Tuesday, October 29, 2013

Senate To Consider Employment Non-Discrimination Act

On Monday, Senate Majority Leader Harry Reid (D Nev.) said that the Senate will consider the Employment Non-Discrimination Act (ENDA) before Thanksgiving.  The ENDA has been introduced in Congress numerous times over the years, but to date, has failed to pass.  If made law, the ENDA would prohibit employers from discriminating against employees based on sexual orientation and gender identity -- in much the same way that Title VII of the Civil Rights Act now prohibits discrimination based on race, color, religion, gender, and national origin.

But employers shouldn't assume that just because federal law does not currently include protections for lesbian, gay, bisexual and transgender (LGBT) employees, those employees do not already have some protection under Title VII. 
Several court decisions have extended Title VII's reach to LGBT employees where discrimination can said to be "because of the employee's gender."  Mainly, those court decisions have found that a company that discriminates against someone because his or her behavior does conform to gender stereotypes, violates the prohibition on gender discrimination under Title VII.  For example, a female employee who is discriminated against because she acts masculine, or a male employee because he is effeminate, could potentially have a claim for gender discrimination.  Similarly, taking an employment action against a male employee because he wears make up, or against a female employee because she does not, could now give rise to a gender discrimination claim.

In addition to federal law, many state and local governments have passed laws prohibiting discrimination against employees based on sexual orientation and/or gender identity.  Therefore, even in the absence of ENDA, employers must consider any applicable state or local law.

Employers most often encounter issues in this area of employment law when it comes to dress codes and grooming or appearance standards.  Rules or policies that are gender-specific or that rely on gender stereotypes should raise red flags with employers.  Even if the ENDA does not become law during this Congressional session, an employer's compliance efforts should include a review of policies and rules to confirm that they do not run afoul of courts' recent interpretations of Title VII.