U.S. Senate May Pass Legislation That Would Prohibit Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity


By: Bill Buechner
Democrats in Congress are making a strong push to pass the Employment Non-Discrimination Act (“ENDA”), which would prohibit employment discrimination on the basis of sexual orientation and gender identity.   ENDA was introduced in the Senate as S.815 on April 25, 2013.   Last week, the Senate Majority Leader, Harry Reid (D-Nev) announced that he would bring the legislation to the Senate floor this week.   ENDA passed its first procedural hurdle earlier this week, and it appears that ENDA supporters may have enough votes to defeat a Republican filibuster in the Senate.  ENDA’s prospects for passage in the Republican controlled House of Representatives, however, are uncertain.
Proponents have attempted to pass various versions of ENDA on several occasions in the past.  The last serious effort to pass ENDA took place in 2007.
ENDA would prohibit employment discrimination because of an individual’s “actual or perceived” sexual orientation or gender entity.  (Sec. 4(a)(1)).  ENDA also would prohibit employment discrimination based on the “actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated.” (Sec. 4(e)).  Sexual orientation is defined as “homosexuality, heterosexuality, or bisexuality.” (Sec. 3(a)(10)).
Gender identify is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”  (Sec. 3(a)(7)).   ENDA contains an exemption for religious organizations that are exempt from the religious discrimination provisions of Title VII. (Sec. 6).  ENDA also contains an anti-retaliation provision that is narrower than previous versions.  (Sec. 5).
With respect to the gender identity provisions, ENDA would permit employers to require employees to adhere to reasonable dress or grooming standards, but only if the employer “permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after time of employment, to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning.” (Sec. 8(a)).
Unlike previous versions of ENDA, the current version under consideration by the Senate would not require the construction of new or additional facilities. (Sec. 8(b)).   ENDA contains essentially the same enforcement mechanisms as Title VII.  An individual asserting a violation of ENDA would be entitled to the same remedies as a Title VII plaintiff (Sec. 10(a-b)), except that it would not permit recovery under the theory of disparate impact. (Sec. 4(g)).
The legislation provides that (like Title VII) a violation would be established if the employee demonstrates that sexual orientation or gender identity was “a motivating factor” in the employment decision at issue. (Sec. 4(h)).   The text of S. 815 can be viewed here.