Senate Majority Leader Harry Reid (D-NV) has promised a Senate vote on the Employment Non-Discrimination Act (ENDA) before Thanksgiving, and possibly as early as next week. This bill, which has been proposed in every Congress since 1994, would make it illegal for employers to make hiring, promotion, or firing decisions based on an individual’s sexual orientation or gender identity. Like all Senate legislation, ENDA will require a cloture vote of 60 votes before it can pass, and it seems the votes are almost all there, with several new endorsements this week.
In the lead-up until this week, three Democratic Senators had refused to sign on as co-sponsors: Sens. Bill Nelson (D-FL), Mark Pryor (D-AR), and Joe Manchin (D-WV). On Tuesday, both Nelson and Pryor announced they would be voting “yes,” leaving Manchin as the only Democrat left not supporting the bill. Nelson went so far as to sign on as a co-sponsor of the bill. [See update below.]
Cory Booker (D) will be sworn in to represent New Jersey this week, adding one more vote to the “yes” column. Additionally, Several Republicans have already supported the bill, including cosponsoring Sens. Susan Collins (R-ME) and Mark Kirk (R-IL), as well as Sens. Orrin Hatch (R-UT), and Lisa Murkowski (R-AK), who both voted in favor of the bill in committee. That still leaves two votes necessary to bring ENDA to the floor.
One of those might come from Sen. Rob Portman (R-OH), who indicated this week that he is “inclined to support” the bill. Portman endorsed marriage equality earlier this year, revealing the impact his son coming out as gay had on his views. As recently as May, he still expressed reluctance about ENDA, suggesting there might not be enough protections for religious organizations and individuals who wish to continue discriminating against the LGBT community.
The Washington Post suggests several other Republicans who have previously supported LGBT rights, including Sens. Pat Toomey (R-PA), Kelly Ayotte (R-NH), Dean Heller (R-NV), and Jeff Flake (R-AZ). Though Flake previously supported ENDA in 2007, he now believes the latest version “will increase the potential for litigation and compliance costs.” This belief contradicts ample evidence showing that businesses of all sizes benefit from nondiscrimination protections. Flake told the Washington Blade that he also opposes the inclusion of transgender protections, which had been stripped from the 2007 House bill he voted for.
One Senator who it seems will not be voting for ENDA is John McCain (R-AZ). Despite lobbying from his own wife, McCain seems to still be concerned about “whether it imposes quota, whether it has reverse discrimination, whether it has the kinds of provisions that really preserve equal rights for all citizens.” He went on to draw an odd comparison between ENDA and the desegregation busing that attempted to break down racial lines after schools were integrated.
Despite McCain’s claims, the bill expressly prohibits preferential treatment, quotas, or any kind of retaliation against people who oppose its provisions. It’s quite unclear who would be bused where if LGBT people were simply protected in the jobs they already have.
Though ENDA is not likely to pass the Republican-controlled House, its passage in the Senate would still be significant. In all its iterations over the past two decades, ENDA has never passed in the full Senate, having died there in 1996, 2001, and notably in 2007 after it had passed in the House. An overwhelming majority of the country believe the employment protections already exist at the federal level, when in fact only 21 states protect sexual orientation and 17 protect gender identity. Under the current mosaic of protections, LGBT people have indicated that they much prefer working in states where they are protected, impacting businesses across the country.