On November 7, 2007, the House passed the Employment Non-Discrimination Act (ENDA), H.R. 3685.  President Bush threatened to veto this bill.

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.