The ENDA an Era: Employers Should Prepare for New Antidiscrimination Rules
By William J. (Paz) Haynes, III
There is perhaps no legal issue so fraught with social and moral implications as the status of the Gay, Lesbian, Bisexual and Transgender (GLBT) community. The workplace has been a heated battlefront on this issue, and efforts to provide antidiscrimination protection to GLBT workers have had varying outcomes.
In the coming months, the United States Congress could spell out, more clearly than ever before, the rights of GLBT workers with the Employee Non-Discrimination Act of 2009 (ENDA).
Whether or not ENDA becomes law, it sends a strong signal to employers to assess and strengthen their antidiscrimination policies on this front.
What does the bill say?
In the last decade or so, the federal courts have expanded interpretations of federal law to prohibit same-sex harassment, and states and cities across the country (including Nashville) are passing or considering laws to prevent discrimination on the basis of sexual orientation or "gender identity." To quote the text of the bill, ENDA “provide[s] a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity, including meaningful and effective remedies for any such discrimination,” in consideration of “the history and widespread pattern of discrimination on the basis of sexual orientation or gender identity by private sector employers and local, State, and Federal Government employers.”
Section 4 of ENDA would make it unlawful for employers to terminate, refuse to hire, marginalize or otherwise discriminate against workers or applicants on the basis of their “actual or perceived” sexual orientation or gender identity. ENDA defines “sexual orientation” as “homosexuality, heterosexuality or bisexuality.” “Gender identity” is defined 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.” So, the GLBT community, perhaps for the first time under federal law, will be a “protected class” if ENDA is passed.
As with Title VII of the Civil Rights Act of 1964, employers with 15 or more employees are “covered entities” under ENDA, as are employment agencies, labor unions and joint labor-management committees.
ENDA provisions address subtle forms of discrimination, such as placement or employment in on-the-job training programs and discrimination based on the “actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has been associated.” The “association provision” in the bill could provide sweeping protection to workers in same-sex civil unions or relationships a worker has with third parties regardless of sexual orientation or gender identity.
Finally, as with Title VII, ENDA bars retaliation against workers who filed a charge of discrimination under ENDA, or otherwise opposed practices barred by ENDA. ENDA gives enforcement powers to the EEOC and the courts and grants remedies identical to those in Title VII.
Where ENDA draws the line
Despite its potentially groundbreaking protections, ENDA has clearly defined limits. By its own terms, ENDA is not to be construed as a mandate to adopt quotas or policies allowing for preferential treatment of GLBT individuals. Also, unlike Title VII, ENDA does not allow for “disparate impact” claims involving systemic discriminatory practices against GLBT individuals. Nor does ENDA prevent employers from addressing charges of sexual harassment against GLBT individuals, as long as the employer’s harassment policies are uniformly applied and make no distinctions based on actual or perceived sexual orientation or gender identity.
ENDA allows employers to deny any worker access to “shower or dressing facilities in which being seen unclothed is unavoidable,” as long as the employer provides “adequate facilities that are not inconsistent with the employee’s gender identity.”
ENDA also allows employers to set reasonable dress and grooming standards for its workers, consistent with state or federal law. However, ENDA permits workers who are in the process of “gender transition” prior to or during their employment to adhere to the dress and grooming standards of the gender to which he or she is transitioning, as long as the employer is notified in advance.
Notably, ENDA takes a pass on two of the most hotly contested legal issues of the day. First, Section 8(b) of ENDA states that none of its provisions shall be construed as requiring employers to extend the same employee benefits to unmarried couples as are extended to married couples, which has been the subject of lawsuits in numerous states. Second, Section 8(c) defines “marriage” as it is defined in the controversial Defense of Marriage Act, which lets the states decide whether to provide legal recognition to same-sex unions.
House and Senate subcommittees held hearings on ENDA in the fall of 2009. President Barack Obama supports ENDA and is expected to sign it if it is passed.
Don’t just wait and see. Prepare now.
ENDA’s fate is not certain, but the past decade has seen a significant expansion of the rights of GLBT workers. The Supreme Court and federal appeals courts have extended Title VII protection to victims of same-sex harassment, and a number of states have enacted laws affording same-sex couples rights to make claims for employment benefits.
Employers should assume this trend will continue and take the following steps:
• Re-evaluation of employee handbooks and any policies regarding sexual orientation and gender identity of workers.
• Assessment of application, evaluation and promotion processes for employees to identify any “problem areas” that may exist vis-à-vis GLBT workers.
• Adjustment of training programs on harassment and discrimination to address issues of same-sex harassment and identification and reporting of discrimination on the basis of sexual orientation and gender identity.
• Review of worksite facilities to accommodate potential gender identity issues.
