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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

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

  4. 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.

  5. (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.