Washington—Senator Dianne Feinstein (D-Calif.) today spoke on the Senate floor urging passage of the Employment Non-Discrimination Act (ENDA). Her remarks follow:
“I’ve come to the floor to give my views on the Employment Non-Discrimination Act, better known as ENDA, because this is essentially a bill with a long history. And it means a great deal to me personally because of work that I did in the City and County of San Francisco a long, long time ago.
Actually, nearly 40 years ago it was my third term as President [of the board of supervisors], when an ordinance to prohibit discrimination in both housing and employment on the basis of sexual orientation was actually passed by the board. I think it was a vote of 10-1. It was the first such legislation introduced in a major city in the state. It was difficult to pass. There was a long debate. I look back on the press, it was a two-hour debate but it did pass back in 1978.
And it’s true, at the time I had some concerns and so I watched the legislation implemented over the last four decades. It has protected people’s jobs and livelihoods from unfair treatment. It’s been good for people and for business. I had some concerns. Would there be a lot of objections?
Well, actually, in the time I was a supervisor and in the nine years I was mayor, there were no objections. And all of a sudden the city really came to see what equality meant.
I knew then and I know now that this legislation is the right thing to do. And it’s not going to result in inappropriate behavior in the workplace or any of the other hobgoblins that the legislation’s opponents raise.
In 1996, ENDA came to this floor. An up-or-down vote on this bill was negotiated for the same day the Defense of Marriage Act, or what we call DOMA, would have such a vote. These votes happened on September 10, 1996.
DOMA, of course, passed. I was one of 14 senators to oppose it. Eighty-five of my colleagues supported it and President Clinton signed it into law.
And what we all know now, what it essentially did was say that any gay couple that was legally married could not access more than 1,100 federal rights that were accorded to married couples.
And now some 14 states have legalized gay marriage, and just recently it looks like Illinois is on its way to doing the same thing.
ENDA failed by a single vote back then. That was a vote of 49-50. Today things are very different but there’s still a long way to go.
In an historic decision in June, the Supreme Court struck down the core piece of the Defense of Marriage Act. But DOMA is not yet fully repealed, and repealing it remains necessary. So in my view, the Defense of Marriage Act must, and will be one day, repealed for all.
And, although legislation like ENDA has been adopted in numerous states, there is still no federal end to discrimination.
That means that most gay, lesbian, and transgender individuals are without critical protections against employment discrimination.
In fact, most people--over 56 percent of the population--live in the 29 states that have not enacted employment protections for gays and lesbians. Over 66 percent of people live in 34 states that have not enacted such protections for transgender individuals.
And, there is no question discrimination in the workplace against these groups remains a big problem.
Let me give you just a few examples.
My first example is the case of Mia Macy, a case in which the Justice Department found that Ms. Macy’s transgender status played an impermissible role in the hiring process.
She had for 12 years been a police detective in Phoenix, Arizona. She was a veteran. She applied for an open position in an ATF ballistics lab to do ballistics imagery work she was certified to do. She was told she could have the position, subject to a background check.
Then Macy revealed her transgender status to the government contractor staffing these positions. Her background check was ordered stopped by ATF soon thereafter. She received an email stating the position was no longer available because of funding cuts, even though there was no evidence that was the case.
It turns out that the number of positions available had hastily been cut from two to one, and the person hired for that one position lacked much of the experience Macy had. Macy was--according to DOJ’s decision--“very likely better qualified” than the individual hired for that position.
So this is wrong. Ballistics matching can be the difference between a shooter in jail and a shooter who might kill again walking the streets of our neighborhoods.
The person who is actually hired should be the person who can do the best job-- period--regardless of whether the person is gay, lesbian or transgender.
Another case involves a police officer from the City of St. Cloud, Minnesota. According to a court opinion, the officer was an “excellent” officer; he was consistently awarded marks as “excellent” or “competent” on his performance reports.
The officer got “letters of recognition and commendation for his accomplishments, including his work on the Community Crime Impact Team, his work against drunk driving, his performance in apprehending a sexual assault suspect, and for his work in recovering a stolen vehicle.”
Then he came out as gay.
After that, according to the officer, he almost immediately “was subject to increased scrutiny, increased disciplinary measures, excessively thorough documentation, and surreptitiously recorded interventions,” as well as “multiple internal investigations” and removal from assignments.
The federal court found that “the almost immediate shift” in the treatment of this officer “supports an inference of unlawful discrimination” under the Equal Protection Clause of the Constitution, which applies to state and local agencies.
But if a private employer had discriminated like this, there likely would have been no federal protection.
In a case out of Oregon, an individual who ran a production line for battery separators was subjected to harassment on the job.
He was called “Tinker Bell” and a “worthless queer.” He was described using other phrases that I simply will not say on the Senate floor, because they are graphic and beyond the pale. I think they would shock many of our colleagues on both sides of the aisle. This harassment occurred on a daily basis, sometimes in the presence of a supervisor.
Then, two days after reporting the harassment to human resources, the individual was fired.
In this case, the federal court found the evidence credible enough to warrant a trial under Oregon law.
Sometimes discrimination is not as clear as it is in these cases. And I am going to quote from a 93-year-old constituent who called my office urging full support for this bill. And this is what he said:
“I don’t usually take the time to call my senator, but this is important to me. I’ve lived in San Francisco almost my whole life, and at 93 years old, I’ve seen a lot. Even in a liberal state like California, as a gay man, I never felt equal to my colleagues.”
“I used to work at a bank, and I kept working until I was 79 to earn my retirement. I was afraid to bring my husband to company parties, and I never wanted to seem ‘too flamboyant’ to my supervisors. It seems so ridiculous when I think back to it, but people don’t understand that this type of discrimination is subtle.”
“It broke my heart when I watched the Senate fall one vote shy of passing ENDA back in the 90s. I hope the senator remembers what it used to be like, and fights to pass ENDA today.”
Well, I do remember. And I do know that this bill will help stop discrimination in the workplace.
The bill is simple. It says a person cannot be denied employment because of who a person is--gay, or lesbian, or transgender.
The bill provides no special privilege. No special privilege. It creates no quota. It creates no exemption from the codes of conduct or anything else. It does not allow inappropriate conduct in the workplace.
In fact, the bill is narrower than Title VII protections in certain respects.
In my view, this bill does provide critical employment protections, and it is long past the time that it be signed into law.
Three years ago, we recognized that a person’s merit, not sexual orientation, is what matters for service in the military.
The point is no different in this bill. If a person wants to be a ballistics expert, a police officer, a firefighter, a bank teller, a lawyer, a factory worker, or anything else, the question should simply be: can the person do the job?
People have families; they have spouses; they have children; they need to put food on the table. They have college expenses for their children, student loans to pay, and unforeseen medical expenses. They may have elderly parents that they care for and who need their assistance.
All of this requires a job.
Should a person be denied that basic aspect of life, should a person’s spouse or children or parents be hurt, simply because that person is gay or lesbian or transgender?
For me, the answer is simple. It is no.
If this legislation is enacted, which I hope very much will happen, that will be the law of the land. And it will be long overdue.”