Tuesday, November 5, 2013

Some Thoughts on ENDA

Suddenly, the Employee Non-Discrimination Act (ENDA - text here) is a hot topic again. ENDA would prohibit employment discrimination based on sexual orientation and gender identity. President Obama endorsed the legislation via HuffPo op-ed, and the Senate voted to move forward with debate - a full vote is expected later this week.

I have a few observations about ENDA:

1. "Because of" is key language. The proposed legislation prohibits discrimination "because of" an employee's real or perceived sexual orientation or gender identity. The retaliation provision is similarly based on the word "because." What does that mean? Well, based on Gross v. FBL and UTSMC v. Nassar it almost certainly means that sexual orientation and gender identity claims would have to meet the higher "but for" standard, as opposed to the mixed motive (or "motivating factor") analysis applied to Title VII discrimination cases.

2. Don't get hung up on "gender identity". I have seen a lot of Internet banter over the inclusion of gender identity as a protected class. However, this is most likely a non-issue. The EEOC already treats gender identity discrimination as unlawful sex discrimination under Title VII. And, the District of DC and the Eleventh Circuit treat gender identity discrimination as sex discrimination as well. I wouldn't go so far as to say this is settled law all over the country . . . but the writing is on the wall.

3. The religious exception battleground. If this thing gets close to passing, I expect the religious exemption to be a huge battleground. ENDA includes an exemption for religious organizations excluded from Title VII (EEOC guidance on the topic here). However, Senator Toomey and others have already stated that they will introduce amendments to strengthen protections for religious organizations. Religious freedom for employers and corporations has been something of a hot topic itself lately. The Supreme Court weighed in on the ministerial exception to employment discrimination laws in Hosanna-Tabor v. EEOC. The Supreme Court is also expected to address corporate religious freedom in the context of the ACA's ("Obamacare's") contraceptive mandate.

ENDA still has a long way to go. John Boehner has already indicated it will have a tough time in the House of Representatives. Between the presidential push, and the (admittedly limited) bi-partisan support in the Senate, this may be the year.

Image: Capitol Building photograph from (work of federal government).

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