Hunton Employment & Labor Perspectives

On November 5, 2009, the U.S. Senate Committee on Health, Education, Labor, and Pensions held an initial hearing on the Employment Non-Discrimination Act of 2009, S. 1584 (“ENDA” or “the Act”).  ENDA would prohibit discrimination in employment on the basis of sexual orientation and gender identity, which currently are not prohibited factors under federal law or under the laws of a majority of states.

ENDA defines sexual orientation as “homosexuality, heterosexuality or bisexuality”.  It defines gender identity as “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.”  Like Title VII and other federal anti-discrimination statutes, ENDA would prohibit not only discrimination based on these factors but also retaliation against individuals who oppose discrimination or participate in any in an investigation, proceeding, or hearing under the Act.  ENDA would apply to employers, employment agencies, labor organizations and joint labor-management committees.

• Although ENDA would break much new ground, it is also notable for what it expressly would not do in its current version.  For example, ENDA would not:
• Require employers to provide employee benefits to unmarried couples;
• Require preferential treatment to any individual or group on account of an imbalance that may exist in any community, state, section, or other area;
• Require employers to collect statistics on actual or perceived sexual orientation or gender identity. 
• Allow claims of discrimination under a disparate impact theory;
• Prohibit uniform enforcement of rules and policies (such as anti-harassment policies) that do not intentionally circumvent the purposes of the Act;
• Prohibit an employer from denying an individual access to “shared shower or dressing facilities in which being seen unclothed is unavoidable” based on the individual’s actual or perceived gender identity, so long as the employer “provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition.”  (However, an employer would not be required to construct new or additional facilities in order to provide reasonable access.)

If ENDA passes, it will create new causes of action and likely will increase the amount of litigation currently faced by employers.  It also will create new obligations and costs that remain uncertain, such as costs related to modification of facilities (restroom facilities, locker rooms, etc.) and costs related to training and education of employees and managers.  It also remains unclear whether the proposed legislation might conflict with the constitutional rights of religious organizations.  Stay tuned for additional developments on this controversial bill.