Why it matters: Although the chances of ENDA becoming law are slim, the Senate’s passage of the bill is notable. Similar legislation extending workplace protections under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act to LGBT employees has been introduced in every congressional session since 1994 (with one exception). The Senate’s efforts also reflect a growing recognition of legal rights for LGBT individuals. Seventeen states and the District of Columbia already have laws prohibiting discrimination based on sexual orientation and gender identity. If ENDA does become law – President Obama has publicly expressed his support for the legislation – employers will need to update their policies and training accordingly.

Detailed Discussion

By a vote of 64 to 32, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) last week with bipartisan support.

ENDA would prohibit discrimination by employers with 15 or more employees based on sexual orientation or gender identity, preventing adverse employment actions against employees who are – or are perceived to be – gay, lesbian, bisexual, or transgender.

Senate Bill 815 would also outlaw retaliation for such employees who engage in protected activity related to LGBT status or gender identity, which is defined as “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.”

ENDA contains exceptions for religious organizations and any other corporation, association, society, or educational institution or institution of learning that is exempt from the religious discrimination provisions of Title VII. If enacted, the bill would not require employers to add new facilities such as restrooms or locker rooms.

Employers would not be restricted from establishing reasonable dress policies or grooming requirements, but transgender employees must be allowed to follow the standards for the gender to which he or she is currently transitioning or has transitioned into.

Earlier versions of the bill permitted LGBT employees to make disparate impact claims (i.e., claims where no actual discriminatory intent would be needed; rather, even neutral policies could be attacked if their impact weighed more heavily on a protected individual). But that provision was removed in the version passed by the Senate and sent to the House of Representatives. Instead, claims under ENDA are explicitly limited to disparate treatment claims, and plaintiffs are limited to a single recovery, with damages available under either ENDA or Title VII but not both.

The bill now moves to the Republican-controlled House, where it faces an uphill road to passage. Speaker of the House John Boehner (R-Ohio) has publicly opposed the legislation, and some have predicted the law won’t even come up for a vote.