I thank my colleague, the gentleman from California, for yielding the time. Madam Chair, I rise today in opposition to the Employment Non- Discrimination Act, H.R. 3685. As the ranking member of the Health, Employment, Labor and Pension…
I thank my colleague, the gentleman from California, for yielding the time.
Madam Chair, I rise today in opposition to the Employment Non- Discrimination Act, H.R. 3685.
As the ranking member of the Health, Employment, Labor and Pension Subcommittee, I have reviewed this legislation in several different forms over the last several weeks. I've participated in debates and conversations that have brought this bill to the
floor, and I have to report that this legislation is still flawed.
The bill before us is drafted in such a way that it creates confusion and uncertainty. My colleagues offered a number of amendments to correct the inherent problems in this bill. Unfortunately, one critical amendment offered by Mr. Souder removing the word ``perceived'' was not accepted by the majority. My colleague has already introduced that point of confusion; I would like to expand on it.
This bill, and I quote, ``prohibits employers from discriminating against an individual because of an individual's actual or perceived sexual orientation.'' What does that mean, ``perceived sexual orientation''? We do not know because the bill fails to provide a definition. This raises a number of practical and legal concerns. The term ``perceived'' is overly broad, vague, and will inevitably lead to increased litigation, lots of increased litigation.
We cannot abdicate our constitutional duty by knowingly creating a law that is so vague that the courts must necessarily determine a definition. This is, frankly, a trial lawyer's dream. I would point out that in the course of our hearings one of our colleagues did express faith in ``Attorney World'' to clarify this issue. Well, it is kind of funny; I just don't think that's a theme park that we want to visit.
Employers may have difficulty in identifying noninherent characteristics of a person but could still be liable. Under the statute, employers would be accountable to prove that they did not make an employment decision based on either their own perception of an individual's sexual orientation or on that person's perception of themselves. I can see why ``Attorney World'' could be called upon here. Employers would find themselves in the unenviable position of defending themselves in lawsuits by proving a negative, that they did not perceive the individual to be part of a newly protected class.
Further, the term ``perceived'' does not appear in any other civil rights legislation. Let me be clear, we are not talking about the definition of gays, lesbians and bisexuals; we are talking about those individuals that may be ``perceived'' to be such. The Civil Rights Act protects individuals on the basis of race, color, religion, sex or national origin. Nowhere do we see the term ``perceived.''
Madam Chair, those who favor this bill presented on the floor today are motivated only by the end goals of this legislation and are failing to recognize the difficulty presented by vague terms and loose definitions. We are left with a bill that is filled with confusion and uncertainty.
I would ask that my colleagues carefully consider the inherent problems in enforcement of this legislation and vote against H.R. 3685.
Madam Chairman, I am very pleased now to yield 3 minutes to our colleague from Texas, a former appellate judge, Mr. Gohmert.
Madam Chairman, I am very pleased now to yield 2\1/2\ minutes to the gentleman from Pennsylvania (Mr. Pitts).
Madam Chairman, I am very pleased now to yield 4 minutes to the Republican whip, the distinguished gentleman from Missouri (Mr. Blunt).
Madam Chairman, I yield 2\1/2\ minutes to my friend, the gentleman from Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his remarks.)
Madam Chairman, I am pleased now to yield 1\1/2\ minutes to my friend, the gentleman from Indiana (Mr. Souder).
Madam Chairman, for the purpose of making a unanimous consent request, I yield to the gentleman from Connecticut (Mr. Shays).
(Mr. SHAYS asked and was given permission to revise and extend his remarks.)
Madam Chairman, I reserve the balance of my time.
Madam Chairman, I continue to reserve.
Madam Chairman, I continue to reserve.
Madam Chairman, could I inquire how many speakers my friend has?
Very well, then I will continue to reserve my time to close.
Madam Chairman, I yield myself the balance of our time.
Today, we're considering a truly far-reaching modification to civil rights policy. There are some here who want this proposal to go even further, and we've heard that, while many of us believe that it already goes too far.
The free exercise of religion is fundamental; yet this bill could infringe upon it. The right of States to define and protect marriage is fundamental; yet this bill would undermine it. When enacting new Federal mandates, we should be seeking policies that employers can successfully implement; yet this bill is vague and subjective and invites costly litigation.
We heard a discussion earlier about the concerns in employment law around a hostile work environment and what this newly protected class, how this would fit into that. It was asked, could an employee have a quote from the Bible that soundly condemns homosexuality, would that in itself create a hostile work environment. I would say we do not know the answer to that question. This is a boon for trial lawyers and court cases stacked up like cordwood.
Because of these concerns, Madam Chairman, the White House issued a Statement of Administration Policy indicating that if this bill were to reach the President's desk, his senior advisers would recommend that it be vetoed. The administration identified a number of concerns, both on a constitutional level and with the underlying policy. Unfortunately, these concerns have not been given the full attention they deserve in this debate.
The number of amendments has been seriously limited. We have seen an extraordinary step of putting in the rule a mandatory withdrawal of a proposed amendment. This deserves a fuller examination.
Republicans were prevented from offering key amendments that would have highlighted and attempted to correct some of the more glaring problems which we see in the underlying bill. As a result, Madam Chair, H.R. 3685 remains fatally flawed.
I oppose the bill and urge my colleagues to join me in voting ``no'' on this overreaching proposal.
Madam Chairman, I yield back the balance of our time.