Committee Statements

We’re here today to examine the Employment Non-Discrimination Act of 2009, a bill that would have major consequences for workplaces across the nation.

As I understand it, H.R. 3017 is largely identical to legislation of the same name introduced in 2007. This panel considered the legislation two years ago, and eventually it was brought to a vote in the full U.S. House of Representatives before stalling in the Senate.

Two years ago, my colleagues and I raised a number of substantive policy concerns about this legislation. Some changes were made before the bill went to the House Floor, but unfortunately, two years later, many issues have still not been resolved and our concerns have not been alleviated.

H.R. 3017 represents a significant departure from longstanding civil rights law. It creates an entirely new protected class that is vaguely defined and often subjective. For instance, the legislation extends protections based on “perceived” sexual orientation.

Attempting to legislate individual perceptions is truly uncharted territory, and it does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions.

Similarly, the protections based on gender identity have raised both philosophical and logistical questions from the outset. In fact, the bill ultimately brought to a vote did not include those protections precisely because their application would have been so problematic. Yet two years later, the legislation before us again includes the gender identity protections.

Although I am keeping my remarks brief to accommodate the schedules of this unusually large number of witnesses, there is one final concern I must raise before I yield back. I think we must carefully consider the consequences of H.R. 3017 for religious and family-based organizations that make hiring decisions consistent with their faith and mission.

H.R. 3017 contains an exemption that attempts to create a linkage to the religious exemption found in Title VII of the Civil Rights Act of 1964. Unfortunately, we will hear testimony today that raises a great deal of uncertainty about how that exemption will be applied. Will it be interpreted as simply restating the hiring protections based on an applicant’s religion?

Consider a faith-based organization with express religious teachings related to sexual orientation. While longstanding civil rights law protects a faith-based organization’s right to hire in a manner consistent with their faith traditions, we may hear concerns that H.R. 3017 could potentially exclude any faith traditions that deal with sexual orientation or gender identity.

At a minimum, this is likely to contribute to an already confusing and contradictory patchwork of legal interpretations and spur significant new litigation as a direct result of the legal minefields that would spring up under H.R. 3017.

As I mentioned at the outset, this is far-reaching legislation that would have major consequences for workplaces across the nation. I hope today’s hearing will not simply gloss over the legal and substantive concerns, but will instead thoroughly explore the ramifications of such an unprecedented expansion and revision of our civil rights laws.

 

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