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.
In a court reversal, the case of a lactating mother takes a turn in her favor.
Donnicia Venters took maternity leave from her job with Houston Funding, where she worked as an account representative and performed her job at or above performance expectations.
As she was preparing to return from her leave, she requested permission from her supervisor to use a back room at work to pump breast milk. A company partner, however responded “…with a strong ‘NO. Maybe she needs to stay home longer.’”
The company terminated Venters for job abandonment, but fortunately for Venters, she had cell phone records and witness testimony that she was in regular communication with her supervisor and other Houston Funding staff. This demonstrated to the court that she had not abandoned her job and reinforced her case that she should be allowed to express milk at work under the law.
In its first court case, Houston Funding argued Title VII of the Civil Rights Act “prohibits various forms of employment discrimination, including discrimination on the basis of sex” but does not cover “breast pump discrimination”. The company moved for summary judgment, and the district court granted the motion. The EEOC appealed the decision, and the U.S. Court of Appeals for the Fifth Circuit overturned the previous court’s judgment so Venter’s case can now proceed to trial.
The attorneys for the EEOC arguing for Venter presented significant case law that indicates that Title VII covers lactation and the expressing of breast milk.
In their finding, the Court wrote:
Because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we find that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fired Venters because she was lactating and wanted to express milk at work.
Title VII prohibits discrimination based on an individual’s sex. Employees cannot be denied workplace opportunities based on characteristics unique to their sex. Lactation is a female-specific function; therefore, firing a female worker because she is lactating imposes a burden on that female worker that a comparable male employee simply could never suffer, which is sex discrimination under Title VII.