Employment Non- Discrimination Act.
As originally proposed (H.R. 2015), (“ENDA”) would have amended Title VII to forbid discrimination in employment on the basis of actual or perceived sexual orientation and gender identity — adding two new federally protected classes of persons. The original version excluded military and religious organizations from coverage. The exemption for religious employers, however, was narrow — raising significant issues related to religious organizational freedoms protected by the Free Speech Clause of the First Amendment.
A compromise bill (H.R. 3685) was introduced in September 2007. It did not include gender identity in its scope and it broadened the religious exemption — albeit in a manner that is vague and arguably inconsistent with the language of Title VII. Senator Obama has stated that he supports the expansive version of ENDA that includes gender identity.
Local Law Enforcement Hate Crime Protection Act of 2007.
The bill would make federal crimes of certain violent conduct where such conduct is motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim. The Bush Administration issued a veto threat. Sen. Obama is one of the sponsors.
Housing Discrimination
Housing Fairness Act of 2007.
The bill directs HUD to conduct a national testing program to detect, document, measure and assess the degree to which individual renters, home buyers, or mortgage borrowers are discriminated against based on race, color, religion, sex, familial status, disability, or national origin.
Voting Rights
Ex-Offenders Voting Rights Act of 2007.
The bill would automatically restore to ex-offenders who have served their sentences the right to vote in federal elections. Presently, 47 states bar incarcerated convicts from voting and 36 states deny paroled felons the right to vote.
It’s estimated that more than four million people have temporarily or permanently lost their right to vote due to a criminal offense. Supporters of the bill maintain that felon disfranchisement laws have a disparate impact on blacks and other minorities. Sen. Obama is one of the sponsors.
Several other bills will have a dramatic impact on employment discrimination litigation should they be enacted: the Civil Rights of 2008 would eliminate existing damage caps on lawsuits brought under Title VII and the Americans with Disabilities Act; the Fair Pay Restoration Act would significantly expand the effective statute of limitations in Title VII discrimination claims; and the ADA Restoration Act would substantially alter the definition of disability under the American With Disabilities Act, as well as eliminate consideration of mitigating measures used by an individual to manage his impairment (anxious Republicans have already agreed upon compromises to the ADA Restoration Act in order to pass something less onerous to employers). The bills should be a boon for employment lawyers.
Even considering the trade-offs and compromises that even a party in complete control of the executive and legislative branches must make, there’s a very good probability that most, if not all, of the foregoing bills will be signed into law if Sen. Obama wins. And it wouldn’t be surprising if even more bills join the list. The interest groups supporting the proposed legislation have been laboring in the wilderness for some time waiting for the harmonic convergence of large majorities in Congress and a Democrat in the White House. They won’t let the moment pass quietly.