On the heels of the Supreme Court’s invalidation of the Defense of Marriage Act, the Senate Committee on Health, Education, Labor and Pensions approved the Employment Non‐Discrimination Act (the ENDA) by a 15—7 vote on July 10th, 2013. Under the terms of the bill, employers would be prohibited from firing, refusing to hire, or otherwise discriminating against employees on the basis of their actual or perceived sexual orientation or gender identity. The Committee’s approval of the proposed legislation is a significant stride forward for the LGBT community as gender identity and sexual orientation are not protected categories under federal anti‐discrimination laws such as Title VII of the Civil Rights Act of 1964. And, to date, only 23 states and the District of Columbia prohibit discrimination based on both sexual orientation and gender identity. It is anticipated that the bill will be considered by the full Senate sometime this fall.
The ENDA 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,” while the term “sexual orientation” includes homosexuality, heterosexuality and bisexuality. If passed, the ENDA’s protections would extend to all federal, state, and local government agencies; to employment agencies; to labor organizations; and to private employers with 15 or more employees. The bill would not, however, apply to religious organizations or the armed forces. Nor would the ENDA require employers to establish hiring quotas or provide preferential treatment to employees on the basis of their sexual orientation or gender identity. Finally, while the ENDA would make actionable claims alleging disparate treatment based on sexual orientation or gender identity, it would not recognize such claims alleging disparate impact.
The White House has issued a statement commending the Committee’s approval of the bill, and urging the House to prompt action. “The President has long supported an inclusive ENDA, which would enshrine into law strong, lasting and comprehensive protections against employment discrimination on the basis of sexual orientation or gender identity. We look forward to the full Senate’s consideration of ENDA, and continue to urge the House to move forward on this bill that upholds America’s core values of fairness and equality.”
Although the Senate Committee’s approval of the bill requires no immediate action on the part of employers, should the bill survive the full Senate debate and receive House approval, private employers will need to revisit their anti‐discrimination policies to ensure that they prohibit discrimination against employees based on their actual or perceived gender identity or sexual orientation. GT will continue to monitor the bill and provide updates on its progress.