The Senate Passed the Employment Non-Discrimination Act of 2013

On November 7, 2013, the Senate passed The Employment Non-Discrimination Act of 2013 to prohibit employment discrimination on the basis of sexual orientation or gender identity. Mr. Merkley (for himself, Mr. Kirk, Mr. Harkin, and Ms. Collins) introduced the bill on April 13, 2011. The bill was sent to the House of Representatives. The new law would add gays and lesbians to the list of protected groups covered by the Equal Employment Opportunity Commission (EEOC) and would apply to employers with a minimum of fifteen employees. The Act gives the EEOC, the Librarian of Congress (LOC), the Attorney General (DOJ), and U.S. courts the same enforcement powers as they have under specified provisions of the Civil Rights Act of 1964, the Government Employee Rights Act of 1991, and other specified laws. Besides, it allows actions and proceedings, subject to exception, against the United States and the states.

The bill encompasses employment discrimination on the basis of actual or perceived sexual orientation or gender identity by covered entities (employers, employment agencies, labour organizations, training programs, or joint labour-management committees). However, the Act is neither applicable to religious organizations, nor to the relationship between the United States and members of the Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard). It should be noted that only disparate treatment claims might be brought under this Act.

In its Section 2, the Act set out three purposes:

“(1) to address the history and widespread pattern of discrimination on the basis of sexual orientation or gender identity by private sector employers and local, State, and Federal government employers;
(2) to provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity, including meaningful and effective remedies for any such discrimination; and
(3) to invoke congressional powers, including the powers to enforce the 14th Amendment to the Constitution, and to regulate interstate commerce and provide for the general welfare pursuant to section 8 of article I of the Constitution, in order to prohibit employment discrimination on the basis of sexual orientation or gender identity.”

Nevertheless the Act should not be construed broadly and contains provisions limiting how it should be construed: the act does not prohibit an employer from requiring an employee to adhere to reasonable dress or grooming standards, and does not require the employer to build new or additional facilities (such as showers or dressing facilities).

The bill prohibits preferential treatment or quotas and prohibits the EEOC from compelling collection or requiring production of statistics from covered entities on actual or perceived sexual orientation or gender identity.

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.