No federal law currently exists that prohibits workplace discrimination against lesbian, gay, bisexual, and transgender people. Although measures have passed at state and local levels to protect people from discrimination based on sexual orientation and gender identity or expression, it continues to be legal in 30 states to fire or refuse to hire someone because of sexual orientation. It remains legal in 37 states to fire someone because of a person's gender identity or expression.
Just over a month ago, on June 24, the Employment Non-Discrimination Act was introduced in the House of Representatives by Representatives Barney Frank (D-Massachusetts) and Ileana Ros-Lehtinen (R-Florida) with 117 original co-sponsors. Senate introduction of the bill is expected soon.
ENDA would extend federal employment laws, which currently prevent employment discrimination on the basis of race, religion, gender, national origin, age and disability, to cover sexual orientation and gender identity. Subject to some specific exceptions, it would prohibit public and private employers with 15 employees or more from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation. It would also prohibit employment agencies and labor unions from excluding individuals from consideration based on sexual orientation or gender identity. ENDA would also prohibit retaliation, covering individuals who have opposed unlawful practices or who have participated in an employment discrimination proceeding.
It is notable that the current text of ENDA includes "gender identity," which is defined as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regarding to the individual's designated sex at birth." This prohibition not only protects individuals who are transgender, but also all those employees who are discriminated against based on any gender characteristics. This could include discrimination based on the fact that a person is not "feminine" or "masculine" enough, regardless of whether or not they are transgender, heterosexual, bisexual, or homosexual. "Gender" discrimination could even include acts of discrimination against an individual's secondary characteristics such as facial hair, vocal range, or size and shape of body.
ENDA would not apply retroactively, and nothing in the act would require quotas or preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity. It would not apply to uniformed members of the armed forces (it would have no effect on the "Don't Ask, Don't Tell" policy).
How should employers respond if ENDA becomes law?
1. No change to California law.
The California Fair Employment and Housing Act already includes "sexual orientation" and "gender" as classifications protected from employment discrimination or harassment. Accordingly, California employers should have already been in compliance with provisions under state law that are nearly identical to the proposed federal legislation.
Employers with operations in multiple states should review the laws of each state to determine what clarifications, revisions, or other changes must be made to current employment practices, in light of the current legal landscape in those states, and the provisions of ENDA.
2. Review of employment policies.
Employers should review all employment policies and practices, including any EEO, anti-discrimination and harassment, dress code, bereavement leave, non-FMLA leave of absence, and employment of relatives policies. Employers should ensure that they reflect that "sexual orientation" and "gender" are included as protected classifications, and that no policy unlawfully affects any group of employees based on these protected statuses.
3. Include "gender" and "sexual orientation" discrimination and harassment in employee training.
To the extent that employers conduct ongoing training for supervisors, management or employees regarding discrimination and harassment, issues regarding sexual orientation and gender discrimination, harassment and retaliation should be included in that training. In addition, employees involved with administration of payroll, employee benefits and human resources should be educated regarding the changes in the law.
4. Stay aware of further future legislative and legal developments.
Legal challenges to existing marriage laws and efforts to expand marriage to same-sex relationships continue to be raised and fought on the state and federal level. It is nearly certain that the state of the law regarding same-sex marriage will continue to change at the state and federal level. Changes in state or federal law in this area directly affect employers' administration of benefits and policies. Therefore, it is critical for employers to keep apprised of the ongoing and fluctuating legal developments in this arena, in addition to changes in employment laws.
Laura Maechtlen is an associate in the labor and employment department in the San Francisco law office of Seyfarth Shaw LLP. She may be reached at [email protected].