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Employment Non-Discrimination Act Reintroduced In Senate

The world is changing  and in hopes of riding the wave of change when it comes to employment rights, a group of senators introduced ed legislation that would band job discrimination based on sexual orientation. The Employment Non-Discrimination Act (ENDA) has been introduced several times without being passed, but because of  gay rights getting a lot more attention, and several states allowing gay marriage, many senators think the bill has about as good a shot as ever in the Senate.

ENDA would bar companies from factoring sexual orientation or gender identity into employment decisions. Employers are already prohibited by federal law from discriminating over race, religion, age, gender or disability. The proposal exempts businesses with fewer than 15 employees as well as religious organizations.

The ENDA bill is sponsored by Democratic  Senators Jeff Merkley (D-Ore.), Tom Harkin (Iowa) and Tammy Baldwin (Wis.), as well as Mark Kirk (R-Ill) and fellow Republican Susan Collins (Maine). A companion bill has been introduced in the House by Reps. Jared Polis (D-Colo.) and Ileana Ros-Lehtinen (R-Fla.).

According to the Human Rights Campaign, 21 states and the District of Columbia already have ENDA-style laws on their books for sexual orientation, while 16 states and D.C. include such laws for gender identity. Many companies have already put such policies in place voluntarily.

Below is a breakdown of ENDA:

H.R. 1755; S. 815

The Problem

Qualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against just because they are lesbian, gay, bisexual or transgender (LGBT).  There is no federal law that consistently protects LGBT individuals from employment discrimination; there are no states laws in 29 states that prohibit discrimination based on sexual orientation, and in 34 states that do so based on gender identity.  As a result, LGBT people face serious discrimination in employment, including being fired, being denied a promotion and experiencing harassment on the job.

What is the Employment Non-Discrimination Act?

The Employment Non-Discrimination Act (ENDA) would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity.  ENDA simply affords to all Americans basic employment protection from discrimination based on irrational prejudice.  The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.  The bill explicitly prohibits preferential treatment and quotas and does not permit disparate impact suits.  In addition, it exempts small businesses, religious organizations and the military.

What ENDA Does

  • Extends federal employment discrimination protections currently provided based on race, religion, gender, national origin, age and disability to sexual orientation and gender identity. Thus, ENDA extends fair employment practices — not special rights — to gay, lesbian, bisexual and transgender people.
  • Prohibits employers, employment agencies, and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion, or compensation.
  • Prohibits covered entities from subjecting an individual to different standards or treatment based on that individual’s actual or perceived sexual orientation or gender identity or discriminating against an individual based on the sexual orientation or gender identity of those with whom the individual associates.
  • Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
  • Applies to Congress and the federal government, as well as employees of state and local governments.

What ENDA Does Not Do

  • Cover small businesses with fewer than 15 employees.
  • Apply to religious organizations.  Any religious entity exempt from Title VII’s prohibition on religious discrimination will continue to be able to exclude gay, lesbian, bisexual and transgender employees.
  • Allow preferential treatment, including quotas, based on sexual orientation or gender identity.
  • Allow for a “disparate impact” claim available under Title VII of the Civil Rights Act of 1964. Therefore, an employer is not required to justify a neutral practice that may have a statistically disparate impact on sexual orientation or gender identity.
  • Allow the Equal Employment Opportunity Commission (EEOC) to compel employers to collect statistics on sexual orientation or gender identity.
  • Apply retroactively.

States’ Experience and Corporate Support

Twenty-one states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 16 states and D.C. also prohibit discrimination based on gender identity.  Although these laws provide important protections, according to a 2002 General Accounting Office (GAO) report, relatively few complaints of discrimination based on sexual orientation have been filed in these states.

Hundreds of companies have enacted policies protecting their lesbian, gay, bisexual and transgender employees.  As of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 282 (57 percent) had policies that include gender identity.

What is the Current Status of the Bill?

ENDA was introduced in the 113th Congress in the House by Reps. Jared Polis (D-CO) and Ileana Ros-Lehtinen (R-FL) and in the Senate by Sen. Mark Kirk (R-IL) and Sen. Jeff Merkley (D-OR) as well as Sens. Tammy Baldwin (D-WI), Susan Collins (R-ME) and Tom Harkin (D-IA) on April 25, 2013.

 

For more information about ENDA please visit: http://www.hrc.org/campaigns/employment-non-discrimination-act

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  • Why should small businesses and religious organizations be free to discriminate, if other businesses can’t? That doesn’t make any sense–either it’s wrong for to discriminate or it isn’t.

    This seems like a waste of time; an attempt to legislate morality. How well has making it illegal to discriminate against black people in employment worked? [hint: not well at all.]

    • Emme

      You might be surprised at how well these types of laws do work. While these laws (and probably all other prohibitions) certainly don’t eradicate all bad behavior, the lawsuits that result from bad behavior is hugely problematic for all businesses. Especially the bigger companies who have much more to lose.

      BTW, I’m not positive, but I’m pretty sure this legislation doesn’t cover small businesses because the federal government is limited to general interpretations of the Commerce Clause and the 1st Amendment of the US Constitution. In general, the feds can regulate inter-state commerce, but the argument is that smaller businesses aren’t really participants in inter-state commerce. In that case, fed law is pre-empted by state law. Also, there is much argument that regulations like this for religious institutions violates the free exercise clause of the constitution.

  • By u

    Slippery slope, not a good idea.