Don’t Be Fooled if ENDA Doesn’t Become Law

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There have been many news stories recently about the Employment NonDiscrimination Act (ENDA), which the U.S. Senate appears certain to pass this month. Commentators have different opinions about whether the House of Representatives will also pass some version of ENDA. ENDA prohibits employment discrimination based upon sexual orientation and/or gender identity and will apply to employers of 15 or more employees. The act also contains provisions prohibiting employment discrimination based upon an employee’s association with a gay or transgender individual. ENDA provides for lost wage recovery, compensatory damages and attorneys’ fees to a successful plaintiff.

If ENDA doesn’t pass the House of Representatives, it will not become law this year. However, even if the House fails to pass ENDA, discrimination against employees on account of sexual orientation or gender can expose your company to legal liability. Fourteen states and the District of Columbia have local laws prohibiting employment discrimination by private employers based on sexual orientation. Seven more states have similar laws that protect public employees. Hundreds of counties, cities and towns have ordinances that provide protection from discrimination based on sexual orientation and/or gender identity.

In addition, even though Title VII does not contain express protection against employment discrimination based on sexual orientation or gender identity, several courts have interpreted its prohibition against gender discrimination to include discrimination based on failing to meet a gender stereotype. Thus, a male employee who is teased for being effeminate or a female who is bypassed for a promotion because she is “not feminine” can sue under Title VII.  Courts have also extended protection to employees victimized by workplace sexual harassment even though the harassment was perpetrated by someone of their own gender. The EEOC recently interpreted Title VII’s prohibition against gender discrimination to include protection for a federal employee who proved she had been excluded from a job when her employer learned she was transitioning from male to female. Significantly, EEOC’s Strategic Enforcement Plan for 2013-2016 lists “coverage of lesbian, gay, bisexual, and transgender individuals under Title VII” as one of its top six national enforcement priorities.

What can be gleaned from the foregoing: employers should expect the EEOC to take significant enforcement actions in the near future and litigate issues more aggressively in this area.