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5 new things you need to know about ENDA

April 25, 2013

By Lisa Mottet, transgender civil rights project director, National Gay and Lesbian Task Force

The Employment Non-Discrimination Act (ENDA) was just introduced in the House and Senate today. If it passes, it would ban workplace discrimination based on sexual orientation and gender identity. The bill looks similar to past ENDA bills, but it does have a few improvements in it. Having been written originally in 1993, and having had a number of alterations to its text over the past 20 years, ENDA had a few areas in need of a tune up. In general, the core of the bill is absolutely the same – it prohibits discrimination on the basis of sexual orientation and gender identity in private and public employment. The changes that were made are mostly of the kind that wonky lawyers and policy analysts might be interested in and may not seem particularly important to non-attorneys. But, we know you are all curious, so here is an overview.

  1. Purposes. The purposes of ENDA were updated. This is the section of the bill that explains why Congress is passing the bill, and under what Constitutional authority. The way this section was written before, it didn’t acknowledge that LGBT people had any rights under federal sex discrimination law. Since Macy and other court and agency decisions have said that LGBT people should have protections under sex discrimination, the Purposes text was slightly revised so that it did not imply otherwise. Also, the language regarding the Constitutional authority for Congress to pass this law was also updated.
  2. Provisions in Section 8 regarding the ability for employers to establish non-discriminatory workplace policies were eliminated. One part said that an employer can have any policy that doesn’t intentionally discriminate and another part clarified that employers could have and enforce sexual harassment policies. The fact that this language was in the bill was mildly offensive – of course employers could have sexual harassment policies!!! – but its removal was important for all LGBT potential plaintiffs because it took away language that could have formed the basis for an affirmative defense for employers, namely, this language potentially could have been used in the future with employers saying, but “this policy does not intentionally discriminate against LGBT people.”
  3. In addition, language relating to access to certain shared facilities was removed. This brings ENDA into line with the state laws that do not get into questions of access to locker rooms and shower facilities, instead leaving those questions up to implementation of the law, which is a better solution than having Congress legislate on these details.
  4. Language relating to married and unmarried benefits, and the Defense of Marriage Act, was removed. This means that ENDA should be interpreted to mean that employers cannot discriminate against married same-sex couples when it comes to benefits, if ENDA passes.
  5. The language prohibiting the collection of statistics was altered to clarify that the EEOC (Equal Employment Opportunity Commission) can collect statistics on the LGBT workforce if the statistics were voluntarily provided by an employer to the Commission. Mandatory statistics are still prohibited.

Are there other changes we would have liked to see to ENDA? Sure, there are a few places we would be interested in making other improvements. The most notable one is the religious exemption. Right now, the religious exemption is broader than the one in Title VII of the Civil Rights Act of 1964, which bans discrimination based on sex, race, national origin and religion. The Task Force supports updating ENDA’s religious exemption to more closely follow the language of Title VII, so that LGBT workers at hospitals that are religiously-affiliated would have the same protections as other people at those places. It is our position, for example, that if a Catholic hospital employs all sorts of non-Catholics for its staff – such as Christians, Jewish people, atheists – there is no reason that the hospital should be able to fire LGBT people. If it truly is a Catholic hospital however, and they hire only Catholics who follow the church’s teachings, then it should be okay to fire LGBT people too. The way ENDA’s religious exemption is worded right now, it might be interpreted the way we want. But, it could use some clarification.

Overall, the changes to ENDA leave it much improved. This year we have a real shot of passing ENDA out of both the Senate Committee and passing ENDA on the Senate floor. Though the path through the House is less clear, we are going to be working diligently to create that path, and you can help by urging your congressperson to co-sponsor ENDA. This year has already been full of surprises – most notably, the Violence Against Women Act passed Congress, with sexual orientation and gender identity non-discrimination protections – with 86 House Republicans voting YES. This is something most predicted would never happen. Let’s work hard together to pass ENDA through Senate Committee, then the Senate floor, and then, let’s press on the House, and perhaps we will be able to pull off another surprise this year.

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