screeria -- nigeria. - followed by

king abdullah ii of jordan speaking before the european parliament. the u.s. commission on civil rights held a hearing monday about workplace discrimination against lesbian gay, bisexual

and transgender employees. >> we'll go back to the panel. we'll now proceed. i want to first introduce the panelists in the second panel. our first panelist is mr. roger congratulation, president and general counsel for the center of equal opportunity. our second panelest is kate kendall. our third panelist is miss sara warblough. our fourth panelist is miss stacy simmons. and our fifth and final panelist for the second panel is miss winnie stockleberg. i'll ask you all to raise your right hand teen swear and affirm

that the information you're about to provide to sues true and accurate to the best of your knowledge and belief. is that correct >> thank you. mr. clegg? you have the four. event minutes. >> thank you very much. i appreciate the opportunity to testify today. my name is roger clegg and i'm president and general counsel of the center for equal opportunity which is a nonprofit research education organization that's based in falls church virginia. our chairman is linda chavez and our principal focus is on public policy issues that involve race and ethnicity such as civil rights, bilingual education. miss chavez was once the staff director of the u.s. commission on civil rights and that i was once the deputy assistant attorney general in the justice department civil rights division. the points i make in the written testimony that you all have about the employment nondiscrimination act are six.

i'm just going to list them. number one, congress lacks constitutional authority to pass this bill. number two, there is no call for a federal role in this area anyway. number three, the bill is inconsistent with free market federalism and personal freedom principles. we shouldn't forget that there's a strong presumption in letting businesses make their own personnel decisions. number four it is not necessarily immoral or irrational to discriminate on the basis of sexual orientation or gender identity. number five, legislation would create many practical problems for employers. and number sick, the main purpose of this bill is to try to hard beginalize the views of americans who believe that gay sex is a sin and this is a bad aim. there are some overlap among these points by the way, but they are distinct.

so that's my written testimony. in my oral testimony today i would like to talk a little more about discrimination on the basis of sexual orientation when it might be rational. the situations i discuss in my written testimony are principally where the employer his other employees or his customers might have objections to working with someone whom they view as engaging in immoral activity. when you think about it there are at least two other groups of situations where discrimination on the basis of sexual orientation might make sense. number one, when the person's sexual orientation might give them insights useful with others of that sexual orientation. and number two, when the fact that the employee might be sexually attracted to another individual is relevant either positively or negatively to the

job. on the first class of cases i myself am not a great fan of the notion that it's important to be a member of a particular group in order to know how members of that group might think. for example, diversity proponents will frequently argue that to market a product to this or that group a company needs be sure that it has employees who belong to this or that group. i generally don't buy this but some companies do or at least they say they do, seen it is ironic that liberals now want to pass this bill under which those companies would be forbidden from giving a preference to hiring say gay employees if they wanted insights on how best to target gay customers for this or that product. here's another example which i like better. marriage counselors. for straight couples might be

more credible if they too are straight and married. and marriage counselors for gay couples might be more credible if they too are gay and married. there's a second category which would include situations where it might be relevant whether an employee will be sexually attracted or might be perceived to be sexually attracted to some other individual. for example, suppose your company provides caregivers to disabled or elderly individuals. those individuals might not want someone in that position whom they perceive as someone who might become attracted to them sexually. thus a woman might be more comfortable with a caregiver who is a straight woman. or even a gay man than with a caregiver who is a straight man or a lesbian. similarly, if a job requires

close contact with lessons parents might prepare straight men to work with males and straight women to work with adolescent females. if you think i'm wrong and no rational employer would ever discriminate on the basis of sexual orientation it does not follow that this should be passed. there are all the other objections to it that i discuss in my written testimony. plus another one. if discrimination on the basis of sexual orientation is always irrational, then employers that engaging such discrimination will be at an economic disadvantage. and the market will punish them. they are not hiring the best qualified people. that's bad for business. indulging their taste for discrimination will make it more likely that they will be driven out of business by their more rational competitors in the marketplace. this is a point that was made years ago by the late larry beck ear professor who won nobel

prize in economics. so if it's true that rational employer ever engages in discrimination on the basis of sexual orientation you don't need to as if nondiscrimination act. thank you very much, mr. chairman. happy they try to answer any questions that the commission may have. >> i'm sure we'll have them. >> good morning. mr. commissioner miss vice commissioner, it is a pleasure for me to be here. i'm kate kendall executive the director of the national center for lesbian rights. we're a 38 year organization based in san francisco that does national, legal and policy work all over the country. now in that 38 years it is fair to say that we have seen enormous changes in the place of lgbt people in this culture and in society and as commissioner castro pointed out this year

alone we hope we'll have a ruling from the u.s. supreme court in june that will once and for all give this country finality with regard to the recognition and full dignity and respect for our relationships through the recognition of marriage nationwide. we applaud the gains that we have seen. but one of the most intractable deficits remains in the place of employment. almost every day we hear from lgbt individuals who suffer either some sort of negative employment action or terminated from their jobs or harassed on the job based on their sexual orientation or gender identity. even here today you'll hear from a former nclr client lisa howe who was separated from employment at her private christian college when she came out to her players, her soccer

players very successful soccer coach celebrating the pregnancy of her wife. to be free from negative job action, to be free to be able to be employed and to be judged only based on one's ability so that one can provide for one's self and one's family is at the heart of one's quality of life and being able to live fully in civil society. both methodologyical and anecdotal information reinforces that lgbt particularly transgender employees even in this moment of great acceleration for lgbt rights suffer in the employment realm. now we've heard from the eeoc, from the department of labor we know the department of justice, we know office of personnel management and the obama administration all support an

interpretation that title vii cover gender identity but sexual orientation and yet we also know that the case law is decidedly mixed with a number of cases, particularly on sexual orientation holding sexual orientation discrimination is not sex discrimination under title vii. therefore, making it totally free for employers in 28 states to openly discriminate on the basis of sexual orientation and in many cases on the basis of gender identity as well. we need federal protections. and we ask that those federal protections be further in whatever way is possible by this commission. we also want to assure, though, that federal protections do not include overly broad religious exemptions or a license to discriminate which is why nclr among other our colleagues no longer support the current

version, the previous version actually there's a new version, the previous version of the employment nondiscrimination act which contained overly broad exemptions that went beyond the exemptions in title vii. exemptions which i want to be clear we support. in the wake of a possible imminent positive ruling on marriage and certainly in the wake of a wave of victories at the district and circuit court levels, we have seen a number of states enact laws to encroach on the recognition of those relationships by claiming that religious liberty is infringed by acknowledging and honoring and respecting these relationships as legally-binding and as legally recognized. this is nonsense. and it is offensive to people of faith. it is offensive to lgbt people

of faith in addition to the broader lgbt community and people committed to principles of equality and fairness. nothing has changed in regard to first amendment protections for religious faith and belief which we support 100% and unreservedly. in fact, in the wake of the hobby lobby ruling there's greater and to some degree questionable protections for religious relief. no church will ever be forced to recognize or perform a marriage that they disagree with and we would be first front line defending a minister or a pastor if he or she were compelled to perform a marriage that he or she disagreed with. what we're talking about is incursions on the ability to participate in all realms of civic life. that's the permission that some of these amendments and bills

are seeking. our commitment to nondiscrimination trumps private prejudice. that is the history. that is the balance we have engaged in this country. for the participation in civic life is free to all individuals. and we are concerned that incursions on nondiscrimination protection will give protection that were afford individuals who have suffered or made vulnerable based on who they are or how they identify. the utah example is an important one to note. utah is my home state. i was raised mormon in utah. some would say good girl gone bad. but what i understand about utah is that it is near as near to a theocracy as we have.

utah was found by one religion. it's dominated by the lds faith. utah law already contains broad religious exemptions. there was no compromise made in gaining the protections for lgbt people in utah and applaud the law that was passed. sexual orientation and gender identity were imported into existing nondiscrimination law which already contains broad religious exemptions because it's utah. it is not a federal model. we have a federal model. it's title vii and that's the law that i want to see equally protect individuals based on sexual orientation or gender identity. thank you. >> mr. chairman, mshs of the commission thank you for having me today. i'm sara warblough. i'm the legal director for the

humaning rights campaign. i'm honored to be here before you today. following the recent economic recession families across the country have faced unemployment and under employment every day. lgbt workers and their families are experiencing these tough financial realities alongside the rest of america. but for many of these families daily discrimination on the job serves as one more barrier keeping them from getting back on their feet. although the advances in equality for lgbt people over to last decade can't bedee need employment discrimination is a barrier for too many hard-working americans. 29 states offer no protections from discrimination on the basis of sexual orientation and 32 states offer no explicit protection on the basis of gender identity. according to a 2011 survey nearly 40% of lesbian, gay and bisexual employees who are open about their sexual orientation

had experienced discrimination in the workplace during the five years prior to the survey. transgender people face an even starker reality with 47% of transgender people reporting discrimination in the employment context. the impact of this discrimination is clear and harsh. discrimination on the job and during the hiring process results in lower earning for lgbt people across the life span. in recent years the eeoc and some federal courts have interpreted the sex positions of title vii of the civil rights act of 1964 to include protections for sexual orientation and gender identity. specifically in 2012 the eeoc held that an employee complaint could be covered under title vii prohibition of sex discrimination. most recently jayne of this year, the eeoc determined that walmart's denial of spousal

health benefits to a same-sex spouse, an employee, was unlawful discrimination under title vii. federal courts have cited and relied upon the precedent set by the landmark case price waterhouse versus hopkins. the 6th circuit and 11th is your kit applied this decision of sex stereotyping to apply to transgender employees who allegedly were fired because of their gender identity. although these court decisions and eeoc policy sent a powerful message to employers regarding the reach of title vii, lgbt people are not protected as a covered class of employees under the act. in the absence of clear protections lgbt people may be forced to file a lawsuit in order to enforce these protections. a luxury that most in our community cannot afford. the obama administration has taken meaningful steps to protecting work frers discrimination. in particular i would like to highlight the executive order signed by the president in july

of 2014 which prohibits discrimination on the basis of sexual orientation and gender identity in government actions, contractors and subcontractors. this is one of many examples that under scores the administration's recognition of government's clear and compelling interest in ending this harmful discrimination. while the government has a clear compelling interest in eliminating discrimination it balances the religious rights of the employers. religious employers already benefit from ample exemptions from federal nondiscrimination provisions. specifically title vii provides strong protections for religious organizations including exemptions for religious employers in the context of hiring and firing. for example, the ministerial exemption examined by the court

exempts religious employers from discrimination prohibitions. this exemption has been extended by the courts to include many other nonministerial employees whose jobs serve a religious function including professors, lay teachers and even cemetery personnel. additional exemptions are not only unnecessary but could lead to adverse consequences for discrimination protections. nondiscrimination provisions protecting lgbt workers from discrimination on the job will not infringe upon the religious beliefs of employers. employers have these ample protection both under the first amendment and through explicit statutory exemptions. the courts have not been shy in applying these exemptions and the rights library ralgly. supreme court noted u.s. constitution gives special solitude to the rights of religious organization. the supreme court has already recognized that government has a unique compelling interest in

protecting against employment discrimination. writing for the majority in burwell versus hobby lobby justice scalito said it could be cloaked to escape legal sanction. the government has a compelling interest in providing equal opportunity to participate in the workforce. america's top corporations and small businesses support comprehensive nondiscrimination workplace protections. because they know that in order to remain competitive they must recruit and retain the best possible talent including members of the lgbt community. the civil rights community also stands behind comprehensive nondiscrimination workplace protections including a coalition of more than 200 civil rights, religious, labor and women's rights organizations. hrc and our coalition partners support the introduction of comprehensive nondiscrimination legislation that will protect

lgbt americans from discrimination not just in employment but also in housing education, public accommodations, jury service and credit. thank you so much for the opportunity to testify today. >> thank you. miss simmons? >> good morning, mr. chairman, members of the commission. i would like to thank you for inviting the national lgbt task force to participate in this briefing to examine workplace discrimination that is faced by lesbian, gay bisexual and transgender americans. i'm the director of public policy in government affairs for the national lgbt task force the nation's oldest lgbt advocacy organization. today's testimony will examining the scope of federal regulations against lgbt employees. lgbt americans face high levels of employment discrimination. there's an estimated 5.4 million

lgbt workers in the united states. discrimination against lgbt people in the workplace persist despite the increasing visibility of these communities, improved local and statewide protection against anti-lgbt prejudice and violence. data indicates that employment discrimination can lead to a significant impact on the economic, social and physical well being of lgbt people. over 50 study of discrimination against lesbian, gay, bisexual people have been conducted and then lie nitd data shows lgbt people face significant bar towers equality. even fewer studies have been conducted about discrimination against transgender people and to address this gap in 2011 in a joint effort with national center for transgender equality the task force was published at every turn a report of the national transgender discrimination survey. this documented the discrimination entrenched in

people experienced in employment, education, health care and many other areas. our key finding is this. the state of the workplace for transgender workers in this country is abysmal. discrimination and employment against transgender people is a nearly universal experience with 90% of the survey sample recording mistreatment or discrimination on the job or taking actions to hiding who they are. half lost their jobs or denied a job or proemergencies as a direct result of being transgender. survey respondents experience ad series of negative outcomes many of which stem from the discrimination they face in employment. later you'll hear more about this important survey and the finding from that landmark research that we conducted. a point about data collection was made earlier which i would like to reiterate. additional data collection is

essential because lgbt people face staggering levels of discrimination in employment housing, public accommodation and other areas. and as these policies change we expect discrimination to decline. however, in order to measure the change in discrimination, and to create interventions that more accurately respond to the needs of the lgbt community we need to collect more data on lgbt people and in the coming years as the eeoc receives complaints, as the second nation study of transgender people is administered and data on employment discrimination will be collected there may reflect the changes in levels of discrimination but put simply these measures are not enough. more comprehensive data collection is need. every federal agency should be charged with collecting information on sexual orientation and gender identity in all of their surveys. this effort can be spearhead by a presidential executive order calling for agencies to determine the best methods for

integrating these demographic questions into their instruments and for example workplace discrimination data can be collected through the inclusion of sexual orientation and gender identity questions and population based various like the american community survey and varioused fielded by the bureau of labor statistics. with respect to cases of discrimination incidents of discrimination accure in all sectors, various feeshlgds sectors and positions and stories that highlight discrimination in hiring, firing and workplace harassment were included in our written testimony to this body. lgbt workplace protection exist as we heard from earlier testimony but explicit protections are needed. in recent years lgbt workplace protection have gained momentum and received broad public support such that we have 19 states in the washington, d.c. that have employment nondiscrimination laws that

protect employees. an additional three states that cover only sexual orientation. the eeoc recognized title vii prohibition on sex discrimination. federally this grants protection to lgbt and transgender nonconforming people. in 2014 the president issued an executive order protect federal employee, foed contractors from discrimination. however, to ensure that workplace termination against lgbt employees is eradicated we need inclusion in federal legislation prohibiting employment discrimination. without establishing sexual orientation and gender identity as protect classes employers are likely to be unaware of the protection under federal law. also likely unaware of their right to be free from discrimination on the job or take recourse. passage of such leverage

acceleration would serve to explicitly prohibit discrimination on the basis of sexual orientation or gender identity in the same way that title vii of the civil rights act of '64 prohibits discrimination on the basis of race, color, religion, sex or national origin. in conclusion workplace discrimination is a pervasive issue that prevents employees from meaningful contributing their talents to our nation's workforce. workers who encounter anti-lgbt sentiments or actions are faced with a perilous choice of either hiding their identity in the workplace or risk being discriminatory treatment and harassment by disclosing their lgbt identity. while eeoc protection take shape and agencies issue guidance it will take firm employers and employees to recognize the legal protection available. we hope that more data will be collected as we await a new legal precedent.

on behalf of the task force i would like to thank the commission for this opportunity to provide a statement on the workplace discrimination faced by lgbt americans. >> thank you, miss simmons. >> it's an honor to be here. i'm winnie stackleberg. cap is an independent nonpartisan educational institution dedicated typical floifgs of all americans through progressive ideas and action. as an institution and as americans we believe in the right of all people to equal opportunity in society and equal protection of the laws. yet today in america it remains legal in 29 states to fire an individual because of their sexual orientation. in 32 states transgender americans like basic explicit protections from discrimination in the workplace. despite the historic progress we have seen on marriage equality in 16 states and counting

same-sex couples can be legally married and legally fired for doing so all on the same day. workplace protections lie at the center of america's nondiscrimination laws. for marginalized communities these protections serve as an integral part of the american dream and a gateway to equal opportunity and financial stability. the lack of binding and enew mr.ated federal employment protections for lesbian gay, bisexual and transgender workers remains central need for our commune in order combat the pervasive discrimination faced in all areas of life, including and particularly in employment. in june of 2013 the center for american progress in collaboration with our partners at the movement advancement project and the human rights campaign released a comprehensive report outlining the broken bargain for lgbt workers that leaves many unable to provide the basics for

themselves and their families. the report demonstrated what many of our families know too well that lgbt workers face serious barriers to both gaining and keeping a job due to discrimination based on sexual orientation and gender identity. among less began gay, bisexual and transgender individuals between 11 and 28% reported being denied or passed over for promotion because of their sexual orientation while one in ten reported having been fired from a job in the last five years because of whom they loved. the rates of discrimination are even more alarming for transgender people. 47% of whom have reported being fired, not hired, or denied a promotion because of their gender identity. of that 47% roughly half have reported being fired from a job, they already had because they were transgender. for lgbt americans with jobs many report experiencing unequal

pay due to their identity. gay and bisexual men make 10 to 32% less than straight men with similar background in comparable jobs. similarly transgender women see a dramatic pay decrease after transitioning, contributing to a poverty rate for transgender people that is significantly higher than the general population. while employment laws remain at the heart of our push for nondiscrimination protection any discussion about ensuring fair and equal access to a job cannot be limited to protections in the workplace. the ability to find a work does not begin and end with the application process. it also includes the ability to gain a quality education in a safe school, secure stable housing, and have equal access to the goods and services that every american needs to live and thrive. this past december my colleagues at the center for american

progress released a report entitled we the people which outlined the discrimination faced by lgbt people in employment housing education, credit and public accommodations. the report called on congress to join the growing number of states in passing a comprehensive lgbt nondiscrimination act which would provide protection based on sexual orientation and gender identity in vital aspects of life. lgbt americans are routinely denied shelter more than half of lgbt students feel unsafe in their schools and lgbt customers are too often refused equal access or treatment in our nation's marketplaces. without protections combat these instances of discrimination along with protection in employment, too many lgbt americans will be denied the basic tools necessary to gain employment. despite these alarming instance

of discrimination both in and outside of the workplace considerable progress has been made on the federal level to utilize existing civil rights protections combat discrimination against lgbt americans. two years ago the eeoc rightly determined that discrimination based on gender identity and employment constituted illegal sex discrimination under title vii. today the department of justice is utilizing that same rational rationale. in the single largest expansion of lgbt workplace protections in our nation's history president obama added sexual orientation and gender identity protoex the executive ordering banning discrimination by federal contractors. in the end whether we achieve these protections through the courts or through the legislature, or most likely through some combination of the two, the fact remains that the force of these laws relies on

adequate resources, and tools for those tasked with their enforcement. while many believe that discrimination is a relic of the past, the number of overall discrimination charges filed by the eeoc has reached historic levels. despite this increase in complaints, the eeoc has nearly a quarter fewer full time employees than it did 20 years ago. the same trend is occurring in many other offices charged with enforcing our nation's civil rights laws. many of these offices like the eeoc are already proactively protecting many in the lgbt community. the fact that they are doing so with diminishing staff is unacceptable, and as we continue to push congress to expand protections to include all americans, we also will push for the necessary appropriations needed to ensure that all current and future nondiscrimination protections are fully enforced. in conclusion as our report

notes the american dream rests on the promise of a level playing field. a society where all people have equal access to the central pillars of opportunity. with the significant rates of discrimination faced by lgbt americans it's abundantly clear to ensure that level playing field lgbt americans both need and deserve the same protections that are currently lyly afforded to all others. the time has come to ensure fairness for all americans regardless of their sexual orientation or gender identity. thank you very much. >> thank you very much mr. chairman. thank you all for taking your time to be with us. my question is for miss simmons. as we look at existing workplace protections, which one day could

include, we heard from an earlier panel some of the numbers on the complaints regarding employment discrimination. some might describe those complaint numbers as rather small, others might call them miniscule. in your testimony you said that discrimination in employment is universal. you said that with workplace discrimination, it's a pervasive issue. address for me please the argument that some might make that the figures that we have available don't support the regard strong description that you've given regarding the pervasiveness of discrimination? >> certainly. thank you so much for that

question. two key points the data that i was offering in terms of near universal discrimination was from our national transgender discrimination survey and that was a survey that was limited to over 6,500 transgender individuals that were surveyed across the nation and across the u.s. territories. and so that was particular to transgender and gender none conforming individuals. the second point with respect to the filings that were referenced from the department of labor, i think it's critical that we continue to examine the, examine the levels of filings and examine what types of discrimination are happening because the two aspects are happening simultaneously in terms of the public becoming aware of their rights and their ability to file such claims, and the ability for government

agencies to be responsive government agencies such as department of labor to be responsive to the types of claims that are being filed. in addition i think that a point that was made earlier with respect to the marketplace is another clear indicator that the trend is moving in the direction of affording protection providing a safe work lays for lgbt employees and what we're simply looking for is a way to have the numbers go in an opposite direction in terms of the prevalence of discrimination by creating a workplace that's more affirming in support of lgbt individuals. >> thank you. >> commissioner achtenberg. >> i have a question there was reference there were over 50 studies of discrimination that

have been under taken, the conclusion of which studies were that employment discrimination against lgbt people is significant and pervasive. in 2007 an analysis was done by the williams institute which drew the same conclusion. it's my understanding that for more than 40 years your organization has made available to lgbt people a nationwide advice and counselling line. i'm imagining you have gathered statistics over that period of time as well. could you discuss how the conclusions of the 50 stew dips and the williams institute analysis compares to the statistics that you have gathered over this period and

could you also identify the kinds of discrimination that your callers identify as pertinent to this particular inquiry that we're undertaking here? >> yes. what we see is very consistent with what the studies and the reports see and so to your question and also to vice chair's question many of the calls that we get are from individuals in these 29 states where there are no protections. if they live in a state where there are protections it's an easy answer for them. we encourage them to file a complaint. we refer them to attorneys that do lgbt employment discrimination case. there is recourse they can take. then our resources really just to hook them up with the knowledge base and with someone who can be their advocate. most of what we the calls we get are in states where there is

no protection and it's only been recently in light of the eeoc's macy ruling that we've seen an expansion of title vii perhaps being available as a vehicle. many, many times the most difficult answer we give to people when they call they say they suffered some adverse employment action soil sorry there's nothing we can do. there's no protings yourection in your state. i want to point out numbers are very significant the parent is the whole gamut. of the most calls we get are probably along two tracks. either an employee is going along fine in their job, doing a good job getting good performance reviews, doing well, being promoted, and then something happens where they are discovered to be lesbian, gay bisexual or transgender. somebody sees a facebook post. they do get married. and a couple of people in the

office attend the wedding and then the rest of the office realizes wait we didn't know we had a gay or less began or bisexual person working for us. or in some other manner they come out to someone and then that's told to other people and then all of a sudden things go straight downhill. either they are fired outright or all of a sudden the performance evaluations, the documents two minutes late documents, you know, bringing in coffee when you're not supposed to have coffee at your desk, all sorts of things start to happen and very soon they lose their jobs. or the second track that we see the most of is harassment on the job. and the irony here is that many employers will go through a very long period of either open harassment or death by a million cuts sort of negative adverse job actions thinking that they can't fire the individual simply based on their sexual orientation when they would be perfectly free to do so.

so many times the employee is tortured over a period of time, either harassed openly based on their sexual orientation or gender identity. it can be anti-gay harassment and eventually they quit or terminated from their jobs opinion we get about 7,000 calls a year about 30% of those are employment related and the bulk of those are in either one of those two broad scenarios. >> thank you. >> commissioner. >> thank you, very much mr. chairman. i want to thank the panel and the previous panel that appeared today and i want to apologize for my absence today but i've been knocked down by the flu and my doctors do not want me to travel. with that being said this is an extremely important topic for me personally. it's something that i wanted the

commission often years ago, i even campaigned we talked about how we could try to bring these types of issues before the commission and it's taken a long road to get there and we're finally here and i want to thank all my colleagues for that. the question i have is directed to the panel from something that mr. clegg said. mr. clegg thank you for being here. you and i quite vigorously spar at these hearings. but there's something you said. i wanted to go towards the legal basis for the nondiscrimination act and the impact on interstate

commerce. i would like to hear from the advocates on the panel today about why you believe that this does have a substantial impact on interstate commerce and justify the commerce clause in pushing forward these changes in the law. >> anybody want to start? >> more so than ever, our economy is interconnected. we no longer live in a world in which goods and services are produced in one particular area. they stay in that area. mom and pop shops are virtually a thing of the past when you're talking about production that is sold within a given area. instead, even small businesses purchase their goods that they sell to their customers from all over the world not from just

within the united states. congress has had ample opportunity and has passed many laws that ensure nondiscrimination not only on the basis of race and sex, but also on the basis of religion and disability. the supreme court has weighed in on these issues time and time again and never has the court reached the conclusion that congress did not have a the right pass laws prohibiting discrimination in employment. as i mentioned in my testimony, just very recently one of the most conservative members of our supreme court, justice alito found that there was a compelling government interest in having nondiscrimination laws in place in the employment arena. if he felt that that was not true or that congress did not have a right to pass these laws to begin with he had ample opportunity to do so. and instead we see the courts

upholding these laws. >> anyone else? mr. clegg >> i'll just refer to my written testimony and the cases that i cite there. supreme court said that there has to be a substantial effect on interstate commerce in order for the congress to pass a law under these circumstances. and as i read united states versus morrison and united states versus lopez i think that congress is going to have a hard time meeting those standards. the kind of chain of events that miss warbelow pointed to is something that the supreme court warned about in its decision in morrison and i would add also that with respect to the other e

enumr. enumerated cites, the florida case is a substantial hurdle for congress to clear. >> may i make a comment here as a nonlawyer on a panel of august lawyers and smart people. to go back and someone who was involved in 1996 during the senate debate around the employment nondiscrimination act, the vote was on september 10, 1996. someone along with my colleagues involved in the debate around the end the last time it was brought to the senate and other debates, i think it's interesting to note that democrats and republicans in particular did not bring up the issues that mr. clegg is mentioning in terms of the constitutionality of the employment nondiscrimination

act. there may have been disagreements about the law and sexual orientation and gender identity and whether that's something that should be protect. when you go back and look at the record and the debate it's something i'm all too should be protected. it was not part of the constitutionality. >> let me say that i don't doubt that. i think that unfortunately, congress -- and this is true both sides of the aisle -- frequently thinks that it can do whatever it wants. and i think that the senseitization of congress that you need power before you can act is something that has only recently taken hold unfortunately. i remember just about the time that you're talking about that time period. i was talking with a senate

staffer about this problem, and he said, well you know, i think that we would have to be absolutely convinced that no court would uphold this before we would -- before we would hesitate to pass a statute. it was an appalling mind-set for someone to have. i think that somebody -- and this is a congressional staffer. i think that the mind-set should be that unless a congressman believes himself that there will be a substantial effect on interstate commerce, he or she should not vote for the statute. it's not up to -- i don't think that the mind-set it's up to the courts to keep us honest and that therefore we're not going to worry if we have an unumerated power or not.

while widespread, it's not the right attitude and is the kind of attitude that i would warn against in this context. >> i would just like to say that i strongly disagree with the characterizations of this in the supreme court's position. first of all, the common cause has been widely used and has been recognized as widely used by congress. [ inaudible ] i think that in the testimony here today and later on this is not an isolated population. this is not a small population.

these are americans throughout every state in every community, in our room here today who are part of the life blood of how this nation works and to say that to any section of that population, that you are not a welcome member, or because of the way -- that someone perceives who you are, or who you're with, can negatively impact your economic earnings your ability to move freely between jobs, i think it's clearly within the purview of congress -- there's no -- [ inaudible ] i don't believe that there's this imaginary high bar here

when in fact, even if there was a high bar, i think that high bar is easily cleared by the facts presented by the people here today and by the people who i've worked with over the years. and certainly the history of the common clause with regards to the civil rights act would want you to believe that this is nowhere near an insurmountable hurdle. the insurmountable hurdle is more to the points of some of the things you said in your testimony, it's something that you can't erase bigotry from the way people think. but what you can do is make sure that they act in a way that is non-biggoted towards those individuals, no matter what you're trying to change -- hearts and minds. >> okay next we have

commissioner kirsa no aanow aanowkirsanow. i thank the panel for their testimony. i would note however that we strive on the commission to have balanced panels. we've been doing that for at least a dozen years now, and i'm a little chagrinned that we have a dramatic imbalance in terms of those who would support a broad or a federal statute and those who may be skeptical about the use of congressional power on a nationwide basis. and i think that derigates what every report or briefing we may have and that's unfortunate. it really affects the legitimacy of that. my question would be to mr. clegg. practical perspective, when we have employers dealing with new statutes, there's always going to be some type of dislocation. sometimes those dislocations are

very much merited and they're going to have to deal with them. and it may be merited in this particular circumstance if an enda was passed. given that with erosions over the course of time to the course of at-will employment two questions. to what extent to you see enda, or whatever iteration of enda we're at right now, having an impact on the nature of at-will employment? and second, how would this differ if at all from protections against race discrimination? >> well, one of the points that i make in my written testimony is that i'm afraid that -- and also i think i repeated it in my oral testimony -- is that i'm afraid that we're moving away from the general presumption that we ought to have, that

people should be able to use their private property in a way that they want to use their private property, and that employers should be able to make personnel decisions without interference from the government. this is something that goes along with at-will employment. and there should be a presumption against the government at any level stepping in and saying that, well, we know better than you whom you should hire and whom you should promote. and there should be an especially strong presumption against the federal government passing a law that second-guesses employers in this

regard. and one reason for that, i think you alluded to this in your question is that the laws -- laws become reality in this area through litigation and regulation. and those are very expensive and distortive media. you know, you don't just pass a law and magically have the principle that you think is embodied in that law become reality. it has to become reality through a lot of bureaucrats making a lot of decisions and bossing a lot of people around, and through a lot of lawyers and a lot of lawsuits and a lot of judges bossing a lot of people around. and this is a very

unsatisfactory way to do business in an economy that's supposed to be based on freedom and free markets. you know i don't doubt that you know, many times employers do things that a majority of americans might find to be unfair, or wrong-headed. but it doesn't follow from that that therefore there should be a federal law passed, saying that no employer shall ever do anything that is unfair or unwise. that law will have costs that are far higher than any benefits that it would have. and it's the same situation here in this specific instance. i think that the problems that

you will inevitably raise by you know passing a law that says that you can't discriminate on the basis of gender identity, and quote gender identity means the jernt-related identity appearance, or mannerisms or other gender related characteristics of an individual with or without regard to the individual's designated sex at birth. well you know, you just know that lawyers and bureaucrats are going to have a great time interpreting language like that. here's another part. >> do you say that as a lawyer and a former bureaucrat? >> i do. absolutely. i remember, this was the fair housing act one time and y'all know about the fair housing act too. i remember, we were in a meeting and it was just what i described, mr. chairman.

it was a bunch of us bureaucrats sitting around, and we were writing regulations for -- i don't remember if it was the fair housing act or the housing part of the americans with disabilities act, but anyway we were there and we were deciding you know what the rule should be for employers when it came to ramps and door knobs and sunken living rooms and all kinds of stuff like that. and it was appalling. you know, none of us knows -- at that table knew anything about the business of how to build an apartment complex. why were we sitting around, you know making up all these rules? it was just very scary. he's another part -- >> did i hear you say earlier in your testimony that you didn't have to have a familiarity with something in order to do the job? >> well, no, i didn't say that. i said that you didn't think you had to be -- to put it bluntly,

i don't think that you have to be a black person in order to be able to sell pepsis to a black person. and this notion that only members of a particular group can effectively market to members of that group is something that i have a problem with. >> but if you're a non-disabled person trying to figure out how a disabled person would be able to interact with their surroundings? >> it wasn't that we weren't disabled. although that's also, i think, a fair point. the problem is we didn't know anything about building. that's the point that i'm making here. and the point you know, likewise, we're not people -- i mean, we're not in the care-giving business. the hypothetical that i gave about a caregiver and whether people might have preferences about, you know, who is going to bathe them. you know i think that those kinds of decisions should be made by people who are in the

care-giving business not by a bunch of bureaucrats. here's another part of the -- of enda. and you tell me whether this belongs in the u.s. code. nothing in this act shall prohibit an employer from requiring an employee during the employee's hours at work to adhere to reasonable dress or grooming standards prohibited by other provisions of federal, state or local law. during the time of employment and any employee who has notified the employer that the employee has undergone or is undergoing gender transition to adhere to the same gender standards to the employee for whom the employee is transitioning. i don't think that that's the kind of micro management that congress should be putting into

the u.s. code. to govern the grooming standards and dress standards that hundreds and thousands of employers and hundreds of thousands of different workplaces have to commit every day. i think that's a decision that ought to be left to individual employers in businesses. >> i just think you said earlier, though, people should be allowed to figure out what they do with their own private property. let's let the market decide. if we adhere to that, there would still be people today who would be considered property and we wouldn't have fought a civil war to change what the market is. so i think there's an important role that government has to play in the regulation of how w interact with one another and the rights that are forfeited by individuals in the workplace. >> absolutely.

and i agree. you know i talk in my written testimony about that. i think that the -- and commissioner kirsanow alluded to this also in his question. i think that the situation that was presented and is presented by race discrimination in this country is special and different. and i think that it makes all the sense in the world to you know draw distinctions between what was going on in this country with respect to racial discrimination and things like sexual orientation and gender identity. you know, racial discrimination presented an extraordinary situation, justifying departure from the usual free-market

presumptions. it was widespread, blatant and often governmentally -- >> your microphone. >> i'm sorry. racial discrimination presented an extraordinary situation justifying departure from the usual free-market pruchbltions. it was widespread, blatant and often governmentally codified and mandated. it was irrational in the 20th century by no moral or religious convictions. it was a historic problem, national in scope, which was clearly not susceptible to state, local or private resolution. discrimination against homosexuals is simply not in this league. >> i was wondering if anybody else on the panel would like to respond to mr. clegg's partial reading of enda and the dress code and things like that. >> i have one quick response.

well, i guess two quick responses. even as a lawyer, i would love nothing more if we could pass a bill that said don't be mean and that would be sufficient to treat people fairly with a recognition of their humanity but obviously we don't have that in our history and race discrimination is a perfect example of that. we're not dealing with a blank slate here. we have a number of states that have passed laws based on gender discrimination using something like the definition that mr. clegg read and there hasn't been a huge flood of litiation. nor has there been inane interpretation. what these laws do is they set a tone for how we think people should be treated on the job. and by existing they stop the very discrimination that they're meant to redress. and then in extreme cases people then are free and have the ability to bring cases. the ability to answer the

question, what kind of country do we want to live in, with a statute that says, we want to live in a country where people all sorts of people, including people based on sexual orientation or gender, live free, honored for who they are and able to do their jobs to the highest of their ability. and their ability is what matters, not who they are. that seems to me to be a good thing for this country to do. >> anybody else? >> there's also a dramatic difference between regulating bad business decisions that impact only the employer. right, an employer who is foolish enough to require all of their employees to wear chartreuse uniforms. that's a bad employment decision that the government should not be engaged in. it's radically different when we're talking about bad employment decisions that have negative life-long consequences for the individuals that they are choosing to fire, refuse to hire, or fail to promote. there should be in our laws a do

no harm principle. that's what non-discrimination laws in employment attempt to do. to create a level playing field that ensure that employment decisions are made on the basis of an employee's merits talent skills and background rather than on who they are. >> the only thing i would add and i know this is a different context, not congress passing a law, but companies implementing their own non-discrimination policies as they relate to sexual orientation and gender identity. i'm often frustrated, not when people disagree with me, because that happens all the time. i have twin boys who are 12 and a half and they disagree with me all the time. that's okay. but it's when there are spurious arguments about why someone would disagree with me. that's what i find somewhat unnerving. so to go back to, not the legislative language that mr.

clegg referenced, but the business practices that large, medium, and small businesses today have adopted for good business reasons because it makes sound sense to have a non-discrimination policy based on sexual orientation and gender identities those business policies often mirror the language that mr. clegg referenced in terms of the employment and non-discrimination act. that is what a business use to describe and to define gender identity in that case. and what we see is not businesses falling all over themselves and not being able to figure out what the policy means, but rather providing a level displaying field for all employees, that those gay, lesbian, bisexual, and transgender employees, it doesn't just benefit them, but it benefits the entire culture of the large medium, and small business, because it says to any employee that you're here to

work and we're going to judge you on your skills and that's it. nothing irrelevant, but your job performance. and so i think again, the employment practices and the employment policies, of non-discrimination, and they're by private companies, that they have to set their own playing field for their own companies, often mirror the language and what we don't see in those companies from major fortune 100 companies to small businesses around this country, is, we don't see the kind of interpretations that mr. clegg says will happen. >> is that like a meritocracy? >> kind of something like that. >> i think the problem, though is that to the extent that that's true, you've undercut the argument for the necessity to pass this bill in the first place. and, you know it's a rational thing for all companies to do,

to do the kinds of things that this bill requires. then you don't need to pass the bill. not passing it is not going to have a substantial effect on interstate commerce. discrimination is not going to have a substantial effect on interstate commerce, because companies are going to be taking steps to get rid of it anyway. i think there are going to be situations where taking sexual orientation into account is going to make sense. it may not be common. it may not be something that involves what most companies do. this is another problem with passing one size fits all federal legislation. it may be that people who make airplanes have no reason to consider, you know, sexual orientation. but people who are in the care-giving business might want to consider sexual orientation. it just depends. there's thousands of businesses out there they're all different. and i don't think that we should

be passing a federal one size fits all bill in that situation. >> if i could just -- >> one size fits all and it seems to work. miss stackelberg. >> similar arguments to that were raised when president obama decided that he would considering lifting the ban on gays and lesbians serving openly in the military, one of our nation's largest employers. and people said, this shouldn't be a one size fits all. we have men and women in fox holes together. this is not what we should have. we should have people on submarines and sexual orientation will absolutely undermine morale and unit cohesion and we haven't seen that come to pass. >> i'm going to move on now. several commissioners want to ask questions. commissioner herot. >> thank you, mr. chairman. i guess i wanted to ask about

this notion that this can be intercepted in unpredictable or counterproductive ways. you mentioned that some corporations have adopted similar language but they get to interpret their own policies and they won't have that luxury if there's an congressional enactment. the chairman just mentioned that title 7 has worked out well. i guess i would disagree with that. we need title 7, but there are lots of ways in which it has been intercepted in unpredictable and counter productive ways such as the difficulty that employers have in taking into consideration felony convictions by job applicants. i don't want that to occur here if enda is passed. because of the way that gender identity is defined in the current version, enda prohibits discrimination on the basis of quote, gender related characteristics. can you give me some help on what that might mean? for example, in the price water house case we had a plaintiff who argued that she had not been

promoted because she was i guess we could call it you know, she was pushy as a female, and she said that same characteristic would be regarded as a assertiveness in a male. so is assertiveness versus non-assertiveness, is that a gender-related characteristic. is it long hair versus short? employers are going to look at that and want some guidance as to what that means. anyone? >> well if gender-related means gender correlated which i think is certainly one way you could interpret this then i agree that, you know this is opening a real pandora's box. you could probably find social scientists or statisticians that could find all kinds of characteristics that have some kind of correlation with gender,

with sex. and if all of those are now characteristics that you can't discriminate on the basis of then you've made it very hard for employers to make decisions on the basis of any characteristics at all. i mean, for instance, i should give you an example. criminal behavior. >> your mike went off again. >> i promise you i'm not trying to turn you off. >> i wouldn't blame you. criminal behavior. i think that everybody would agree that men are more likely to commit crimes than women are. okay? so is criminal behavior a gender-related characteristic? well it's certainly a gender-correlated characteristic. so does this now mean that employers can't discriminate at all, not just on the basis of the disparate impact, but that

it's disparate treatment now to discriminate against somebody on the basis that they have murdered their last employer? sounds like a reasonable interpretation of the definition of gender identity to me. >> but not a very reasonable example. >> well tell us what -- >> i think that's a little bit ridiculous. i think what it means in terms of how we've seen it interpreted. what i understand that it means i wasn't involved in the drafting. but i understand it's very much along the price water house. it's draft its presentation. it could be interpreted as characteristics involved in the price water house case, a woman that does not wear makeup, is not sufficiently feminine -- >> assertiveness is two sides of the same coin. would you say that's part of a gender-related characteristic that men tend to be more

assertive in certain situations and women are sometimes less assertive in certain situations? what does it mean? people don't always con form to gender. [ laughter ] >> i feel like that's what this is trying to get to, is that when one doesn't con form -- price water house stands for the theory and i feel like the language that jernt-related characteristics is about ensconcing that, if someone either con forms to or does not con form to gender stereotypes, they will be protected. >> it doesn't say anything about gender stereotypes here. this is not title 7. see, that's the problem here. if assertiveness is something that is considered to be a more masculine characteristic you know calmness less assertiveness, something considered to be more feminine it looks to me that under enda, it doesn't matter who you know which person has the problem. a male job applicant could say i

was rejected because i do con form to gender stereotypes and especially assertive. hypermasculine. and yet there are lots of jobs where being hyperassertive would be a very bad thing. >> i understand the hypothetical. it's not something we've seen in states that have had similar language. >> on the other hand, with title 7, it takes 50 years sometimes for these things to work themselves out. that's the thing about passing language, it becomes part of the law. it doesn't go away. >> but you do have case interpretations of state law language that is similar to this, that can be used to rebut a non-sense claim, for example. because, again, the good news is this isn't a blank slate. it's not as if this the first incursion into understanding how we would protect transgender or