Senate Bill 815, referred to as the “Employment Non-Discrimination Act of 2013” (ENDA), passed the Senate on November 7, 2013. The bill had bipartisan support with 64 Senators (10 Republican) voting in favor and 32 opposing the bill. ENDA has now moved to the House where, in its current form, most observers believe that it is unlikely to pass. Will this be a repeat of the effort in 2007 when a similar bill (but without transgender protection) was defeated in the House, or will this be the next in a series of significant employment laws that have been enacted during the past 25 years?
ENDA, which applies to an “employer” with 15 or more employees, prohibits employment discrimination on the basis of sexual orientation or gender identity. It defines “sexual orientation” as “homosexuality, heterosexuality, or bisexuality;” and “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.” Significant to many potential employers is that it does not prohibit “reasonable dress or grooming standards,” which are not otherwise prohibited by federal, state or local law.
Aside from personal views and religious opposition to ENDA, the most controversial aspects of the bill are its protection of transgendered individuals, its exemption for religious organizations, and its failure to include a “bona fide occupational qualifications” exception. It provides for what is seen by many as a sweeping religious exemption for religiously affiliated organizations, far beyond just churches. ENDA appears to provide such religiously affiliated organizations with seemingly unfettered rights to engage in employment discrimination against lesbian, gay, bisexual and transgender individuals (also known as LGBT). By its own terms, ENDA does not apply to “a corporation, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of Title VII of the Civil Rights Act of 1964.”
Missing from ENDA is an exception for “bona fide occupational qualifications.” This exemption is a critical piece to many of the anti-discrimination laws and is a significant provision for many employers. It is critical because such an exception recognizes generally that protected characteristics (other than race) can from time to time be legitimate job qualifications. For instance, gender can be a legitimate job qualification for positions such as a restroom attendant or other positions that involve privacy concerns. Likewise, religion can be a legitimate qualification when it is important to hire individuals who share a particular religious faith. However, to require a private school with no religious affiliation to continue to employ a male teacher who decides mid-year to dress as a woman is the type of right that many lawmakers do not believe that employers must surrender. There are many examples of gray areas, but ENDA does not make any exceptions.
The future of ENDA is up in the air. This is despite a 2011 poll, which found that 73 percent of likely voters support protecting lesbian, gay, bisexual and transgender people from discrimination in employment, and a widely held belief that a majority of Americans in every U.S. congressional district support such laws. ENDA faces many challenges as it moves through the House. We will simply have to wait and see what happens.