A New Protected Class?: LGBT Workplace Discrimination And The Employment Non-Discrimination Act Of 2013


Congress is currently considering the creation of a new protected class for purposes of workplace discrimination.  The Employment Non-Discrimination Act (ENDA) would create a new federally-protected class of individuals: lesbian, gay, bisexual and transgender applicants and employees.  Generally, ENDA will prohibit employment discrimination on the basis of sexual orientation and gender identity by covered entities.  Most states do not have employment discrimination laws that protect lesbian, gay, bisexual and transgender individuals.  Other states and cities vary with the types of laws and ordinances they have in place.  Some states prohibit employment discrimination based on sexual orientation or gender identity, whereas others only prohibit employment discrimination based on sexual orientation.  Additionally, some laws make a distinction between public and private employment. 

While the bill may undergo changes, there are some key provisions in ENDA of which employers should be aware:

  • Like Title VII of the Civil Rights Act, a covered employer must have at least 15 employees.
  • Sexual orientation includes homosexuality, heterosexuality and bisexuality.
  • Similar to the Americans with Disabilities Act, employers may not discriminate against individuals based on actual or perceived sexual orientation or gender identity. 
  • Individuals who associate with lesbian, gay, bisexual or transgender individuals are protected from discrimination as well. 
  • ENDA permits claims of disparate treatment but not claims of disparate impact. 
  • Employers would not be required to create additional facilities for lesbian, gay, bisexual and transgender individuals in the workplace. 
  • Employers can require an employee to adhere to reasonable dress and grooming standards during working hours. 
  • Employers are prohibited from collecting statistics on lesbian, gay, bisexual and transgender individuals.  Presumably, such information would not be included in EEO-1 Reports.
  • Aggrieved individuals would not be permitted to recover under both Title VII for sex discrimination and ENDA.

ENDA passed the Senate vote on November 7, 2013.  The bill will now proceed to the House of Representatives.  However, House Speaker John Boehner has not scheduled a vote on the bill. Regardless, human resources professionals should keep ENDA on their radar heading into 2014.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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