Employment Non-Discrimination Act (ENDA)
Also known as S. 1584/H.R. 3017, the Employment Non-Discrimination Act bill is awaiting final legislative vote in the House and Senate in order to become official Federal law.
Why is this legislation needed?
Qualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against because they are, or are believed to be, lesbian, gay, bisexual or transgender (LGBT). Currently, there is no federal law that consistently protects LGBT individuals from employment discrimination; it remains legal in 29 states to discriminate based on sexual orientation, and in 38 states to do so based on gender identity or expression. As a result, LGBT people face serious discrimination in employment, including being fired, being denied a promotion and experiencing harassment on the job.
What is the Employment Non-Discrimination Act?
The Employment Non-Discrimination Act (ENDA) would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity. Although it specifically excludes certain segments of the business arena, it is an important beginning in the effort to provide fair employment rights to all working Americans.
ENDA affords to all Americans basic employment protection from discrimination based on prejudice. The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. The bill explicitly prohibits preferential treatment and quotas and does not permit disparate impact suits. In addition, it exempts small businesses, religious organizations and the military, and does not require that domestic partner benefits be provided to the same-sex partners of employees.
What ENDA Does:
- Extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age and disability to sexual orientation and gender identity
- Prohibits public and private employers, employment agencies and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation
- Provides for the same procedures, and similar, but somewhat more limited, remedies which are allowed under Title VII and the Americans with Disabilities Act
- Applies to Congress and the federal government, as well as employees of state and local governments
What ENDA Does Not Do:
- Cover businesses with fewer than 15 employees
- Apply to religious organizations
- Apply to the uniformed members of the armed forces (the bill does not affect the “Don’t Ask, Don’t Tell” policy)
- Allow for quotas or preferential treatment based on sexual orientation or gender identity
- Allow a “disparate impact” claim similar to the one available under Title VII of the Civil Rights Act of 1964. Therefore, an employer is not required to justify a neutral practice that may have a statistically disparate impact on individuals because of their sexual orientation or gender identity
- Allow the imposition of affirmative action for a violation of ENDA
- Allow the Equal Employment Opportunity Commission to collect statistics on sexual orientation or gender identity or compel employers to collect such statistics.
- Apply retroactively
What is the Current Status of the Bill?
ENDA has been introduced to the 111th Congress in the House and to the Senate in 2009. This bill has had preliminary hearings in the House, Education and Labor Committee and in the Senate Committee on Health, Education, Labor and Pensions, but is not yet voted into law as of September 2010. Due to the full docket already in place for Congress through the remainder of this year, the bill is not expected to receive additional review until sometime in 2011.
State and Corporate Support
Twenty-one states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 12 states and D.C. also prohibit discrimination based on gender identity. Unfortunately, these states have had few complaints of this type of discrimination and the protection is needed more critically in those states which have not yet considered such laws.
In contrast, hundreds of companies have enacted policies protecting their lesbian, gay, bisexual and transgender employees. As of September 2009, 434 (87%) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 207 (41%) had policies that include gender identity. Individual cities are also taking a proactive stance and instituting laws that provide protection from employment discrimination for LGBT employees. Fort Worth, Texas, is an example of this (see separate article, Fort Worth Transgender Law).
If you are experiencing this kind of bias, tell us your story.
If you want to be prepared in advance for ENDA and are looking to establish a workplace culture of open communication, fairness and equity for all employees, The Galatas Group can help you. We are experts at workplace diversity, employee relations and team building and have a successful track record of partnering with Fortune 50 companies and with small businesses in a wide variety of industries. Contact us at 972-821-7971, by email at info@thegalatasgroup.com or by visiting our website for additional employee relations assistance.
Proposed Law Will Protect Gender Identity, by Donna Galatas
