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Workplace Discrimination

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HR professionals know that workplace issues involving sexual orientation and gender identity can sometimes be among the most challenging.  Now Congress wants to understand these issues more fully.

On Wednesday, September 23, the House Education and Labor Committee held a full committee hearing to examine legislation that would prohibit workplace discrimination based on sexual orientation and gender identity.

The “Employment Non-Discrimination Act of 2009” (ENDA) H.R. 3017 / S. 1584, as introduced by Representative Barney Frank (D-MA) and Senator Jeff Merkley (D-OR), would amend the Civil Rights Act of 1964 and require employers to take certain steps to accommodate employees’ sexual orientation and gender identity.  

Panel of witnesses during last week’s ENDA hearing in the House of Representatives

The legislation would create new federal protections for lesbian, gay, bisexual and transgender employees and, for the first time, would establish causes of action for employees who experience discrimination based on either sexual orientation or gender identity.

During the House hearing, Stuart Ishimaru, acting Chairman of the U.S. Equal Employment Opportunity Commission, told the Committee that:

·         21 states and the District of Columbia have laws that prohibit discrimination based on sexual orientation; and 

·         12 states and the District of Columbia bar discrimination based on gender identity. 


In November 2007, the U.S. House of Representatives passed “The Employment Non-Discrimination Act of 2007” (H.R. 3685).  H.R. 3685 was similar to the 21 state laws that already protect employees from sexual orientation discrimination (but not from discrimination based on gender identity). 

In 2008, SHRM became the first employer group to voice its support of H.R. 3685.  However, Congress adjourned at the end of 2008 without voting on H.R. 3685. 

SHRM Position: 

SHRM supports fair employment practices without regard to a person's sexual orientation or sexual preference.  SHRM strongly believes that employment decisions should be made on the basis of an individual's occupational qualifications and experience, and not on factors that have no bearing on job performance.  For these reasons, SHRM supported last year’s ENDA bill, H.R. 3685. 

SHRM has not yet taken a position on this year’s revised and expanded ENDA bill.  As currently drafted, the 2009 legislation includes new protections for gender identity, and thus, raises questions about what accommodations or changes to existing structures HR professionals would be required to make by establishing gender identity as a protected class.


The House Education and Labor Committee is expected to vote on this landmark legislation before the end of 2009.  SHRM's Government Relations team will monitor developments with H.R. 3017 and keep you informed.



 In This Issue

Workplace Discrimination
House Education and Labor Committee Weighs Gender Identity

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The next issue of HR Issues Update will be published on Friday, October 16, 2009.

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