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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