Discrimination against employees based on sexual orientation or gender identity

The Impact of the Employment Non-Discrimination Act on Current Employers

On November 7, 2013, the Senate passed the Employment Non-Discrimination Act (“ENDA”) which prohibits employers from discriminating against employees based on sexual orientation or gender identity.  Twenty-one states and the District of Columbia have laws prohibiting workplace discrimination based on sexual orientation.  Seventeen states and the District of Columbia ban discrimination based on gender identity.  Currently, there is no federal law that prohibits private employers from discriminating against employees based on sexual orientation or gender identity.  Title VII of the Civil Rights Act of 1964 is the primary federal law that prohibits workplace discrimination based on race, national origin, religion, gender, disability, age, citizenship status, and genetic information.  Membership in one of these protected classes is an essential element of an unlawful discrimination claim.  If ENDA becomes law, it will amend Title VII to add sexual orientation and gender identity to the list of protected characteristics that employers are prohibited from relying on in making certain employment decisions. If this legislation is passed, it would cover federal, state, and local governments, and private employers with at least 15 employees.  ENDA would prohibit employers from using sexual orientation or gender identity as a basis for any employment decision, including hiring, benefits, compensation, discipline, and firing.  ENDA would also prohibit employers from subjecting an employee to different standards or treatment based on their actual or perceived sexual orientation.  This legislation would protect employees who are going through or have gone through gender transition or reassignment, and would even protect those employees whose behavior doesn’t conform to stereotypes about gender.

There are exceptions and exemptions under ENDA.  ENDA does prohibit employers from enforcing reasonable dress code policies or grooming rules, provided, however, that employees who have already undergone gender transition, or are transitioning while employed, are permitted to conform to the standards of the gender to which the employee is transitioning.  This new legislation would not require employers to create new or additional facilities (such as changing rooms or rest rooms).  Additionally, disparate impact claims are not be permitted under ENDA.  Thus, an employer would not be required to justify a neutral practice that may have a statistically disparate impact on sexual orientation or gender identity.  Moreover, ENDA would not require employers to treat an unmarried couple in the same manner as it would treat a married couple for purposes of employment benefits.

The Equal Employment Opportunity Commission (“EEOC”) would be responsible for enforcing ENDA.  Employees would be required to file a charge of discrimination with the EEOC and obtain a right to sue letter as a prerequisite to filing a lawsuit against their employer.  Successful employees would be entitled to attorney’s fees as well as compensatory damages generally available under Title VII.

Before ENDA can become law, it still faces the House which is dominated by social conservatives.  House Speaker, John Boehner, R-Ohio, who opposes ENDA, is said to believe such legislation will increase frivolous litigation and could cost Americans jobs.

Although it could be years, if ever, to pass this legislation, employers should be aware that ENDA may drastically change current employer practices and will provide new causes of action for discrimination based on actual or perceived sexual orientation or gender identity.  Employers should reevaluate its policies and procedures and determine whether its current employment decisions create different standards or treatment for employees based on actual or perceived sexual orientation or gender identity.

For more information on this subject, contact Stephanie Strickler at sstrickler@messerstrickler.com.