How the Employment Non-Discrimination Act will Impact the Workplace

As of November 5, 2013, the Employment Non-Discrimination Act (ENDA) was expected to pass through the Senate and make its way to the House. The bill would prohibit discrimination in the workplace based on gender identity and sexual orientation, just as discrimination is already forbidden on the basis of skin color, religion, nationality, age, sex, disability, race and nationality. Wage and hour attorneys at Pintas & Mullins Law Firm are hopeful that the House of Representatives will see the merit of this bill, which is long overdue.

It may be surprising to know that it is currently legal in the majority of states (29) to terminate or refuse to hire someone based on their sexual orientation and gender identity. Some version of this bill has been introduced in nearly every Congress since 1994, though it has failed to pass every term. Only recently has the transgender provision been included.

What Rights will This Bill Award?

In its essence, ENDA will forbid employers from firing or refusing to hire employees based on being gay, lesbian, transgender or bisexual. It would simply expand the protections already in place regarding workplace discrimination so that they apply to all Americans, regardless of sexual preference of identity. If the law does not pass through the House (frankly it is not expected to, Speaker John Boehner stated the will oppose ENDA), the White House will consider issuing an executive order.

An executive order is issued by the president and has the full force of a law, not requiring the approval or input by the legislative (Congress) or judiciary (Supreme Court) branches. President Franklin Delano Roosevelt issued a similar executive order in 1941, Executive Order 8802, which banned discrimination by the federal government, unions and all companies engaged in war-related business. Namely, Order 8802 prohibited discrimination based on “race, creed, color, or national origin.” It also created the Fair Employment Practices Committee to investigate discrimination claims.

It is now time for our government to take one more step forward. Although the executive branch would prefer to have ENDA pass through Congress, it has made clear that an executive order is not out of the question. The blog President Obama wrote for the Huffington Post on this issue may be found here.

National polling has shown that the large majority of Americans support ENDA and its message. According to a public opinion poll by the Center for American Progress, in 2012, 73% of voters supported protecting homosexual, bisexual and transgender people from workplace discrimination. Even among those voters who were generally unfavorable toward homosexual people and practices, 50% said they supported forbidding workplace discrimination for this demographic. That is a huge number and particularly telling of the wide gap between the American people and House conservatives.

ENDA Opponents Opine

Many Republicans in the House are staunchly opposed to ENDA, which they believe would create a “nightmare” of compliance and litigation costs and be an assault on religious freedom. One Congressman, Rob Portman (R-Ohio), told NPR that he wishes to expand ENDA to include provisions on religious liberties. Senator Jeff Merkley (D-Oregon), the lead sponsor of the bill, made a deal the Senate Republicans, promising support for a religious liberty amendment in exchange for their vote.

The religious amendment would clarify the “anti-retaliation” provisions to further note that certain religious institutions may be exempt from the bill, and may not be penalized or sued for disallowing certain people from working. Boehner opposes ENDA based on his belief that it would cost Americans jobs and potentially lead to frivolous lawsuits – how he came to this conclusion remains unclear.

The team of wage, hour and overtime lawyers at Pintas & Mullins Law Firm will continue to report on this issue as the events surrounding it unfold. If you or a loved one was the victim of illegal business practices, contact our firm today for a free legal evaluation. We accept clients from all 50 states, and never charge unless we are victorious on your behalf.