THE federal EMPLOYMENT NON-DISCRIMINATION ACT (ENDA) FAQ AND ANSWERS
I. GENERAL QUESTIONS
- Why is ENDA necessary?
ENDA is necessary because LGBT people face serious discrimination in employment, including being fired from a job, being denied a promotion, and experiencing harassment on the job. There is no federal law prohibiting discrimination on the basis of sexual orientation or gender identity. Only 21 states have laws barring employment discrimination based on sexual orientation, and only 17 also include gender identity in those laws.
- Who supports the Employment Non-Discrimination Act?
The American Public – Polls demonstrate overwhelming support for the principle of equal job opportunities for LGBT people. A recent poll shows nearly 8 out of 10 Americans support protections against employment discrimination based on sexual orientation and gender identity (Greenberg Quinlan Rosner Research poll, November 2011).
American Business – Corporate America knows that basic fairness is good for business. 88% of Fortune 500 companies have non-discrimination policies that include sexual orientation, and 57% of those companies also cover gender identity. More than 90 major corporations are members of the Business Coalition for Workplace Fairness, a group supporting passage of ENDA – these include American Airlines, Bank of America, Bristol-Myers Squibb, Chevron, Cisco Systems, Clear Channel Communications, Coca- Cola, Dow Chemical, Ernst & Young, General Mills, General Motors, Google, Harrah’s Entertainment, IBM, J.P. Morgan Chase, Kaiser Permanente, Marriott International, Microsoft, Nationwide, Nike, QUALCOMM, Time Warner, and Xerox.
The Civil Rights Community – The civil rights community understands that the Employment Non-Discrimination Act is an issue of basic fairness. The Leadership Conference on Civil and Human Rights, a coalition of over 200 civil rights, religious, labor, and women’s rights organizations, has endorsed ENDA. In addition, such well known leaders of the civil rights movement as Julian Bond and Rep. John Lewis have spoken out in support of ENDA in the past.
Religious Organizations – Communities of faith also support fairness. Numerous Christian and Jewish organizations and denominations have taken a strong stand against discrimination, including the Evangelical Lutheran Church in America, the Episcopal Church, the Union for Reform Judaism, the United Church of Christ and the United Methodist Church.
3. Is it true there is no effective recourse for job discrimination against LGBT people under existing laws?
Individuals have tried to challenge discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964, but courts have universally concluded that Title VII does not prohibit discrimination based purely on sexual orientation. A growing number of federal district and appellate courts have found at least some protections for transgender employees under federal sex discrimination prohibitions, and in April 2012, the Equal Employment Opportunity Commission (EEOC) issued an opinion holding that claims of discrimination based on gender identity can be brought under Title VII. However, there is still no clear and consistent federal statutory protection for all LGBT employees.
Furthermore, there is no effective recourse for job discrimination based on sexual orientation or gender identity in the majority of states. Only 21 states have laws barring discrimination based on sexual orientation in employment, and a mere 17 states have such protections for transgender employees. Various municipalities have similar ordinances. But the vast majority of LGBT people across this country have no clear protection.
II. EMPLOYERS/COVERED ENTITIES
- What employers are covered under ENDA?
ENDA covers the same entities that Title VII of the Civil Rights Act of 1964 covers. Private employers with fifteen or more employees, federal, state and local governments, labor unions, and employment agencies are all covered under this bill, as they are under Title VII.
- Does ENDA have a small business exemption?
Yes — the same exemption that exists in Title VII. ENDA only covers employers with more than 15 employees.
- Is the military covered under ENDA?
No. Like Title VII, ENDA does not apply to the relationship between the United States government and members of the Armed Forces.
- Are religious entities covered under the ENDA?
ENDA includes a broad exemption for religious organizations. Any religious entity that is currently exempt from Title VII’s prohibition on employment discrimination based on religion is exempt from the coverage of the Act. Over the last forty years, courts have interpreted this language to reach not just houses of worship, but also other organizations owned by or closely affiliated with a religious denomination.
III. BASES FOR CLAIMS/RELIEF
- What actions of an employer are covered under ENDA?
ENDA covers an employer’s decisions regarding employment and employment opportunities, such as hiring, firing, promotion, training or compensation. The bill requires that an individual’s sexual orientation or gender identity may not be a factor in such decisions.
- Won’t ENDA result in a flood of unnecessary law suits?
No. In 2009, the Government Accountability Office (GAO) issued a report surveying the number of claims of filed with state authorities in the 22 states which, at that time, had statutes barring employment discrimination based on sexual orientation and/or gender identity. The GAO found that “the administrative complaint data reported by states show relatively few employment discrimination complaints based on sexual orientation and gender identity.” On average, in 2008 claims based on sexual orientation or gender identity were about 3-4% of the total number of employment discrimination claims. (Report GAO-10-135R, October 7, 2009).
4. Does this bill require employers to provide domestic partner benefits?
No. ENDA does not include an affirmative mandate to provide benefits to the domestic partners of gay and lesbian employees. ENDA does require employers to treat employees equally in the terms of conditions of employment, including in benefits, which are a significant portion of compensation for many employees. As such, an employer cannot deny an LGBT employee a benefit that it provides to its other employees simply because he or she is gay or transgender. For example, if an employer provides benefits to the lawfully married spouses of its heterosexual employees, it would run afoul of ENDA to deny those same benefits to the legal same-sex spouses of its workers.
Employers, of course, remain free to affirmatively provide benefits to their employees’ same-sex domestic partners if they wish to do so. More and more companies across the country are discovering it makes good business sense to extend such benefits to the same- sex partners of their employees.
IV. MISCELLANEOUS QUESTIONS
1. Will employers still be able to have dress codes on the job?
Yes. Nothing in ENDA prevents an employer from maintaining otherwise-lawful gender-based dress and appearance standards, so long as an employee is allowed to follow the standards consistent with his or her gender identity. Of course, requiring men and women to conform strictly to stereotypical views of male and female roles may violate Title VII as a form of sex discrimination. It would not, however, be a violation of ENDA.
2. How will employers handle access to showers, locker rooms and restrooms?
ENDA requires equal treatment for lesbian, gay, bisexual and transgender workers in the terms and conditions of their employment. Part of most everyone’s workday is using a restroom facility and, for certain workplaces and particular jobs, use of other facilities segregated by sex – such as showers and locker rooms – is also part of the daily routine. Under ENDA, an employer must ensure that no employee is denied access to those facilities because of his or her sexual orientation or gender identity.
In practice, in workplaces that already have LGBT-inclusive nondiscrimination policies and in states that already have laws barring discrimination against LGBT workers, this is not a major issue. Employers allow employees to use the restroom and other facilities segregated by sex that are consistent with the way an employee presents in the workplace. If a transgender employee is transitioning genders on the job, that employee and the employer work together to ensure that the employee has access to the appropriate facilities.
Once ENDA is enacted, it is likely the Equal Employment Opportunity Commission (EEOC) will provide guidance and/or issue regulations with regard to a number of aspects of the legislation, as it has under Title VII and the ADA. This may include more assistance to employers on addressing access to sex-segregated facilities. Some similar state-level agencies have provided such guidance under their LGBT-inclusive non- discrimination laws.