Stites & Harbison, PLLC

On Wednesday, November 7, 2007, the House of Representatives approved a measure that would bar employment discrimination based upon sexual orientation.  The proposed Employment Non-Discrimination Act (ENDA) would add sexual orientation as a protected class to the existing protected classes of race, color, national origin, religion, sex, and disability.  The bill was introduced on the basis that gay and lesbian Americans are subject to discrimination because of who they are, and not because of their work performance.

The House Majority Leader noted that there are already 20 states that prohibit discrimination based on sexual orientation, and that this bill is a logical extension.  The proposed bill would ban discrimination based on sexual orientation for employers with more than 50 employees.  The bill would also exempt religious employers, mirroring similar provisions under Title VII of the 1964 Civil Rights Act.  In addition, there was significant debate regarding the bill as it lacked protection based on gender identity.  Gender identity would relate to an employee's gender-related identity, mannerism or appearance with or without regard to an individual's sex at birth.

Critics of the bill state it is problematic because it extends discrimination protection to employees based upon their sexual orientation whether "actual or perceived."  The bill was also criticized because it departs from the framework and structure of Title VII by establishing a stand alone protection exclusively on the basis of sexual orientation.  Supporters of the bill see it as a step forward to equality, saying that the purpose of the ENDA is to ensure that all employment decisions are based upon performance and merit, and not prejudice.  Without the law, 30 states as well as federal law would continue to permit employers to discriminate against employees based upon their sexual orientation.

Employers should monitor the progress of this bill, although the White House has signaled it would veto the bill.  In addition, if an employer is not in one of the current 20 states that prohibits discrimination based on sexual orientation, employers should be aware whether there are any local ordinances which might apply.
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For more information, email Shannon Hamilton at shamilton@stites.com.