Human Resources

The ENDA Is in Sight

Legislation would prohibit discrimination based on sexual orientation and gender identity.

August 02, 2010
KEYWORDS discrimination , laws
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Current federal law doesn’t protect against employment discrimination based on sexual orientation or gender identity. As a result, many people who are gay, lesbian, bisexual, or transgender remain unprotected against employment discrimination regardless of their qualifications.

State laws vary. It’s still legal in more than half of the states to discriminate based on sexual orientation and/or gender identity.

The Employment Non-Discrimination Act (ENDA) of 2009 was introduced in the 111th Congress to create a federal standard protecting workers against discrimination based on sexual orientation and gender identity. ENDA would make it unlawful to fire, refuse to hire, harass, or otherwise discriminate (e.g., in compensation or promotions) against current employees or job applicants based on their perceived or actual sexual orientation or gender identity.

The law would apply to businesses with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. ENDA would also apply to Congress, the federal government, and state and local governments.

ENDA is closely modeled on existing federal laws which protect against employment discrimination based on race, color, religion, gender, national origin, and disability. It wouldn’t apply to religious organizations, the military, or small businesses.

The Act explicitly prohibits preferential treatment and quotas so employers would have no affirmative action obligation. Employers wouldn’t be required to justify a neutral business practice that had a statistically different impact on individuals based on sexual orientation and/or gender identity because ENDA wouldn’t permit disparate impact lawsuits. And it wouldn’t require companies to provide domestic partner benefits to employees’ same-sex partners.

Many employers have policies prohibiting discrimination based on sexual orientation or gender identity. About 87% of Fortune 500 companies have implemented policies prohibiting employment discrimination based on sexual orientation and 41% prohibit discrimination based on gender identity, according to the Human Rights Campaign.

ENDA was introduced seven times before 2009 but failed to gain sufficient traction to become law. The legislative climate seems more favorable for the version introduced in the 111th Congress with bi-partisan sponsorship.

On Nov. 5, Assistant Attorney General Thomas Perez announced that ENDA is a top legislative priority of the Obama administration. The House Education and Labor Committee held a full committee hearing on the legislation in September.

The Senate Committee on Health, Education, Labor and Pensions held a hearing on the bill in November. “We are hearing from businesses, civic leaders, and community groups that they stand behind ENDA because it is a matter of simple fairness that we allow every American the right to earn a living,” says Sen. Jeff Merkley, D-Ore., who sponsored the senate bill with Sen. Susan Collins, R-Maine. “There is no equality of opportunity in America until there is equality of opportunity in employment. Discrimination is simply wrong.”

How should credit unions prepare for ENDA if it becomes law in 2010? First, check your policies for compliance. If ENDA is enacted, your policy on equal employment opportunity should include a statement confirming that you don’t discriminate on the basis of sexual orientation or gender identity.

The expanded policy language can be used in job announcements, on your Web site, and in materials and training on workplace diversity. Your policies should clearly prohibit harassment based on sexual orientation and gender identity.

The term “gender identity” is often defined or understood to include an individual’s gender expression. But many employers fail to use the term “gender identity or expression” in policies and other communications to ensure expectations are clearly communicated to employees and job applicants.

ENDA would set a national minimum standard of protection. Credit unions in jurisdictions with laws granting even broader protection than ENDA must be sure their policies and protections meet those higher standards.

KAREN SAUL is of counsel at Farleigh Wada Witt, Portland, Ore. Her practice focuses on employment law. Contact her at ksaul@fwwlaw.com.

 

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