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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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