Employment Non-Discrimination Act

By Nancy L. Gunzenhauser

With the Supreme Court’s influential decision in June, declaring the Defense of Marriage Act unconstitutional, the tides are moving in favor of federal legislation on gay, lesbian, and transgender workplace rights.  On November 7, 2013, the Senate passed the Employment Non-Discrimination Act (“ENDA”), prohibiting employment discrimination on the basis of both sexual orientation and gender identity.

ENDA has quite the history in Congress; it has been introduced in every legislative session since 1994, except for one year.  Throughout the bill’s history, it has also undergone changes in the protections guaranteed.  The first ENDA bill, introduced by a bipartisan group in the House on June 23, 1994, prohibited discrimination on the basis of sexual orientation of the employee or an associate of the employee.  The bill did not provide for a disparate impact claim. This version had a broad religious exemption.  In 2007, the House’s version of ENDA included gender identity as a protected category for the first time.  By the following Congressional session, both houses’ versions of ENDA included gender identity as a protected category.  Prior to this Senate’s passage of ENDA, neither house of Congress has ever passed any form of an ENDA bill.  The Senate came close to passing the bill in 1996 with a 49-50 vote.

Several senators, on both sides, disagreed with ENDA’s religious exemption.  Two amendments were brought by Senators prior to the vote.  The first, introduced by Rob Portman (R-Ohio), sought protection against retaliation of religious employers who receive funding through government contracts; this amendment passed.  A second amendment, introduced by Pat Toomey (R-Pa.), sought a broader religious exemption to secular companies who are affiliated with religious associations or societies; this amendment did not pass.

Notwithstanding the procedural hurdle of passing in the Senate, ENDA faces a large challenge in the 113th Congressional House of Representatives.  Leaders of the Republican-controlled House have indicated opposition to ENDA; although there may be greater pressure than before to at least consider the bill. It is likely that this bill may be lost in the south wing of the Capitol.

ENDA proposes new federal law; however, twenty-one states (and the District of Columbia) already have laws prohibiting discrimination in employment on the basis of sexual orientation and/or gender identity.  Many cities or municipalities also have workplace protections for LGBT employees.  According to the Human Rights Campaign, 88% of Fortune 500 companies already have policies prohibiting discrimination based on sexual orientation.