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Sexual Orientation and Gender-Identity Protection from Workplace Discrimination Proposed in Congress

The Employment Non-Discrimination Act ("ENDA") may become a permanent fixture on the non-discrimination checklist for employers if its Congressional sponsors can persuade their colleagues and the President to enact it.  Eleven years after being defeated by one vote in the Senate, Congressmen Barney Frank (D-MA), Tammy Baldwin (D-WI), Deborah Pryce (R-OH), Christopher Shays (R-CT), Jerrold Nadler (D-NY), and  62 other Congressional co-sponsors reintroduced H.R. 2015.  As written, the proposed legislation includes protection from bias discrimination in the workplace on grounds of sexual orientation and gender identity and would provide federal court remedies for violations.  ENDA makes it unlawful for an employer:

1. to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or
2. to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

ENDA would prohibit discrimination against employees who identify as heterosexual, homosexual, and/or bisexual.  Further, it prohibits discrimination on the basis of "gender-related identity, appearance, or mannerisms or other gender-related characteristics."  Employers would be required to post the applicable provisions of ENDA for the benefit of current employees and applicants for employment.  At present, there is no prohibition on terminating employees for their sexual orientation in 33 states, and it is legal to do so based on gender identity or expression in 42.

To assist employers in negotiating this difficult area, ENDA provides direction on collateral issues associated with transgender employees, including facilities management and grooming standards.  The bill allows employers to place certain restrictions on shower/dressing facilities as well as to maintain gender-specific grooming standards.  It also includes parameters for handling employees who are in the process of gender transitioning.

ENDA would apply to employers with 15 or more employees.  Employees who believe they have been discriminated against because of their sexual orientation or gender identity will be able to file a complaint with the Equal Employment Opportunity Commission (EEOC).  Complaints will be handled in a manner similar to those filed under Title VII of the Civil Rights Act.  Accordingly, employees would be permitted to file suit against their employer for damages.  ENDA will not apply retroactively. 

ENDA would exempt most religious organizations, tax-exempt private membership clubs, employers hiring on the basis of veteran's preference, and the armed forces.  Moreover, ENDA declines to mandate quotas, and does not require employers to provide domestic partner benefits. 

Expected to pass the House with bipartisan support, there has been no indication how the bill will fair in the Senate, or whether the White House would approve the bill.  Should ENDA be enacted, employers may have to review their non-discrimination policies, comply with relevant posting requirements, as well as consider modifications to grooming standards and facilities access.