The Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act protect employees from being discriminated against on the job for the characteristics of race, religion, national origin, disability and age. Those federal laws cannot, of course, prevent prejudiced thoughts; they do, however, prevent those thoughts from being the basis for employer decisions on hiring, firing, promotion and pay.

Those laws do not protect against workplace discrimination for the characteristic of sexual orientation. Not only is this discrimination legal, targets of the harassment that can make the work day unbearable have no recourse.

The Employment Non-Discrimination Act, ENDA, now before Congress would add sexual orientation – real or perceived – to workplace protections. As with the three existing laws, it is about fair employment practices, not special rights. It prohibits employers from applying different standards to employees whose sexual orientation – homosexual or heterosexual – may be different from theirs; it holds responsible employers who allow harassment by co-workers.

ENDA has been under consideration for several years; its latest version reflects rational concerns and contains many important compromises. It does not cover small businesses with fewer than 15 employees. Religious organizations, including educational institutions substantially supported by them, are exempt. It does not cover uniformed personnel in the armed forces. There are no quotas or preferential treatment required. The “disparate impact” claim under the Civil Rights Act is not available – employers do not have to justify a neutral practice that may have a statistically disparate impact on sexual orientation. It does not mandate same-sex benefits.

ENDA has a lot of supporters – 83 percent of Americans, according to a 1999 Gallup poll, say sexual orientation should not affect job opportunities, the legislation has 190 House and 44 Senate co-sponsors so far. The nation’s business leaders back it as well. Nearly 56 percent of Fortune 500 companies, from Microsoft to Harley-Davidson, already have non-discrimination policies that comply with ENDA. At the February hearing held by the Senate Committee on Health, Education, Labor and Pensions, several top executives urged its passage to establish a coherent national policy in place of the current confusing mix of state laws.

That committee, which includes Maine Sen. Susan Collins, will vote this week on moving ENDA along to the full Senate. Sen. Collins remains undecided and her concerns have some validity. A reasonable argument can be made that this issue would be better settled at the state level. Sen. Collins has been consistent on this point – she stated as a 1994 gubernatorial candidate her unambiguous support for state gay-rights legislation. She also, as one who represents Maine, is properly aware that voters in her state have rejected gay rights legislation three times.

The larger issue, however, is that this is a civil rights matter. History shows that civil rights is a federal issue – in the ’50s and ’60s, states’ rights was the primary defense for legalized racial discrimination, a defense that only Congress could overcome. Equal opportunity is an American principle and America’s legislature is the place to ensure it.