On November 7, 2013, by a vote of 64-32, the Senate voted to pass the Employment Non-Discrimination Act (ENDA) for the first time since the legislation was introduced nearly twenty (20) years ago. The House of Representatives has yet to vote on the bill and Speaker John Boehner has voiced his opposition to the Bill, but there is significant bipartisan pressure to bring the bill to a vote on the House floor. ENDA, if enacted, will provide protection against workplace discrimination based on sexual orientation or gender identity. Currently, individuals who identify themselves as lesbian, gay, bisexual or transgender (LGBT) are not covered under the presently existing civil rights laws, including Title VII of the Civil Rights Acts of 1964, Americans with Disabilities Act (ADA), or Age Discrimination in Employment Act (ADEA).
ENDA will expand the rights already granted in the present civil rights acts which provide protection against workplace discrimination based on race, national origin, sex, religion, age and disability to include sexual orientation and gender identification. Thus, employers will not be prohibited from using LGBT status as a factor in hiring, firing, promotion, or compensation considerations. As provided under the other civil rights Acts, the same standards and objective criteria used for any other candidate or employee must be used as applied to those that would fall under the purview of ENDA.
However, ENDA is less encompassing than the other current civil rights acts and will have additional exceptions. It includes explicit bans on preferential treatment and quotas favoring LGBT employees while also prohibiting disparate impact suits that are possible under other civil rights acts. The Act also exempts small businesses, religious organizations and the military. It also disallows the Equal Employment Opportunity Commission (EEOC) to compel employer statistic compilation in regards to membership in an ENDA protected category. ENDA will be enforced by the Department of Justice at state and local government levels and the EEOC in the private sector for companies with 15 or more employees.
ENDA simply reinforces the need for consistent, non-discriminatory practices in workplace polices and hiring and firing decisions. The bill reflects already prevalent best practices as 88% of Fortune 500 businesses have already implemented policies that prohibit discrimination based on sexual orientation or gender identification. Although the Act has not yet been enacted, it is highly likely. As such, all employers, if they have not already done so, should implement and properly train decision makers to ensure the Act and its requirements are complied with to ensure against costly litigation exposure.
One specific issue that has arisen in the context of LGBT stereotypes and potential discrimination is the issue of dress-code enforcement. ENDA helps clarify that employers can require their employees, LGBT or not, to wear any certain type of dress not specifically outlawed by state or federal law. The same gender dress code requirements should be required of an employee as to the gender he/she is transitioning or has transitioned to. As always, such dress code requirements should be enforced universally. Additionally, “bathroom fear” claims have proven to be almost universally unsuccessful and employers should be likewise weary of them as a potential indicator of discrimination that ENDA prohibits.
If you have any questions about the Employment Non-Discrimination Act(ENDA, contact your Hoeppner Wagner & Evans LLP relationship attorney.