U.S. Representative Barney Frank (D-Massachusetts) introduced the Employment Non-Discrimination Act of 2009 (ENDA) June 24 in the U.S. House of Representatives. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity.
The Employment Non-Discrimination Act is very similar to existing antidiscrimination laws, including Title VII of the Civil Rights Act of 1964, which protects employees and applicants from discrimination based on race, color, religion, sex, and national origin. ENDA would bar public and private employers, employment agencies, and labor unions from basing employment decisions (such as firing, hiring, promotion, or compensation) on an individual’s actual or perceived sexual orientation or gender identity.
The Employment Non-Discrimination Act prohibits employers from retaliating against employees for opposing practices forbidden by its provisions or for making a charge, testifying, assisting, or in any manner participating in an investigation, proceeding, or hearing under ENDA. It also provides exemptions for small businesses (companies with fewer than 15 employees), religious organizations, and the armed forces.
Several versions of the Employment Non-Discrimination Act have previously been introduced in Congress but weren’t signed into law. In 2007, the House passed a version of ENDA that included protections for discrimination based on sexual orientation but not gender identity, but it died in the Senate. Although Congress previously failed to pass versions of ENDA, it’s highly likely that the 2009 bill could become law because of the increased majorities of the Democratic Party in the House and the Senate and the election of President Barack Obama.
If the Employment Non-Discrimination Act passes, employers would need to review their policies and procedures and take steps to ensure they are in compliance with the Act. It may even be a good idea for employers to go ahead and review their discrimination and harassment policies now and either proactively amend them to be in compliance with ENDA or at least know which provisions, if any, employers will need to change if the bill passes.
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To learn more about changes in employment law in 2009 and what’s on the horizon in employment law for 2010, check out the Advanced Employment Issues Symposium being held in Nashville Sept. 17-18, 2009, and in Las Vegas on Oct. 29-30, 2009.