On November 7, 2013, the United States Senate passed The Employment Non-Discrimination Act (“ENDA”) by a vote of 64-32. ENDA would amend the Civil Rights Act of 1964 to prohibit discrimination in hiring and employment based on sexual orientation or gender identity. This was the first time such legislation has passed the Senate.
As passed, the bill would prohibit employers from treating applicants or employees differently based on the individual’s actual or perceived sexual orientation or gender identity (or the gender identity or sexual orientation of those with whom the individual associates). As with charges of discrimination currently filed under Title VII, the Equal Employment Opportunity Commission (“EEOC”) would investigate charges of discrimination made under ENDA.
As passed by the Senate, ENDA applies to public and private employers and labor unions with at least 15 employees. As written, ENDA would only apply prospectively, not retroactively. In passing its version of ENDA, the Senate included a religious exemption that would specifically apply to religious institutions and entities.
At the moment, twenty-one states and the District of Columbia, along with a number of cities and municipalities, have laws that prohibit discrimination based on sexual orientation or gender identity. Additionally, many employers have voluntarily chosen to include protections for their employees against discrimination based on sexual orientation and gender identity within their own internal employment policies and procedures.
What is clear is that with the Supreme Court’s striking down a section of the Defense of Marriage Act, followed by actions by federal agencies implementing that decision, the landscape at both the federal and state level is evolving rapidly to create a workplace environment where discrimination based on sexual orientation or gender identity will be increasingly difficult to defend.
While expectations are that, with a Republican controlled House of Representatives, ENDA’s ultimate passage will not occur within the current Congress, prudent employers should take note of the rapidly evolving landscape in this area. Employers, particularly those with employees across a number of states should pay careful attention to the changes that are occurring in this area and revise their handbooks and policies to ensure that they are compliant with state and federal law. Additionally, these changes in the law in this area, at both the state and federal levels should be incorporated into all training provided for managers in the workplace.