Column: ENDA would protect sexual orientation, gender identity

August 13, 2014
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By Stephanie L. Cassman and Theresa R. Parish

With same-sex marriage gaining momentum in Indiana and across the nation, it is no surprise that protection from discrimination in the workplace based on sexual orientation and gender identity is most likely on the horizon. Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, color, religion, sex and national origin, but is silent with respect to discrimination based on sexual orientation or gender identity. Advocates have been working to fill this void with the Employment Non-Discrimination Act, which would prohibit workplace discrimination based on sexual orientation and gender identity. ENDA has been introduced in nearly every congressional session since 1994, but it has been unsuccessful in passing for various reasons, most of which are considered political.

cassman Cassman

For purposes of ENDA, “sexual orientation” means homosexuality, heterosexuality or bisexuality, and “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 prohibit employers from using sexual orientation or gender identity when making employment decisions relating to hiring, discharging, promoting or compensation. It would also be unlawful for employers to limit, segregate or classify employees or applicants based on sexual orientation or gender identity in any way that would have an adverse effect on employment. Further, ENDA would prohibit preferential treatment or the implementation of quotas on the basis of such actual or perceived orientation or identity. Similar to Title VII, ENDA would prohibit retaliation against employees who oppose such discriminatory practices. The damages available would be the same as under Title VII, including injunctive relief, back pay, compensatory and punitive damages, and attorney fees.

parish Parish

ENDA would allow employers to maintain their current dress codes and grooming policies. However, employers would be required to permit an employee who has undergone gender transition to follow the same dress and grooming policies that apply to the gender to which the employee has transitioned or is in the process of transitioning. ENDA would not require employers to construct new or additional facilities, such as bathrooms.

Despite these protections, there would be limitations under ENDA. Similar to Title VII, ENDA would not apply to employers with fewer than 15 employees. ENDA also contains an exemption for corporations, associations, educational institutions or institutions of learning, or societies that are exempt from the religious discrimination provisions of Title VII.

ENDA certainly has hope for becoming law as the regulatory, social and political environments are steadily moving toward providing rights for the lesbian, gay, bisexual and transgender community. Several states have laws that prohibit discrimination based on sexual orientation and gender identity in both the private and public workplaces. Indiana only prohibits discrimination based on sexual orientation and gender identity in the public workplace. The EEOC has held that discrimination against an individual because the person is transgender is discrimination because of sex and therefore is provided protection under Title VII. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The EEOC has also found that claims by lesbian, gay and bisexual individuals alleging sex stereotyping is a valid claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011). Almost 90 percent of Fortune 500 companies, which collectively employ nearly 25 million people, have implemented policies prohibiting discrimination based on sexual orientation, and over 50 percent of those companies also prohibit discrimination based on gender identity. Most recently, on July 21, President Barack Obama signed an executive order making it illegal for federal contractors to discriminate on the basis of sexual orientation or gender identity. While the executive order only governs the federal contracting community, protection is afforded to an estimated 28 million workers, which is approximately one-fifth of the nation’s workforce.

It sends a clear message to all employers that change is on the way.•

Stephanie L. Cassman, equity partner, and Theresa R. Parish, associate, practice employment law at Lewis Wagner LLP. They can be reached at and The opinions expressed are those of the authors.   


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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...