On Wednesday, July 10, the U.S. Senate took the first step toward passing a bill containing the first federal workplace protections for sexual orientation and gender identity. The Senate Committee on Health, Education, Labor and Pensions (HELP) approved the Employer Non-Discrimination Act (ENDA, S.815) for the first time since 2002, sending it to the Senate floor for further consideration. As approved, the bill prohibits employment discrimination on the basis of actual or perceived sexual orientation or gender identity.
In brief, here is what HR needs to know about the bill:
- If enacted, ENDA would apply to all employers, employer agencies and labor unions with 15 or more employees. Religious organizations, the military, any unpaid volunteers, and several protected federal employer classes would not be covered by the bill.
- ENDA would make it illegal for employers to refuse to hire, fire, or discriminate against an individual in his or her compensation, terms, conditions, or privileges of employment because of such individual’s actual or perceived sexual orientation or gender identity.
- ENDA has no requirement to affirmatively hire or have within the company a specific percentage of LGBT employees. There is also no requirement that employers grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity based on their sexual orientation or gender identity.
- S. 815 does not allow disparate impact claims; only disparate treatment claims may be brought under ENDA if it becomes law.
While the bill includes protections for transgender employees, it preserves employer rights to enforce a workplace dress code for the employee’s chosen identity and during a transition. Employers would not need to create new facilities for transgender employees.
In considering ENDA, the federal government may join the 16 states and the District of Columbia, which have enacted laws outlawing workplace discrimination based on sexual orientation and gender identity. Another five states have sexual orientation nondiscrimination laws.
ENDA may be considered by the full Senate this fall.