Title VII of the Civil Rights Act of 1964 is the primary federal law that prohibits discrimination in the workplace. Title VII bans discrimination based on race, color, national origin, sex, and religion; other federal laws prohibit discrimination based on disability, age, citizenship status, and genetic information. However, no federal law currently prohibits discrimination in private employment based on sexual orientation. (Employees of the federal government are protected from this type of discrimination by an executive order.)
The Employment Nondiscrimination Act (ENDA) would change all that by outlawing discrimination based on sexual orientation or gender identity. Although ENDA has been introduced in nearly every Congressional session for the last couple of decades, it hasn't yet passed. However, support for outlawing discrimination against gay, lesbian, bisexual, and transgender employees has been steadily growing. And, as evidenced by the Supreme Court’s recent decisions on same-sex marriage, the legal landscape is changing as well.
This article explains how the current iteration of ENDA would work.
Whom ENDA Would Cover
ENDA would be an amendment to Title VII, so it would apply to the same employers and employees that law covers. In other words, ENDA would cover federal, state, and local government employers, and private employers with at least 15 employees. All employees working for a covered employer would be protected.
What ENDA Would Prohibit
ENDA would amend Title VII to add sexual orientation and gender identity to the list of protected characteristics that employers may not rely on in making employment decisions, such as race and national origin. ENDA would prohibit discrimination based on sexual orientation or gender identity in every part of the employment relationship, from hiring to benefits, compensation, discipline, and firing. It would protect employees from discrimination based on their actual or perceived sexual orientation, whether homosexual, heterosexual, or bisexual.
ENDA would also prohibit discrimination based on gender identity, defined as a person's gender-related appearance, mannerisms, characteristics, or identity, without regard to their designated sex at birth. This provision would protect employees who are going or have gone through gender transition or reassignment. It would also protect employees whose behavior doesn't conform to stereotypes about gender.
ENDA creates exceptions and exemptions that do not apply to the rest of Title VII. They include:
- Religious organizations would not have to comply with ENDA
- The military would not have to comply with ENDA, and ENDA would have no affect on current laws regarding veteran preferences in employment.
- ENDA will not prohibit employers from enforcing reasonable dress code and grooming rules, as long as employees who have already undergone gender transition, or are transitioning while employed, are allowed to conform to the standards of the gender to which the employee is transitioning.
- ENDA will not require employers to create new or additional facilities (such as changing rooms and rest rooms).
- Disparate impact claims won't be allowed under ENDA. In a disparate impact claim, employees contend that an employer's facially neutral policy or practice had the effect of disproportionately screening out a particular group.
How ENDA Would Be Enforced
As part of Title VII, ENDA would be enforced by the Equal Employment Opportunity Commission (EEOC). Employees would have to file a charge of discrimination with the EEOC and get a right to sue letter as a prerequisite to filing a lawsuit against their employer. Attorney fees would be available to employees who prevail, as would the compensatory damages generally available under Title VII.
Of course, what ENDA will look like if and when it finally passes Congress and is signed by the President is anyone’s guess. Different versions of the law have been promulgated at different times. For example, the inclusion of gender identity in the law is a very recent (and contentious) development.
If you believe you have been discriminated against based on your sexual orientation or gender identity, you should speak to an experienced local employment lawyer. If ENDA remains a hoped-for possibility, you might find protection in state or local laws banning discrimination. An experienced lawyer can help you figure out whether you have legal protections available – and, if so, how to enforce them.