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ENDA – The Employment Non-Discrimination Act

by Professor Will Huhn on November 13, 2009

in Civil Rights,Wilson Huhn

     In yesterday's post I described how there appears to broad support in favor of enacting ENDA – the law that will prohibit employment discrimination on the basis of sexual orientation and gender identity.  In this post I sketch out the provisions of the proposed federal law.

     The heart of the bill is Section 4(a), which provides:

It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

     Section 3 of the bill defines "sexual orientation" as "homosexuality, heterosexuality, or bisexuality."  Accordingly, gays, lesbians, bisexuals, and heterosexuals are all protected against job discrimination.  The law defines "gender identity" in the following terms:

"The term 'gender identity' means 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."

     Note also what the bill does not cover:

1.  There is no provision in the bill for a cause of action based on "disparate treatment."  That is, if the employer adopts a neutral policy that has the unintended effect of discriminating against gays or lesbians, that is not prohibited under the bill;

2.  The bill contains specific expemptions for religious organizations and the armed forces.  This law will not require any church, synagogue, or mosque to employ gays or lesbians, nor does it repeal or affect the "Don't Ask / Don't Tell" law that is in place for the military; 

3.  The bill will allow employers to make rules regarding the use of shower and dressing facilities "in which being seen unclothed is unavoidable," and it permits employers to require employees "to adhere to reasonable dress or grooming standards" so long as persons who are in transition from one gender to another are allowed to dress as either gender;

4.  Finally, with respect to the granting of employee benefits, the bill does not require employers to recognize same-sex marriages.  In this connection Sections 8(b) and 8(c) of the bill state:

(b) Employee Benefits- Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits.

(c) Definition of Marriage- As used in this Act, the term 'married' refers to marriage as such term is defined in section 7 of title I, United States Code (referred to as the Defense of Marriage Act).

     ENDA essentially leaves it for each state to decide whether or not employers must recognize same-sex marriages, a position that will no doubt make it easier to secure the enactment of the federal law.  According to this statement by Senator Tom Harkin, Chair of the Senate HELP Committee, twenty-one states already have laws banning employment discrimination on the basis of sexual orientation.  I do not know whether those state non-discrimination laws require employers to recognize same-sex marriages in awarding benefits.

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