Employment Non-Discrimination Act of 2007

EMPLOYMENT NON-DISCRIMINATION ACT OF 2007 -- (House of Representatives - November 07, 2007)

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Mr. McKEON. Madam Chairman, I yield myself such time as I may consume.

I rise in opposition to H.R. 3685, a proposal fraught with burdensome mandates, litigation traps, and constitutional concerns.

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This bill purports to prohibit discrimination in the workplace, a goal to which we are all committed. However, the reality of this bill's consequences does not match the rhetoric of its supporters.

This bill departs from the longstanding framework and structure of the Civil Rights Act of 1964 by establishing stand-alone protections exclusively on the basis of sexual orientation. This new protected class would be afforded protections on the basis of vague and highly subjective measures that will cause confusion in the workplace and will result in costly litigation.

For example, the bill extends protections on the basis of ``perceived'' sexual orientation, a characteristic that is subjective by its very definition. How would an employer credibly refute such an accusation? This proposal could result in the exact opposite effect its supporters intend by creating new pressures on employers to consider and even document their employees' sexual orientation, actual or how it is perceived, in order to guard against litigation. This is a highly inappropriate infringement on employee privacy and would actually increase the consideration of such characteristics in the workplace. Also, any argument that the term ``perceived'' is already included in existing civil rights statutes is simply not true. This is a new term, applied to a new situation, which will increase uncertainty and litigation.

Even more broadly, this bill encroaches on two fundamental principles we hold dear: the free exercise of religion and preservation of the institution of marriage. H.R. 3685 is inconsistent with the longstanding religious exemption contained in title VII of the Civil Rights Act. The bill adds additional layers of complexity in determining whether a religious organization is covered, setting up highly intrusive Federal interference with the free expression of religion.

We understand an amendment is to be offered later today that attempts to move closer to existing title VII provisions. However, it remains unclear whether this amendment, which has been rewritten repeatedly, does enough to protect faith-based institutions.

On the issue of marriage, the majority adds a provision that prevents employers from considering marital status as a job qualification, even though they have not provided any evidence that such a limitation is necessary. We are left to speculate that the real reason for this provision could be an attempt to undermine the fundamental right of States to define, protect, and preserve the institution of marriage. The bill establishes new limitations on hiring practices only in those States that have prohibited same-sex marriage.

By limiting these new restrictions to States that have defined marriage as an institution between one man and one woman, the bill has essentially identified traditional marriage as a form of discrimination. This bill, then, could become the first step in a radical effort to undermine State marriage laws.

Madam Chairman, this bill has been introduced in various forms and fashions for some three decades. It has been introduced in the House three separate times this year alone. This is evidence of the inherent complexity that comes with such a far-reaching proposal.

Later today, we will consider an amendment that seeks to broaden these new protections even further, to purportedly cover discrimination based on gender identity, despite the fact that this provision was stripped from the bill before it was taken up in committee. There are serious practical and legal concerns with this amendment, and many questions remain unresolved. This is an effort to make an end-run around the legislative process, considering the full scope of this proposal only when it is convenient for supporters.

The bill before us is a sweeping departure from longstanding civil rights law, and its consequences will be far-reaching. A number of valid questions have been raised about how this bill will align with existing State and Federal anti-discrimination policies and those policies that have been voluntarily adopted by employers. These questions remain unanswered.

Because of that, I must oppose this bill and encourage my colleagues to do the same.

Madam Chairman, I reserve the balance of my time.

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