Washington D.C. Employment Law Update
ENDA Reintroduced in the House of Representatives
Update: On April 13, 2011, Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), and Susan Collins (R-ME) introduced a companion bill (S. 811) in the Senate.
Rep. Barney Frank (D-MA) has once again introduced the Employment Non-Discrimination Act (ENDA) (H.R. 1397), legislation that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. The bill, which was introduced with 111 cosponsors, would make it an unlawful employment practice for an employer:
(1) 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 or gender identity; or
(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.
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.” “Sexual orientation” is defined as “homosexuality, heterosexuality, or bisexuality.”
This Act would also ban adverse employment actions against an employee for the real or perceived sexual orientation or gender identify of a person with whom the employee associates, and prohibit retaliation against an employee for exercising his or her rights under this Act, or opposing an alleged discriminatory practice.
This bill builds upon the language and definitions set forth in Title VII of the Civil Rights Act. A private sector employer would be covered by this Act if it has 15 or more employees who have worked full-time for 20 or more weeks in the current or preceding calendar year. Current remedies and enforcement mechanisms available to employees under Title VII of the Civil Rights Act would apply. Labor organizations would be similarly barred from discriminating on the basis of sexual orientation or gender identity, while religious organizations and the armed forces would be exempt.
Although Rep. Frank also introduced this measure in 2007 and 2009 with a significant number of cosponsors, the earlier bills failed to sufficiently advance. Given the current political composition of the House, the 2011 version of the bill may likely share the same fate.
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