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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.

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

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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