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37 Lab. & Emp. L. 1 (2008-2009)

handle is hein.journals/laboemplo37 and id is 1 raw text is: loyment FALL 2008 VOLUME 37, NUMBER 1 Section of Labor and Employment Law American Bar Association Defending Liberty Pursuing Justice Sexual Orientation Discrimination: ENDA of an Era? By John Douglas and John S. Lord Jr. The fate of one of the latest chap- ters in federal civil rights legisla- tion-one that began with the first iongressional bill addressing sexu- al orientation discrimination in 1974-may soon be made clear. The Employee Non-Discrimina- tion Act (ENDA) is the latest pro- posed federal legislation explicitly to prohibit discrimination on the basis of sexual orientation. Intro- duced by Representative Barney Frank (D. Mass.) in September 2007, the bill passed the House of Representatives on a 235-184 vote in November 2007, with only 14 abstentions. Senator Edward Kennedy (D. Mass.), the bill's principal Senate sponsor, had pledged to seek a Senate vote on the bill in 2008, but the bill may have to find another Senate champion, and it may fall to the new Congress and president in 2009 to determine whether ENDA will become law. Reflecting the persisting cultural controversy over job protection for gays and lesbians, currently only 20 states and the District of Colum- bia outlaw discrimination on the basis of sexual orientation, while 13 of those 20 (and the District of Co- lumbia) also prohibit discrimina- tion on the basis of gender identity. As a result, ENDA would give rise to formal legal prohibitions of dis- crimination and harassment against gays and lesbians for the first time in the majority of states. Even within the gay community, ENDA has not been without contro- versy. The version of the bill first introduced by Representative Frank in 2007 prohibited discrimi- nation on the basis of gender iden- tity. After a bruising, internecine battle pitting conservative and liberal forces within the Lesbian, Gay, Bisexual, and Transgender community against each other, pro- tection for transgendered employ- ees was pulled from the version of the bill that passed the House. The change was viewed as necessary to secure sufficient votes for passage in light of an anticipated veto by President Bush. The current version of ENDA provides roughly the same kind of employment protection contained in Title VII of the Civil Rights Act of 1964 that protects individuals from employment-related discrimina- tion and harassment based, for example, on race, sex, or religion. One major difference between ENDA and Title VII is that ENDA explicitly does not authorize pref- erential treatment or quotas based on actual or perceived sexu- al orientation. In addition, only disparate treat- ment, and not disparate impact, claims are available under its pro- visions. These differences between the explicit text of ENDA and the protections afforded other classifi- cations under Title VII seem to have been part of an effort to pre- empt objections by opponents that ENDA would result in affirma- tive action for gays, lesbians, and bisexual employees. Consistent with that difference, the Equal continued on page 11

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