Equality is a fundamental principle in American constitutional law. Therefore, American workers are protected against discrimination on the basis of race, sex, or religion. However, despite the fact that more than eight million American workers identify as lesbian, gay, bisexual, or transgendered (LGBT), there is no federal law that prohibits employment discrimination on the basis of sexual orientation.
Thankfully, support for gay rights is growing. Earlier this year, the Supreme Court struck down the Defense of Marriage Act (DOMA), paving the way for states to officially recognize same-sex marriages. In another recent landmark vote with strong bipartisan support, the long-gestating Employment Non-Discrimination Act (ENDA) passed in the U.S. Senate. If passed in the U.S. House of Representatives, this bill would mean a lot for LGBT workers who have experienced discrimination in the workplace.
What Is ENDA and How Can It Help Gays, Lesbians, Bisexuals, and Transgendered People?
The ENDA would make it unlawful for employers to discriminate against employees on the basis of sexual orientation or gender identity when making hiring decisions. Importantly, the bill defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”
In order to achieve bipartisan support in the Senate, the bill’s drafters had to make several concessions that could limit the law’s impact:
- Remedies for violations of the law would be afforded under Title VII of the Civil Rights Act. Those remedies would only be available for disparate treatment claims (meaning intentional discrimination) though. These have a higher threshold of proof than disparate impact claims.
- While the law would apply to employment agencies and labor organizations, religious organizations and the armed forces would be excluded.
- The law explicitly states that employers would not be required to establish hiring quotas or provide preferential treatment to employees on the basis of sexual orientation or gender identity.
- Finally, the law would allow employers to enforce dress or grooming standards, with the caveat that the employer would probably have to allow an employee undergoing gender transition to wear clothing in accordance with his or her intended gender.
What Protections Do LGBT People Currently Have Against Workplace Discrimination?
Prior to the historic vote in the Senate, President Obama called on Congress to pass ENDA. He believes no American should lose his or her job “simply because of who they are.” Yet, under existing federal law, that can happen to lesbians, gays, bisexuals, and transgendered persons. As a result of the lack of federal protection, LGBT people in Michigan alone:
- Are paid less
- Have limited access to health insurance
- Can be fired because of their sexuality
- Can be denied promotions because of their sexuality
Several individual states have taken it upon themselves to protect LGBT persons against workplace discrimination. Twenty-one states currently have statutes that prohibit discrimination based on sexual orientation in public employment. Although Michigan is not one of these states, several cities in Michigan have passed local laws barring workplace discrimination against gays and lesbians.
What’s Next for ENDA?
Although ENDA passed in the Senate, proponents of the legislation still face an uphill battle. Republican House Speaker John Boehner has indicated that he won’t even bring ENDA to a vote in the House. In fact, many Republicans oppose the law. They say it would place a huge financial burden on American businesses. However, Senate majority leader Harry Reid believes that the bill will easily pass in the House if Boehner allows for a vote. Ultimately, if Republican leadership refuses to allow a vote on ENDA in House, it is possible that President Obama could exercise presidential fiat and issue an executive order that overrides congressional inaction.