ENDA is Coming – and Employers Need to Start Thinking About it Now

Attorney Bill Hanna

For years, human rights activists and the lesbian, gay, bisexual, and transgendered (LGBT) community have sought a more comprehensive law that would expand federal civil rights protections — which already prohibit workplace discrimination based on race, gender, age, disability, and religion — to include similar consideration for sexual orientation, gender identity.

First introduced in Congress in 1994, the Employment Non-Discrimination Act (ENDA) has slowly worked its way through successive sessions of Congress and various Congressional committees, offering varying levels of protection and verbiage as it has developed. Only recently, however, were changes made to the bill to provide crucial gender identity protections, in the most recent version, introduced in June 2009 by Rep. Barney Frank, D-Mass.

The bill is reported to have the support of President Barack Obama (unlike his predecessor), and the president is expected to sign it into law should it finally make its way through the House and Senate. Back in September 2009, Rep. Frank said the measure would get a House committee vote that month and a floor vote later in the fall.

That didn’t happen. Nevertheless, as recently as late 2009, various Capitol Hill lawmakers continued to predict passage of the bill by early 2010. However, the January election of Republican Scott Brown to fill the seat of late Massachusetts’ Senator Ted Kennedy and the build-up to the mid-term Congressional elections of November 2010 have had a significant impact on the Democratic legislative agenda – particularly where controversial subjects are concerned.

Considering the contentious partisan fights over health care reform and financial reform, the urgency of the Gulf oil spill issues and consistent Republican opposition to essentially any Democratic initiative, it is clear that ENDA must clear significant hurdles before becoming law.

Despite these challenges, the measure still has many supporters on Capitol Hill. In fact, Rep. Frank and others in the Democratic leadership continue to predict that the House will vote on the measure within the relatively near future, although probably not until after a full Senate vote upon repeal of the military’s “Don’t Ask, Don’t Tell” policy, according to political observers.

Should such a vote take place, it’s possible things could unfold rapidly. With this in mind, and considering the likelihood that ENDA or something like it will pass sooner or later, ENDA, and the effort that will be required to comply with it, is something that employers should be thinking of now.

Workplace implications

Statistics from the Human Rights campaign, a gay-rights advocacy organization, reveal that 87 percent of Fortune 500 companies have adopted some sort of policy barring discrimination based on sexual orientation. Employees of these companies are protected from employment discrimination based on sexual orientation and gender identity or expression because of their employers’ policies on diversity and inclusion.

However, an employer’s failure to comply with a policy prohibiting discrimination on the basis of sexual orientation does not necessarily translate into a legally cognizable claim available to an aggrieved employee.

While many cities, counties and states bar employment discrimination on the basis of sexual orientation, many more do not. Twenty-nine states still provide no protection to gay and lesbian employees against being fired because of their sexual orientation. Transgendered employees enjoy even less protection, with employment discrimination against transgender people remaining legal in 38 states. On one end of the spectrum, Illinois law provides protection for both sexual orientation and gender identity discrimination. On the opposite end, Florida state law provides absolutely no protection.

And on the federal level, statutes currently provide no protection against discrimination in employment on the basis of sexual orientation or gender identity. This is where ENDA comes in.

What would ENDA do?

If passed in its current form, ENDA would prohibit employers with more than 15 employees from discriminating against individuals based on their sexual orientation or gender identity. Prohibited acts would include firing or demoting or refusing to hire, promote or equally compensate LGBT employees on the basis of their sexual orientation or gender identity. ENDA would not apply to military or religious organizations or to businesses with less than 15 employees.

Further, as currently written, ENDA does not require employers to provide benefits to an LGBT employee’s same-sex partner. And, it would not allow “disparate impact” claims. This means employers would not have to justify a “neutral” practice, even though it might have a statistically disparate impact on individuals because of their sexual orientation or gender identity. Rather, the aim of the law is to prohibit intentional disparate treatment based upon sexual orientation or gender identity.

The bill’s gender-identity provisions do outline specific requirements for employers. For example, employers would need to provide reasonable access to adequate facilities, such as restrooms, that are not inconsistent with an employee’s gender identity, either at the time of employment or at the time when an employee gives notice that he or she has undergone or is undergoing gender transition.

All in all, ENDA would have a transformative effect upon the American workplace and would challenge the long-held, and strongly-held, beliefs and positions of many employees, including supervisors making employment decisions, about sexual orientation. That’s where education and training comes into play. Effective diversity education will be a critical part of the compliance effort for any workplace affected by the potential passage of this pending law.

Expanded diversity training: the cornerstone of compliance

A look back to passage of the 1964 Civil Rights Act, and employer efforts to comply with that law, provides useful guidance in considering how modern employers can optimize their compliance efforts in connection with ENDA. This is because prohibiting discrimination on the basis of sexual orientation, although directly affecting a much smaller population of workers than the 1964 Civil Rights Act, nevertheless will require a paradigmatic shift in workplace attitudes.

After the 1964 Civil Rights Act was passed, employers were forced to begin examining their workforces and incorporating diversity considerations into their strategic planning. After all, for the first time, there was legal and financial risk associated with discrimination, and an agency – the EEOC – specifically tasked with enforcing the law.

Yet it was not until a landmark class-action lawsuit against AT&T in 1973 received widespread attention that employers began to focus upon diversity and affirmative action as core elements of their mission statements. Perhaps it was the size of the outcome — a consent decree of approximately $50 million, awarding increased pay and back pay to 13,000 women and 2,000 men of color — that resonated with employers. Or perhaps it was the fact that AT&T entered into the first affirmative action agreement with the EEOC, legitimizing and clarifying the authority of the agency.

Many employers will make the mistake of assuming that effective education about ENDA will consist of merely ensuring that decision-makers are aware that sexual orientation and gender identity must be added to the familiar list of characteristics upon which employment decisions must not be based: sex/gender, race, color, national origin, age, disability status and religion.

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While it is true employers will be prohibited from basing employment decisions upon sexual orientation if ENDA becomes law — just as they are now prohibited from taking actions based upon an employee’s race — the real key to avoiding claims of discrimination prohibited by ENDA will be education that effectively addresses employees’ understanding and awareness of sexual orientation as a legitimate facet of diversity.

This, in part, is because unlike gender or race, sexual orientation is not an obvious physical characteristic. Many gay and lesbian workers currently hide their sexual orientation — perhaps aware that it is often legal to fire them for being gay or lesbian. The ability to remain “invisible” as a gay or lesbian employee, along with the possibility that some gay or lesbian employees may choose to “come out” in the workplace should ENDA become law, are issues that will surely complicate employer compliance efforts.

Further, the fact that sexual orientation often is kept secret may lead to increased risk that co-workers and supervisors may make insensitive remarks, discriminatory in nature, to or in the presence of gay and lesbian employees, creating novel legal issues in the process.

For example, what will courts make of a hostile work environment claim made by a previously-closeted employee based upon insensitive remarks or acts based upon sexual orientation? How much more difficult will the analysis be in the case of a “partially-closeted” employee, whose orientation is known by only some of his or her coworkers? And, it is easy to imagine very complex scenarios involving employees challenging adverse actions on the basis of sexual orientation in situations where the employee is not, or has not historically been, “out” in the workplace.

A parallel complication arises from the fact that discrimination against gays and lesbians is not generally based upon historical beliefs about the abilities, or lack of abilities, of gay and lesbian employees. Rather, it is more probable that it derives from deeply held moral or religious belief systems.

Developing training efforts that foster understanding

For all of these reasons, appropriate ENDA compliance educational efforts will require a comprehensive approach, tailored to specific workplaces, that not only educates about the legal impact of the new law, but also addresses societal, workplace, and individual attitudes toward homosexuality and gender identity.

It will be important for employees to understand that management has “bought into” and is committed to compliance with ENDA and the prevention and eradication of discrimination based upon sexual orientation. Consideration should be given to employing the services of a gay, lesbian, or transgender facilitator for such training, likely in combination with a heterosexual training partner.

A successful training program will need to do more than just inform the workforce about whatever the final elements of ENDA may be. Such a program also will need to enlighten employees about sexual orientation as a legitimate factor in diversity and inclusion efforts and take on stereotypes that detract from the successful integration of openly gay and lesbian employees into the workforce. For example, there are undoubtedly many employees in the United States who continue to believe that homosexuality is a mental illness, despite the fact that the American Psychiatric Association determined 30 years ago that such is not the case.

Further, many employees initially may feel that, law or no law, consideration of sexual orientation simply does not belong in the workplace. Nevertheless, many “straight” employees have never thought about the impact that their assumptions and generalizations may have upon their gay and lesbian coworkers.

Employees sometimes complain that a gay co-worker constantly makes “an issue” of his or her sexuality by discussing weekend social activities with a partner, etc. But no one would consider a straight male co-worker to be making “an issue” of his heterosexuality by answering questions about his weekend by describing a movie, party, or picnic he attended with his wife or girlfriend. Understanding the prevalence and impact of such subtle stereotyping and “heterosexism” (sometimes called the “heterosexual assumption” – i.e., the presumption that everyone is straight) will be a key element of effective compliance training.

It’s not unlikely that discrimination based upon sexual orientation may soon become unlawful. But employers would be unwise to address efforts to train employees about this new law, should it pass, without carefully addressing employees’ feelings and opinions about, and understanding of, sexual orientation both generally and particularly in the workplace.

Because such beliefs are often based at least in part on religious or political beliefs (or similar strongly-held belief systems), the subject must be addressed with sensitivity, and significant attention should be paid to developing and implementing an appropriate training program.

Bill Hanna is a partner at Walter & Haverfield (www.walterhav.com) and is a member of the Firm’s Labor and Employment, Litigation and Public Law practice groups. His cases have included defense of employment discrimination claims filed with the EEOC and state and local employment/civil rights agencies and the litigation of such claims. He also has successfully defended employers against charges of discrimination on the basis of race/color, age, sex/sexual harassment and/or disability. Contact him at whanna@walterhav.com.

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