Senate Committee Passes Employment Non-Discrimination Act

Employment discrimination lawyers at Pintas & Mullins Law Firm report on a bill recently approved by a Senate committee that would prohibit workplace discrimination based on sexual orientation or gender identity.

Notably, three Republicans – Mark Kirk of Illinois, Orrin Hatch of Utah, and Lisa Murkowski of Alaska – voted for the bill, which ultimately passed 15 to 7. It may surprise some to know that it is still entirely legal in many states to refuse to hire, terminate, or otherwise discriminate against an employee based on their sexual identity or preference.

After the June 2013 Supreme Court decision striking down DOMA, same-sex rights have been making significant strides in the political arena. At current, employers are legally forbidden to discriminate against a citizen on basis of race, religion, age, national origin, or disability. Some states (21 and the District of Columbia), passed their own laws to include sexual orientation in this list, and another 16 added provisions to forbid discrimination based on gender identity.

The remaining 13 states, however, provide no protection for their LBGT citizens. Senator Lamar Alexander, a Republican from Tennessee, introduced the bill, and emphasized it was largely made possible by the efforts of Senator Kirk from Illinois. Kirk became the leading Republican proponent of the act when he was a House member in 2007. Alexander stated that there were still improvements to be made and amendments will be offered in the ensuing days and weeks by Kirk, his staff, and the Democratic co-sponsors.

The executive director for the National Center for Transgender Equality stated the 15-7 vote was a huge step forward, the farthest a bill of its kind has advanced in Congress in 17 years. She noted that this is in no small part due to the mass of Americans finally coming out to their friends, families and communities. Nearly everyone knows, either personally or through acquaintances, a gay person now, and more and more are getting to know transgender Americans as well.

Although it is not yet clear how members of the House will react to the bill, it does include a provision excluding all religious employers, which may help sway any undecided representatives. The Senate Majority Leader, Harry Reid (D-Nevada), has repeatedly told LGBT groups that he expects the Senate to consider the bill later in 2013, and that obtaining at least 60 to 70 votes in favor of the bill is certainly possible. Supporters are hoping to see a bipartisan bill on the President’s desk, ready to sign, by December of this year.

In Illinois, state officials are currently investigating ExxonMobil for issues related to discrimination against gay applications. The investigation is the result of complaints filed with the state’s Department of Human Rights by the LGBT group Freedom to Work. This marks the first publicly known instance an LGBT group used the “matched-pair employment testing,” tactic, once popular with civil rights activists.

The so-called “tester tactic” involves a group submitting similar applications to a company, from fictitious applicants, who only differ in their sexual orientation. Freedom to Work employed this method in their lawsuit, which turned out to be extremely successful in illuminating ExxonMobil’s discriminatory hiring practices. The group’s president stated that Exxon did indeed favor straight applicants with fewer qualifications over more experienced LGBT applicants.

Exxon remains one of the few Fortune 500 companies without any LGBT protections; in fact, it received a score of -25 in the Human Right Campaign’s annual Corporate Equality Index. Just one week after the complaint was filed, Exxon’s shareholders voted against establishing a non-discrimination policy. The Illinois Department of Human Rights investigation will center on four issues: whether it exercises unequal terms of employment based on sexual orientation, if it fails to hire due to perceived sexual orientation, if there is substantial evidence for this, and at which point it would consider resolution or if the matter will have to proceed to court.

Workplace discrimination lawyers at Pintas & Mullins Law Firm hope that the Employment Non-Discrimination Act will advance through Congress as its supports foresee it to. Our attorneys have decades of experience advocating on behalf of employees being discriminated against in the workplace, and are available now for free, no-obligation consultations.