Nov 5, 2013

By Ilyse Wolens Schuman

The U.S. Senate voted 61-30 to allow a final vote on the Employment Non-Discrimination Act (ENDA) (S. 815) without the threat of a filibuster. All Democrats and seven Republicans voted in favor of proceeding.

Introduced by Sen. Jeff Merkley, D-Oregon, and co-sponsored by 55 others, ENDA would prohibit certain entities, including employers with 15 or more employees, from discriminating against individuals on the basis of actual or perceived sexual orientation and gender identity.

What EDNA would do

Specifically, ENDA would make it unlawful for employers

  1.  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 privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or,
  2. 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.

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.”

The bill also includes anti-discrimination and anti-retaliation provisions governing employment agencies and labor organizations, and similarly protects discrimination against employees based on their association with individuals on account of their actual or perceived sexual orientation or gender identity.

Senate committee rejects Supreme Court standard of proof

Under the terms of the legislation, an unlawful employment practice “is established when the complaining party demonstrates that sexual orientation or gender identity was a motivating factor for any employment practice, even though other factors also motivated the practice.”

As discussed in a U.S. Senate Report accompanying the bill, the Senate Committee on Health, Education, Labor and Pensions explicitly rejected the ‘‘but for’’ standard of proof the U.S. Supreme Court enunciated in the Age Discrimination in Employment Act (ADEA) case Gross v. FBL Financial.

Aggrieved employees would be able to avail themselves of Title VII remedies, including damages and reasonable attorneys’ fees. If an employer is able to show, however, that it would have taken the same adverse action absent consideration of the employee’s sexual orientation or gender identity, a court would be able to grant declaratory relief, certain forms of injunctive relief, and attorney’s fees and costs directly attributable to pursuit of the discrimination claim, but would not be authorized to award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.

ENDA stipulates that it does not require employers to accord individuals preferential treatment or maintain quotas based on sexual orientation, nor does the bill allow disparate impact claims. In addition, the measure expressly prohibits the Equal Employment Opportunity Commission (EEOC) from requiring employers to collect statistics on actual or perceived sexual identity or gender identity of their employees.

Bill has broad, bi-partisan support

Covered entities would be required to post notices describing the requirements of the law. ENDA would permit employers to post an amended notice rather than posting a separate notice.

Finally, ENDA does not apply to religious organizations or the military, and would not prohibit an employer from enforcing a reasonable grooming or dress standard, provided that individuals who are undergoing gender transition would be able to adhere to the same dress or grooming standards applicable to the gender to which they are transitioned or transitioning.

If signed into law, the provisions of this bill would take effect six months after enactment. According to the Senate Report, the Congressional Budget Office (CBO) estimates that implementing ENDA would cost $47 million over the 2014–18 period, primarily for the EEOC to handle additional discrimination cases.

ENDA has garnered relatively broad bi-partisan support, including from members of the business community. According to a press release issued by Sen. Merkley’s office, “more than 85 percent of Fortune 500 companies already extend workplace protections based on sexual orientation and more than one-third on the basis of gender identity.”

A final vote approving the bill is expected shortly. Its fate in the House is less certain.

This was originally published on Littler Mendelson’s Employment Benefits Counsel blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.