The Senate Health, Education, Labor and Pensions (“HELP”) Committee has approved a bill that would prohibit employers from discriminating against employees on the basis of sexual orientation or gender identity. The July 10th, 15-7 vote on the Employment Non-Discrimination Act (“ENDA”) (S. 815), introduced on April 25, 2013, may be an indication of how the measure will fare in the full Senate. Senate Majority Leader Harry Reid has said he expects the Senate to take up S. 815 later this year. 

Prior efforts to pass ENDA have failed; however, in light of the June 26 U.S. Supreme Court’s same-sex marriage decisions in United States v. Windsor and Hollingsworth, et al. v. Perry, proponents may feel the time is ripe for ENDA. (See our article, U.S. Supreme Court Rules Legally-Married Same-Sex Spouses Entitled to Federal Recognition and Lifts California Ban on Same-Sex Marriages.)

After S. 815 passed, Committee Chairman Senator Tom Harkin said, “I think society is there and the things that have happened in the Supreme Court show we’re ready to move on in a way we haven’t moved on in the past.” According to the annual Out & Equal Workplace Survey on Workplace Culture conducted by Harris Interactive, “74% of voters believe that employees should be judged on their work, not their sexual orientation or gender identity.”

ENDA would amend Title VII of the Civil Rights Act to prohibit “covered entities” and employers with at least 15 employees from discriminating against employees on the basis of sexual orientation or gender identity. “Covered entities” means an employer, employment agency, labor organization or joint labor-management committee. Corporations, associations, educational institutions or societies exempt from the religious discrimination provisions of Title VII are exempt from ENDA.

Unlawful employment practices include:

  • Failing or refusing to hire or discharging or otherwise discriminating against an individual with respect to the compensation, terms, conditions or privileges of employment because of the individual’s actual or perceived sexual orientation or gender identity.
  • Limiting, segregating or classifying employees or applicants in any way that would deprive or tend to deprive an individual of employment or otherwise adversely affecting the status of the individual as an employee because of the individual’s actual or perceived sexual orientation or gender identity.
  • Retaliating against an individual for opposing an unlawful employment practice, making a charge, testifying, assisting or participating in an investigation, proceeding or hearing under ENDA.

Senator Lamar Alexander, the HELP Committee’s top Republican, said he expects amendments to S. 815 to be proposed before the bill comes to a full Senate vote. One amendment will would require the U.S. Equal Employment Opportunity Commission to define when a person is “in transition” to change their gender identity. The EEOC decided for the first time in Macy v. Holder that transgender discrimination is discrimination “based on … sex” and violates Title VII. (For details, see our article, Title VII Prohibits Discrimination against Transgender Workers, EEOC Decides.)

A bill identical to S. 815 was introduced in the House of Representatives. H.R.1755 is still in committee.

Even as Congress works on prohibiting employers from discriminating against employees on the basis of sexual orientation or gender identity, legislation has been enacted in states (such as Delaware) and municipalities (such as Philadelphia) across the country.