A great deal of attention has been focused on the U.S. Senate’s recent passage of the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in the workplace based on sexual orientation and gender identity. The House of Representatives has yet to take up the bill, but there’s much speculation that supporters have the votes necessary to secure passage. Often, supporters can be heard using the phrase “fundamentally transform,” made popular by President Barack Obama, to describe the impact of ENDA in the workplace. But, in reality, the legislation may merely be an example of lawmakers catching up with the citizens they represent. 
Behind the curve
Many states, counties, cities, and towns around the country have already made workplace discrimination based on sexual orientation and gender identity unlawful. Two of the largest cities in West Virginia are among this group. Section 153.02(d) of the Morgantown Municipal Code makes discrimination based on sexual orientation unlawful. Section 153.02(f) defines sexual orientation to include gender identity. Similarly, in Section 62-81 of its Code of Ordinances, the city of Charleston prohibits employment discrimination on the basis of sexual orientation. In Section 62-3, sexual orientation is defined to include actual or perceived homosexuality and actual or perceived gender-related identity, appearance, or behavior.
The Charleston ordinance also provides that the Charleston Human Rights Commission will investigate complaints and conduct hearings in cases where probable cause is found. The commission can issue cease-and-desist orders and order reinstatement with or without back pay. The Morgantown ordinances state that complaints will be referred to the West Virginia Human Rights Commission (WVHRC). At first glance, that referral policy appears to raise a question: Can the WVHRC adjudicate complaints based on sexual orientation or gender identity when there’s no state law prohibiting such discrimination? However, the WVHRC takes guidance from and makes referrals to the Equal Employment Opportunity Commission (EEOC), which has decided that it will adjudicate such complaints.
In 2011 the EEOC determined in Veretto v. U.S. Postal Service that Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, applies to discrimination based on sexual orientation. The EEOC relied on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, in which a female employee was denied a promotion because her clothing and mannerisms weren’t thought to be sufficiently feminine. The Supreme Court ruled that discrimination based on stereotypes related to gender is a form of prohibited sex discrimination. According to the EEOC, that same logic applies in cases involving sexual orientation.
Essentially, the EEOC has said that the notion that people will be attracted to the opposite sex is a stereotype. Therefore, discrimination against someone who doesn’t fit that stereotype because she is attracted to a person of the same sex violates the principle established in Price Waterhouse. In 2012, the EEOC used the same logic in Macy v. Bureau of Alcohol, Tobacco, Firearms, and Explosives to find that discrimination based on a person’s expression of gender identity is prohibited under Title VII.
Of course, the EEOC doesn’t have the last word on what does and doesn’t fall within the scope of Title VII. However, even before the agency decided Veretto and Macy, several federal appellate courts had employed the Price Waterhouse reasoning to find that discrimination based on gender identity is prohibited under Title VII. It appears that the EEOC is in step with what is fast becoming an accepted view, although the issue hasn’t come before the Supreme Court. If ENDA is passed, there may never be an occasion to ask the Court to determine whether the EEOC and the federal circuit courts have been correct in expanding the scope of Title VII to encompass sexual orientation and gender identity.
What should employers do?
What all this really means is that, regardless of whether ENDA passes, prudent employers should already be aware that there’s a significant risk to permitting discrimination based on sexual orientation or gender identity, even if you’re not located somewhere that currently has a law prohibiting sexual orientation discriminatin. Rather than wait for legislation, numerous employers have adopted policies prohibiting such discrimination. At times, these policies have been greeted with expressions of concern about access to restrooms, restructuring benefits to accommodate same-sex couples, and religious freedom. The EEOC has published guidance that can be helpful in addressing those concerns. There haven’t been widespread reports of problems.
Since it appears that anyone who thinks he has been discriminated against on the basis of sexual orientation or gender identity can already file an EEOC charge or lawsuit, the impact of ENDA is arguably more symbolic than real. Should the Act pass, the practical effect may be limited to the following:
- Employers will no longer face uncertainty about whether sexual orientation and gender identity are protected depending on the town, county, or federal circuit you’re located in.
- If you haven’t already done so, you’ll have to expand your nondiscrimination policies to encompass sexual orientation and gender identity.
- In the unlikely event that gender identity becomes an issue, you may need to read up on what is required in terms of gender-neutral bathrooms or acceptable alternatives (which is a separate topic for another article).
Compared to the administrative burdens imposed by other employment legislation and regulations, complying with ENDA will be simple. If the experience of companies that have already adopted sexual orientation and gender identity policies is any guide, instead of making waves, ENDA will make ripples that are barely noticed by employees whose focus is on getting the work done.
John R. Merinar, Jr. is an employment law attorney with Steptoe & Johnson, practicing in the firm’s Bridgeport, West Virginia, office. He may be contacted at jack.merinar@steptoe-johnson.com.