Jun 28, 2009

Just in Time for Gay Pride: Inclusive ENDA Introduced

Just days before this weekend's gay pride celebrations, Representative Barney Frank introduced the Employment Nondiscrimination Act (ENDA) in the House of Representatives. ENDA would outlaw employment discrimination on the basis of sexual orientation or gender identity.

The gender identity part didn't make it into the bill last time around, much to the consternation of many LGBT activists. This year's model is referred to as "inclusive" because it includes gender identity protection. (Prohibiting discrimination based on gender identity, defined as a person's gender-related appearance, mannerisms, characteristics, or identity, with or without regard to the person's designated sex at birth, would protect transgendered employees and employees who don't conform to the stereotypes associated with their gender.)

The bill -- H.R. 2981 -- has a number of similarities to existing laws that prohibit discrimination. (You can find it at the Library of Congress's THOMAS website; search for the bill number.) It would apply to private employers with at least 15 employees (like Title VII and the ADA), prohibit discrimination in every aspect of employment, prohibit retaliation, and use the same enforcement mechanisms and procedures as Title VII. However, there are some key differences:

  • Disparate impact claims may not be brought under ENDA. Only intentional discrimination is prohibited. 
  • In case you didn't hear it the first time, the bill explicitly doesn't prohibit employers from enforcing rules or policies that do not intentionally violate the law, as long as those rules or policies are enforced consistently. In other words, really no disparate impact claims.
  • Employers may enforce their usual dress and grooming codes during work hours, as long as they allow employees who have already undergone gender transition, or are transitioning while employed, to conform to the standards of the gender to which the employee is transitioning.
  • Employers don't have to create new or additional facilities (restrooms, changing rooms, and so on) to comply with the bill. However, employers must allow the employee reasonable access to facilities that are "not inconsistent" with the employee's gender identity, as established when the employee was hired or when the employee notifies the employer of a gender transition.
  • The military and religious organizations won't have to comply with the law.
  • The bill doesn't require employers to offer the same benefits to unmarried couples as to married couples -- and, for purposes of the bill, "married" is defined as in the Defense of Marriage Act (DOMA), as between a man and a woman. So married same-sex couples might not be married under this provision.  

ENDA has been kicking around Congress for more than a decade, but the possibility of passage looks brighter this year, given the political makeup of the House and Senate and the support of President Obama (whose administration is currently drafting rules to protect federal transgendered employees from discrimination).