Hiring (Non-Discrimination Act)

Employment Non-Discrimination Act

S. 1584/H.R. 3017

The Problem

Qualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against just because they are lesbian, gay, bisexual or transgender (LGBT). There is no federal law that consistently protects LGBT individuals from employment discrimination; it remains legal in 29 states to discriminate based on sexual orientation, and in 38 states to do so based on gender identity or expression. As a result, LGBT people face serious discrimination in employment, including being fired, being denied a promotion and experiencing harassment on the job.

What is the Employment Non-Discrimination Act?

The Employment Non-Discrimination Act (ENDA) would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity. ENDA simply affords to all Americans basic employment protection from discrimination based on irrational prejudice. The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. The bill explicitly prohibits preferential treatment and quotas and does not permit disparate impact suits. In addition, it exempts small businesses, religious organizations and the military, and does not require that domestic partner benefits be provided to the same-sex partners of employees.

What ENDA Does

• Extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age and disability to sexual orientation and gender identity
• Prohibits public and private employers, employment agencies and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation
• Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII and the Americans with Disabilities Act
• Applies to Congress and the federal government, as well as employees of state and local governments

What ENDA Does Not Do

• Cover businesses with fewer than 15 employees
• Apply to religious organizations
• Apply to the uniformed members of the armed forces (the bill doesn't affect the "Don't Ask, Don't Tell" policy)
• Allow for quotas or preferential treatment based on sexual orientation or gender identity
• Allow a "disparate impact" claim similar to the one available under Title VII of the Civil Rights Act of 1964. Therefore, an employer is not required to justify a neutral practice that may have a statistically disparate impact on individuals because of their sexual orientation or gender identity
• Allow the imposition of affirmative action for a violation of ENDA
• Allow the Equal Employment Opportunity Commission to collect statistics on sexual orientation or gender identity or compel employers to collect such statistics.
• Apply retroactively

States' Experience and Corporate Support

Twenty-one states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 12 states and D.C. also prohibit discrimination based on gender identity. While these laws provide important protections, according to a 2002 General Accounting Office (GAO) report, relatively few complaints of discrimination based on sexual orientation have been filed in these states.

Hundreds of companies have enacted policies protecting their lesbian, gay, bisexual and transgender employees. As of September 2009, 434 (87%) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 207 (41%) had policies that include gender identity.

What is the Current Status of the Bill?

ENDA was introduced in the 111th Congress by Representatives Barney Frank (D-MA) and Ileana Ros-
Lehtinen (R-FL) in the House. The bill was introduced in the Senate by Senators Jeff Merkley (D-OR) and Susan Collins (R-ME). On September 23, 2009, the House Education and Labor Committee held a full committee hearing in the House on the legislation. On November 5, 2009, the Senate Committee on Health, Education, Labor and Pensions (HELP) also held a hearing on the bill.