On July 10, 2013, the Senate’s Health, Education, Labor and Pensions Committee passed bill S.815, titled the Employment Non-Discrimination Act of 2013 (“ENDA”), setting the stage for consideration by the full Senate later this year.
ENDA would prohibit covered employers from discriminating against employees or job applicants on the basis of such individual’s actual or perceived sexual orientation or gender identity. The bill also covers employment agencies and labor organizations but excludes religious institutions and the Armed Forces. ENDA would not permit preferential treatment based on actual or perceived sexual orientation, nor would it allow employers to create quotas. The bill would allow for disparate treatment but not disparate impact claims.
ENDA was introduced in April 2013 by Sen. Jeff Merkley (D-Ore), although a similar bill was introduced to the Senate several times in the past, dating back to 2001. Senate Democrats are hopeful that the full Senate will have an opportunity to vote on the bill this coming Fall.
If passed into law, ENDA would significantly enhance federal protections for LGBT individuals. Although Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex, it does not explicitly include sexual orientation as a protected category. Employers should take note, however, that many state anti-discrimination laws, including the laws in Connecticut, New Jersey, and New York, already protect employees from discrimination on the basis of sexual orientation or gender identity.