WASHINGTON -- When Jeff Flake was a member of the House, he surprised some in 2007 by voting to pass the Employment Non-Discrimination Act, a bill that bans workplace discrimination based on sexual orientation.
That bill passed the House with the help of 35 Republicans, including Flake. It ultimately went nowhere in the Senate, though, and died along with the legislative session. Since then, ENDA hasn't gotten a vote in either chamber.
Fast forward six years and the Senate is poised to vote on ENDA again, and Flake is now the junior Republican senator from Arizona. But this time, he's signaling he won't vote for it. So what happened?
The Arizona senator says he has issues with the fact that the Senate's ENDA bill, which is set for a Monday vote, includes protections for people being discriminated against based on their gender identity. That is, protections for transgender people.
“It's significantly broadened [from the 2007 House bill], and with that comes greater possibilities for litigation and compliance costs,” Flake told Politico last week. “I’m a firm 'no' if it’s the Senate bill.”
But there's no reason to believe ENDA would trigger a spike in lawsuits if it includes transgender protections. The Government Accountability Office, for one, issued a July 2013 report that surveyed claims filed with state authorities in the 21 states with statutes barring employment discrimination based on sexual orientation, 17 of which also bar discrimination based on gender identity. The report found that data reported by states from 2007 to 2012 "show relatively few employment discrimination complaints based on sexual orientation and gender identity.”
On average, that report found, claims based on sexual orientation or gender identity were about 3 to 4 percent of the total number of employment discrimination claims.
Another study, conducted by the Williams Institute at UCLA Law School, analyzed the per-capita rate of complaints filed according to the non-discrimination law in these 21 states, between 1999 and 2007. Their research found that complaints based on sexual orientation were similar to rates of complaints based on a person's sex or race, and that there's no data to support the argument that there would be a flood of lawsuits overwhelming the Equal Employment Opportunity Commission or the federal judiciary if the law were to include protections based on sexual orientation.
That study further noted that while there's not enough data to do a similar analysis of gender identity discrimination complaints, data obtained from three states with gender identity protections do not provide support for the “flood” argument.
Perhaps the most visible evidence, though, is that there hasn't been a wave of lawsuits in any of the 21 states or the hundreds of localities where employers are prohibited from discriminating against at least some members of the LGBT community.
A Flake spokeswoman did not respond to several requests for clarification on why the senator is worried that lawsuits will abound if ENDA passes.
Of course, the political reality is that Flake and other Republicans are under intense pressure from conservative outside groups to lean "right."
Heritage Action, a conservative policy advocacy organization, announced Friday that it would be including ENDA on its legislative scorecard and urged senators to vote no. The group warned in a press release that ENDA would "create special privileges" for the LGBT community and, curiously, said the bill would discourage job creation "because it would increase government interference in the labor market."
Fred Sainz, a spokesman for the Human Rights Campaign, said he just hoped Flake would keep an open mind heading into Monday's votes. It will take two votes to pass ENDA: the first is a procedural step, which requires 60 votes to advance. If 60 senators agree to that vote, the second vote is on final passage and only requires 51 votes. Sainz said he'll take Flake's support at any time during the process.
"We're hopeful that on final passage, we'll have a higher number of Republicans than we do on the initial cloture vote," Sainz said. "It's never too late to be on the right side of history. We welcome Senator Flake's support at any time."
ENDA appears to have the votes to pass the Senate, but it's close. As of Monday morning, 60 senators have said publicly that they'd vote for the legislation. That includes every single Democrat, and a surprising Monday morning announcement by Sen. Dean Heller (R-Nev.) that he'll back the bill. Sen. Rob Portman (R-Ohio), who has an openly gay son, said he is leaning toward voting for ENDA, too.
If ENDA does pass the Senate, it faces an uphill battle in the House. A spokesman for House Speaker John Boehner (R-Ohio) said Monday morning that he opposes the bill.
UPDATE: Nov. 7 -- In the end, Flake surprised many by voting for ENDA -- even after making remarks on the Senate floor just hours earlier that sounded as if he would oppose it. He explained in a statement after the vote that while he had some concerns about the bill's protections for transgender people, he ultimately felt voting for the bill was the right thing to do.
"As I said in 2007 when I voted for the Employment Non-Discrimination Act in the House, one of the most important constitutionally mandated functions of the federal government is to protect the rights of individuals. While I had concerns about expanding protections beyond those House provisions, after consideration, I believe supporting this bill is the right thing to do. I am hopeful that the bill moves forward in a way that works for employers as well as employees," Flake said.