8 Important Things You Should Know About the Employment Non-Discrimination Act

by Spilman Thomas & Battle, PLLC

The Employment Non-Discrimination Act (“ENDA”) is federal legislation that would prohibit employers from discriminating against potential or actual employees during hiring and employment based on their sexual orientation or gender identity. The Act defines sexual orientation as “homosexuality, heterosexuality, or bisexuality.” Gender identity is defined as “gender-related identity, appearance, or mannerism or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” 

Succinctly, the ENDA would provide potential and current employees a legal remedy for discrimination based on their actual or perceived sexual orientation or gender identity. This remedy would allow employees to receive back pay, litigation costs, compensatory and punitive damages, similar to remedies for other types of employment discrimination such as age, sex and race.

Isn’t Discrimination Based on Sexual Orientation Already Prohibited?

Different states have different prohibitions relating to employment discrimination based on sexual orientation and/or gender identity – some states do not prohibit this form of discrimination at all. At this time twenty-two states and the District of Columbus have laws prohibiting employment discrimination based on sexual orientation. Seventeen states and the District of Columbus prohibit discrimination based on gender identity. Within Spilman’s footprint, West Virginia, Virginia and North Carolina do not have any state-wide laws prohibiting discrimination in employment based on sexual orientation or gender identity (though it may be prohibited in some cities or counties by local ordinance, such as in Charleston, West Virginia). Pennsylvania prohibits discrimination based on sexual orientation, but only in public employment.

The History of the ENDA

The ENDA was originally introduced in Congressional committees in 1994 and only barred discrimination based on sexual orientation. The 1996 version of the ENDA was introduced to every Congress following (except the 109th) until 2007, when a version was introduced that included a prohibition against discrimination based on gender identity as well as sexual orientation.

On November 7, 2013, the Senate passed the ENDA in a 64-32 vote. The ENDA must be passed in the House of Representatives and signed by President Obama to become law. The inclusion of gender identity, while controversial, is part of the current ENDA legislation that passed in the Senate.

The Future of the ENDA

The ENDA’s immediate future in the legislative branch is not promising. Speaker of the House John Boehner opposes the bill, so the ENDA may not even be voted on in the House of Representatives during this session. As a pre-emptive response to predicted failure of the bill, numerous advocacy groups are asking President Obama to issue an executive order that mirrors the ENDA, but would only apply to federal contractors – about 20 percent of the nation’s workforce. In 2008, while President Obama was running for office, he backed a similar executive order to the one requested by these advocacy groups; however, the President has since deferred to Congress on this issue.

What Employers Should Know if the ENDA Becomes Law:


  1. Who would be considered unprotected employees and exempt employers? Employees of religious organizations, members of the armed forces and uncompensated volunteers would not be protected by the ENDA. The ENDA would, however, prevent discrimination against employees by federal, state and local government agencies; unions; employment agencies; and private employers with 15 or more employees.
  2. What will employers be unable to do?
    1. The language of the proposed law would make it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privilege of employment of the individual because of such individual’s actual or perceived sexual orientation or gender identity.” 
    2. It would also be unlawful for an employer “to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.”
  3. Who could sue under the ENDA? The law would protect employees based upon their actual and perceived sexual orientation and gender identity. This would provide a cause of action for any potential or actual employee who is perceived to have a specific orientation and discriminated against based on this perception, even if the employee does not have the perceived sexual orientation.
  4. Would I need to favor people with certain sexual orientations or gender identities? The ENDA does not prescribe any preferential treatment of any potential or current employee based on sexual orientation or gender identity, nor would the ENDA create any quota requirements for employers. 
  5. What type of claim could an employee bring? The ENDA would not allow any disparate impact claims – only claims of disparate treatment. Thus, if an employer’s hiring policies disparately impact employees of a specific sexual orientation, these employees will not be able to sue under the ENDA. An employee will only be able to sue under the ENDA if he or she experiences disparate treatment because of his or her actual or perceived sexual orientation or gender identity.
  6. What would an employee have to prove for an employer to be held liable? For an employee to prove a clear case of unlawful employment practices in violation of the ENDA, an employee would have to demonstrate that sexual orientation or gender identity was a motivating factor for any employment practice, even though other factors may have also motivated the practice. 
  7. What if the employee would have been terminated regardless? Even if an employee would be able to prove a clear case of unlawful employment practices in violation of the ENDA, an employer would be able to raise the defense that the employer would have made the same employment decision even if it had not discriminated against the employee. If an employer proves this defense, the court would not be able to award damages to the employee bringing the claim. However, this “same decision” defense would not prevent the court from awarding injunctive or declaratory relief, as well as attorneys’ fees and costs.
  8. Will this affect dress code or grooming standards? The law does specifically detail that employers who have dress or grooming standards would be allowed to maintain these standards for employees without violating the ENDA. In the case of transgender employees, the dress standards of the gender the employee is transitioning to would apply.

Above are just a few questions employers need to consider relating to the ENDA.


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.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.