White House Moves to Increase ENDA Workplace Protections for LGBT Community

The White House recently announced President Obama's intention to sign an executive order banning federal contractors from discriminating against lesbian, gay, bisexual and transgender (LGBT) employees. If signed, the order would protect up to 16 million employees working on federal contracts from workplace discrimination based on their sexual orientation.

Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, color, religion, sex and national origin, but is silent with respect to discrimination based on sexual orientation. LGBT advocates hope to fill this gap with the Employee Non-Discrimination Act (ENDA), which would prohibit workplace discrimination based on sexual orientation and gender identity. All attempts to pass the law have failed since its introduction in 1994, in large part due to the potential conflict between LGBT and religious rights.

An employer's obligation to provide religious accommodations under Title VII — provided such accommodations do not substantially burden the employer — often requires that an employee be excused from certain work-related events that conflict with the employee's religious beliefs. By refusing such requests, an employer may be subject to potential Title VII claims alleging the company is creating a hostile work environment.

Thus, employers often find that enforcing policies supporting LGBT rights can also be seen as religious discrimination by those who oppose same-sex marriage and similar issues. While this conflict between religious and LGBT rights has not yet resulted in a significant number of lawsuits, statistics from the Equal Employment Opportunity Commission (EEOC) show a steady increase in both types of discrimination complaints in recent years.

Despite these conflicting anti-discrimination obligations, the social, political and regulatory environments are steadily moving towards favoring rights for LGBT employees. The EEOC has ruled transgendered employees — and in certain circumstances gay and lesbian workers — are entitled to protection under the sex-discrimination provisions of Title VII.

Furthermore, 87% of Fortune 500 companies have implemented policies prohibiting discrimination based on sexual orientation, and over 50% of those companies also prohibit discrimination based on gender identity. Employment discrimination based on sexual orientation is illegal in 21 states and the District of Columbia, with all but five of those also prohibiting discrimination based on gender identity.

The reality is that businesses and individuals are increasingly supportive of LGBT rights and employers appear to face potential movement on this issue at both the state and federal level in the near future. Consequently, despite the lack of a federal law banning discrimination against employees for their sexual orientation, employers should consider the current climate when reviewing their policies and training programs. Employers wishing to promote LGBT rights, however, must carry out a delicate balancing act to avoid threatening the protections in place for religious beliefs.

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