Despite Senate passage, ENDA faces another hurdle

by Tammy Binford

Although the U.S. Senate voted in favor of the Employment Non-Discrimination Act (ENDA) on November 7, final passage of the bill, which would prohibit employers from discriminating against employees and applicants based on their sexual orientation and gender identity,  faces an obstacle in the House.

The Senate voted 64-32 to pass the bill, with 10 Republicans joining all Democrats in voting for the measure. The November 7 vote followed a 61-30 vote on November 4 that allowed the bill to go to a vote instead of being stalled by a filibuster.

The measure now faces a more hostile reception in the House. Hours before the November 4 vote in the Senate, House Speaker John Boehner declared his opposition. His spokesman was quoted as saying, “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”

Judith E. Kramer, an attorney with Fortney & Scott, LLC, in Washington, D.C., has been following the bill and what it means to employers. She said if it passes the House and is signed into law, it will be a landmark in federal civil rights legislation.

“While federal law has prohibited employment discrimination on the basis of race, color, religion, sex, national origin, and disability for many years now, earlier efforts to include sexual preference as a prohibited basis of employment discrimination have not even made it out of the starting box at the federal level,” Kramer said after the November 4 Senate vote. “This year’s Supreme Court decision invalidating the Defense of Marriage Act and the proliferation of state laws legalizing same-sex marriage are indicators, as well, of how the public’s views regarding sexual preference have changed dramatically over the last several years.”

A version of ENDA has been considered in Congress since 1994. The current version applies to employers with at least 15 employees and includes an exemption for religious institutions.

“The bill includes an exemption for corporations, associations, educational institutions, and societies that are exempt from Title VII’s prohibition against religious discrimination in employment,” Kramer said.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, and national origin but makes an exemption that allows religious organizations to restrict hiring to people of their faith and refuse to hire people of other religions on religious grounds. Like Title VII, the Senate’s ENDA bill would allow religious institutions an exemption based on religious beliefs. That exemption would allow religious institutions to make employment decisions based on sexual preference or identity, Kramer said.

Kramer wrote on the issue in the July 2013 edition of Federal Employment Law Insider. She explained that the bill would make it unlawful for both private- and public-sector employers to engage in the following employment practices:

• Fail or refuse to hire or discharge an individual, or otherwise discriminate against an individual, with respect to compensation, terms, conditions, or privileges of employment because of his actual or perceived sexual orientation or gender identity; or

• Limit, segregate, or classify employees or job applicants in any way that would deprive or tend to deprive them of employment or otherwise adversely affect their status as employees because of their actual or perceived sexual orientation or gender identity.

If passed, ENDA will be enforced by the Equal Employment Opportunity Commission (EEOC).

Editor’s note: This article was updated on November 7, 2013, to include details about ENDA’s Senate passage.