On November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (“ENDA”), legislation that would prohibit workplace discrimination based on sexual orientation or gender identity. The ban would join similar federal workplace protections based on race, national origin, religion, gender, age, and disability. The issue now moves to the U.S. House of Representatives for consideration, where many experts believe the legislation faces an uphill battle.

Specifically, ENDA prohibits employers with 15 or more employees from using sexual orientation and gender identity as the basis for making employment decisions, bans harassment on the basis of sexual orientation and gender identity, provides for remedies similar to those of other forms of employment discrimination, bars retaliation, and includes exemptions for religious organizations and the Armed Forces. In addition, ENDA applies to both public and private sector employers.

Supporters of this bill have been trying to enact some form of this legislation since the mid-1990s, as current federal law does not prohibit employers from making employment decisions based on sexual orientation or gender identity. Presently, approximately 21 states and the District of Columbia have laws prohibiting employment discrimination based on sexual orientation, while 17 states and the District of Columbia also ban employment discrimination based on gender identity.

Opponents of ENDA view the legislation as unnecessary because federal statutes already ban workplace discrimination and many private companies already have policies prohibiting this form of workplace discrimination. Also, some are concerned that ENDA could lead to an increase in employment discrimination lawsuits, which would be costly for businesses.

House Speaker John Boehner is opposed to this bill, casting doubt on whether a vote on ENDA will take place in the House. However, supporters hope that evolving public sentiment towards LGBT rights will create pressure on the House to act on the measure. If the House fails to act on ENDA, LGBT rights advocates are likely to seek an executive order from President Obama prohibiting workplace discrimination by federal contractors on the basis of sexual orientation or gender identity.


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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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