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LABOR & EMPLOYMENT LAW — 07/1/09

Employment Non-Discrimination Act reintroduced in the House

A bill (H.R. 2981) that would provide employment discrimination protections to individuals based on their sexual orientation or gender identity was introduced June 19, 2009, by Representative Barney Frank (D-Mass). Called the Employment Non-Discrimination Act (ENDA), the bill would extend federal employment laws, which currently prevent employment discrimination on the basis of race, religion, gender, national origin, age and disability, to also cover sexual orientation and gender identity.

The bill mirrors Title VII's protections and provisions, which prohibit discrimination, preferential treatment and retaliation on the basis of sexual orientation or gender identity by private sector employers with 15 or more employees who have worked full-time for 20 or more weeks in a current or preceding calendar year. Employment agencies, labor organizations and joint labor-management committees are similarly barred from such actions. The provisions of ENDA also impact public sector (local, state and federal) employers, but do not apply to religious organizations as defined by Title VII, volunteers who receive no compensation, private membership clubs or uniformed members of the Armed Forces.

The bill would define "sexual orientation" as homosexuality, heterosexuality or bisexuality. "Gender identity" means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

ENDA would make it an unlawful employment practice for an employer to: (1) to fail, refuse to hire or discharge any individual, or otherwise discriminate with respect to the compensation, terms, conditions or privileges of employment of the individual, because of the individual's actual or perceived sexual orientation or gender identity; or (2) to limit, segregate or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of the individual's actual or perceived sexual orientation or gender identity. In addition, an unlawful employment practice includes an action taken against individuals based on their actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated. Further, nothing in Act would be required to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity. ENDA would also prohibits retaliation, covering individuals who have opposed unlawful practices or who have participated in an employment discrimination proceeding.

The Act's enforcement and remedial schemes mirror Title VII and the Government Employee Rights Act of 1991, and a prevailing party in an action or administrative proceeding for a violation of ENDA may receive reasonable attorney's fees (including expert fees) as part of the costs of litigation. ENDA would take effect six months after the date of enactment and would not be retroactive.

The bill has been referred to the House Committees on Education and Labor, Administration, Oversight and Government Reform and the Judiciary. Though it was first introduced in the House on June 19, Frank formally introduced the bill at a June 24 press conference. The June 19 bill had 10 original cosponsors, but the June 24 measure (H.R. 3017) has 117 cosponsors. Except for additional cosponsors, the text of the bill submitted June 24 is the same as the June 19 version.

In the 110th Congress, the House voted 235 to 184 to approve ENDA. As originally introduced, the bill would have extended protections to employees based their actual or perceived sexual orientation or gender identity, but sponsors of the legislation, including its drafter, Representative Barney Frank (D-Mass), decided to separate out the gender identity provision in late September 2007 in order to garner more support for the measure due to concerns that moderate and conservative House Democrats as well as Republicans would not vote to pass a bill that provided transgender protections. The Senate never introduced a companion bill. President Obama has issued statements indicating his support of a fully inclusive ENDA.

Two days earlier, President Barack Obama signed a memorandum extending certain employee benefits to the same-sex partners of federal employees. The memorandum also directs the Office of Personal Management to issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, which make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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