labor lawAdivision of labor law center

A bill before the U.S. House of Representatives would make it illegal to discriminate in employment based on sexual orientation, for the first time in history.

On October 18, Democrats sent legislation to the House that would prohibit discrimination against gay men, lesbians and bisexuals. The law, called the Employment Non-Discrimination Act, would ban discrimination in hiring, promotion, training, compensation, job assignments and termination.

A number of states, including California, Illinois and New Jersey currently have laws that ban discrimination based on sexual orientation. However, there has been no law making such discrimination illegal nationwide.

While the current bill, HR 3685, is a major step forward in protecting the rights of gays, lesbians and those who are bisexual, many say that it doesn’t go far enough. Language that would include transgendered individuals in the protected class was stricken from the bill in committee. While a number of gay and lesbian rights groups have protested, the bill’s sponsors argue that excluding transgendered people is the only way that the bill will be passed.

Although Democrats have a majority in the House, a number of Southern Democrats have indicated that they would not vote for the bill if it also provided protections for transgendered men and women. Representatives Joe Donnelly, Brad Ellsworth and Baron Hill have all indicated reluctance to vote for such a measure.

Supporters in the house argue that once ENDA is passed, the House will have the opportunity in subsequent years to add a similar bill for transgendered people.

“I believe that the step we are taking today will lay the foundation for passing these additional protections in the future,” said Representative George Miller, Chair of the House Education and Labor Committee.

Others feel that gays and lesbians should not benefit from a bill that excludes anyone based on sexual orientation or gender identity. “We won’t support ENDA until all Americans are included,” said Christopher Anders. He is a senior counsel with the American Civil Liberties Union. “Nobody should be cut out or left behind simply because Democratic leadership is too impatient to round up the votes needed to pass a comprehensive bill.”

Representative Lynn Woolsey has noted that some party members will try to include protection for transgendered workers on the floor before the bill faces a final vote. The House Education and Labor Committee passed the bill by a vote of 27 to 21. All but four of the Republican members voted against the bill. Four Democrats voted against the bill because it did not include language protecting transgendered individuals: Rep. Rush Holt, Rep. Linda Sanchez, Rep. Yvette Clarke and Rep. Dennis Kucinich.

Ironically, prominent gay and lesbian rights groups are some of the most vocal opponents of this move by their Democratic allies in Congress.

One member of the House who supports the current version of ENDA is Barney Frank, a Democrat from Massachusetts and one of two openly gay members of Congress. While he admits that the current version of HB 3685 is not perfect, he sees it as a big improvement over the status quo. “In general, in the legislative context, if you can pass a bill that improves things for a large number of people, then take it,” Frank says. “The notion that you don’t protect most people if you don’t protect them all – that’s never worked.”

Civilian employees of the federal government are protected from discrimination based on sexual orientation under federal regulations. By extension, the same protection is offered to individuals who work for companies holding large federal contracts. However, most private employers are not subject to these rules.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race, color, religion, national origin, or sex. Other laws prohibit discrimination in employment against workers over 40, or those who are disabled. These protections include discrimination in applications, selection, hiring, training, promotion, pay, benefits, working conditions, discipline and termination.

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1. Posted by: House Passes ENDA - Labor Law Center Blog

   [...] ENDA, as currently worded, would make it illegal for employers to discriminate on the basis of sexual orientation in hiring, firing, promoting or paying an employee. An earlier motion to kill the bill by sending it back to committee was defeated by a margin of 222 to 198. [...]

2. Posted by: ENDA faces Senate Vote, Presidential Veto - Labor Law Center Blog

   [...] ENDA would make it illegal for employers 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 privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation.” [...]