How Clinton and Bush Agree and Diverge on Workplace Discrimination

On the same night, the candidates offered opposing solutions to this growing issue.

As Hillary Clinton and Jeb Bush took voters' questions on opposite coasts on Thursday, they sharpened a key difference between them in the next front of the gay-rights debate.

In a New Hampshire town hall, Clinton pledged that as president she would seek to pass federal legislation barring workplace discrimination based on sexual orientation and gender identity; such legislation died in Congress two years ago. In a meeting with employees at a technology company in San Francisco, Bush declared flatly that he opposed such discrimination but then said the issue should be left to the states.

In November 2013, the Senate, then controlled by Democrats, passed the Employee Non-Discrimination Act (ENDA) that barred workplace discrimination against homosexual or transgender workers across the nation. But the legislation failed when the Republican-controlled House of Representatives refused to consider it.

Without a national standard on the issue, states have divided.

Currently, 22 states and the District of Columbia have passed laws barring workplace discrimination based on sexual orientation; 18 of those states and D.C. have mandated equal rights based on gender identity. The remaining states without laws ensuring equal workplace treatment include almost all of the Republican-leaning red states across the South, the Plains, and the Mountain West.

The sharp difference between Clinton and Bush over federal action makes clear that the recent Supreme Court ruling establishing a nationwide right to same-sex marriage is not likely to eliminate debate on issues relating to the rights of gay and transgender Americans in the 2016 general election. More broadly, it shows how Democrats, confident that they now command majority support, have taken the offense on most cultural differences between the parties.

Bush has generally sought to mute contrasts on questions relating to gay rights in the campaign's early stages. While Wisconsin Gov. Scott Walker reacted to the Supreme Court decision by calling for a constitutional amendment that would allow states to ban gay marriage, Bush said he would not support an effort to overturn the decision (although he criticized the Court for reaching it).

Speaking Thursday in San Francisco at Thumbtack, a firm that helps consumers find services, Bush said flatly: "I don't think you should be discriminated because of your sexual orientation. Period. Over and out," as Time magazine reported. But when pressed by an employee who identified himself as gay about whether he would support legislation barring such discrimination in employment and housing, Bush said: "I think this should be done state by state, I totally agree with that."

Asked if that response meant Bush opposed federal legislation to provide workplace protections for gays and transgender workers, a campaign spokesperson said, "Governor Bush's answer speaks for itself. He believes this issue should be left to states."

By contrast, Clinton, at a town-hall meeting in Dover, New Hampshire, pledged to revive the federal legislation ensuring workplace protection for gay and transgender workers if elected. When a questioner who identified herself as a high school student asked Clinton what she would "do about anti-discrimination laws in the workplace," Clinton responded: "You put your finger on what the next big challenge is, and that is discrimination. And when I was in the Senate, I supported the ENDA law to end discrimination against people based in—those days, we used to say in sexual orientation. And I think we do have to do more to make sure we end discrimination in the workplace in particular."

Clinton continued: "So I am committed to that. I will work for that. And as president, I will do everything I can to get that enacted into law."

The Senate passed the ENDA law in 2013 with support from all 52 Democrats who voted, independents Bernie Sanders of Vermont and Angus King of Maine, and 10 Republicans, including Kelly Ayotte of New Hampshire, Mark Kirk of Illinois, Rob Portman of Ohio, and Patrick Toomey of Pennsylvania—four incumbents in blue or swing states who are seeking reelection in 2016.