For the first time in 11 years, the Senate Committee on Health, Education, Labor and Pensions voted 15-7 in favor of a bipartisan bill that would prohibit employment discrimination on the basis of sexual orientation or gender identity. Introduced in the Senate by Jeff Merkley (D-OR) and Mark Kirk (R-IL), the Employment Non-Discrimination Act (ENDA) (S. 815) 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.”

As committee chairman Tom Harkin (D-IA) explained, the bill includes exemptions for small businesses and religious entities, and expressly prohibits disparate impact claims. Harkin noted that the HELP Committee first considered the bill in 2002, conducted hearings on the measure in 2009, and now, for the first time, has reported the legislation favorably to the full Senate.

According to Harkin, despite the nation’s progress on this civil rights issue, “under federal law, it is still entirely legal to discriminate based on sexual orientation or gender identity.” He mentioned that 17 states plus the District of Columbia have enacted laws to prohibit such employment discrimination, while another five states have enacted laws that prohibit employment discrimination based on sexual orientation alone. Harkin said that such policies are good for business and currently 434 of the Fortune 500 companies have implemented workplace policies prohibiting discrimination based on sexual orientation.

During the markup session, ranking member Lamar Alexander (R-TN) introduced three amendments to the bill, but did not call for an immediate vote on them. He said that he would work with the co-sponsors of the bill to incorporate these amendments into the final version of the bill that will be considered by the full Senate. One such amendment would address shared facilities. Alexander said that the bill “ought to provide more guidance” on this issue for employers. In addition, he said the Equal Employment Opportunity Commission (EEOC) needs to issue regulations regarding employees who are undergoing gender transition before employers can be found liable for discrimination against them. Alexander’s final amendment would eliminate a provision he says allows discrimination cases to proceed even if the employer has a legitimate reason for taking the adverse action(s) at issue.

After the bill was ordered favorably out of committee, Harkin said that he hopes to bring the bill to the Senate floor for debate this fall.

Meanwhile, a companion bill (H.R. 1755) introduced by Rep. Jared Polis (D-CO) and cosponsored by 177 others is still pending in the House of Representatives.