Seventeen years after failing by one vote to win passage in the Senate, the Employment Non-Discrimination Act (ENDA) passed in the upper chamber Monday with 61 in favor, one vote over the minimum threshold to move the bill to a full floor vote. ENDA now moves to a floor vote in the Senate, where it is expected to pass. In the House, where the climate is much less favorable toward the bill, advocates are exploring all options to advance a federal ban on workplace discrimination on the basis of sexual orientation or gender identity. If ENDA fails there, supporters might even push for an Executive Order to advance the cause.
By Monday morning, ENDA had the support of the entire Democratic caucus, plus four Senate Republicans (Lisa Murkowski, Mark Kirk, Susan Collins and Orrin Hatch). Nevada Republican Senator Dean Heller’s announcement that he would support ENDA pushed the bill to the 60 votes needed to overcome procedural hurdles in the Senate. In the final tally, Ohio Senator Rob Portman became the sixth Republican to support the measure, pushing the total yeas to 61.
“We’re not going to take anything for granted, but things are looking good in the Senate this week,” said Winnie Stachelberg, executive vice president of the Center for American Progress. “If the Employment Non-Discrimination Act were to come up in the House, there’s a path to passage,” she said.
Emphasis on “path” over “passage.”
As long as John Boehner holds the Speaker’s gavel, ENDA faces a much harder road in the House. After Heller’s announcement of support Monday, Boehner spokesman Michael Steel reiterated the Speaker’s long-standing opposition to ENDA.
“The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small-business jobs,” he told TIME.
ENDA advocates fired back. At a time when “this week alone we may see two additional states, Illinois and Hawaii, join the marriage column, it seems so relatively Fred Flintstone for John Boehner to be saying that gays are not deserving of workplace protections,” Fred Sainz, vice president at Human Rights Campaign, told TIME.
Nonetheless, in Boehner’s House, it’s unlikely ENDA will even reach the floor. The Speaker has shown himself fond of the so-called Hastert Rule, under which legislation is not allowed to come up for a vote in the full House unless such a vote has the support of “a majority of the majority.” With only five House Republicans openly in support of ENDA, it’s difficult to see how it even makes it to the floor.
Facing that reality, Sainz said, advocates are weighing other options.
“While the Speaker is definitely all powerful in terms of bringing things to the floor, there’s also a defense authorization bill where this could also go over to the House,” he said.
If ENDA fails in the House, the President, who took to the Huffington Post on Sunday to urge passage of the bill, could sign an Executive Order banning LGBT discrimination among federal contractors. Such a move could lend momentum that might push it over the threshold in another attempt down the road.