June was Lesbian, Gay, Bisexual, and Transgender Pride Month, and President Barack Obama marked the occasion by reaffirming his continued support of “a fully inclusive Employment Non-Discrimination Act” (ENDA). During the month, ENDA picked up additional support in the U.S. Senate as Senate Majority Leader Harry Reid (D-Nevada), Senator Heidi Heitkamp (D-North Dakota), and Senator Tom Carper (D-Delaware) signed on as ENDA cosponsors. Thus, by mid-June, the number of cosponsors had reached 52 senators—a majority, but still short of the 60 votes needed to block a filibuster. A similar bill in the House of Representatives has 175 cosponsors.
Current federal law prohibits employment discrimination on the basis of race, color, religion, sex, national origin, or disability but doesn’t prohibit discrimination in employment on the basis of sexual orientation or gender identity. ENDA would fill that gap.
ENDA was first introduced in Congress in 1994, but the bill has never gained passage. In its current form, ENDA was introduced in both the Senate and House of Representatives on April 25, 2013. The bill would make it unlawful for private-sector employers, as well as local, state, and federal government employers (but not religious organizations), to engage in the following employment practices:
- Fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual, with respect to the compensation, terms, conditions, or privileges of employment because of his actual or perceived sexual orientation or gender identity; or
- Limit, segregate, or classify employees or job applicants in any way that would deprive or tend to deprive them of employment or otherwise adversely affect their status as employees because of their actual or perceived sexual orientation or gender identity.
The bill defines gender identity as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” Sexual orientation refers to homosexuality, heterosexuality, or bisexuality. ENDA’s protections would be enforced by the Equal Employment Opportunity Commission (EEOC).
A number of states already prohibit employment discrimination on the basis of gender identity or sexual orientation. Whether the latest attempt to create federal protection for those characteristics fares better than its predecessors remains to be seen.
Judith E. Kramer is an attorney with Fortney & Scott, LLC, in Washington, D.C. She has 25 years of experience with the U.S. Department of Labor, where she served for 16 years as Deputy Solicitor for Planning and Coordination, the highest-ranking career employee in the Office of the Solicitor. She may be contacted at jkramer@fortneyscott.com.