Senate Passes Bill to Ban Discrimination Against Gays, Transgenders

            The Employment Non-Discrimination Act (“ENDA”, S. 815), originally introduced in Congress in 1994, passed the Senate yesterday by a 64-32 vote.  ENDA would ban discrimination in the workplace on the basis of an individual’s perceived sexual orientation or gender identity.

            Similar to the Title VII, the Act would apply to employers with 15 or more employees.  It also contains a prohibition on retaliating against an employee who opposes or complains about sexual orientation or gender identity discrimination.

            An employee alleging discrimination under ENDA would only have to show that the discrimination was a motivating factor for any employment practice, even if other factors also motivated the practice.  This is lower than the “but for” standard required by certain other discrimination laws.

           ENDA does not prohibit employers from requiring an employee to adhere to reasonable dress or grooming standards.  It also does not require an employer to construct new or additional facilities (i.e., bathrooms).  The Act is specifically not applicable to entities exempt from the religious discrimination provisions of the Civil Rights Act of 1964, or the relationship between the United States and members of the Armed Forces.

           Before employers start amending their employment policies to comply with ENDA, keep in mind that Speaker John Boehner has stated the House of Representatives is not likely to even vote on the legislation.  President Obama said in a statement, “One party in one house of Congress should not stand in the way of millions of Americans who want to go to work each day and simply be judged by the jobs they do.”

By: Rich Sheinis, Esq.