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FAQ: The Employment Non-Discrimination Act

What You Need to Know

SOURCE: AP/Roberto Gonzalez

Gina Duncan, a transgender employee, sits at her Wells Fargo office in Maitland, Florida. Transgender workers face especially high rates of employment discrimination and harassment on the job. In a recent national survey, an astonishing 90 percent of transgender people reported some form of harassment or mistreatment on the job.

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The Center for American Progress has shown that gay and transgender individuals face alarmingly high rates of employment discrimination. The recently introduced Employment Non-Discrimination Act, or ENDA, would outlaw employment discrimination on the basis of sexual orientation and gender identity. ENDA, if passed, would ensure gay and transgender employees are judged on the quality of their work and not on personal characteristics irrelevant to job performance such as sexual orientation and gender identity.

Below we answer frequently asked questions about ENDA, the scope of gay and transgender employment discrimination in the United States, and why ENDA’s passage would represent a significant step toward eliminating workplace discrimination for gay and transgender Americans.

Jump to questions:

History and background of the Employment Non-Discrimination Act

Q. What is the Employment Non-Discrimination Act?

The proposed Employment Non-Discrimination Act (H.R. 1397 and S. 811) would protect private and public employees from employment discrimination on the basis of perceived or actual sexual orientation and gender identity. ENDA is similar to Title VII of the Civil Rights Act of 1964, which already protects workers on the basis of race, color, religion, sex, and national origin, as well as the Americans with Disabilities Act of 1990, which protects against employment discrimination on the basis of disability.

Q. Has ENDA been introduced before? Did the House or Senate ever pass ENDA?

ENDA was first introduced in 1994 in the 103rd Congress as H.R. 4636 and S. 2238. A version of the bill has been introduced in every session of Congress since then except for the 109th Congress, which ran from January 2005 to January 2007. The original version only prohibited discrimination on the basis of an employee’s actual or perceived sexual orientation. But after 2007 the proposed bill contained gender identity discrimination language as well.

The bill has been voted on once in the Senate in 1995 when it narrowly failed by a vote of 49-50. A 2007 version passed the House 235-184 but did not come up for a vote in the Senate. Both of these bills included sexual orientation but not gender identity.

Q. Why is a federal law needed to combat discrimination based on sexual orientation and gender identity?

Local ordinances, state laws, and corporate policies are certainly helpful. But they only offer a patchwork of protections for gay and transgender Americans. Millions of workers continue to face the prospect of being fired or otherwise discriminated against based on their sexual orientation or gender identity. A federal law such as ENDA is needed to bring uniform protections to all American workers, gay or straight, transgender or not. ENDA would also allow victims of sexual orientation and gender identity-based discrimination to file complaints with the Equal Employment Opportunity Commission.

Q. Is the American public supportive of workplace protections for gay and transgender people?

Nearly three-fourths (73 percent) of the public support protecting gay and transgender people from workplace discrimination. This support cuts across political party affiliation, with 81 percent of Democrats, 74 percent of independents, and 66 percent of Republicans supporting workplace nondiscrimination laws for gay and transgender people.

Looking at key demographic groups, Catholics (74 percent support) and seniors (61 percent support) solidly favor employment protections for gay and transgender people. Even among people who identify themselves as feeling generally unfavorable toward gay people, a full 50 percent support workplace nondiscrimination protections for the gay and transgender population.

Q. How is ENDA different from previous pieces of civil rights legislation?

The Americans with Disabilities Act of 1990 has no exemptions with regard to small businesses, religious entities, and disparate impact claims. The Civil Rights Act of 1964 exempts businesses with 15 or fewer employees. ENDA provides exemptions for religious entities, small businesses, and does not allow for disparate impact claims (more on these below).

Current employment nondiscrimination protections

Q. What legal protections currently exist for gay and transgender workers?

Twenty-one states and the District of Columbia prohibit public and private employment discrimination on the basis of sexual orientation, and 16 of those states and the District of Columbia also prohibit employment discrimination on the basis of gender identity. These states have actually gone further than ENDA by outlawing discrimination in housing, health care, and public accommodations.

Further, at least 175 municipalities enacted local ordinances prohibiting employment discrimination on the basis of sexual orientation, with 135 of these ordinances also prohibiting employment discrimination on the basis of gender identity.

Q. What steps has corporate America taken to eliminate gay and transgender employment discrimination?

America’s largest businesses have adopted nondiscrimination and equal employment opportunity policies that protect gay and transgender workers from discrimination at all levels of employment. Ninety-four percent of Fortune 100 companies and 87 percent of Fortune 500 companies have policies that prohibit discrimination on the basis of sexual orientation. Sixty-nine percent of Fortune 100 companies and 46 percent of Fortune 500 companies prohibit discrimination on the basis of gender identity.

Impact of discrimination against gay and transgender individuals

Q. How common is discrimination against gay individuals in the workplace?

Studies show that anywhere from 15 percent to 43 percent of gay people have experienced some form of discrimination and harassment in the workplace. Further, 8 percent to 17 percent of gay workers report being passed over for a job or fired because of their sexual orientation. Ten percent to 28 percent received a negative performance evaluation or were passed over for a promotion because they were gay. And 7 percent to 41 percent of gay workers encountered harassment, abuse, or antigay vandalism on the job.

Q. How common is discrimination against transgender individuals in the workplace?

Transgender workers face especially high rates of employment discrimination and harassment on the job. In a recent national survey, an astonishing 90 percent of transgender people reported some form of harassment or mistreatment on the job. Nearly half of transgender people also report experiencing an adverse job outcome because of their gender identity. This includes being passed over for a job (44 percent), getting fired (26 percent), and being denied a promotion (23 percent).

Q. How does workplace discrimination affect the lives of gay and transgender Americans?

Gay and transgender individuals suffer from socioeconomic inequalities in large part due to pervasive discrimination in the workplace. Discrimination leads to job instability, greater unemployment rates, and higher poverty rates for many gay and transgender people.

Transgender individuals, for example, are twice as likely to be unemployed and four times as likely to live in poverty, and nearly 20 percent have been or are currently homeless. What’s more, older gay and lesbian adults experience higher poverty rates than their heterosexual counterparts after a lifetime of workplace discrimination and its effects.

Q. How does workplace discrimination against gay and transgender individuals affect businesses?

Discriminatory practices create inefficiencies and higher costs for businesses. More than 2 million professionals and managers leave their jobs each year due to unfairness in the workplace, and replacing these professionals costs U.S. employers approximately $64 billion annually. Gay workers report that workplace unfairness was the only reason they left their employer twice as often as heterosexual white men. Alternatively, adopting policies that prohibit discrimination against LGBT workers is associated with short-term increases in an industry’s stock value, suggesting that preventing discrimination in the workplace is a boon to business’s bottom line.

Implementation and enforcement of ENDA

Q. How does ENDA affect small businesses?

ENDA only applies to employers with 15 or more employees.

Q. Can disparate impact claims be made under ENDA?

No. The scope of ENDA is similar to Title VII of the Civil Rights Act of 1964, but employees cannot make a “disparate impact” claim. Under Title VII if an employee can demonstrate that a policy, though neutral on the surface, has an adverse effect on a specific population, then they can file a “disparate impact” claim. ENDA does not cover disparate impact claims, and it only applies if an individual can prove intent to discriminate.

Q. Does ENDA apply to religious organizations?

No. The law completely exempts any “corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of Title VII of the Civil Rights Acts of 1964,” including houses of worship, parochial schools, and missions.

Q. Are preferential quotas or treatment on the basis of sexual orientation or gender identity included in ENDA?

No. In fact, preferential quotas or treatment for gay and transgender individuals are explicitly precluded in ENDA.

Q. What does ENDA require of employers in terms of facilities and access?

Under ENDA, employers would only be required to provide employees with “reasonable access” to adequate shower and dressing facilities consistent with an employee’s gender identity. Employers who deny employees access to a shared facility would not be in violation of ENDA as long as they provide a viable alternative. Nothing in the proposed bill requires employers to construct new or additional facilities.

Q. How would ENDA be enforced?

ENDA would be enforced in a manner akin to Title VII. The Department of Justice would enforce ENDA in state and local governments and the Equal Employment Opportunity Commission, or EEOC, would enforce ENDA within private employment. Both the EEOC and federal courts would have the same powers to investigate and remedy claims as they do under Title VII.

Q. What remedies would be available to gay and transgender victims of employment discrimination under ENDA?

As with Title VII, private employees who are discriminated against may file for compensatory awards, which cover the tangible and intangible losses inflicted upon the victim of employment discrimination, and punitive awards, which are intended to punish the offender and to prevent future cases of discrimination. Government employees at the federal, state, and local levels may file for compensatory awards but not punitive awards.

Caps would be placed on the size of damage awards relative to the size of the company. Companies with 15 to 100 employees would have a cap of $50,000, companies with 101 to 200 employees would have a cap of $100,000, companies with 201 to 500 employees would have a cap of $200,000, and companies with more than 500 employees would have a cap of $300,000.

Seth Althauser and Sarah Greenberg are interns with LGBT Progress.

See also:

Endnotes

[1]. In this FAQ, the term “gay” is used as an umbrella term that includes gay, lesbian, and bisexual individuals.

[2]. This includes Nevada and Connecticut, which both passed gender identity employment protection laws earlier this year. Govs. Brian Sandoval (R-NV) and Dannel Malloy (D-CT) recently signed the bills, and both pieces of legislation will go into effect October 1, 2011.

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