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Employment Non-Discrimination Act


The Problem

imagesQualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against just because they are lesbian, gay, bisexual or transgender (LGBT).   There is no federal law that consistently protects LGBT individuals from employment discrimination; there are no states laws in 29 states that prohibit discrimination based on sexual orientation, and in 34 states that do so based on gender identity.  As a result, LGBT people face serious discrimination in employment, including being fired, being denied a promotion and experiencing harassment on the job.

What is the Employment Non-Discrimination Act?

The Employment Non-Discrimination Act (ENDA) would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity.  ENDA simply affords to all Americans basic employment protection from discrimination based on irrational prejudice.  The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.  The bill explicitly prohibits preferential treatment and quotas and does not permit disparate impact suits.  In addition, it exempts small businesses, religious organizations and the military.

What ENDA Does

  • Extends federal employment discrimination protections currently provided based on race, religion, gender, national origin, age and disability to sexual orientation and gender identity. Thus, ENDA extends fair employment practices — not special rights — to gay, lesbian, bisexual and transgender people.
  • Prohibits employers, employment agencies, and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion, or compensation.
  • Prohibits covered entities from subjecting an individual to different standards or treatment based on that individual’s actual or perceived sexual orientation or gender identity or discriminating against an individual based on the sexual orientation or gender identity of those with whom the individual associates.
  • Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
  • Applies to Congress and the federal government, as well as employees of state and local governments.

What ENDA Does Not Do

  • Cover small businesses with fewer than 15 employees.
  • Apply to religious organizations.  Any religious entity exempt from Title VII’s prohibition on religious discrimination will continue to be able to exclude gay, lesbian, bisexual and transgender employees.
  • Allow preferential treatment, including quotas, based on sexual orientation or gender identity.
  • Allow for a “disparate impact” claim available under Title VII of the Civil Rights Act of 1964. Therefore, an employer is not required to justify a neutral practice that may have a statistically disparate impact on sexual orientation or gender identity.
  • Allow the Equal Employment Opportunity Commission (EEOC) to compel employers to collect statistics on sexual orientation or gender identity.
  • Apply retroactively.

States’ Experience and Corporate Support

Twenty-one states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 16 states and D.C. also prohibit discrimination based on gender identity.  Although these laws provide important protections, according to a 2002 General Accounting Office (GAO) report, relatively few complaints of discrimination based on sexual orientation have been filed in these states.

Hundreds of companies have enacted policies protecting their lesbian, gay, bisexual and transgender employees.  As of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 282 (57 percent) had policies that include gender identity.

What is the Current Status of the Bill?

ENDA was introduced in the 113th Congress in the House by Reps. Jared Polis (D-CO) and Ileana Ros-Lehtinen (R-FL) and in the Senate by Sen. Mark Kirk (R-IL) and Sen. Jeff Merkley (D-OR) as well as Sens. Tammy Baldwin (D-WI), Susan Collins (R-ME) and Tom Harkin (D-IA) on April 25, 2013.

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