The Employment Non-Discrimination Act, which would ban workplace and hiring bias on the basis of sexual orientation and gender identity, was first proposed by Congress in 1994. Today, with the support of every Democrat and 10 Republicans, the bill finally finally passed the Senate.
The future of ENDA in the GOP-controlled House of Representatives is less certain, despite a recent survey from conservative pollster Alex Lundry and Americans for Workplace Opportunity that shows that two-thirds of registered voters and 56% of Republicans support its protections. House Speaker John Boehner, R-Ohio, said this week that he does not back the bill, and the conservative side of his party – which he’s struggled to control – will likely go nowhere near it.
The same poll shows that a majority of Americans are under the misconception that a nationwide prohibition on workplace discrimination toward LGBT individuals is already in place. Only 17 states ban employers from refusing to hire or promote people based on sexual orientation and gender identity, and another four extend those protections to gay men, lesbians and bisexuals, but not transgender workers.
Katharine Parker, New York-based partner of the law firm Proskauer Rose LLP, says most large employers “value diversity and strive to foster and maintain a diverse and inclusive environment,” so many have of their own prerogative initiated LGBT non-discrimination policies, which may add to the impression that it’s already the law of the land.
“Slightly more than half the states don’t have laws in place that prohibit discrimination on the basis of sexual orientation,” Parker says. “So employers in those jurisdictions certainly will need to pay attention, and they may need to update their policies if they haven’t voluntarily. Employers may need to factor this into benefit planning, and to update other policies, not just the non-discrimination policies. There may be other leave, sick or bereavement policies and the like which may need to be updated, should the law pass.”
Even if ENDA does not pass Congress, employers need to stay aware of all their local laws and regulations. Not just states, but more than 170 cities, counties and other localities have banned LGBT discrimination, including those in states that haven’t. And “they may see more of these laws passed,” should the effort fail at a national level, Parker says.
Boehner says his opposition to the legislation stems from the desire to respect business owners’ freedom of religion and speech. A spokesman for the speaker said this week that ENDA would “increase frivolous litigation and cost American jobs,” but Parker says, in her limited experience, this is not the case.
“I know mostly about New York. We have not seen a flood of litigation; the New York state law was amended in 2003, and we did not see a huge uptick in litigation,” she says. Parker was chair of the labor and employment committee for the New York City Bar Association, which issued a joint report on ENDA. Between 2004 and 2009, of 1,587 employment discrimination claims that were filed with the New York City Commission on Human Rights, only 92 of those were based on sexual orientation, she notes.
Parker says this time, “what’s notable is there is bipartisan support” for workplace LGBT rights, which might not have been the case even as recently as last year. Employers should keep their ears to the ground and not write ENDA off, even if it fails in 2013’s Congress.
“What we’re seeing is greater and greater acceptance and support for equal opportunity in the workplace … especially regarding sexual orientation, there’s been increasing support for that,” she says. “We’ve seen that reported in polls, we’ve seen it in popular media and we’ve seen employers adopting those policies even where the laws aren’t in place.”
