On November 7, 2007, the United States House of Representatives approved the Employment Non-Discrimination Act by a vote of 235-184. The Employment Non-Discrimination Act, H.R. 3685, is intended "to provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation" and "provide meaningful and effective remedies for employment discrimination on the basis of sexual orientation." In short, if the Employment Non-Discrimination Act were to become law, it would extend the protection of Title VII of the Civil Rights Act of 1964 to prevent disparate treatment of employees based on sexual orientation.
Under current law, Title VII protects employees from discrimination based on a variety of characteristics, such as race, color, religion, national origin, sex, and disability. However, at present, Title VII does not provide a cause of action for an employee who believes that he or she has been discriminated against by virtue of his or her sexual orientation. While there are currently thirteen states with laws that prohibit sexual-orientation discrimination in the workplace, and seven additional states that include a ban on discrimination against trans-gendered individuals, there is no federal law with an equally broad reach. With the passage of the Employment Non-Discrimination Act, the first gay bias bill passed by one of the houses of Congress, the House of Representation has taken the first step to include that classification among those classes currently protected from workplace discrimination.
Section Four of the Employment Non-Discrimination Act states that:
It shall be 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
(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.
While that language only specifically deals with employers (entities who employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year), the Act applies to employment agencies and labor organizations as well. In addition to prohibiting discrimination based on sexual orientation, the bill also includes language that would outlaw retaliation in this context, as well. The terms of the Employment Non-Discrimination Act would empower the Equal Employment Opportunity Commission with the same authority in this arena that it has to administer and enforce Title VII's prohibitions with regard to the previously established protected classes.
A major issue of contention with this bill is the fact that the current version includes only half of the original content of the Act. When this legislation was introduced, it not only included the ban on discrimination based on sexual orientation, but also protected trans-gendered individuals. The fact that the current version has, for the time being, dropped the latter section is a matter of concern for many on both sides of the aisle. The proponents of the original bill are upset that half of its proposed agenda has been left by the wayside, while those on the other side are still concerned that this legislation is merely the first step that will eventually lead to further legislative action on this issue that is far broader than the ENDA.
While this bill would work a significant change in the field of employment discrimination if it were to become law, the Employment Non-Discrimination Act, as passed by the House of Representatives, still contains some familiar provisions that would prevent it from having too radical of an effect. First, its provisions explicitly do not apply to religious organizations, a measure which mirrors a similar provision under Title VII intended to avoid forcing religious institutions to hire employees who do not share their beliefs. Additionally, the Act states that, for purposes of this legislation, "'employment' does not apply to the relationship between the United States and members of the Armed Forces." Finally, the bill states that:
Nothing in this Act shall be construed to require a covered entity to treat a couple who are not married, including a same-sex couple who are not married, in the same manner as the covered entity treats a married couple for purposes of employee benefits.
This language was included to address the concerns of some legislators about the bill's potential impact on the definition of marriage, and helps to alleviate concerns that the bill would wreak havoc with employers' benefits plans.
In sum, the Employment Non-Discrimination Act would put sexual orientation among those characteristics that are protected by the EEOC in employment relationships. If it were to become law, the Act would provide the same protections for this new class as are set forth for the established groups, preventing employer discrimination and retaliation on the basis of an employee's sexual orientation. The creation of this new protected class would require that employers be as watchful with regard to this new protected class as they are when dealing with the classes that already exist. However, while the passage of this bill by the House marks a significant milestone in the path of the legislation, there is still much ground that it must cover before becoming law. At least one Democratic Senator has voiced an intention to introduce similar legislation in the Senate, but while the bill's proponents are optimistic about its chances, there are several issues that could still prevent it from making it out of the Senate, not the least of which is the fact that the White House has signaled that it would likely veto any such bill that was presented to it.
Michael Newman is a Partner in the Cincinnati office of Dinsmore & Shohl LLP, where he chairs the firm's Labor & Employment Appellate Practice Group. He represents a broad range of business clients, both large and small, in the state and federal courts.