Two bills introduced in both chambers of Congress on Thursday would extend employment protections and leave benefits to members of the gay and lesbian community. The first bill, the Employment Non-Discrimination Act (ENDA) (H.R. 1755, S. 815), would prohibit employment discrimination on the basis of sexual orientation and gender identity, while the second measure, the Family and Medical Leave Inclusion Act (H.R. 1751, S. 846), would allow employees to take leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse or partner and additional family members.
The bipartisan ENDA was reintroduced in the House by Jared Polis (D-CO) and Ileana Ros-Lehtinen (R-FL) and cosponsored by 158 others. The Senate companion bill is sponsored by Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI). This bill would make it unlawful for an employer with 15 or more employees:
- to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or
- to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.
The bill defines “gender identity” 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.”
The bill would also prohibit employment agencies and labor organizations from discriminating against individuals on these bases, and ban retaliation against individuals who exercise their rights under this bill. The provisions would not apply to religious organizations or the armed forces, or require employers to establish hiring quotas or provide preferential treatment to employees based on their sexual orientation or gender identity.
An employer could still enforce dress or grooming standards, so long as employees who have undergone or are undergoing gender transition may follow the dress or grooming standards applicable to their intended gender.
Individuals aggrieved by the type of discrimination proscribed by this bill would be entitled to remedies afforded under Title VII of the Civil Rights Act, although only disparate treatment – and not disparate impact – claims would be recognized.
In a press release, Rep. Ros-Lehtinen said:
I am proud to join my colleagues in the House and Senate to re-introduce the Employment Non-Discrimination Act. . . It is inherently unfair that many skilled, qualified and motivated LGBT members of our communities too often experience rejections at job interviews, are denied promotions, or other forms of harassment in the workplace, simply because of their sexual orientation or gender identity. This is unacceptable. Federal law is currently failing these LGBT individuals and consequently, a majority of states still allow employers to discriminate based on sexual orientation and gender identity. The bill that we are proposing will end this unacceptable practice by prohibiting employment discrimination based on sexual orientation and gender identity. No American should have to fear harassment at work, or risk losing their livelihood because of who they are. That is why Congress needs to work to get this bill passed and set a national standard of equality for all in the workplace.
According to information provided by Sen. Merkley’s office, “more than 85 percent of Fortune 500 companies already extend workplace protections based on sexual orientation and more than one-third on the basis of gender identity.” In addition, over 90 companies have joined the Business Coalition for Workplace Fairness, a group of leading U.S. employers that support the Employment Non-Discrimination Act.
FMLA Inclusion Act
The Family and Medical Leave Inclusion Act was introduced in the House by Rep. Carolyn B. Maloney (D-NY), and in the Senate by Sen. Richard Durbin (D-IL). This measure would permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent who has a serious health condition. This legislation would not change the terms of the FMLA, but rather expand its coverage to the aforementioned additional family members.
In a press release, Sen. Durbin said: “Regardless of the make-up of one’s family, all employees should be given the same rights to care for a sick loved one in a time of need,” adding, “For 20 years, we have had a law that provides unpaid leave for families in crisis. As families change, so should the laws designed to help them.”