Congress Considers Protected Classes for Sexual Orientation and Gender Identity
On June 12, the U.S. Senate Health, Education, Labor and Pensions Committee held a hearing titled “Equality at Work: The Employment Non-Discrimination Act (ENDA).” The bill, S.811 introduced by Sen. Jeff Merkley (D-OR, pictured below), would amend the Civil Rights Act of 1964 to prohibit discrimination in employment on the basis of sexual orientation and gender identity.
As currently drafted, the legislation would grant exemptions for religious organizations or educational organizations supported or managed by a religious organization. ENDA would also allow for punitive and compensatory damages under the Civil Rights Act of 1964. Sixteen states currently have laws barring employment discrimination on the basis of gender identity, and 21 states have statutes protecting sexual orientation.
Kenneth Charles, Vice President for Global Diversity and Inclusion at General Mills, Inc., spoke in support of ENDA by saying, “People with diverse experiences and backgrounds bring different and uniquely valuable perspectives and solutions. That’s why [General Mills, Inc.] support[s] any practice or public policy that encourages bringing diversity to the table.”
Senior Vice President and General Counsel for the National Religious Broadcasters Craig L. Parshall, speaking on behalf of faith-based organizations, urged the Committee “not to jettison the rights of people of faith, turn them into lesser privileges, or reduce them to a mere miniature of the concept that our Founders advanced.”
SHRM vigorously opposes discrimination in the workplace based on gender, race, religion, color, national origin, disability, pregnancy or sexual orientation, and has supported versions of ENDA introduced in previous sessions of Congress that covered sexual orientation only. However, SHRM has raised practical questions about the legislation’s nebulous definition of “gender identity.” In addition, since ENDA would require employers to provide reasonable access to adequate facilities that are not inconsistent with the employee’s identified gender, it is unclear at what point an employer would be required to take affirmative action to accommodate an employee because ENDA’s notification standard, in its current form, is extremely vague.
The bill is not expected to proceed in the Senate in 2012.