ENDA

The Employment Non-Discrimination Act (ENDA) would create federal protections against workplace discrimination based on sexual orientation and gender identity.  The first version of the bill was introduced in 1994.  The latest version, introduced in June 2009, is currently in committee. The House Education and Labor Committee held a full committee hearing on the bill in September, and the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on ENDA in November.

The Act, as proposed, would make it illegal to fire, refuse to hire, refuse to promote, or refuse to compensate an employee based on sexual orientation or gender identity. If passed, it would not apply to the military or to religious organizations and would exempt businesses with fewer than 15 employees. Further, the law doesn’t require employers to provide benefits to the same-sex partners of their workers. And law would not allow a “disparate impact” claim like the one available under Title VII of the Civil Rights Act of 1964 – which means an employer wouldn’t 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.

In 29 states, employees can still be fired because of their sexual orientation, and discrimination against transgender people is legal in 38 states.  Illinois law provides protection for both sexual orientation and gender identity discrimination.  Florida state law provides none.

According to the Human Rights Campaign, 87 percent of Fortune 500 companies have adopted polices barring discrimination based on sexual orientation.

The Obama Administration, in tandem with the President’s support for the bill, recently added language to the federal jobs Web site that explicitly bans gender identity-based employment discrimination under the federal Equal Employment Opportunity (EEO) policy. This is the first time that employment discrimination on the basis of gender identity has been explicitly banned by the federal government.

A link to the new policy can be found here.

Click here for a summary of LGBT laws by state

In this holding, the Supreme Court not only rejected the views of every federal appellate court, but it also established that age discrimination cases under the ADEA must be decided under standards that are different from those used in other discrimination cases brought under Title VII (which prohibits discrimination based on race, gender, religion and other prohibited factors).

The Court in Gross distinguished the ADEA from Title VII because, even though both statutes prohibit discrimination “because of” a protected factor, unlike the ADEA, Congress amended Title VII in 1991 to provide that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (43 U.S.C. § 2000e-2(m) ).  Based on this amendment, the Supreme Court held that now age discrimination cases will have to be handled differently from discrimination cases brought under Title VII, the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA) and other federal discrimination laws.

It will be interesting to see if Congress will legislatively overrule the Supreme Court’s decision in Gross to conform the ADEA with Title VII.  This year, Congress amended the ADA to overturn several Supreme Court decisions that had limited its scope  and enacted the Ledbetter Act to supersede a Supreme Court holding that had limited the time-frame for filing pay discrimination claims.

Until Congress acts, in Title VII cases, where the plaintiff presents evidence that race or some other prohibited characteristic was a “motivating factor” in an employment decision (for example, by showing that a decision-maker made racially derogatory comments), then the burden shifts to the employer to show that the same decision would have been made even without the discriminatory motive.  However, now in age discrimination cases under the ADEA, plaintiffs will have to meet the higher burden of showing that “but for” the plaintiff’s age, the challenged employment decision would have been different.  Age discrimination plaintiffs will not be able to use the burden-shifting framework used in Title VII cases.

Age discrimination claims remain a significant concern for employers.  In 2008, age discrimination charges filed with the Equal Employment Opportunity Commission almost exceeded the number of race discrimination charges.  Even though the Gross decision is a “win” for employers, they will need to exercise the same caution and make sure they have sufficient supporting documentation when making employment decisions affecting older workers as they do with women and minorities.

Paul E. Starkman is the Chair of Arnstein & Lehr’s Labor & Employment Law Practice Group.