Member Article

The Employment Non-Discrimination Act (“ENDA”) is federal legislation that would prohibit employers from discriminating against potential or actual employees during hiring and employment based on their sexual orientation or gender identity. The Act defines sexual orientation as “homosexuality, heterosexuality, or bisexuality.” Gender identity is defined as “gender-related identity, appearance, or mannerism or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” 

Succinctly, the ENDA would provide potential and current employees a legal remedy for discrimination based on their actual or perceived sexual orientation or gender identity. This remedy would allow employees to receive back pay, litigation costs, compensatory and punitive damages, similar to remedies for other types of employment discrimination such as age, sex and race.

Isn’t Discrimination Based on Sexual Orientation Already Prohibited?

Different states have different prohibitions relating to employment discrimination based on sexual orientation and/or gender identity – some states do not prohibit this form of discrimination at all. At this time twenty-two states and the District of Columbus have laws prohibiting employment discrimination based on sexual orientation. Seventeen states and the District of Columbus prohibit discrimination based on gender identity. Within Spilman’s footprint, West Virginia, Virginia and North Carolina do not have any state-wide laws prohibiting discrimination in employment based on sexual orientation or gender identity (though it may be prohibited in some cities or counties by local ordinance, such as in Charleston, West Virginia). Pennsylvania prohibits discrimination based on sexual orientation, but only in public employment. 

The History of the ENDA

The ENDA was originally introduced in Congressional committees in 1994 and only barred discrimination based on sexual orientation. The 1996 version of the ENDA was introduced to every Congress following (except the 109th) until 2007, when a version was introduced that included a prohibition against discrimination based on gender identity as well as sexual orientation. 

On November 7, 2013, the Senate passed the ENDA in a 64-32 vote. The ENDA must be passed in the House of Representatives and signed by President Obama to become law. The inclusion of gender identity, while controversial, is part of the current ENDA legislation that passed in the Senate.

The Future of the ENDA

The ENDA’s immediate future in the legislative branch is not promising. Speaker of the House John Boehner opposes the bill, so the ENDA may not even be voted on in the House of Representatives during this session. As a pre-emptive response to predicted failure of the bill, numerous advocacy groups are asking President Obama to issue an executive order that mirrors the ENDA, but would only apply to federal contractors – about 20 percent of the nation’s workforce. In 2008, while President Obama was running for office, he backed a similar executive order to the one requested by these advocacy groups; however, the President has since deferred to Congress on this issue. 

What Employers Should Know if the ENDA Becomes Law:

1. Who would be considered unprotected employees and exempt employers? Employees of religious organizations, members of the armed forces and uncompensated volunteers would not be protected by the ENDA. The ENDA would, however, prevent discrimination against employees by federal, state and local government agencies; unions; employment agencies; and private employers with 15 or more employees.
2. What will employers be unable to do?
   1. The language of the proposed law would make it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privilege of employment of the individual because of such individual’s actual or perceived sexual orientation or gender identity.” 
   2. It would also be unlawful for an employer “to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.”
3. Who could sue under the ENDA? The law would protect employees based upon their actual and perceived sexual orientation and gender identity. This would provide a cause of action for any potential or actual employee who is perceived to have a specific orientation and discriminated against based on this perception, even if the employee does not have the perceived sexual orientation.
4. Would I need to favor people with certain sexual orientations or gender identities? The ENDA does not prescribe any preferential treatment of any potential or current employee based on sexual orientation or gender identity, nor would the ENDA create any quota requirements for employers. 
5. What type of claim could an employee bring? The ENDA would not allow any disparate impact claims – only claims of disparate treatment. Thus, if an employer’s hiring policies disparately impact employees of a specific sexual orientation, these employees will not be able to sue under the ENDA. An employee will only be able to sue under the ENDA if he or she experiences disparate treatment because of his or her actual or perceived sexual orientation or gender identity.
6. What would an employee have to prove for an employer to be held liable? For an employee to prove a clear case of unlawful employment practices in violation of the ENDA, an employee would have to demonstrate that sexual orientation or gender identity was a motivating factor for any employment practice, even though other factors may have also motivated the practice. 
7. What if the employee would have been terminated regardless? Even if an employee would be able to prove a clear case of unlawful employment practices in violation of the ENDA, an employer would be able to raise the defense that the employer would have made the same employment decision even if it had not discriminated against the employee. If an employer proves this defense, the court would not be able to award damages to the employee bringing the claim. However, this “same decision” defense would not prevent the court from awarding injunctive or declaratory relief, as well as attorneys’ fees and costs.
8. Will this affect dress code or grooming standards? The law does specifically detail that employers who have dress or grooming standards would be allowed to maintain these standards for employees without violating the ENDA. In the case of transgender employees, the dress standards of the gender the employee is transitioning to would apply.

Above are just a few questions employers need to consider relating to the ENDA. For updates on the ENDA and additional information, contact your local Spilman Thomas & Battle attorney.