Employment Non Discrimination Act (ENDA)
On November 7, 2013 the U.S. Senate passed the Employment Non Discrimination Act (ENDA). ENDA would amend Title VII of the Federal Civil Rights Act to include sexual orientation and related issues in the definition of protected classes thereby protecting those individuals from workplace discrimination. ENDA will not receive a vote in the House of Representatives, therefore, it will not become law given the current political climate.
However, the EEOC (which enforces Title VII) has implemented a Strategic Enforcement Plan with the stated purpose of addressing emerging and developing issues under Title VII. According to the Plan, these issues include coverage of lesbian, gay, bisexual and transgender individuals under Title VII. If the EEOC follows through with their plan, they will be pursuing cases of discrimination on this basis in an effort to change the law.
Title VII already prohibits discrimination on the basis of “sex.” Therefore, employers cannot discriminate against women, because they are female or against men because they are male. The EEOC will likely pursue the “sexual orientation” cases using the theory that the term “sex” includes discrimination based on sexual orientation and gender identity. The argument is that gay, bisexual and transgender individuals suffer discrimination because they don’t conform to gender stereotypes. For example, a lesbian who is not feminine enough or a gay man who is too effeminate.
Under some very narrow circumstances, a few courts have accepted this theory of liability.
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