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Senate Passes Gay Rights Legislation

Filed under: Benefits

On Nov. 7, 2013, the U.S. Senate passed the Employee Non-Discrimination Act (ENDA), which would ban workplace discrimination against gay and transgender employees. Before becoming law, the bill would need to be approved by the House of Representatives. However, ENDA faces strong opposition in the House, which may not permit a vote on it at all.

While the fate of ENDA is uncertain at this time, employers should be aware that this type of legislation could become federal law in the future.

Current Non-discrimination Law

Federal law currently prohibits several types of workplace discrimination. Employers generally may not discriminate against workers on the basis of race, religion, gender, age or disability.

There are currently no federal laws protecting workers from discrimination based on sexual orientation or gender identity. However, a number of states have laws that prohibit workplace discrimination based on sexual orientation or identity:

  • Twenty-one states and the District of Columbia ban workplace discrimination based on sexual orientation.
  • Seventeen states and the District of Columbia ban workplace discrimination based on sexual identity.

ENDA Overview

As passed by the Senate, ENDA would prohibit discrimination on the bases of sexual orientation and gender identity by private sector employers with at least 15 employees, and by local, state and federal government employers. The law would also apply to employment agencies, labor organizations and joint labor-management committees but would not apply to certain religious organizations.

Covered employers would be prohibited under the law from failing to hire or discharging an individual or otherwise discriminating against any individual with respect to the terms and conditions of employment based on the individual's actual or perceived sexual orientation or gender identity. Employers also could not classify employees or applicants for employment in a way that would adversely affect their employment status for these reasons, or retaliate against any individual for exercising rights granted by the law.

ENDA would not require preferential treatment of any individual or group or require employers to institute hiring quotas.

Remedies for individuals whose rights under the law were violated would be consistent with those available under other laws regarding workplace discrimination and could provide reinstatement rights, back pay, attorneys' fees and compensatory or punitive damages.

Opposition to ENDA

Many Republicans in Congress are opposed to passing federal legislation on gay rights. Similar legislation has been introduced several times in the last 10 years and has never been passed into law. Opponents argue that the law is overly broad and will subject employers to unnecessary and frivolous litigation.

This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

© 2013 Zywave, Inc. All rights reserved.

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