Just weeks after the U.S. Supreme Court held that the Defense of Marriage Act (DOMA) was unconstitutional, Senate Committee on Health, Education, Labor and Pensions (HELP) will consider a bill that would prohibit employment discrimination based on sexual orientation and gender identity. The Employment Non-Discrimination Act (ENDA) of 2013 (S. 815) was reintroduced in April of this year.

As previously discussed, ENDA would make it unlawful for an employer with 15 or more employees:

  1. 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
  2. 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 would still be permitted to enforce dress or grooming standards, as 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.

A House companion bill (H.R. 1715) was introduced the same day.

The markup session is scheduled for next Wednesday, July 10, 2013 at 10:00 a.m. EST.