This week, the U.S. Senate begins debate on whether to enact legislation to federally protect individuals from discrimination in the workplace based on their sexual orientation and gender identity. On November 4, the Senate voted to open debate on Senate Bill 815 also known as the Employment Non-Discrimination Act (ENDA). The debate begins a mere four months after the Supreme Court’s landmark decision in United States v. Windsor, which held that same sex couples who are legally married must be treated the same as married opposite sex couples under federal law. We reported on the potential impacts of Windsor
here.

The current draft of ENDA proposes to bar employers from basing decisions on or treating employees differently because of their sexual orientation or gender identity, and would apply to most employers and labor organizations. The protections in the proposed bill resemble current federal laws prohibiting workplace discrimination, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission, the federal agency that investigates and enforces Title VII and the ADA, would enforce the proposed law.

Passage of the bill will most likely involve a series of complicated negotiations as Senators navigate constituent and party concerns. ENDA barely received the 60 votes (61-30) required to reach the full Senate, and amendments to the bill surely will be introduced prior to any serious debates. Even if the Senate passes ENDA, the bill faces an even more difficult uphill battle in the House of Representative as Speaker John Boehner has publicly opposed passage of ENDA.

Despite the legislative hurdles facing ENDA, the Senate’s decision to open discussion on the legislation to full debate for the first time in nearly 20 years reflects growing public support for increased legal protections for the rights of lesbian, gay, bisexual, and transgendered individuals. Nearly half of all states – including Illinois – have already passed employment laws prohibiting sexual orientation or gender identity-based discrimination.

We will keep you posted of significant developments in this area.