The Employment Non-Discrimination Act
On November 7th, the House passed the Employment Non-Discrimination Act
(ENDA), H.R.
3685. In 30 states, it is currently legal to fire
someone simply because of his or her sexual orientation. This bill will
prohibit employers, employment agencies and labor unions from using an
individual’s sexual orientation as the basis for employment decisions,
such as hiring, firing, promotion or compensation. The bill extends
federal employment protections to gay, lesbian, and bisexual workers
similar to those already provided to a person based on race, religion,
sex, national origin, age or disability. A manager’s amendment has also
been made in order. Following are highlights of the manager’s
amendment and bill.
The Manager’s
Amendment
Clarifies the religious exemption under ENDA to address
concerns raised by certain religious schools.
The manager’s amendment makes clear that the exemption under ENDA for
religious organizations is identical to the religious exemption found
in Title VII of the Civil Rights Act of 1964. Under Title
VII, religious corporations, schools, associations, and societies are
exempt from religious discrimination claims. This
Title VII exemption applies to both denominational and
non-denominational religious schools. By ensuring that the
ENDA religious exemption is identical to the Title VII religious
exemption, the manager’s amendment clarifies that both denominational
and non-denominational religious schools qualify for the ENDA
exemption.
Clarifies that ENDA does not alter the Defense of Marriage
Act. The manager’s amendment also clarifies that
ENDA does not alter the Defense of Marriage Act (DOMA) in any
way. Indeed, the amendment inserts language clarifying that
the term “married” has the meaning given such term in DOMA, directly
incorporating DOMA’s definition of marriage as that between a man and a
woman.
The Bill
Why ENDA is
needed. In 30 states, it is legal to fire
someone simply because of his or her sexual orientation.
Numerous recent studies have found that employment discrimination based
on sexual orientation continues in our country. For example,
a 2007 study found that 16 percent of lesbians and gay men reported
being fired or denied a job because of sexual
orientation.
What ENDA does.
The bill prohibits employers, employment agencies and labor unions from
using an individual’s sexual orientation as the basis for employment
decisions, such as hiring, firing, promotion or compensation.
In other words, the bill is extending federal employment protections to
gay, lesbian and bisexual workers similar to those protections already
provided to a person based on race, religion, sex, national origin, age
or disability.
Where ENDA
applies. Like other civil rights laws, ENDA
applies to private sector employers with 15 or more employees,
employment agencies, labor organizations, and joint labor-management
committees. ENDA also applies to Congress and the federal
government, as well as state and local
governments.
Where ENDA does not apply. ENDA does
not apply to employers with fewer than 15 employees. It also
does not apply to members of the armed forces. In addition,
ENDA excludes private membership clubs and religious organizations,
such as religious corporations, associations, and schools.
ENDA uses Title VII’s definition of a religious organization, such that
if an organization is exempt from Title VII’s religious discrimination
prohibitions, it will be exempt from ENDA’s
prohibitions.
How ENDA works. ENDA authorizes the
same enforcement powers, procedures and remedies that exist under
current federal employment discrimination laws such as Title VII and
the Americans with Disabilities Act. All individual relief
that is available under Title VII is available under ENDA.
However, unlike Title VII protections, ENDA does not allow an
individual to bring a “disparate impact” claim. In addition,
ENDA does not allow for affirmative action or quotas based on sexual
orientation.
Bringing this nondiscrimination bill to the House Floor is an
historic occasion. This bill has been introduced
in every Congress since 1975. In the 94th Congress, on
January 14, 1975, Rep. Bella Abzug (D-NY) introduced the first bill to
prohibit sexual-orientation discrimination. And in every
Congress since then, legislation prohibiting sexual-orientation
discrimination has been introduced. However, this year,
Congress is making history. The October 18th vote by the
Education and Labor Committee to report this bill to the floor was the
first vote ever taken on this critical legislation in the House of
Representatives.
As
evidence that nondiscrimination is good for business, many companies
have voluntarily adopted nondiscrimination
policies. A 2007 Human Rights Campaign survey
found that 90 percent of Fortune 500 companies have already adopted
sexual orientation nondiscrimination policies. Indeed, many
major American companies – including General Mills, Microsoft,
Citibank, and Morgan Stanley – have expressed their strong support for
legislation that outlaws discrimination on the basis of sexual
orientation.
While many supporters are disappointed the bill is not
fully-inclusive, they recognize it is a significant
achievement. Many supporters are disappointed
that the bill is not broader – by not also prohibiting employment
discrimination on the basis of gender identity. However, they
recognize that progress in civil rights has always been incremental and
that this legislation is a critical step forward.