Employment Non-Discrimination Act of 2013 - Motion to Proceed

Floor Speech

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Mr. MERKLEY. I appreciate the comments of my colleague from Maryland, who has argued so well that the time has come to take a bold step in favor of equality, in favor of fairness in passing employment nondiscrimination. I too rise to speak to the importance of this action.

The Declaration of Independence in its second paragraph says, in words that are famous and well-known to all Americans:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Certainly that vision of life, liberty, and pursuit of happiness is infused into everything we pursue in this Nation in the success of individuals, the success of our families, the success of our communities, and the success of our Nation. The debate on which we are about to embark is deeply connected to this issue because certainly the ability to be free from discrimination in the pursuit of a job and to be free from discrimination in the course of employment is central to that pursuit of happiness. It is central to the issue of liberty.

I rise today to say how important and vital this is to millions of Americans for whom discrimination has blocked and compromised the vision laid out in the Declaration of Independence. This bill, this framework for ending discrimination in employment, S. 815, is born with a lot of bipartisan partners whom I wish to thank at this moment.

It was back in 2009, my first year in the Senate, that Senator Kennedy and his team asked me to take the leadership of this bill that he had held near and dear to his heart and to carry the torch forward in fighting for fairness in employment, fighting for an end to discrimination. Since that time, many have stepped forward to be partners in this journey.

Senator Collins was the first chief cosponsor on the Republican side, stepping forward and taking her voice, her energy, her experience, and her insight in bringing that to bear. After 2 years, she passed the baton to Senator Mark Kirk, who had been a long-time champion of the vision of fairness and equality for all Americans. Both of them have done an outstanding and extraordinary job in forwarding this dialogue.

On the Democratic side we have, first and foremost Senator Kennedy, who carried the leadership for many years, including back in 1996 when we had this on the floor of the Senate--and I will return to that in due course. He was a champion for civil rights in many different parts of our world, including race discrimination, gender discrimination, and discrimination against the LGBT community.

Senator Harkin, who chairs the Health, Education, Labor, and Pensions Committee, carried this bill forward through two hearings in 2009 and 2012, and then brought it to markup this past year and is prepared to send it to the floor. So I thank Senator Harkin for his leadership.

Senator Tammy Baldwin, who came to us with her own personal story and her experience with leadership in the House, has extended the conversation here in the Senate and has carried on so many individual meetings to speak to these core issues of equality, fairness, and opportunity.

So I thank all the bipartisan sponsors, and I thank all of those who last night said, yes, we should debate this issue. We should debate this issue of discrimination and blocking full opportunity for millions of Americans. So shortly we will be engaged in that debate.

After the Declaration of Independence, we had the preamble to the Constitution. This also is well known to Americans across our land.

We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish the Constitution of the United States of America.

So here we have this core concept of justice and the blessings of liberty for that generation and the generations that would follow. But what exactly is liberty? What is freedom?

President Johnson, in 1965, at a commencement address at Howard University, said:

Freedom is the right to share, share fully and equally, in American society--to vote, to hold a job, to enter a public place, to go to a school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others.

I think that is a pretty good description of what liberty and freedom mean--a right to participate fully in American society in every respect: at the voting booth, in the job place, and in the public square, as you would choose to participate.

So the Employment Non-Discrimination Act, which ends discrimination against our LGBT community, is rooted in the best of American values. It is rooted in the concepts of liberty and freedom in our founding documents and in our founding vision. It is rooted in the concept of fundamental fairness.

How unfair is it if an individual who is seeking to apply for a job cannot have the full opportunity for that job, the full opportunity to thrive because of discrimination? How fair is it that because of who you are outside of the workplace you are fired from the workplace?

Let us think of the Golden Rule. We all learned this early in life--that we should treat others according to how we would want to be treated. And we all want to be treated with the respect and dignity President Johnson referred to.

It is the vision of equality that was in the Declaration of Independence, and it is the vision of opportunity that is rooted so deeply in the American Dream--the idea that in America, if you work and study hard, you can do just about anything. That is the vision my father gave me when he took me to the schoolhouse doors when I was small and said: If you go through those doors and you study hard, here in America you can do just about anything.

But discrimination takes away from that vision of opportunity. It says: If you study hard, here in America you can do just about anything, unless you have a certain color of skin, unless you are a certain gender, unless you have a certain gender identity or sexual orientation.

We have struck down many of those barriers. We have advanced on this vision of equality, but we have further to go. That is what this debate is about. In 29 States, an individual can still be fired from their job, they can still be told not to apply in the first place because of their sexual orientation or their gender identity--in 29 States. It should not be the case that the vision of equality and fairness and opportunity happens to occur on one side of a State line but it is destroyed if you cross that State line. This vision of opportunity and fairness and equality in the Constitution and in the Declaration of Independence didn't say the vision is only if you live in particular States, only if you live in the 21 States that have protections for our lesbian, gay, and bisexual community; only if you live in the 17 States that have employment protection for our transgender community.

The journey of this legislation began in 1974. It was a year after Stonewall. It was 39 years ago that Bella Abzug and Ed Koch introduced in the House

of Representatives legislation that would ban job discrimination. It took another 19 years before such legislation was introduced here in the Senate and where hearings were held in the Labor and Human Resources Committee in 1994. It was 2 years later the bill was debated here in this Chamber--right here in this very room. The outcome was 49 for and 50 against, with Vice President Gore sitting in the presiding chair where the Senator from Hawaii now sits.

Vice President Gore had already clarified where he stood, so we were missing one Senator and one vote, and the result was that it took 17 years to again hold this conversation in this Chamber--17 years of discrimination in so many States across America. It is time to end that discrimination and enhance the vision of equality and fairness.

Today, we have a bill before us with 55 cosponsors. When we think about that 49-50 vote 17 years ago, we might think: Well, isn't this a done deal? There are 55 cosponsors and you only need 51 or 50 plus the Vice President to pass a bill in the Senate. But it is not a done deal. Because in the last decade and a half, the Senate has gone from being a simple majority Chamber, as envisioned in the Constitution, to being a Chamber where every action takes a supermajority vote.

We needed a supermajority of 60 to get on to the bill last night, and everyone anticipates we will need 60 votes to get off the bill; that is, to close debate and have a final vote. That is not the Senate of the past 200 years, but it is the Senate of the last 10 years, where the courtesy of extended debate has been turned into the veto of a supermajority. That is where we stand right now. Therefore, we need 60 votes.

We had 61 votes last night to get onto this debate, and I thank every one of those 61 Senators who stood up and said: Yes, after 17 years it is time to debate this issue; yes, it is right to consider the core issue of fairness to millions of Americans; yes, it is right to recognize that we should have a debate about the impact of discrimination on the ability of the individual to have full opportunity in our Nation.

Have no doubt. Discrimination is alive and well. I will share with you the story of Laura from Portland, OR, before Oregon had nondiscrimination clauses, which we adopted in 2007. Laura wrote that from 1980 to 1996 she worked for the Josephine County Sheriff's Office in Grants Pass, OR. She had the rank of sergeant. She was promoted often. She worked in a variety of capacities, including as a SWAT team commander, as a detective of the major crimes unit, and in the narcotics task force. During her 16 years, she says: I received numerous commendations, including commendations for removing an automobile accident victim from a burning vehicle, delivering a baby alongside a roadside, and disarming an armed man intent on harming himself. She was awarded for her expertise and diligence shown in a number of complicated criminal cases. She was named Deputy of the Year in 1994. She taught law enforcement classes at Rogue Community College and at the Oregon Police Academy. She had a distinguished employment record.

On Labor Day 1995, Laura was in a remote area when a police dog attacked her and did some damage to her leg and she was put on administrative leave. During the month that followed, her storage unit was broken into. Out of that break-in of her storage unit came information she was a transgender individual, and because of that she was fired. She had a stellar career in every aspect, but a break-in into her storage unit, plus discrimination, ended that career.

She ends her commentary by saying: Had employment nondiscrimination laws been in effect, I likely would have continued serving the citizens of Josephine County to this day.

We know from her employment record she would have served well. But that was before Oregon adopted antidiscrimination legislation.

Many people have written to share their stories. Terri from Aloha wrote:

Thank you for continuing the fight against discrimination. I am retired now, but I did lose a job when I was young, for being a lesbian. Until later in life, I stayed deep in the closet after that to keep from losing another job. All of the non-discrimination bills help us define who we are as a people and underscores our belief in life, liberty, and the pursuit of happiness for every American.

By one survey, far more than a third of LGBT individuals have experienced some form of harassment or discrimination in the workplace. That has a tremendous impact on the pursuit of happiness. That is a tremendous shrinking of freedom and liberty as envisioned in our founding documents, our vision for this Nation.

There are a number of issues which have been raised as colleagues have talked about this bill before it comes to the floor, and I wish to address some of them.

First, this bill is fully inclusive. It includes the lesbian, gay, bisexual, and transgender community. It should be fully inclusive because discrimination is wrong. Discrimination shrinks opportunity. Discrimination is an offense against liberty and freedom in our Nation and full participation in society. So of course this bill should be fully inclusive, as it is in 17 of the 21 States that have laws on their books right now.

A second issue has been concern about lawsuits. We heard this yesterday from the Speaker of the House. But we have all of these pilots, if you will, with 21 States with measures on the books with all kinds of experience. So I asked the General Accounting Office to do an updated study on the issue of lawsuits, and what did we find? There has been no abuse. There has been no extraordinary stream of unfounded lawsuits against businesses, no damage to business, none at all.

In Oregon, LGBT discrimination claims are less than 2 percent of the total number of employment discrimination claims. That is less than 1 out of 50. In other States it has ranged from 2 to 6 percent. That is a small number, and that is why the business community has remained so supportive. In fact, close to 90 percent of the Fortune 500 companies have nondiscrimination practices they have adopted on their own. They have adopted them because it is good business.

Nike, in my home State of Oregon, says that ``ENDA is good for business, for our employees, and for our communities.''

The Nike statement continues: Inclusive, nondiscrimination policies ``enable us to attract and retain the best and brightest people around the world.''

That is why Fortune 500 companies have lined up to adopt nondiscrimination provisions--because what is good for liberty and what is good for opportunity is good for business. And the GAO study shows that any claim that there has been a problem with excessive lawsuits is simply false.

A third concern is about the religious exemption. The religious exemption in this bill is deeply founded on title VII of the Civil Rights Act, so there is a whole history of interpretation and understanding exactly where the boundaries are. This is the same religious exemption that was voted in favor of in the U.S. House of Representatives by a measure of 420 to 25. Mr. President, 420 to 25 said this is the right foundation to make sure we create the balance for religious organizations.

There are others who are concerned that, simply, the American people are not ready for this discussion--despite the fact that it has been adopted in 21 States, despite the fact that we have had many related issues before the American public up for discussion, including hate crimes. We have the Matthew Shepard hate crimes act; we had don't ask, don't tell; we had a Supreme Court discussion about marriage equality. Certainly Americans are well familiar with this. In fact, 80 percent of Americans think we have already done this.

I was explaining to my daughter Brynne about this bill, this fight against discrimination and its terrible impacts on liberty, freedom, and opportunity.

She said: But, Dad, people can't fire others because they are lesbian or gay, right? That is not possible.

I said: Sweetie, it was possible right here in Oregon until a couple years ago when in 2007 we adopted nondiscrimination policies and nondiscrimination statutes for our State.

She just shook her head.

It took me back to when I was in high school and I was hearing about Jim Crow and discrimination against those with dark skin instead of lighter skin, and I thought that is not possible, not under our vision of opportunity and equality in our Constitution and our pursuit of happiness. It is not possible.

But it was possible, and it was very real well after I was born. But we ended that discrimination, and it is time to end this discrimination.

This is about the individual, but it is about our Nation as well. It is certainly about the vision of the Declaration of Independence, which has the promise of life, liberty, and the pursuit of happiness as the founding motivation. It certainly is about our Constitution, which says that the core purpose is to secure the blessings of liberty because certainly you do not have liberty if you do not have the full opportunity to participate in the workplace across America.

Senator Ted Kennedy carried this battle until days before his death. The quote I am about to share is from August 5, 2009. He died just 20 days later. This may well have been one of his last public comments and introducing the 2009 bill may well have been one of his last legislative acts. He said:

The promise of America will never be fulfilled as long as justice is denied to even one among us.

I urge my colleagues, take a stand for equality. Take a stand for fundamental fairness. Take a stand for the vision of the pursuit of happiness embedded in our Constitution. Take a stand for justice for all. Support this bill.

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