Both the U.S. House of Representatives and the Senate are evaluating the merits of the Employment Non-Discrimination Act. The Bill would protect the approximately 9 million Americans who identify as lesbian, gay, bisexual and transgender people from discrimination in hiring and employment.
Employer Federal Posting Update
ENDA includes a posting component in Section 13. If passed, the Bill would require employers to display an updated version of the Equal Employment Opportunity Commission’s Equal Opportunity is the THE LAW posting six months after enactment.
EEOC Steps Up – But Not a Sure Thing
In the current version of Title VII of the Civil Rights Act, the following employee categories are protected from workplace discrimination:
- Sex (including pregnancy)
- National origin
In a 2012 case (Macy v. Holder) the EEOC interpreted existing laws that prohibit discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity. The case involved Mia Macy, a transgender woman, who was not hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives based on her gender identity and transition.
Without language clearly identifying protections specifically for LGBT employees, the Supreme Court could overturn the EEOC ruling in Macy or similar cases.
Employers and U.S. States Fill the Gap
Even without enactment of ENDA, many U.S. employers have implemented anti-discrimination policies that include protections for their LGBT employees. A Williams Institute analysis found that 98 percent of Fortune 50 companies and 90% of the top 50 federal contractors protect gay workers. Protections for transgender people lag in those same companies, however, with only 67 percent of federal contractors and 88 percent of Fortune 50 companies offer protections based on gender identity.
Twenty-one states and the District of Columbia prohibit employment discrimination based on sexual orientation, whereas only 16 states and D.C. offer similar protections for gender identity.
Which Employers Would Be Required to Comply with the Act?
The revised Act would apply to public and private employers with 15 or more employees. However, volunteers, members of the military, and employees of religious institutions and private membership clubs would not be protected under the Act.
For example, ENDA’s protections would not cover Carla Hale, a teacher at a Catholic high school in Ohio who was fired for her sexual orientation. Her employer, Bishop Watterson High School, would be exempt from the Act because of its protected status as a religious institution.