As jessical noted in her diary yesterday, markup of the Employment Non-Discrimation Act of 2007 has been postposed in order to allow its proponents to argue for a bill with the broadest possible protections.
If you are just joining the discussion, my diary yesterday spells out the differences between including gender identity in ENDA, as in the original version of the bill (H.R. 2015) and not including it, as in the current version (H.R. 3685).
I didn't realize at the time, however, that there were other very significant differences between the original bill and the current bill. Barney Frank made no mention of them in his statement last week. It wasn't until homogenius's comment in yesterday's diary that Lambda Legal had done a preliminary analysis of H.R. 3685 that I thought to compare the two bills line by line. Go below the fold to see what I found.
The Major Differences
The major differences between H.R. 2015 and H.R. 3685, other than the gender identity protections, are spread across the bill. Some of the highlights:
- A new broader definition of "religious organization" is added, and those religious organizations are now given a total exemption from ENDA (Section 3 and Section 6).
- The retaliation section of the bill has been modified to allow employers to retaliate when an employee opposes an employment act that she reasonably believes is against this particular law, if it is not found that the act was against the law. (Section 5)
- The bill has been modified to allow employers to enforce rules and policies which circumvent this law, as long as they do not "intentionally" circumvent this law. (Section 8)
- The original bill contained a sentence clearly indicating that state and local governments may establish their own rules and policies regarding domestic partnership benefits. That sentence has been removed from the current bill. (Section 8)
- The effective date of the bill has been moved from 60 days after enactment to 6 months after enactment.
A Line by Line Comparison
There are seventeen sections to both bills, and all sections are titled the same. I'm going to go through all seventeen sections and show you where all of the changes that I found are.
Section 1. Short Title.
No differences.
Section 2. Purposes.
This section differs only in that the phrase "sexual orientation or gender identity" has been changed to "sexual orientation." There are no other changes.
Section 3. Definitions.
The definition of the term "gender identity" has been completely removed from Section 3 in H.R. 3685. This is consistent with H.R. 3685 being about sexual orientation only. There is also a brand new definition, that of "religious organization." Here's a blockquote giving this new definition:
RELIGIOUS ORGANIZATION- The term `religious organization' means--
(A) a religious corporation, association, or society; or
(B) a school, college, university, or other educational institution or institution of learning, if--
(i) the institution is in whole or substantial part controlled, managed, owned, or supported by a particular religion, religious corporation, association, or society; or
(ii) the curriculum of the institution is directed toward the propagation of a particular religion.
We'll come back to this new definition when we review Section 6 (Exemptions for Religious Organizations).
Section 4. Employment Discrimination Prohibited.
This section differs only in that the phrase "sexual orientation or gender identity" has been changed to "sexual orientation." There are no other changes.
Section 5. Retaliation Prohibited.
This sections lists instances when employer retaliation is unlawful. The original bill, H.R. 2015, lists three instances; the current bill, H.R. 3685, lists two. I've blockquoted all of Section 5 from H.R. 2015 and boldfaced the removed instance; the rest of the section reads the same in H.R. 3685:
It shall be an unlawful employment practice for a covered entity to discriminate against an individual because such individual (1) opposed any practice made an unlawful employment practice by this Act; (2) opposed any practice that the individual reasonably believed is an unlawful employment practice under this Act; or (3) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.
I'd be interested to know why this particular clause was removed, and how this compared to the retaliation prohibition sections of other non-discrimination bills.
Section 6. Exemption for Religious Organizations.
The religious organizations exemption section of ENDA has been completely rewritten in the current bill. The changes are important that I think the best way to illustrate them is to present these sections in their entirety. First, the original Section 6, from H.R. 2015:
(a) In General- This Act shall not apply to any of the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief.
(b) Certain Employees- For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.
(c) Conformity to Religious Tenets- Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act.
Now, the current version of Section 6, from H.R. 3685:
This Act shall not apply to a religious organization.
There's a bit of a difference, isn't there? In all seriousness, we cannot analyze the new Section 6 without referring to the new definition of "religious organization" in Section 3. (Scroll up a bit to take a look.) Essentially, part (a) of the old Section 6 is analogous to the new definition of "religious organization" in Section 3, and we might be tempted to think that this was merely a stylistic difference between the bills. Indeed, both definitions, Section 6(a) of the old bill and the one in the new bill, include religious corporations, associations, and societies without further comment. The difference is in how the new bill extends the definition of "religious organization" to include educational institutions in a much broader way. The new bill extends the definition to any educational institution "whol[ly] or [in] substantial part controlled, managed, owned, or supported by a particular religion, religious corporation, association, or society." The old bill has no such extension. Even the second part of the inclusion of education institutions under the new definition is somewhat different than in the old bill: in Section 6(a) of the old bill, an educational institution would be exempt if it "has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief," whereas, in part (b) of the educational institution section of the religious organization definition of H.R. 3658, the analogous statement is that an educational institution counts under this exemption if "the curriculum of the institution is directed toward the propagation of a particular religion." This is a much more broad exemption than in the old bill, since it simply states that the curriculum must be directed towards propagation of the religious, rather than having propagation of the religion in question as its primary purpose.
Now the problem with the new Section 6 becomes fully apparent: not only is the definition of "religious organization" significantly broader with respect to educational institutions in the current bill, but Section 6 gives all institutions listed as religious organizations a total blanket exemption from ENDA. The old bill is much more subtle: it allows for some additional exemptions in parts (b), when the employee has as her primary duties carrying out religious education, worship, governance of the religion, and other similar duties; and in part (c), when the religious organization has a significant religious tenet at stake. Under the original version of the bill, employees whose primary duties do not directly relate to the religion are still covered under ENDA, unless the religious organization has a significant religious tenet that prevents it from employing that person. This is a huge difference.
Section 7. Nonapplication to Members of the Armed Forces; Veterans' Preferences.
No differences.
Section 8. Construction.
In addition to the phrase "sexual orientation or gender identity" being changed to "sexual orientation," there are several other siginificant differences between the bills.
- There is an interesting, one word difference in paragraph (1) of part (a). I'll blockquote both and bold face the differences. First H.R. 2015:
IN GENERAL- Nothing in this Act shall be construed to prohibit a covered entity from enforcing rules and policies that do not circumvent the purposes of this Act, if the rules or policies are designed for, and uniformly applied to, all individuals regardless of actual or perceived sexual orientation or gender identity.
Now, H.R. 3685:
IN GENERAL- Nothing in this Act shall be construed to prohibit a covered entity from enforcing rules and policies that do not intentionally circumvent the purposes of this Act, if the rules or policies are designed for, and uniformly applied to, all individuals regardless of actual or perceived sexual orientation. [emphasis added]
That certainly constitutes a loophole for employers.
- Paragraph (3) of part (a), entitled "certain shared facilities," has been entirely removed. This is a paragraph aimed at the gender identity part of the original bill, but it may have had other benefits as well.
- Paragraph (4) of part (a), entitled "dress and grooming standards," has been entirely removed. Again, this paragraph was part of the gender identity protections of the original bill, but it looks like it could have had a broader impact.
- Here's another interesting small change in the bill. In paragraph (5) of part (a), H.R. 2015 reads as follows:
ACTIONS CONDITIONED ON MARRIAGE- Notwithstanding section 4(g), an unlawful employment practice under section 4 shall include an action described in that section that is conditioned, in a State in which a person cannot marry a person of the same sex, either on being married or being eligible to marry. [emphasis added]
I boldfaced the first phrase because it is now missing from H.R. 3685:
ACTIONS CONDITIONED ON MARRIAGE- An unlawful employment practice under section 4 shall include an action described in that section that is conditioned, in a State in which a person cannot marry a person of the same sex, either on being married or being eligible to marry.
So, what is section 4(g), you ask? Here it is:
Disparate Impact- Only disparate treatment claims may be brought under this Act.
What does it mean? I don't know, but perhaps a lawyer could address this.
- Here's another big one: an entire sentence has been removed from part (b) of section 8. Here is the original part (b), with the removed part boldfaced:
Employee Benefits- Nothing in this Act shall be construed to require a covered entity to treat a couple who are not married, including a same-sex couple who are not married, in the same manner as the covered entity treats a married couple for purposes of employee benefits. Notwithstanding this Act or any other provision of law, a State or political subdivision of a State may establish rights, remedies, or procedures for the provision of employee benefits to an individual for the benefit of the domestic partner of such individual. [emphasis added]
So the bill goes from emphasising the powers of cities and states to establish rights with regard to employee benefits to saying nothing about those state and local powers.
Section 9. Collection of Statistics Prohibited.
This section differs only in that the phrase "sexual orientation or gender identity" has been changed to "sexual orientation." There are no other changes.
Section 10. Enforcement.
No differences.
Section 11. State and Federal Immunity.
No differences.
Section 12. Attorneys' Fees.
No differences.
Section 13. Posting Notices.
No differences.
Section 14. Regulations.
No differences..
Section 15. Relationship to Other Laws.
No differences.
Section 16. Severability.
No differences.
Section 17. Effective Date.
The effective date has been moved from 60 days after enactment to 6 months after enactment.
And now a word or two to our congressmen and their staffers:
I hope that you understand from reading this diary that we are watching you. We appreciate your support of ENDA so far, but it's troubling that you made so many changes to this bill without letting your supporters know. I really wish we didn't have to discover these changes on our own. I don't know why you made these changes. It appears that every one of them is a concession to those people who rather the GLBT community and its allies disappear. And you know what? It doesn't matter now, because you have the time to make things right.
And, we'll be watching to see that you do. Count on it.