Source: Raju Chebium, Statesman Journal

WASHINGTON – A bill sponsored by Oregon Sen. Jeff Merkley that would make it illegal for most employers to discriminate against gay and transgendered employees and applicants is headed for a Senate vote before Thanksgiving, maybe as early as next week.

The freshman Democrat and gay-rights groups see it as a civil-rights issue because although the 1964 Civil Rights Act banned discrimination based on race, skin color, religion, sex and national origin, it didn’t specifically ban discrimination based on a person’s sexual orientation or gender identity.

According to Americans for Workplace Opportunity, a gay-rights advocacy group, 29 states offer no protections for gay and lesbian employees or job applicants and 33 offer none for transgendered people or transsexuals.

“In a majority of states it is still perfectly legal to fire people because of their LGBT status. It’s perfectly legal in a majority of states to not hire them in the first place because of that status,” Merkley said, using the acronym for lesbian, gay, bisexual and transgendered/transsexual individuals. “Under our constitutional vision of equality, under our constitutional vision of the pursuit of happiness such discrimination is simply wrong. So therefore, this bill is way overdue.”

Proponents have been trying since 1994 to get Congress to pass versions of Merkley’s Employment Non-Discrimination Act. Legislation that would’ve made it illegal to discriminate based on an employee’s sexual orientation failed by one vote in the Senate in 1996. It passed the House in 2007 but died in the Senate.

Merkley and Rep. Jared Polis, D-Colo., introduced expanded ENDA bills earlier this year in the Senate and the House. These bills would protect gays, lesbians and bisexuals, and for the first time include transgendered people.

Employers with fewer than 15 workers, private clubs, religious organizations, the military and the U.S. Coast Guard would be exempt. Workers or applicants must prove they were discriminated against or denied employment because they’re gay, lesbian, bisexual or transgendered, according to a legislative analysis by the nonpartisan Congressional Research Service, or CRS.

Merkley was speaker of the Oregon House in 2007 when then-Gov. Ted Kulongoski signed a state law that outlawed workplace discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, age, disability or familial status. Gender identity was included in the definition of sexual orientation.

Merkley said he wants the nation to become a “discrimination-free zone” like Oregon, adding that liberal icon and deceased Massachusetts Democratic Sen. Ted Kennedy encouraged him to take up the ENDA mantle when Merkley began his first Senate term in 2009.

The Merkley bill faces an easier climb in the Democratic-majority Senate than Polis’ companion proposal does in the Republican-controlled House.

The Oregon lawmaker said in an interview Thursday at least 59 senators have signaled they’re ready to vote for his bill and he’s working to get more of his colleagues on board.

Supporters include Sen. Ron Wyden, D-Ore., and all 52 other Senate Democrats, along with independent Sens. Angus King of Maine and Bernie Sanders of Vermont. Among the Republicans, Mark Kirk of Illinois and Susan Collins of Maine co-sponsored his bill, and Sens. Orrin Hatch of Utah and Lisa Murkowski of Alaska voted yes when the Senate Health, Education, Labor and Pensions Committee passed the measure in July.

Merkley said he’s “cautiously optimistic” about getting the 60 votes needed to overcome procedural hurdles to passage. He’s “absolutely confident” of securing at least 51 votes to pass the bill once the roadblocks are cleared away.

In contrast, the House bill may never reach the floor.

The Polis measure had 193 mostly Democratic co-sponsors as of Friday, including Oregon Democratic Reps. Kurt Schrader, Peter DeFazio, Earl Blumenauer and Suzanne Bonamici but not the state’s sole Republican, Rep. Greg Walden.

That largely one-sided support makes the bill a poor candidate to receive a vote. Speaker John Boehner, R-Ohio, whose caucus includes powerful tea-party conservatives opposed to the bill, rarely brings up legislation that lacks majority GOP support.

In an interview, Polis said a strong Senate vote would provide “the momentum we need to see it through in the House of Representatives to ensure once and for all that a boss can’t fire somebody just because of who they’re dating outside of their work hours.”

“For the next week the focus is on getting the best vote total we can from the Senate,” said Polis, who’s gay. “The stronger the vote the better. We’re hoping for more than 60.”

Opponents have scuttled similar legislation for nearly 20 years and are gearing up for another fight in the coming days.

The Heritage Foundation, an influential conservative think tank, said in an ENDA fact sheet that the legislation would create “special privileges based on sexual orientation and gender identity,” a point other critics make. However, the CRS analysis said the legislation would actually “clarify that preferential treatment or quotas on the basis of sexual orientation or gender identity would not be required.”

Heritage also argued that ENDA is worrisome to “free marketers concerned about freedom of contract and government interference in the marketplace, and social conservatives concerned about marriage and culture.”

“ENDA . . . would impose liability on employers for alleged ‘discrimination’ based on subjective, self-disclosed identities and not on objective employee traits,” according to Heritage. “ENDA would further weaken the marriage culture and the ability of civil society to affirm that marriage is the union of a man and a woman, and that maleness and femaleness are not arbitrary constructs but objective ways of being human.”

The conservative Family Research Council, or FRC, argued that the religious exemptions in the Merkley and Polis proposals are narrow and are unlikely to survive court challenges, raising the possibility churches and other faith-based employers may be legally compelled to hire “homosexuals” against their will.

“ENDA violates employers’ and employees’ institutional freedoms of religion, speech and association,” FRC said on a Web site it set up to fight the legislation. “ENDA would approvingly bring private behavior considered immoral by many into the public square.”

Contact Raju Chebium at; Twitter: @rchebium

Online, a website set up by Americans for Workplace Opportunity, a coalition that supports the Employment Non-Discrimination Act., a website set up by the Family Research Council to defeat the bill.

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