Articles Posted in ENDA

Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.

On July 21, 2014, President Obama signed an Executive Order amending Executive Order 11478 adding “gender identity” to the list of categories on the basis of which the government may not discriminate in its hiring and employment practices. The amendment now states that: “It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation, gender identity, or status as a parent and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency.”

In a second Executive Order, the President took an unprecedented further step in the same direction: he amended Executive Order 11246, which establishes rules for private companies that do contract work for the government exceeding $10,000.00 in a twelve-month period, as well as subcontractors of those complanies, to follow the same anti-discrimination policy. Each contractor will now be governed by the regulation stating: “During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.” Similar language is added in other sections of the Order, and contractors and subcontractors covered by it will now be required to include corresponding nondiscrimination clauses in subcontracts with their vendors and supplies of goods and/or services necessary to carry out their covered contracts, and to take affirmative action to ensure that individuals are employed and treated without regard to sexual orientation and gender identity. Notably, this Executive Order does not include exemptions for religious organizations.

As he signed the Order, the President said “It doesn’t make any sense, but today in America, millions of our federal citizens wake up and go to work with the awareness that they could lose their job, not because of what they do and fail to do, but simply because of who they are–lesiban, gay, bisexual, transgender–and that’s wrong. We’re here to do what we can to make it right, to bend that arc of justice just a little bit in the other direction.” Then, speaking to LGBT advocates in attendance, he continued: “Many of you have worked for a long time to see this day come. You organized, you spoke up, you signed petitions, you sent letters–I know because I got a lot of them…Thanks to your passion and advocacy and the irrefutable rightness of your cause, our government–the government of the people by the people and for the people–will become just a little bit fairer.”

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. 

As the law stands today, federal law does not forbid discrimination based on sexual orientation in the same way it forbids discrimination based on gender, pregnancy or race. That is why democratic leaders have proposed the Employment Non-Discrimination Act (“ENDA”) which failed to move during the 111th Congress.

The idea was then suggested that President Obama could issue an executive order barring federal contractors from engaging in anti-LGBT (Lesbian, Gay, Bi, Transexual) job discrimination. While President Obama said he supported ENDA, White House Press Secretary Jay Carney refused to say whether or not President Obama would issue an executive order on the matter.

This Friday, House Minority Leader and former Speaker Nancy Pelosi (D-CA) endorsed the idea of President Obama issuing this executive order. Others who have voiced support for this potential directive are Jared Polis (D-CO) as well as Tom Harkin (D-IA) and Jeff Merkley (D-OR). “It’s time the government stopped doing business with businesses that discriminate against LGBT Americans” said Richard Socarides, president of Equality Matters, a group advocating for gay rights.

On September 25, 2009, the House heard oral arguments in favor of the passing of the Employee Non Discrimination Act. The ENDA would be an important step in amending current employment law to include protection for LGBT employees throughout the country. The bill is aimed at ending discrimination against employees based on their sexual orientation or gender identity.

The arguments for passage included testimony from workers whose employment had been adversely affected by their sexual orientation or gender identity. One state worker in Georgia recalled being let go when she informed her supervisor that she was planning to have gender transition surgery.

This bill is extremely necessary in that currently there is a lapse in any protections for individuals. No federal law currently exists which would protect people from termination or harassment in the work place based on their sexual orientation and gender identity. Rather, individuals must rely on a patchwork of local and state laws to have their rights adequately represented.