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Bagenstos and ENDA

Prof. Bagenstos testifies to Senate HELP Committee in support of ENDA

By Lori Atherton

When the U.S. Senate Committee on Health, Education, Labor and Pensions hosted a committee hearing June 12 regarding the Employment Non-Discrimination Act (ENDA), Michigan Law Prof. Samuel Bagenstos was one of several experts who provided testimony in support of the proposed legislation. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity.

"ENDA is an exceptionally important bill and one that is much needed," Bagenstos said during the hearing, the first one on ENDA since 2009. "It will be the logical next step in our Nation's commitment to eradicating workplace discrimination."

An expert in civil rights and employment discrimination law, and the former number-two official in the Department of Justice's Civil Rights Division, Bagenstos made three "essential points" during his testimony: "Discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals is a serious problem; the current legal regime is inadequate to respond to that problem; and, ENDA is an appropriately tailored remedy for that problem."

Lesbian, gay, bisexual, and transgender individuals face tough choices in the workplace, Bagenstos said, including being forced to give up job opportunities in their chosen field because of discrimination, or having to hide their sexual orientation or gender identity in order to keep their jobs, "at great psychological cost and [with] fear of discovery."

Bagenstos said current laws addressing discrimination against LGBT persons are inadequate—only 16 states and Washington, D.C., prohibit workplace discrimination based on sexual orientation or gender identity. Another five states prohibit workplace discrimination based on sexual orientation but do not include any prohibition on gender identity discrimination.

"The enforcement procedures and remedies for those statutes vary," he said. "They do not provide the clear and strong set of remedies—crucially including access to federal courts—that Congress has developed for workplace discrimination over the past five decades. And LGBT workers outside of those states enjoy no clear state statutory protection against discrimination at all."

He added: "In responding to these problems, ENDA would do nothing more than extend to sexual orientation and gender identity discrimination the same basic legal structure that has applied to other forms of employment discrimination for nearly 50 years."

Watch the full committee hearing, and read Prof. Bagenstos's testimony.

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