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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.

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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.

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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 scassman@lewiswagner.com and tparish@lewiswagner.com. The opinions expressed are those of the authors.   
 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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