labor lawAdivision of labor law center

Employment discrimination based on sexual orientation may well become illegal under federal law, if the ENDA bill currently being debated in Congress is passed.

 

Experts are predicting that the Employment Non-Discrimination Act or ENDA has an excellent chance of being signed into law within the next 12 months.

 

ENDA was introduced in the House by Representative Barney Frank of Massachusetts as H.R. 3017 in June 2009. More than 150 representatives have co-sponsored the bill.

 

Senator Jeff Merkley of Oregon introduced it in the Senate as S. 1584 where it garnered 39 co-sponsors.

 

The bill is currently being debated in the House Education and Labor Committee. President Barack Obama has expressed strong support for ENDA and urged Congress to pass it.

 

While a number of states including Washington, New Jersey, Illinois and California have laws that prohibit employment discrimination against homosexuals, there is no federal law at this point. In some states such as Oklahoma, an employer can legally pay homosexuals less than their heterosexual coworkers. An employer can even refuse to hire an applicant who is homosexual. ENDA would change that.

 

A number of gay rights organizations are opposed to ENDA because it excludes transgender individuals and the provision protecting gender identity. They see the current bill as a watered-down version that fails to protect transsexuals.

 

Under the current version, gay men and women could not be the target of discrimination in the workplace. Employers would have to make decisions without considering the employee’s sexual orientation. However, an employer could still refuse to hire a man who dressed like a woman, or vice versa. The proposed version of the law would also permit employers to discriminate against a biological male who wants to be treated as a female at work.

 

The Society for Human Resource Management originally supported ENDA when it included protection for transgender and those with varying gender identities. However, SHRM also opposes the current version of the bill. They argue that it is too ambitious, and it will be difficult or impossible for the average HR manager to determine if an employment decision is based on an individuals homosexuality, or his/her gender identity.

 

 

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