Last month, a bill was introduced in the United States House of Representatives that would extend current federal antidiscrimination laws to include prohibition of employment discrimination on the basis of actual or perceived sexual orientation or gender identity.

Similar to Title VII, which currently prohibits discrimination in the workplace as a result of gender, race, color, national origin or religion, the Employment Non-Discrimination Act (ENDA) would prohibit public and private employers who employ 15 or more full-time employees, as well as labor unions and employment agencies, from basing employment decisions (such as hiring, firing, promotion and compensation) on an individual’s actual or perceived sexual orientation or gender identity. The ENDA defines "sexual orientation" as homosexuality, heterosexuality or bisexuality and “gender identity" as gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.  The ENDA would also prohibit employers from retaliating against employees for opposing practices forbidden by its provisions or for making a charge, testifying, assisting, or in any manner participating in an investigation, proceeding, or hearing under the ENDA.  Religious organizations, volunteers, private membership clubs and the armed forces would be exempt from the provisions of the ENDA. 

The ENDA’s enforcement and remedial schemes would mirror Title VII and the Government Employee Rights Act of 1991 and allow a prevailing party in an action or administrative proceeding to recover reasonable attorney’s fees.  The ENDA would take effect 6 months after the date of enactment and would not be retroactive.

Several versions of the ENDA had previously been introduced in Congress but were not signed into law.  In 2007, the House passed a version of the ENDA that included protection for discrimination based on sexual orientation but not gender identity, but a companion bill was never introduced in the Senate. Although the full Congress have not passed previous versions of the ENDA, the 2009 bill enjoys the support of President Obama and will, probably, be signed into law if passed by both bodies of the Democratically-controlled Congress. 

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.