so many people do. and you know what, that's what so many people do. i think it's important in having this discussion not to paint with an unduly broad brush and never to be unfair to the scores of people who are in this space who do fantastic work. i applaud those efforts. and during the course of our outreach and i'm a firm believer that when you are doing a rule the most important thing you need to do is to construct the broadest table possible because if you are not a good listener you're not a good regulator. and that's what we have done over the course of my 18 months on the job. we deliberately slowed this process down because we knew how important it was. we knew the value of listening. and we knew we needed to engage a broader stakeholder. we knew we had to talk to the f.c.c. and we've done that with great regularity. and i have great respect for mary jo white and her team and the dedicated career officials

at the sec who have been very helpful. and rich cordray and his team that have been very helpful. and industry stake holders with whom we've met with regularity because they've been very helpful in enable ling us to understand the business model and how you thread the needle. i think it is a false choice to suggest that the only way to continue the business of providing financial service advice to folks is the status quo. i categorically reject that. you know, i have heard from some, i don't understand the problem you're seeking to solve. and with all due respect, i don't -- i can't believe that you don't understand the problem that we're seeking to resolve. i really don't. and i don't mean that disrespectfully. and fortunately, i have heard that less and less in recent months.

i heard that at the outset. and i hear that less and less. and that is the good news. and so what are we trying to do with our proposed rule? we're trying to solve the problems that have afflicted so many people. you know, i think about the tofele family in maryland. they saved $650,000 throughout their career. they had that nest egg. they did everything right. and they tried to figure out you know, how to save it, how to invest it because we're the new paradigm. they go to their local bank. and they get put into a variable annuity, very complex instrument. the fees were something like $26,000 a year. my wife and i, we just bought a car and we paid $21,000 for it.

and i'm thinking to myself -- they're buying a new car every year. a nicer car than we have. by the way, it's a ford. they could have gotten a car for $5,000 cheaper. they could have had that. you know that is a lot of money. and you know, when i reflect on this, i think about some of the concerns that have been raised. well, what about the small investor? you know, to me the small investors are the people who are in the greatest need of getting advice that's in their best interest because they don't have margin for error. and so when i hear that argument, i am -- i -- i -- i agree with the notion that small investors deserve advice an we need to have more advice for

small investors but we need to get advice that's in their best interest. you know, folks who are wealthy who get conflicted advice, well, that's unfortunate and we'd like to prevent that. but you know what, the consequences for this are less catastrophic than that family that saved $50,000 and is trying to figure out how to spend it. and by the way, that small investor who has $50,000 or $100,000, the vast majority need an index fund or something really simple. and that's why business models have already emerged that can help them. and we want to make sure that we provide education because i think education is power. i think and educated consumer is indeed the best customer. and what we're going to do in this rule is clarify the line between education and advice because that's important.

and we heard from the industry you know, you can't ban commission. that would put us -- that would unduly upset our business model. and we will not be banning commissions in the proposed rule. and now they did that in the u.k. -- i'll note something that's very interesting. and i went to the u.k. because i told you you build a big table. you listen to folks and you learn from them. i traveled over there because i wanted to learn with my own eyes and ears about the u.k. experience. and what's really interesting is what has happened in the aftermath of their role which is very different from what we will be proposing, but what has happened is it has spawned innovation. and there are a lot of web-based products providing advice to folks, many of whom are people who don't have that million dollar next egg but have a next egg that is far smaller. and so you know, they're pretty smart people over there. they had a new regulatory environment and they've been

figuring it out. and innovation has emerged. i think folks around here are pretty smart too, we're no less smart than the brits and i think we can figure it out too. and so you know -- you know, the miracle of compound interest is a wonderful miracle. however, the flip side of that which is not a wonderful miracle is, you know, the tragedy of compound fees and costs can linger like a chronic illness for a retiree. and when you're talking about $26,000 a year for this family do the math and do the comparison between that and an index fund or some other instrument that was pretty simple. i think we can do this. i think this is one of the most remarkably important things that we can undertake in the remaining 650 days.

i've got 650 days until the weekend and that's what i'm going to be working on, things that make sure that we sustain the pillar of the middle-class and make sure that all the things that we have worked on to help people to say -- many people lost so much of their savings in the great recession. they're getting it back now. and this is one of the most important things we can do to help them. and i know one thing, we can't help them without a movement because it brings me back to selma. anything that's important around here, you know, you need a posse to get it done. and i have been so heartened by the folks in industry who have stepped up and said, you know what, we can do this. and it's right for our customers and it's right for our business model. you know, i was in duke law school recently speaking about you know, what i call the

stakeholder model of how we build a virtuous cycle in america. i can take care of my shareholder. i can't take care of my worker or customer. that is wrong. i see businesses everywhere who understand that the high road is the smart road including people in this space who understand you can take care of your shareholders. you can take care of your workers and you can take care of your customers and create that virtual cycle. so that's what we're going to do with this rule. but i know there are some who still want the status quo and we look forward to those conversations. we have done remarkable amounts of outreach to date and then when the rule comes out we're going to begin another formal process of comment. and i look forward to that comment.

and i look forward to continuing to have a big table with inclusive participation because that's how you provide and that's how you produce the best possible rule. but i need your help. because i need ordinary people to do extraordinary things. and this is -- this is a rule that is at the heart of protecting consumers, making sure that retirement with dignity can be achieved. and doing so why recognizing that, you know what, folks who are in this space can make a very decent return and make a very decent living. i am all for that. i think we can have both. i think we can don't the stakeholder model that i've discussed and we can put it here. so we've got a lot of work to do. we've done a lot of work. and i hope that when you go back

to your communities you will talk to your stakeholders and among other things ask them have you ever looked and asked the question of your financial planner like, you know, what standard does she or here adhere to? this is the first cousin of what i saw in the mortgage space. you know, folks did not know they were victims because they went to someone they thought they trusted. and it turned out that trust may have been misplaced. and so i need your help in raising consciousness because we don't know what we don't know. and i saw this in the mortgage space. we had to go out there and say hey, show me your mortgage instrument and we talked to people and then we'd say, did you know in eight months your interest rate is going to go up 4%. and you know what, hell no. you know, that's what we've got to do. there's a lot of consciousness raising that needs to go on. there's a lot of education that

needs to go on. and you all are in the front lines and the reason that i was excited to be here is that i know we can get this done. i know this is good for america. i know this is good fire fighter the financial services industry as well. we can thread this needle. we will thread this needle. the president himself have talked about this because he understands that at the heart this rule is about middle-class economics, retirement security is a pillar of middle-class economics. so i want to thank you for listening. but much more importantly i want to thank you all for being searle activists in your communities across the country for giving voice to the issues for empowering communities that feel vulnerable and disempowered and for being those heroic figures who are thinking boldly about an america that works for everyone, an american america in which shares prosperity.

host: so secretary perez said he would be willing to stay for a couple of questions. so just one or two. we have microphones here. so -- \[indiscernible] secretary perez: thank you for hosting us. when we rolled it out. host: of course, despite this ground breaking law that's supposed to protect workers the unpleasant rates of people with

disabilities have remained flat for the 25 years. i was wondering what your department is doing to encourage people and also because older workers have disabilities as part of their discrimination problem. so would you please discuss that? secretary perez: sure. the unemployment rate with people with disabilities is something like 19% but more importantly the labor force participation rate of people with disabilities is in the low 20's if my memory serves me. we're doing a lot of work at the department of labor. i think the unfinished -- the major piece of unfinished business is employment. and we -- one of the things that we did and it's actually a good parallel to this discussion that we -- that i was just talking about the conflict of interest rule is a rule we put in place

under section 503 of the rehab act which is a rule designed to insure that employers are taking best efforts to hire people with disabilities. we put this in place about a year and a half ago. when we first proposed it, there was an outcry from some in the employer community who said this is impossible to do. we were asked questions like do i have to hire a blind person to drive the truck? and i'm not kidding when i say that. we were sued. we won. and the remarkable thing about it is -- this one person who shall remain unnamed who led the assault against us is one of our biggest proponents. he looked at his fortune 500 company. and he said our numbers are lousy. and once all the litigation was over and focused on implementation, we put him in touch with our biggest allies who are other employers who are doing it.

and say it can't be done. you know, all of these issues, you know, if you have the will to do it, you find a way. and regretably, if you look the will to do it, you find the roadblocks. and there were so many employers like walgreens and lowes and others who have made significant commitments to hiring people with disabilities. we're doing our best to lift those up. and with our 503 enforcement we're going to continue with those empts. we're making progress but it just wasn't fast enough. i'm certainly going to be talking a lot about employment because i think that's the biggest piece of last legislation. >> i can do the last three. >> hi, i'm brian satchel. and applaud your work upon bringing the spotlight into the financial complex in the financial services industry.

my question concern, what do you about company who is claim presently that they serve the best interest, that they're advisors of white -- conflict of interest. yes, they would never inforce that. are you aware that many of those institutions have those rules that they do not enforce. and what do you think about the idea of sort of second opinions on financial advice because i see many people who think they worked with somebody who they can trust but if they gone and got that second opinion they'd get very different advice? so as i applaud the fiduciary goal, i'm just not sure that it

gets us all the way there. so i welcome your thoughts. secretary perez: we heard from a number of stakeholders who are said that we put our customers first and we will continue to do so. and my response is well, then compliance with this is going to be pretty easy. well, but they've never had a legal obligation enforceable to do so. and so that will be a different paradigm. but yo, i have a lot of conversations with folks and the most productive conversations are often one-on-one who say we can do this. we can figure this out. when you have such a financial subset in the industry who already do it -- i mean what i hear is we need a level playing field because consumers don't know whether the person they're talking to is under a

suitability standard. they all think that they're looking out for their best interest. what they don't know is that some are and some aren't. and that -- i wouldn't want my doctor, you know, that i go to today to be looking out in my best interest and my doctor next week to tell me that the treatment is suitable. and so that level playing field issue is a big part of what we're doing. in terms of second opinion, you know, one thing i hope are already in place and i've done a lot of work in the mortgage space in this is having internal control. you know, we do a lot of work to help put in place things like mystery shoppers. that's often a term -- that's often a term of agreements that we reach in the mortgage space and what that simply is you say your not discriminating in the mortgage space. well, you know, test it.

see what's happening. and when you do that, you can prevent things that you see emerging from becoming big. and so a big part of this conversation, you know, these two include those sberble controls. hi. >> i'm melissa and i'm very excited to be here, secretary perez and you mentioned the president is behind it. this is going to be a really strong rule. you alluded to the fact, you've seen less pushback from the financial industry but i recently seen saying things that they're offended by the tone that the white house has taken with their memo. so my question is, you know, that memo if i recall correctly said that retirement savers are losing. i believe it was $17 million. if you stand by the numbers in that report. if you stand by the tone in that report and if we can expect a strong rule in spite of this industry pushback by the

well-moneyed interest. >> i have spoken to a number of industry stakeholders who have said this is something we can do. this is something we are doing. i don't think i've said that there's been less pushback by some in the industry. i don't want to give you an impression that, you know, suddenly light bulbs are going off everywhere. i'm not confused by that. i appreciate the person that says i want -- i haven't heard the rule yet. i'm not confused about the road ahead. there are some -- and again i had meetings with folks who said i don't understand the problem. and so you have to understand that there are some who stated that.

and that perhaps the effort to move forward with pushback, but again, you know, i'm -- you know, when you have the backs on your side and when you have movements on your side and when you have folks in the industry this notion that i will go out of business if i have to do this and i'll stop serving people. you know when i was in montgomery county, maryland, we put a place in the rule in the mortgage place. and i heard from the bankers i'm going to stop lending in montgomery county. i'm thinking to myself, hm, 10th wealthiest county america. potomac, bethesda and they're not going to be able to get along. i'm not sure i believe that. and guess what, they're still lending in montgomery county. we're still the 10th wealthiest

county in america. we were able to thread the needle. i think we can do it right here because i see -- there are so many good players in this industry and they're smart and they're innovative and i think this rules that we're going to put out for comment will enable us to thread a needle. >> you were my boss. this is a personal note area of i want to note that there was a great article in the new york times making the point that you did about the differential that you pay when you have an index fund versus a brokerage account. for years, i was asking my brokerage account how much am i paying in fees? it wasn't until i hired a

consultant that they read my financial disclosure form and told me how much i was paying. it that is why i am no longer with them. when the points the article made was over the course of 30 years to investors with the same amount of money would read hundreds of thousands of dollars less than going to an index fund. as a former academic, most of the studies i am aware of say over the long run, actively managed accounts tend to not beat the market. i wonder if you can tell us what your studies are of the advantages of an actively managed to cap versus an index fund. thomas perez: you have taken the words out of my mouth. we have seen the same studies.

the concern i hear the most frequently is this is going to hurt small savers. i would respectfully assert that small savers are the people who need to make sure you that their advisor is working in their best interest. small savers don't have any margin for error. small savers by and large are going to do the best in an index fund or some other low fee kind of fund. whenever i hear that argument, jack vogel's company is doing ok. he's not the only one in this space. you look at the aftermath of the u.k. and you see that there are new web-based products that are springing up.

i want to overstate those. i am intrigued by the fact that innovation has taken off. i think we are an innovative world in united states. i think it gets back to what i said. if you have the will to do something, you can do it. i look at the woman who had about 503, when not requiring employers to hire blind drivers. i repeat this because i'm not making this up. these were some of the comments. now, i go to walgreens and as a result of the leadership of their corporate heads, you go to their distribution center in connecticut, 40% of their

employees are people with disabilities making $15 an hour or more with people who don't have disabilities. that is one of their most productive places. bless you. a bless all of you. they figured it out. other companies are starting to figure it out. i feel like there is a groundhog day feel to this. i heard this in the mortgage space where it blacks and latinos will longer have access to the american dream. that was the argument in the mortgage space. that was wrong. we need to move forward. we can move forward. the studies are legion. the studies are legion about the products that folks are going to

get into the low cost and high reward products. that is what my guy said. he said stay in the savings plan. i could make some money rolling your money over, but that would not be in your best interest. everybody needs the advice. we are not the rockefellers. our margin for error is pretty slight green that's why we shopped around. i need you to helping communities to do this, to set up people who can provide second opinions. what's going to happen is as people become aware, they are going to ask more questions. that's great. that's what should happen. the companies that can answer the questions in a way that shows i am looking out for you

those have nothing to worry about. the companies that have been getting $26,000 a year from a variable annuity for someone it's like olympic diving. the cannonball will do for just about everyone. this is doable. your data is compelling. thank you. [applause] >> join me in thanking secretary perez. [applause]

>> coming up this morning on c-span. >> following a string of security lapses at the white house, joseph clancy testifies be or a subcommittee today. you can see it live starting at 10:00 on c-span3. sally jewell is the a speaker at the center for strategic and international studies. she will talk about energy priorities. see that 1:00 p.m. on c-span3.

>> the cities tour has partnered with media, to learn about columbus, georgia. >> inside the museum is the remains of a confederate ironclad. this is an ironclad that was built in columbus during the war. those are the gun ports. the jackson is armed with six rifles. this is one of the guns built specifically for the jackson. it was completed in 1865. the real claim to fame is directly connected to the fact that there are only four ironclad's that we can study. the jackson is right here. this is why this facility is

here. it is first and foremost telling the story of this particular ironclad and showing people that there are more than just one or two. there were many. >> watch all of our events from columbus on a saturday. the commission on civil rights held a hearing monday about workplace discrimination against lgbt employees. a panel discussion with advocates and opponents of lgbt protections. it is about two hours.

>> our fourth panelist is the executive vice president for the center for american progress in i will ask you all to raise your right hand and swear and affirm that the of information is true and accurate to the best of your knowledge and believe. >> i appreciate the opportunity to testify. i am roger clegg.

roger: we are based in virginia. our chairman is linda chavez. our emphasis is on public policy . i should add that miss chavez was once the director of the commission on civil rights. i was once the deputy assistant attorney general. the points i make in the written testimony that you have about the nondiscrimination act, i am going to list them. congress lacks the authority to pass this bill. there is no call for a federal role in this area. the bill is inconsistent with free market federalism and personal freedom printable's.

we should not forget that there is a strong presumption in letting businesses make their own personnel decisions. it is not necessarily immoral or irrational to discriminate on the basis of sexual orientation or gender identity. legislation would create many practical problems for employers. the main purpose of this bill is to marginalize the views of americans who believe that gay sex is a sin. this is a bad aim. there is some overlap among these points. that is my written testimony. in my oral testimony, i would like to talk about when discrimination on the basis of sexual orientation might need rational. these situations i discussed in my written testimony are principally where the employer or 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 might make sense. when the person might give them insights useful with others of that sexual orientation. when the fact that the employee might be sexually attracted to another individual is relevant here it --. on the first case, i 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 that group might think. diversity proponents will freak

only argued that to market a product to this or that group they need to be sure they have employees who belong. as i said, i don't buy this. some companies do. it's ironic that liberals want to pass this bill under which those companies would be for bid and from given a preference to hiring gay employees if they wanted insights on how best to target gay customers. here is another example. marriage counselors for straight couples might be more credible if they are straight in married. marriage counselors might be more credible if they too are gay. there is a second category which would include situations where it might be relevant whether an employee would be sexually

attracted or perceived to be sexually attracted to some other individual. suppose your company provides caregivers to disabled or elderly individuals. they might not want someone in that position whom they perceive as someone who might become attracted to them sexually. a woman might be coupled with a caregiver who is a straight woman or a gay man then with a caregiver who is a straight man or lesbian. if the job requires contact with adolescence, parents might prefer straight men to work with adolescent males. if you think i'm wrong that no rational employer would ever discriminate on the basis of sexual orientation, it does not follow that this be passed.

there are other objections that i discuss in my written testimony. if discrimination is irrational employers and engage in sex discrimination would be added economic disadvantage and the market will punish them. they are not call hiring -- hiring the best qualified people. indulge in their case will make it more likely they will be griffin out of business by their more rational competitors in the marketplace. this point was made years ago by a professor who won the nobel prize in economics. if it's true that no rational employer ever engages in discrimination on the basis of sexual orientation, then you don't need to pass the act. the market will take care of the problem. i'm happy to try to answer any questions you might have.

kate: we are a 38 year organization based in san francisco that does legal and policy work all over the country. in that 38 years, it's fair to say that we have seen enormous changes in the place of lgbt people in this culture and society. as the commissioner points out we expect and hope that we will have a ruling from the supreme court in june that will once and for all give this country finale with regard to the recognition and full dignity and respect for our relationships to the recognition of marriage nationwide. we applaud the gains that we

have seen. one of the most and tractable deficits remains in employment. almost every day, we hear from lgbt individuals who suffer either some sort of negative employment action or are terminated from their jobs or harassed on the job based on their sexual orientation or gender identity. here today, you will hear from a former client who was separated from employment at her private christian college when she came out to her soccer players, a very successful soccer coach. to be free from negative job action, to be free to be able to be employed and be judged only based on your ability so that

you can provide for yourself and family is at the heart of one's quality of life and being able to live fully in civil society. both methodological and anecdotal information reinforces that lgbt, particularly transgender employees, even in this moment of great acceleration, suffer in the employment realm. we have heard from the eeoc and the department of labor. we know the office of personnel management supports title vii covering gender identity and sexual orientation. we also know that the case law is decidedly mixed with a number of cases, particularly on sexual orientation holding that dimmest -- discrimination is not sex discrimination under title vii

making it free for employers in 28 states to openly discriminate on the basis of sexual orientation and gender identity as well. we need a federal protections. we ask that those protections be further in whatever is possible by this commission. we also want to ensure that protections do not include overly broad religious exemptions or a licensed to discriminate, which is why we no longer support the current version -- the previous version of the employment nondiscrimination act which contained overly broad exemptions that would be. in the wake of the positive

ruling of marriage and a wave of victories at the district and circuit court levels, we have seen a number of states and act 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 recognized. this is nonsense. it is offensive to people of faith and it is offensive to lgbt people of faith in addition to the broader community and people committed to principles of equality and fairness. nothing has changed. we support religious faith and belief. in the wake of the hobby lobby

ruling, there are greater protections for religious believe. no church will ever be forced to recognize or perform a marriage that they disagree with and we would be first defending the minister or pastor if he or she were compelled to perform a marriage that they disagreed with. what we are talking about our incursions on the ability to participate in all realms of civic life. that is the permission that some of these amendments and bills are seeking. our commitment to nondiscrimination trumps private prejudice. that is the balance that we have engaged in. participation in civic life is free to all individuals and we are concerned that incursions

with religious entitlements will carve out not just lg bt people from protections but protections that have been afforded for people who have suffered. . the utah example is an important one. utah is my home state. i was raised mormon in utah. what i understand about utah is it is as near to a theocracy as any state we have in this country. it was founded by one religion and it is dominated by the lds faith. utah contains broad religious exemptions. there was no compromise made.

what happened was sexual orientation was imported into existing law which already contains bought -- broad religious exemptions because it is utah. it is not a federal model. title vii is the law we want to see equally protect. a key. sarah: i am the legal tractor for the human rights campaign. on behalf of our 1.5 million members and some orders nationwide, i am honored to be here today. following the recent economic recessions, families across the country have faced unemployment and underemployment every day. lgbt workers and their families are asked or insane financial realities alongside the rest of america.

daily discrimination on the job serves as one more barrier keeping them from getting back on their feet. the advances inequality over the last decade cannot be denied, employment discrimination is still a persistent barrier. currently, 29 states are offering no protections from discrimination on the basis of sexual orientation and 32 states offer no protections on the basis of gender identity. according to a 2011 survey, 40% of lgbt employees who are open about their orientation have experienced discrimination in the workplace during the five years prior to the survey. transgender feature -- people have a starker reality. the impact of this discrimination is clear and harsh.

discrimination on the job and during the hiring process results in lower earnings across the lifespan. the eeoc in some federal courts of interpreted the provisions of title vii of the civil rights act to include protections for sexual orientation and gender identity. in 2012, the eeoc held that the complaint could be covered. most recently, the eeoc determine the walmarts denial of spousal health benefits to a same-sex spouse was unlawful discrimination under title vii. federal courts have sided the precedent set by the case price waterhouse versus hopkins. this president was applied to extending the prohibition of sex

stereotyping to include gender -- transgender employees. these court decisions and the eeoc policy send a powerful message. lgb t people are still not covered under the act. in the absence of clear protection lgbt people may be forced to file a lawsuit, a luxury most cannot afford. the obama administration has taken meaningful steps toward protecting workers from discrimination. i would like to highlight the executive order from 2014 prohibits discrimination in government actions of contractors and subcontractors. this underscores the recognition of governments compelling interest in ending this harmful discrimination.

while the government has a clear discrimination in eradicating this, we recognize the interest that has been balanced with religious rights of employers. given this history, religious employers benefit from apple exemptions from federal nondiscrimination provisions. title vii provides strong protections for religious organizations, including hiring and firing. the ministerial exemption examined by the supreme court exempts religious employers from discrimination prohibition when making employment decisions involving ministerial staff. this is been extended by the courts to include many other non-ministerial employees whose jobs are a religious function including professors, teachers. exemptions are not only

unnecessary, they could lead to adverse problems. protecting lgbt workers will not infringe on religious beliefs of the employer. employers already have these rejections, both under the first amendment. the courts have not been shy in applying these exemptions. the supreme court has noted that the constitution gives solitude to the rights of religious organizations. the supreme court recognizes that government has a unique and compelling interest in protecting against employment discrimination. justice alito rejected the possibility that discrimination in hiring might be a religious practice to escape legal sanction. our decision rights no shield. the government has an interest in providing equal opportunity

to participate in the workplace. because they know that to remain competitive, they must recruit and retain the best possible talent, including members of the lgbt community. the civil rights community stands behind workplace protections, including a coalition of 200 civil rights, religious, labor organizations. hrc supports the introduction of non-discrimination legislation that would protect lgbt americans from discrimination not just in employment, but also in housing education accommodation, jury service, and credit. thank you for the opportunity to testify today.

>> i am the director of public policy for the national lgb t to task force. the testimony will examine the protections to eliminate workplace discrimination against lgbt employees. lgbt americans face high level of discrimination. 5.4 million workers in the united states. discrimination in the workplace persists despite the increasing visibility of these communities and local protections against anti-lgbt prejudice and violence. the data indicates that employment discrimination can lead to a significant impact on

the well-being of lgbt people. over 50 studies of discrimination against lgbt people have been conducted. lg be people have significant barriers to equality for studies of been conducted about transgender people. in a joint effort with the national center for transgender equality, a report was published. this document at discrimination transgender people experience in employment, education, health care, and other areas. our key finding is this: the state of the workplace for transgender people is abysmal. discrimination is a nearly universal experience.

90% reported mistreatment or discrimination on the job or taking actions like hiding who they are to avoid it. nearly half lost their jobs or denied a job or promotion as a result of being transgender. survey respondents experienced devastating negative outcomes many of which from the discrimination they face in employment. you will hear more about this later survey and the findings from that landmark research that we conducted. a point about was made earlier. additional data collection is essential. lgbt people face discrimination in employment, housing and other areas. as policies change, we expect this to decline. in order to measure the change in discrimination and create interventions that more accurately respond to the needs

of the community, we need to collect more data on lgbt people. we received complaints. data on employment discrimination will be collected to reflect the levels of discrimination. these are not enough. more comprehensive data collection is needed. every agency should be charged with collecting the information on sexual orientation and gender identity. this effort can be spearheaded by executive order calling for agencies to determine the best methods for integrating these demographic questions into their data collection. it can be collected through questions like the american community survey.

with respect to cases of discrimination they occur across sectors. stories that highlight discrimination in hiring firing were included in our rest -- written testimony. lgbt workplace protections exist. testimony says changes are needed. we currently have 19 states that have employment nondiscrimination laws that protect employees from discrimination on sexual orientation and gender identity. the eeoc has recognized prohibition on sex discrimination to sexual orientation. this grants protection. the president issued an

executive order protecting federal employees from discrimination. however, to ensure that workplace discrimination against lgbt employees is eradicated, we need inclusion in federal legislation prohibiting it. without establishing sexual orientation protection, employers are likely to be unaware of the potential liability under federal law. they are likely unaware of their right to be free of discrimination on the job or take recourse. the passage of such legislation will prohibit discrimination on the basis of sexual orientation or gender identity in the same way that title vii of the civil rights act prohibits discrimination on race, color, sex, national origin.

workplace discrimination is a pervasive issue that prevents employees from meaningfully contributing to the workforce. workers who encounter and tight sentiments are faced with a choice of either a hiding their identity in the workplace are risking discriminatory treatment and harassment by disclosing their identity. it will take time for employers and employees to recognize the legal protections available. we hope that more data will be collected as we await a new legal process or legislation will set this unequivocally in the past. i would like to thank the commission for this opportunity to provide a statement on workplace discrimination. we are grateful.

winnie: we are in independent institution dedicated to improving the lives 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 and protection of the law. today, it remains legal in 32 states, transgender americans lack 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 enumerated federal employment protections for lesbian, gay bisexual and transgendered workers remain essential need for our community who combat discrimination in all areas of life including and particularly in employment. in june of 2013, the center for american progress, a collaboration with our partners in the movement progress and the human rights campaign, the least a comprehensive report called the broken bargain for lgbt workers, unable to provide for their families. the report demonstrated what many families know too well -- lgbt workers face serious barriers to both getting and keeping a job due to discrimination on sexual orientation and gender identity.

among lesbian gay, bisexual transgendered individuals, up to 11% reported being denied a promotion for their sexual orientation while one in 10 report being fired from a job because of whom they love. the rights of discrimination are even more alarming for transgendered people. 47% of whom have reported being fired, not higher to, 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 transgendered. for lgbt americans with jobs, many report experiencing unequal pay due to their identity. they and bisexual men make 10 percent to 32% less than straight men in comparable jobs. transgender men face a

significant lower pay. while employment laws remain at the heart of our posts for nondiscrimination protections any discussion cannot be limited to protections in the workplace. the ability to find work does not begin and end with the application process. it also includes the ability to gain in quality education secure stable housing, and have people access goods and services that every americans need to live and thrive. this past december, my colleagues released a report entitled "we the people," which outlined the discrimination based by lgbt people in employment housing, education, credit, and public accommodations. the report called on congress to join a growing number of states

in passing a copperheads of lgbt nondiscrimination act which would provide protections based on sexual orientation and gender identity in vital aspects of life. lgbt americans are routinely denied shelter. what an half of lgbt students feel unsafe in their schools and lgbt customers are too often receives -- refused equal access or treatment in our nation's marketplaces. without protections to combat these instances of discrimination, along with protections in employment too many lgbt americans will be denied the basic tools to gain employment. despite the alarming instances of discrimination both in and outside the workplace considerable progress has been made on the federal level to utilize existing civil rights protections to combat discrimination against lgbt americans. two years ago, the eeoc rightly determined that discrimination based on gender identity and

orientation was dissemination under title vii. today, the department of justice is using that same rationale to combat dissemination by public employees. in the single largest expansion of lgbt workplace protections in our nations history, president obama added that her identity to the order of discrimination banned life federal contractors bid in the ends, whether week i see protections than the courts of the legislature, or most likely through some common nation of the fact remains that the force of these laws rely on adequate resources and tools for those past with their enforcement. while many believe that discrimination is a relative the past, the number of overall discrimination charges filed by the eeoc has reached historic levels. despite this increase in

complaints a eeoc has nearly a quarter fewer full-time employees that 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 all americans, we also post for the necessary appropriations needed to ensure that all current and future nondiscrimination protections are fully enforced. in conclusion, as a a recent 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 a significant rates of discrimination faced by lgbt americans, it is abundantly clear to ensure that level

playing field lgbt americans both need and deserve protections currently afforded to all others. the time has come to ensure fairness and to fully fund that fairness for all americans regardless of their sexual orientation or gender identity. they convey much. -- thank you very much. >> matter vice-chairman, you have the floor. >> my question is for miss simmons. as we look at existing workplace protections, which one day could include them, we heard from an earlier panel some of the numbers on the complaints. regarding employment discrimination. some might describe those complaint numbers as rational, others might call it miniscule.

in your testimony, you said that discrimination in employment is universal. you said that workplace discrimination is a pervasive issue. address for me please the argument some might make that the figures that we have available do not support the rather strong description that you have given regarding the pervasiveness of discrimination. stacy: thank you so much for that question. two key points. the data that i was offering in terms of near universal discrimination are from our national transgendered dissemination survey, and that was a survey that was limited to over 6500 transgendered individuals that were surveyed across the nation and across the u.s. territories.

and so that was particular to transgendered and gender nonconforming individuals. the second point, with respect to the filings that were referenced from the department of labor, i think that it is critical that we continue to examine the levels of the 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 in the ability for government agencies to be responsive such as the 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 protections and providing a safe workplace for lgbt employees. all we are simply lurking for -- looking for is having the numbers going to opposite direction for a workplace that is more supportive and affirming for lgbt individuals. cut >> commissioner hackenberg followed by commissioner yaqui. collectsroberta: the conclusion of discrimination is significant and pervasive. in 2000 seven, i made a analysis was done by the williams institute which drew the same

conclusion. it is my understanding that for more than 40 years your organization has made available to lgbt people a nationwide counseling lines. i'm imagining that you have gathered statistics over that. of time as well. could you discuss how the conclusions of the 50 studies and the williams institute meta-analysis compared 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?

crocs what we see -- kkate: many of the calls that we get are from individuals where there are no protections. if they live in a state where there are protections, it it is an easy answer for them. we encourage them to file a complaint. we refer them to attorneys who do discrimination cases. there is recourse that they can taste -- take and hook them up with knowledge-based and was someone who can be the advocate. most of the calls that we get our in states where there is no protection and it is only been recently in light of the eeoc ruling that we have seen an expansion of title vii perhaps being available as a vehicle. many times the most difficult answer that we give to people that when a call saying that

there suffered some adverse employment action is -- i am sorry there's nothing we can do. there's no protection and your state. it does not mean that it is not happening. i want to point out that the numbers are very significant. the nature is the whole gamut. most of the calls that we get are probably along two tracks. either an employee is going along fine in their job, doing a good job, getting the performance reviews, doing well, being promoted, and then something happens where they are discovered to be lesbian, gay, bisexual, or transgendered. somebody sees a facebook post. actually do get married at a couple of people in the office at 10 the wedding and then the rest of the office realizes weights, we did not know that we had a gay, lesbian, bisexual person working for us. or in some other manner, they come out to someone and it is told to other people. then, things go straight downhill. either they are fired outright

or their performance evaluations documenting two minutes late documenting reunion coffee when you're not to suppose that coffee at your desk. all things start to have and very soon it lose their jobs. or the second track that we see the most of his harassment on the job. the irony here is that many employers will go through a very long period of open harassment or death by a million cuts negative adverse job actions thinking that they cannot fire the individual simply based on their sexual orientation when they would be perfectly free to do so. many times the employee is torture over a peiord riod of time, harassed either gender identity or it could be anti-gay harassment or sexual harassment. either they quit or are terminated from their jobs. we get about 7000 calls a year

-- 30% of those are employment related and the bulk of those are in either one of those two bronson areas. >> commissioner yaqui. >> i want to thank the previous panelists for appearing today and i want to apologize for my absence today. i do not down by the flu and my doctor really do not want me to travel. this is an extremely important subject for me personally. is something that i wanted to -- when i was initially appointed to the commission years ago, we talked about trying to bring these issues to the commission and it has taken a long road to get there. we finally are here and i like to thank all my colleagues for

that. the question i have is directed to something mr. clay said. thank you for being here and being at these hearings. there is something that you said that i would like for you to respond to a go-ahead. i was going for the legal bases of the nondiscrimination act and the impact on employees. i like to hear from the advocates on the panel today if you believe that this does have a potential impact in commerce and justifying the use in pushing forward for these pages

of the law? >> more so than ever, our economy is interconnected. we live in a world where goods or services are produced in one particular area and stay that area. mom-and-pop shops are virtually a thing of the past when you are talking about production that is sold within a given area. instead, even small businesses purchase the goods that they are then selling to their customers from all over the world. not just from within the united states. sarah: congresses have ample opportunity and has 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 right to 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 cappelli -- a compelling government interest in having nondiscrimination laws in place in the appointment arena. if you felt i 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. instead what we see is a need for these laws. crocs anyone else? >> i will refer to my testimony. the supreme court said that there has to be a substantial

affect on interstate commerce in order for congress to pass law under these circumstances. as i read the united states versus borgerson and the united states versus lopez, i think that congress is going to have a hard time meeting those standards. robert: the kind of chain of events that miss warble pointed to a something that the supreme court explicitly warned about in his decision in morrison. and i would add also with respect to the other enumerated power that congress sites in the fifth amendment, or section five of the 14th amendment, i think that kimball versus florida board of regents is a substantial hurdle for the congress to clear. crocs let me make a comment as a

nonlawyer -- >> let me make a comment as a nonlawyer. let me go that to someone who is involved in 1996 during the senate debate around the employment nondiscrimination act. winnie: it was on september 10 1996. some of my colleagues were involved in the debate around this time and other debates. i think it is 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 non-dubbed termination act. there might have been disagreements on the law and sexual orientation and gender identity and whether that should be protected. if you look back at the record, i am also familiar with and we do not have a lot of the books now, it was not part of the discussion in terms of because

it is now the of employment protections in civil rights laws for congress. robert: i do not doubt that and i think that, unfortunately congress and this is true on both sides of the aisle frequently thinks they can do whatever it wants. i think the incentive is asian of congress that no, you actually need enumerated powers before you can act is something that has only recently taken hold, unfortunately. i remember just about the time that you are talking about. i was talking with a senate staffer about this problem. he said, i think that we would have to be absolutely convinced that no court would uphold this before we would hesitate to pass

a statute like this. i thought that was appalling. and appalling mindset for someone to have. and this was a congressional staffer. i think the mindset should be that, unless a congressman believes himself that there will be a substantial affect on interstate commerce, he or she should not vote for the statute. i do not think that the mindset of, it is up to the courts to keep it honest, and therefore, we are not going to worry if we have enumerated power or not while widespread, it is not the right attitude. it 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 supreme court's opinions. first of all, the common clause has been widely used and has been recognized as widely used by congress and to make the common cause of find in the states. it can have this kind of impact. here later on, this not a very to survey the population. -- this is not a small population. they are part of a lifeblood and to say to that to any section of that population that you are not

a welcome member or a citizen or because of the way that someone perceives who you are or who you are with ken negatively impact your economic earnings, your ability to move between jobs. i think it is clearly within the purview of congress and it is a serious and great threshold to get it justifying the use of this in this cause. i'm not -- i do not believe that there is this imaginary high bar here, when in fact, the high bar is easily cleared by the facts presented by the people here today and by the people who have done this over the years. certainly the history of the cause will have people believe

that this is certainly nowhere near an insurmountable hurdle. or we do see a hurdle is more of the point of some of the points that you didn't mention which is something that you cannot just do. we cannot just integrate from the way people think but what you can do is in passing the language that it is nonnegative toward individuals no matter what they want to do our trying to change the current law. >> next we have commission occurs no. peter: i would like to thank the testimony and you have outstanding points here. we haven't doing that for just a dozen years now and i'm chagrined that we have a

dramatic imbalance in terms of those who would support a broader statute and those being skeptical about the use of congressional power on a nationwide basis. i think that dairy goods -- deregates whatever reporter briefing we have and i think that affects the legitimacy of that. my question to mr. clegg -- from a practical per square effective -- perspective, we have employees dealing with new statutes, we are dealing with these exceptions. given that a versions over the course of time to at will employment, two questions. to what extent do you see the

iteration of this right now having the impact in capital employment? and second, how would this differ if at all from protections against racist termination? -- race discrimination? robert: one of the points that i make in my written testimony is that i'm afraid -- and i think i've repeated in my oral testimony, i'm afraid that we are moving away from the general presumption that we ought to have that people should be able to use their private property the 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. we know who you should hire and who you should promote. this should be, especially a strong presumption against the federal government passing a law that second guesses employ verse -- employers in this regard. and one reason for that -- and i think you alluded to this in your question is that, the laws once they become reality in this area through litigation and regulation.

those are very extensive and distorted media. you do not just passed law and magically have a principle that you think is embodied in that lot become reality. -- that law become reality. and has to become reality through a lot of pure kratz. 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. this is very unsatisfactory way to do business in an economy that is supposed to be based on freedom and free markets. i do not doubt that many times employees do things that a

majority of americans might find to be unfair or wrongheaded but it does not fall from that that therefore there should be a federal law passed. saying that no employee shall ever do anything that is unfair or unwise. that law will have cost that are far higher than any it is the same situation here in this specific instance. i think the problems that you will inevitably raise by passing a law that says that you can't discriminate on the basis of gender identity and "gender identity means the gender related identity, appearance, or manner sums or other gender related characteristics of an

individual with or without regard to the individuals designated sex at birth." well, you know, you just know the lawyers and bureaucrats are going to have a great time interpreting language like that all structures another part. >> as a lawyer and former erick wright -- bureaucrat. >> i do. you'll all know about the fair has the -- fair housing act and we were interviewing and it is what i just 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 american disabilities act. anyway, we were there and we were deciding what the rules should be for employers when it came to rams and doorknobs and

sunken living rooms and all stuff like that. it was appalling. none of us at that table do anything about the business of how to build an apartment complex. why were we sitting around making up all these rules? it was very scary. there's another part -- >> you did not have to have a familiarity with something in order to do the job? >> i didn't say that. i said i didn't think you had to be -- to put it bluntly, i don't think you to be a black person in order to be able to sell pepsi's to a black person. 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. >> a disabled person trying to

figure out how it nondisabled person would interact with their surroundings. >> it wasn't that we weren't disabled. although, that is also i think a fair point. the problem is, we didn't know anything about building. that is the point i am making here. and likewise, we are not people -- we're not in the caregiving business. the hypothetical i gave about a caregiver, whether people might have preferences about who is going to bathe them, you know, i think those kinds of decisions should be made by people who are in the caregiving business. not by a bunch of bureaucrats. here's another part. you tell me whether this belongs in the u.s. code. nothing in this act shall prohibit employer from requiring an employee during the employees hours of work to it here to

reasonable dress or grooming standards not prohibited by other provisions of federal state, or local law. provided the employer permits an employee was undergone gender transition prior to the time of employment and any employee who is notified the employer that the employee has undergone or is undergoing gender transition after the time of employment to a dear to the same address or grooming standards as applied for the gender to whom the employee has transition or is transitioning. i don't think that that is the kind of micromanagement 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 work laces -- places

have to implement every day. i think that is a decision that ought to be left to individual employers and businesses. >> just like you said earlier people should be allowed to figure out what they do with their own proper property, let's let the market decide if we adhere to that, there would still be people today could be considered property and we would not have fought a civil war to change what the market was. so i think there is an important role the government has to play in the regulation of how we interact with one another and the rights that are afforded and rituals in the workplace "washington journal . >> i agree. i talk to my written testimony about that. i think the commissioner alluded to this in his question, i think

the situation that was presented and is presented by race discrimination in this country is special and different. and i think it makes all the sense in the world to draw distinctions between what was going on in this country with respect to racial discrimination and things like sexual orientation and gender identity. racial discrimination presented an extraordinary situation justifying departure from the usual free-market presumptions. it was widespread, blatant, and often governmentally -- >> [indiscernible] >> i'm sorry. racial dissemination presented next corner situation justifying

usual practice. it was often governmentally codified in mandated. it was irrational and dictated since the 20 century by no non-trans, religious or moral conviction. it was distort, national in scope -- it was his store, national in scope. discrimination against homosexuals is simply not in this league. >> i was wondering if anybody else on the panel would like to respond to his partial reading and the dress code and things like that. >> i have one or two quick responses. the first is even as a lawyer, i would love nothing more than if we could just pass a bill that says, don't be mean. and that would be sufficient to treat people fairly and with a sense of dignity and a recognition of their humanity. but obviously, we don't have that in our history with race

discrimination is a perfect example of that. but i also think we're not dealing with a blank slate. live a number of states that have passed laws that prohibit dissemination based on gender identity using something like the definition that he read. there hasn't been -- there hasn't been a huge flood of litigation, nor hers the been -- nor has there been in a and interpretation. these laws 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. in extreme cases people are then 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 the statute that says, we want to live in a country where people come all sorts of 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 be a good thing for this country. >> anybody else? >> there is a dramatic difference between regulating bad business decision that impact only the employer. an employer who is foolish enough to require all their employees to wear shirt truce uniforms -- chartreuse uniforms. the government should not be engaged in that decision. it is radically different when we are talking about bad employment decisions that have negative, lifelong consequences for the individuals that they are choosing to fire them or refuse to hire, or fail to promote. there should be in our loss a do no harm principle -- in our laws, and do not harm principle. but to create a level playing field that insurer employment decisions are made on the basis of an employees merit, calix, skills, and background rather than on who they are.

>> i know this is a different context, not commerce passing a law, but companies implementing your own on dissemination policies as they relate to sexual orientation and gender identity. i am often frustrated not when people disagree with me, because that happens all the time, i have twin boys who are 12 and a have to disagree with me all the time. but it is when there are these spurious arguments about why someone was should -- we disagree with me. that is what i find somewhat unnerving. to go back not again the legislative language that he 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 an observation policy based on sexual orientation and gender identity. those business policies often mirror the language that mr.

clegg referenced. it is used to describe and define gender identity in that case. 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 plain field for all employees that those gay, lesbian transgender's -- 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 are here to work and we are going to judge you on your skills and that's it. nothing irrelevant, but your job performance. again, the employment practices in the employment policies, nondiscrimination -- and they are 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 this -- these copies for 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. >> the problem is that to the extent that is true, you have undercut the argument for the necessity to pass this bill in the first place. it is a rational thing for all companies to do is to do the kinds of things this bill requires. you don't need to pass the bill. not passing and is not going to have a substantial effect on interstate commerce. discrimination is not going to be having substantial effect on your state congress. 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 and 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 sexual orientation. the people who are in the caregiving business might want to consider sexual orientation. it just depends. there are thousands of businesses out there. they are all different. i don't think we should be passing a federal one-size-fits-all bill in that situation. >> if i could just -- >> but if it seems to work? >> similar arguments to that were raised when president obama decided that you would consider

lifting the ban on gays and lesbians serving openly in the military, what of our nation's largest employers. people said this should not be one-size-fits-all. this is not what we should have. we should not have people on submarines with sexual orientation -- will absolutely undermine morale and unit cohesion. and we have not seen that come to pass. >> with several commissioners who want to ask questions. commissioner harriet? >> thank you. i guess i want to ask about this notion of whether or not it can be interbedded an account of elective way -- can be interpreted. they get to interpret their own policies. they won't have that luxury as there is actively congressional enactment. the chairman mentioned title vii has worked out well. i guess i disagree.

we need title vii, but there are lots of ways to has been interpreted encounter productive ways. some have the difficulty now employers have in taking into consideration felony convictions by job applicants. i don't want that sort of problem to incur here. if inda's past. because of the way gender identity is defined in the current version, inda prohibits discrimination on the basis of "gender related characteristics." can you give me some help on what that might mean? for example, in the price waterhouse case, we have plaintiff who argued she is not been promoted because she was, i guess we could call it she was pushy as a female. she said that center to restrict would be referred to as assertiveness in a male. is assertiveness versus non-assertiveness, etc. gender-related characteristic?

what is a gender related characteristic? employers are going to want some guidance as to what that means. anyone. >> if gender related means gender correlated, which i think is certainly one way you could interpret this, then i agree that this is opening a real pandora's box. you could probably find social scientists or statisticians that could find all kinds of characteristics 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 have made it very hard for employers to make decisions

on the basis of any characteristics at all. for example, criminal behavior. i think that everybody would agree that men are more likely to commit crimes than women are. ok? so is criminal behavior a gender related characteristic? well, it is certainly gender correlated characteristic. so does this now mean employers can't discriminate at all -- not just on the basis of disparate impact, but that it is disparate treatment now to discriminate against somebody on the basis that they have murdered the last employer. sounds like a reasonable interpretation of the definition of gender identity to me. >> but not a very reasonable example. >> tell us --

>> i think that is a bit ridiculous. in terms of how we've seen it interpreted, what i understand it means and i wasn't involved in the drafting, but i understand it means it is very much along the price waterhouse. it is dress, presentation, it could be interpreted as characteristics of involved in the price waterhouse case, a woman that does not wear makeup is not sufficiently feminine. a man that is -- >> two sides of the same coin would you say that is part of gender-related characteristics that minted to be more assertive in certain situations and women are sometimes less assertive situations? what does it mean? people don't always conform to gender. >> i feel like that is what this is trying to get to, is that when one doesn't conform price

or how stands for the theory and i feel like -- price waterhouse dance for the theory, and i feel like it is in sponsoring that, if someone either conforms to or does not conform to gender stereotypes, they will group protected be protected. >> this is not title vii. if assertiveness is something that is considered to be more masculine characteristic and c almness is considered more feminine, it looks to me under inda, it doesn't matter which person has the problem. a male job applicant could say i was rejected because i do conform to gender stereotypes. i am especially assertive, hyper masculine. yet there are lots of jobs for being -- where being high percent of his a very bad thing. >> i understand the

hypothetical. it is not what we've seen in states that have similar language. >> with title vii, takes 50 years sometimes for these things to work themselves out. that is about passing when was that becomes part of the law. it doesn't go away. >> we do have case interpretations of state law in which that is similar to this that can be used to rebut a non-stance claim, for example, because it is not -- the good news is, this isn't a blank slate. we do have a body of law in certain states and we do have several years, at least, of experience. >> title vii has been worked out perfectly, but the fact -- sometimes developing 50 years after its passage. right here, for example, we have been told that title vii can be used in terms of sexual

orientation and gender identity. nobody would have thought that in 1964. maybe that is the right way to interpret it and maybe does the wrong way, but it is wrong to suggest the language is not when of your a problem because it is not a problem now. that is not the way statutes work. >> i understand that, but i think it is more important in your considerations to a dress what is the real problem now that we are trying to in all your rate. >> i think that is the wrong approach. liver problem, let's go with whatever language we have right now. we want goodling which. we want lingwood's that will be abused. we wanted to only cover the things we wanted to cover. do we have that now? i would say no. i think we have language that is extremely vague. we don't know what gender related characteristics are going to mean. don't we need to develop that? >> we have over 20 years experience. minnesota adopted a law that includes both sexual and orientation desk sexual

orientation or than 20 years ago. reason you're seeing sexual orientation and gender identity being incorporated into interpretation of title vii is because the similarity between sex discrimination, gender identity, discrimination is historically bound up with one another. what is discrimination on the basis of sex is also discrimination on the basis of gender identity. >> 20 years in a small state like minnesota is nothing. very, very, very small when you multiply that over the population of the united states of america and run it for 50 years, there are going to be a lot of cases. we want to get this right the first time. >> we have also been looking at legislation for more than 20 years. to address discrimination in congress. there is an ongoing conversations, not a new idea or topic. we have changed in which over time cash things out based on

best practices that we've seen in states, municipalities. laws are not static. they don't exist forever. while title vii has not been amended, certainly, congress has gone and changed other statutes to do with changes in interpretation, that supreme court decisions address additional statutes to rectify the situations. it is not a static and permanent forever. >> again, as a former bureaucrat, i will point out when i was in the civil rights division at the justice department, it was rare that we looked at how analogous state statues had been interpreted in state courts. i think the commissioner is right that the notion that you're going to be able to fix vague ambiguous or problematic language in a federal bill by

saying, oh, well, here is how the statute that was kind of ordered the same way was interpreted by stick with the minnesota is being way to optimistic about how this process works. >> i think what you're faced with is, do you respond to what you know and what we have experience with, or do you respond to what you fear? and there is a body of law there is experience with cases that have been brought under the law, and there is a problem that needs to be addressed. i am perfectly willing, given my own organization's position on inda, to have another go at language that could be more clear or to be more specific. but i feel like telling what you got is based on significant experience of individuals who have been involved in litigating

and involved in these cases and involved in this area of law are several decades. >> i'm going to move on. if i have time at the end, i will come back. i still have three other commissioners that want to ask questions. >> i guess a want to ask mr. clegg all the questions i have. i will ask you, it seems to me, your agreement with commissioner harriet regarding land which means you are trying to craft a bill under which would be no litigation or definitions when in fact our entire judicial system continuously on a day-to-day basis issues decisions and looks at statutes and defines them every day. i'm in statutes that have been around 50 years or 100 years. not justice ministry -- not just discriminatory, but contract law, tort law. i don't understand the objection, i guess.

i'm in verbiage is verbiage. i understood when you are talking about the dress and all that. it wasn't that difficult for me but that is what we do have courts for. and from your document, you obviously don't trust courts. you think they are liberal of stuff i guess the roberts court must be too liberal for you. my point is, do you think that is what lawyers and courts are for? for the legislative process to be perfect, i mean, they talk about stuffing a sausage. i just ask you to define why you think we shouldn't litigate these things and defined them over time? >> i don't want to fix the statute. i don't want to pass the statute at all. >> that i understand. >> and i don't think the reason that we have courts and lawyers

is to figure out how companies are to deal with employees who have this or that sexual orientation. i think that should be left to companies to do. i think there are some extraordinaire situations where we have to have laws that tell employers things that they can do and can't do. i think we had to have a federal statute that told employees they cannot discriminate on the base of race. but those instances are rare. >> but aren't they protecting five point 4 million workers as opposed to the 600 complaints? who are we protecting, the 5.4 million lgbt workers or are we just protecting the 600 627 complaints or whatever? >> the question is whether this

legislative is going to -- whether the problem being addressed here has a substantial effect on interstate commerce. actually, the number of employer -- of employees who are going to be protected by this law is all of them. because it is not just discrimination against -- sexual orientation is described as being homosexual, bisexual, or heterosexual. so anybody can sue under this statute. if you are straight anyone a job at a gay bookstore and you don't get hired anything the reason you were tired is because you are straight, you have a lawsuit, too. i don't think you can put it in terms of the number of employees were being protected from discrimination. potentially, all employees are being protected from this termination. the question is whether the

underlying problem is one that has substantial effect on interstate commerce and whether there is -- where the circumstances are such, that the only way to address this problem is through federal legislation. i think the answer is to both of those questions, is no. >> clearly when corporate america institutes the guidelines and rules and regulations, that is not really enforceable by the employee in most cases. is it? >> why does that matter? if the problem is discrimination against gays, if that is what being asserted has -- if the problem that substantially affecting interstate commerce if that problem is being alleviated by companies and acting unilateral policies, then what difference does it make if it is a private right of action or not? >> it is not enforceable by the employee.

you can have a role and ignore the rule. >> you can have a law and ignore the law. >> but then there is a remedy. we talked about remedies in the law, we don't just talk about rules. >> my point is, there is slippage in both instances. just because you have a statute, doesn't mean magically that you're not going to have any more discrimination. even if you can bring lawsuits. different companies may structure these guidelines differently. if you were a company, you could structure is so am here is our policy. if you're an individual and you think your immediate supervisor has discriminated against you on the basis of sexual orientation you can follow complaint with the hr department. things similar to that are done in this area already.