The categories of persons entitled to legal protection under federal antidiscrimination law have remained the same for almost 20 years. The last major expansion of federal antidiscrimination protection occurred in 1990, when Congress enacted the Americans with Disabilities Act to protect individuals with an actual or perceived disability or a history of a disability.
Now, Congress appears poised to extend federal antidiscrimination law to a whole new level — sexual orientation and gender identity. Let’s look at the proposed legislative measure designed to prohibit sexual orientation and gender identity discrimination and the potential impact on your business if passed.
ENDA Requirements
In June and August of this year, the Employment Non-Discrimination Act (ENDA) was introduced in the U.S. House of Representatives and the Senate, respectively. If passed, the legislation would ban employment discrimination based on sexual orientation or gender identity. The law would extend the same employment protections to gays, lesbians, bisexuals, and transsexuals as those currently provided under Title VII of the Civil Rights Act of 1964, which bans discrimination against employees or applicants based on race, color, religion, sex, or national origin.
Like Title VII, 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.
Both the House and Senate bills specifically exempt the U.S. military, veterans’ services groups, and religious organizations and stop short of requiring you to provide benefits to employees’ domestic partners. Additionally, there has been a push in the House to introduce an amendment to expand the religious exemption to any business claiming religious objections, regardless of its tax status.
Congress has been presented with similar legislation six times in the past 15 years, the latest of which passed the House by a vote of 235-184 in 2007 but was never voted on in the Senate. Although Congress has failed to pass previous versions of ENDA, the 2009 bill has a better chance of becoming law because of the Democratic majority in the House and Senate and the election of President Barack Obama, who supports the legislation.
Religious, Moral Conflicts
Should ENDA be enacted into law, some employees will find themselves in religious or moral conflict with the Act’s provisions. You may be faced with having to walk a fine line between complying with ENDA and accommodating employees’ religious convictions. The following are some of the conflicts you’re most likely to see:
* an employee refuses to deal with a homosexual customer;
* an employee refuses to participate in sexual orientation and gender identity diversity programs or training; and
* a supervisor engages in harassment of an employee because of the employee’s sexual orientation or gender identity.
Compounding the problem is the possibility that Congress may soon pass the Workplace Religious Freedom Act (WRFA), which is meant to provide more religious freedom and accommodation to employees in the workplace. The WRFA, as currently drafted, would require you to provide requested religious accommodations unless doing so imposes “significant difficulty or expense.” That contrasts with the U.S. Supreme Court’s interpretation of religious accommodation under Title VII, which allows you to refuse to provide a religious accommodation if it would cause anything more than a minimal cost to your company.
It’s easy to envision scenarios that might trap you between these unintentionally conflicting statutes (e.g., an employee seeking a religious right under the WRFA in objection to an employee having a gay-pride poster in his cubicle). Maybe you have employees who use an empty conference room at lunch for Bible study. What should you do if an employee who is gay objects because one of the topics discussed in the study group is the proscription on homosexual conduct? He could easily claim that the discussion creates a hostile work environment under ENDA. The answer to the question of whose statutory rights take priority will vary with each situation.
Bottom Line
It’s too early to tell whether ENDA or the WRFA will become law or whether they will be amended before passage. We will continue to monitor the proposed legislation and update you on their progress and potential impact.