ENDA's Game: Controversial Employment Law Passes in the Senate
NEW YORK ( MainStreet) -- ENDA might actually become law this time.
On Thursday afternoon the Senate passed the Employment Non-Discrimination Act ("ENDA") in a 64-32 vote. Ten Republicans voted alongside 52 Democrats and two Independents in favor of the measure, which will now move to the House of Representatives.
If passed, the law would ban discrimination based on sexual orientation or gender identity, the first such national protection extended to gay and transgender employees. Currently most such federal law comes from Title Seven of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, gender, religion or national origin.
"It's pretty straightforward in its current form," said Nonnie Shivers, an employment law attorney with the firm Ogletree Deakins. "It would prohibit discrimination in the workplace based on sexual orientation or gender identity. So when you pin that down a little bit, it would prohibit employers from taking adverse action in the workplace or firing employees because they're perceived to be or are transgender or homosexual."
This protection will in many ways mirror that of Title Seven according to Shivers, including exceptions for religious institutions or affiliated organizations.
Perhaps the biggest difference between ENDA and Title Seven, she said, is that it provides no cause of action based on disparate impact. This theory allows employees to sue for policies which appear neutral on their face but ultimately work to discriminate against a protected class.
"There's some significant differences as to what it does not cover, some carve outs," she said, "but it significantly mimics the other workplace protections for other groups already in effect."
While this legislation would be groundbreaking to anyone who actively needs protection, according to Dechert, LLP labor law specialist and Partner Alan Berkowitz ENDA would otherwise be largely business as usual for most of the country.
"What started to happen," he said, "was a number of states started to have the same laws. The U.S. labor laws are kind of a patchwork of federal, state and local laws. The federal laws like Title Seven don't preempt state labor laws, the exist side by side. I think at this time it may be a 50-50 proposition, where about half of the states have added sexual orientation or gender identity to their discrimination laws.
In fact, Berkowitz added, in response to this growing trend most Fortune 500 companies have already banned discrimination on sexual orientation in their corporate policies.
According to the Pew Research Center, 22 different states and the District of Columbia have already passed some form of workplace protection laws for gay and transgendered individuals . The benefit of a law like ENDA, according to Berkowitz, is that it would finally provide some uniformity and enforcement to a movement that's quickly spreading across the country.