws including similar provisions. A Government Accounting Office (GAO) report issued on October 1, 2009, describes in great detail the experiences of the states that have state-level non-discrimination laws that bar these types of discrimination, some of them in place for more than three decades. Similarly, experience with the implementation of federal non-discrimination laws demonstrate that these laws function effectively as intended, by establishing legal requirements that prevent discrimination in the first place, by providing equal opportunity for job candidates and employees, and by remedying discrimination when it has occurred and can be proven through solid evidence. This legislation is well-written and will be effective.

Mark-up was postponed this week, but from my perspective it should be rescheduled immediately or soon after the Thanksgiving recess. There is no reason to wait to enact this legislation, which is needed and long overdue.

As a member of the employment discrimination bar, as I look ahead to when ENDA is law, I can see that ENDA will work as intended. Employers will understand their basic obligations under our system of federal laws designed to treat all workers fairly, and to ensure that no one is refused a job, denied a promotion, or fired because of personal characteristics that have nothing to do with work. This law will assist employers and employees alike, because it will convey to everyone that job candidates and employees are to be evaluated and treated in accordance with those factors that make a difference to business and in the workplace: a job candidate's credentials, qualifications and experience, and employee's skills, talents, hard work and productivity. These are the worker attributes that contribute both to the bottom line of employers, and to our nation's productivity.