Employment: Employment Non-Discrimination Act (ENDA)


In 30 states it is legal to fire an employee because of the person’s sexual orientation. In 38 states it is legal to fire an employee because of gender identity. The Employment Non-Discrimination Act addresses discrimination in the workplace by making it illegal to fire, refuse to hire, or refuse to promote employees simply based on a person’s sexual orientation. It would reinforce the principle that employment decisions should be based upon a person’s qualifications and job performance. Another version of the bill would also bar discrimination based upon a person’s gender identity. The bill has had success in the House of Representatives and the Senate; however, the threat of a Presidential veto from President Bush effectively killed the legislation. President-elect Obama has indicated his willingness to sign some form of non-discrimination legislation.

What ENDA Does

ENDA extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age, and disability to sexual orientation and, perhaps, gender identity. ENDA also 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. To redress complaints and grievances, ENDA provides for the same procedures, and similar, but somewhat more limited, remedies as are now permitted under Title VII and the Americans with Disabilities Act. As drafted, ENDA also applies to Congress and the federal government, as well as employees of state and local governments.

What ENDA Does Not Do

As with other non-discrimination laws, there are certain exceptions. The law would not apply to businesses with fewer than 15 employees, to religious organizations, or to the uniformed members of the armed forces. Additionally, there would be no quotas, affirmative action, or preferential treatment based on sexual orientation or gender identity.

Significantly, the law would not 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. For example, extending benefits to “spouses” as opposed to “domestic partners” would not result in a disparate impact claim. Finally, the law is not retroactive. Therefore, you need not worry about past instances of discrimination.

If ENDA becomes law, employers will need to revise their employment policies and, more importantly, educate their workforce on the law’s new requirements.

By Michael C. Redman, mredman@dsda.com

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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