Is 9th Time the Charm for Passage of Employment Non-Discrimination Act?

By Eric. B. Meyer

Last week, Rep. Barney Frank (D-Mass.) — for the ninth time — reintroduced the Employment Non-Discrimination Act (ENDA).

ENDA would make it illegal for businesses to discriminate against employees and job applicants based on sexual preference and gender identity.

Will ENDA pass?

Unlikely.

Barney Frank sees passage as an uphill battle

That’s not to say, however, that the bill lacks support. The ACLU released a statement last week voicing its support for ENDA:

ENDA’s passage is long overdue. No American should be denied the right to work based on his or her gender identity or sexual orientation. Employment discrimination can have a devastating effect on American families, and forcing a group of Americans to deny and hide their families and loved ones in order to hold a job is simply unacceptable. Congress should make this bill a priority.”

The Business Coalition for Workplace Fairness, which includes such Fortune 500 companies as Coca-Cola, Nike and Merck, also supports ENDA.

In June 2001, a Harris Poll found that 61 percent of Americans favored a Federal law prohibiting job discrimination based on sexual orientation. Additionally, the survey found that 42 percent of adults surveyed incorrectly believe that such a law currently exists.

Rep. Barney Frank (D-Mass.) is sponsoring ENDA in the House of Representatives.
Rep. Barney Frank (D-Mass.) is sponsoring ENDA in the House of Representatives.

Still, Rep. Frank, the bill’s sponsor, sees passage as an uphill battle. He noted that “passing an inclusive ENDA is a difficult but winnable fight – winnable if supported by a serious lobbying effort. Rep. Frank further acknowledged “that the likelihood of the Republican Congress adopting it in the House is small.”

It is widely believed that Republican support for ENDA has waned because of the bill’s protections for transgender workers.

What if ENDA passes?

If ENDA somehow passes during this Congress, it would extend federal employment laws, which currently prevent job discrimination on the basis of race, religion, gender, national origin, age, and disability, to also cover sexual orientation and gender identity. Twenty-one states have already passed laws to prevent discrimination based on sexual orientation. Twelve states have made it illegal to discriminate against employees and those seeking employment based on gender identity. Plus, many other employers not covered under a law like ENDA forbid discrimination and retaliation in the workplace based on sexual orientation and gender identity.

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So what’s the big deal about ENDA?

Although most won’t admit it — at least not to your face — one of the biggest issues with ENDA is how to address bathroom usages for individuals who identify with the other sex. Here’s what the previous version of ENDA says:

(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.

Opponents of ENDA have often argued that the measure would enable men to use women’s bathrooms. At her “Ask a Manager” blog, Alison Green explored the issue of transgender use of workplace bathrooms. Ultimately, it may be a non-issue:

Almost all employees who transition on the job notify their employer, which in turn notifies co-workers of the new gender, name and appropriate pronouns to be used in the future. Most employers have a meeting with co-workers to explain the company’s non-discrimination policies and how they affect the workplace in the situation of gender transition on the job. It’s extremely unusual to hear of a situation where a co-worker starts wearing clothing of the opposite sex and starts using the other restroom without any notice to employer or co-workers.

If ENDA passes, those business that have yet to address discrimination based on sexual orientation and gender identity will need to do so. Handbooks will need updated anti-harassment policies and new gender transition guidelines, such as this one. Training will also be key, not just for managers and employees, but also for Human Resources.

But, I’d be surprised if ENDA passes anytime soon.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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