ENDA (Banning Sexual Orientation Discrimination) Passes In Senate. What Will It Mean If It Becomes Law?

What ENDA will (and won't) do if signed into law

Rainbow flag at Harvey Milk Plaza, San Francisco, California
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ENDA is the Employment Non-Discrimination Act, and the Senate just passed it. I wouldn't get too excited yet, because unless Republicans lose their majority in the House in the midterm elections we aren't likely to see this become law anytime soon. Still, I thought it would be worthwhile to discuss what the law will do (and what it won't do) if passed in the House and signed into law:

Employers: Like Title VII, which prohibits race, sex, national origin, color, and religious discrimination, ENDA will apply only to employers with 15 or more employees. Also like Title VII, it will not apply to religious organizations. The armed forces are also exempt. It does apply to federal, state, and local governments, unions, and employment agencies.

Disparate treatment only: Unlike Title VII, which prohibits employer practices that impact protected groups adversely, ENDA will only apply to disparate treatment claims.

Motivating factor: Unlike age discrimination and Title VII retaliation claims, ENDA will apply where discrimination was a motivating factor. It will not require "but for" causation.

Protected classes: ENDA prohibits discrimination based on sexual orientation, which is defined as "homosexuality, heterosexuality, or bisexuality." That's right. You can't be discriminated against because you're heterosexual either. Don't listen to morons who tell you sexual orientation means pedophiles, polygamy or anything other than homosexuality, heterosexuality or bisexuality. They are lying. The law also prohibits discrimination based on gender identity, which is defined as, "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." It also applies to association discrimination, meaning employers can't discriminate because you are associated with a gay, lesbian, bisexual or transsexual individual.

Remedies: For most people, it will have the same remedies as Title VII, and will be enforced the same, meaning you'll have to file with EEOC first. Federal government employees will follow the same process and have the same remedies they have for other types of discrimination. DOJ will enforce regarding state and local governments.

Same decision defense: If an employer proves it would have made the same decision had it not discriminated, the court can't award damages. The court can award injunctive and declaratory relief, along with attorney's fees and costs. Since the injunction can't order reinstatement, promotion, payment, or hiring, it's pretty pointless if you ask me. Allowing this defense will substantially gut the law's ability to limit discrimination. However, the defense is now allowed in some other discrimination claims. In my opinion, it shouldn't be, but there you have it.

Doesn't require new bathrooms: Duh. Did this really need to be said? I guess it did.

Doesn't prohibit dress or grooming standards: However, if an employee is undergoing a gender transition, the dress standards of the gender they are transitioning to apply.

No quotas: ENDA won't allow or require quotas.

Don't even start commenting that this law protects "choices" or "behavior." So do laws prohibiting religious and pregnancy discrimination, protecting breast feeding moms, and in some states, prohibiting marital status discrimination. It's a stupid argument, so don't try it with me. As Simon Cowell would say, "It's just my opinion."

President Obama will sign this bill if it passes the House, so vote well in the midterms if you want this bill to become law. Otherwise, we'll have to wait.

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forcoors

Can they all hug and kiss at work in view of normal people? UGH! Glad I'm retired!

November 13 2013 at 2:58 PM Report abuse rate up rate down Reply
lovemydesignergenes

Our society is collapsing...and ENDA will go way beyond treating all humans (no matter who they sleep with)) with respect (which is right).

ENDA will be used like the gay marriage new laws. ENDA will become a legal club to beat others into submission.

Those of you who are happy about this...we are destroying our culture at the same time.

(Look at the MEGA damage done in the mid to late 1960s with the mainly heterosexual revolution where people were encouraged to not marry and just sleep around...look at the soon-raised rates of children born to single parents...Neighborhoods lacking the dad...means more kids join (and sometimes die) in gangs.

And all but tiny businesses will (I predict) be hammered...particularly if they serve children (and the bosses want cross dressers to tone it down).

This article says critics "lie"...Not a comprehensive, reasoned answer.

Truth is...we're not totally sure what the collateral damage will be...but we all will be damaged. We are dividing up our cultural "house" and it will collapse (is collapsing) on all of us.

And as our military is being forced to go along with new cultural mutations, but its military readiniss is being (mostly) ignored, we the US are even MORE vulnerable if our enemies should care to take advantage of our weaknesses.

November 08 2013 at 7:02 AM Report abuse rate up rate down Reply
1 reply to lovemydesignergenes's comment
EmployeeAtty

I never said all critics are lying. What I said was, "Don't listen to morons who tell you sexual orientation means pedophiles, polygamy or anything other than homosexuality, heterosexuality or bisexuality. They are lying. " And they are. The law has a very specific definition of who is protected. It includes heterosexuals, by the way. This law will keep the distraction of discrimination against a significant class of Americans out of the workplace. It's a good thing.

November 08 2013 at 9:22 AM Report abuse rate up rate down Reply
GaelanClark

Okay, let me get this straight (no pun intended)....about 3.8% of the entire USA are gay, lesbian, bisexual or transsexual.......of that fraction of the country, how many persons are being discriminated upon at their workplaces?
Let us call it 25% of that.......so about 0.9% of the country is affected!!!!!!!!!!!!!!!!

This is a joke....yes? Is this the new 1%? And, instead of dealing with current and real issues like failed obrocare, or jobs creation, or the oil price, or any other of myriad problems and issues we as a country have to deal with and the senate and prezzy obro can only pick up the standard for a 1% fraction while leaving the rest of us dead in the water.

Someone needs a "priorities" class.

November 08 2013 at 6:05 AM Report abuse rate up rate down Reply
1 reply to GaelanClark's comment
EmployeeAtty

Gaelan, 100% of Americans are covered by this law. It covers heterosexuals as well as gays and lesbians. Do we really think that any Americans are disposable? That it isn't worth our time to make sure they have equality? I think it's of vital importance even if it only affected 1 person. That's what America is all about.

November 08 2013 at 9:19 AM Report abuse rate up rate down Reply

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