After gaining a majority bipartisan vote of 15-7 in the Senate Committee on Health, Education, Labor and Pensions on July 10th, the Employment Nondiscrimination Act (“ENDA”) is expected to be debated on the Senate floor by this fall. The bill would ban employment discrimination on the basis of sexual orientation and gender identity.
If passed, the ENDA would extend fair employment practices to lesbian, gay, bisexual and transgender (LGBT) people. The bill explicitly forbids employers, labor unions and employment agencies from making employment decisions, such as hiring, firing, compensation or promotion, based on gender identity or sexual orientation. Furthermore, the Act prohibits employers from subjecting LGBT workers to different standards or treatment based on their perceived sexual orientation, and from retaliating against workers reporting such discriminatory practices.
The bill does not permit preferential treatment or quotas, and does not grant the right to file disparate impact suits. As a result, employers do not have the obligation to justify neutral employment practices, which have a disparate impact on LGBT workers. The bill would not apply to small businesses, the military or religious organizations.
The ENDA has been under debate since 1994, when it was first introduced in Congress to protect LGBT people in the workplace. It is modeled on current civil rights law including Title VII of the Civil Rights Act and the Americans with Disabilities Act. The bill was modified in 2007, when it was broadened to include gender identity protections. However, it has not gained the required support to become law, even when hundreds of companies have voluntarily enacted non-discrimination policies to protect their LGBT workers.
Currently, only 33 states have explicit protections making it illegal for employers to fire, harass, or deny promotions to LGBT people on the basis of their sexual orientation. Labor and civil rights activists have been rallying for support of the ENDA and lobbying senators in states like Arizona, Arkansas, Florida, Idaho, Indiana, Nevada, New Hampshire, New Jersey, Ohio, Pennsylvania and West Virginia. The ENDA campaign is led by various organizations such as the American Civil Liberties Union, American Federation of Teachers, American Unity Fund, Human Rights Campaign, Leadership Conference on Civil and Human Rights, National Center for Transgender Equality, National Gay and Lesbian Task Force and the Service Employees International Union.
Employment discrimination based on gender identity and sexual orientation undermines workplace equality and workers’ performance, and makes LGBT people more vulnerable to financial insecurity. Studies show that about 43 percent of LGBT people have experienced workplace discrimination, yet current federal legislation does not provide them with express protection to address these issues. Reports show that between 13 and 47 percent of transgender people have been denied employment based on their gender identity. Despite these statistics, only 33 states have adopted legislation prohibiting workplace discrimination based on gender identity, while 29 states completely lack legal protections for LGBT workers.
Also, LGBT workers are more likely to face a hostile employment environment than other workers because they are more vulnerable to harassment and mistreatment from supervisors and co-workers. LGBT elders particularly need the ENDA because they are often discriminated based on their sexual orientation and gender identity in addition to age discrimination. The ENDA would establish express protections for LGBT workers and allow them to claim legal remedies from employers engaging in such discriminatory practices.
If you believe that you are a victim of employment discrimination based on your gender identity or sexual discrimination, please contact The Harman Firm, LLP.