U.S. Senate Approves LGBT Non-Discrimination Bill, but Challenges Remain in the House

12/31/2013 / Andrew D. Moran

On November 7, 2013, the United States Senate passed bill S.815, officially titled the Employment Non-Discrimination Act (ENDA), by a vote of 64 to 32. If passed, ENDA would make it unlawful for employers with 15 or more employees to refuse to hire, discharge, or otherwise discriminate against employees or job applications because of actual or perceived sexual orientation or gender identity. ENDA also contains a provision which would prohibit discrimination based upon an employee’s association with an individual protected on account of actual or perceived sexual orientation or gender identity. 
 
Like many state and federal non-discrimination laws, ENDA contains a non-retaliation provision which prohibits discrimination against individuals who oppose practices made unlawful by ENDA or who initiate or participate in investigations or proceedings under the Act. ENDA would only permit claims of discriminatory treatment, not disparate impact, meaning employees and applicants could not successfully allege that a facially-neutral policy has a discriminatory impact on the basis of sexual orientation or gender identity. In order to establish an unlawful employment practice, a complaining party would be required to establish that actual or perceived sexual orientation or gender identity was a motivating factor in such practice. Remedies under ENDA would include back pay, compensatory and punitive damages, and a reasonable attorney’s fee to a prevailing party.
 
Even though ENDA received supporting votes from ten Republican Senators, the proposed legislation faces an uphill battle in the Republican-controlled House of Representatives. A number of House leaders have voiced opposition to ENDA, including concerns that the proposed legislation is overly broad and would lead to frivolous litigation. 
 
Even if the House does not vote to pass ENDA, employers should be aware of state and local laws which already prohibit employment discrimination on the basis of sexual orientation. The Minnesota Human Rights Act, for example, prohibits discrimination on the basis of sexual orientation, which includes having a self-image or identity not traditionally associated with one’s biological gender. In addition, the Equal Employment Opportunity Commission (EEOC) has taken an aggressive stance with regard to LGBT discrimination, consistent with its Strategic Enforcement Plan for 2013-2016 which identifies “coverage of lesbian, gay, bisexual and transgender individuals under Title VII” as a top enforcement priority. 
 
The EEOC recently secured a $50,000 settlement agreement for an employee of a South Dakota supermarket who alleged she was fired because of her transgender status. The employee had worked for the supermarket for five years when she informed her employer that she intended to transition from male to female at work. According to the employee, she was told that she was “making other employees uncomfortable” with her transition. The charge filed with the EEOC alleged that her termination constituted unlawful sex-based discrimination under Title VII of the Civil Rights Act of 1964. After the EEOC found that there was reasonable cause to believe the employer had violated Title VII, the parties agreed to settle the dispute. 
 
Employers should monitor the status of ENDA as it moves through the House of Representatives. Even if ENDA does not become law, employers should be mindful of sexual orientation and gender identity discrimination issues in the workplace. The EEOC has made clear its commitment to battling discrimination toward employees on the basis of sexual orientation and gender identity, and is expected to pursue significant and aggressive enforcement action in this area. Employers should review their policies and procedures for compliance with state, federal and local employment laws and ensure that workers are well-trained regarding harassment in the workplace.