The passage of Proposition 8, overturning the California Supreme Court’s decision authorizing marriage between same-sex couples, has brought visibility and controversy to California. The debate over the measure has dominated political and private discussions with an intensity that suggests civil rights laws will continue to be hotly debated – including those related to employment and the workplace.

One federal law ripe for such debate is H.R. 3685 – the Employment Non-Discrimination Act of 2007 (“ENDA”). If passed, ENDA would grant federal anti-discrimination protections to individuals based on sexual orientation.

The most recent version of ENDA was introduced in September 2007. The House of Representatives passed it on November 7, 2007. It now awaits the Senate’s consideration. While President Bush likely would have vetoed the measure, President-elect Obama probably will sign it. Therefore, the Senate will take up the bill after the inauguration of Mr. Obama in January 2009.

What is ENDA?

ENDA as currently drafted would prohibit public and private sector employers, employment agencies and labor unions from considering an individual’s sexual orientation in making employment decisions, such as hiring, firing, promoting, etc. ENDA would not apply to religious organizations, employers with fewer than 15 employees or uniformed members of the armed forces.

ENDA’s proposed provisions are modeled after Title VII of the Civil Rights Act of 1964 (“Title VII”). Like Title VII, the bill prohibits employers from retaliating against any person for opposing ENDA violations or participating in the investigation or prosecution of ENDA violations. The bill excludes disparate impact claims; only intentional discrimination is prohibited. The measure likely will prohibit harassment although, like Title VII, it does not expressly say so.

The Equal Employment Opportunity Commission (“EEOC”) would be responsible for enforcing ENDA with the same powers, authority and procedures that apply to Title VII. The EEOC is explicitly precluded from collecting statistics on actual or perceived sexual orientation from covered entities. As with Title VII, attorneys’ fees would be available to plaintiffs who prevail on ENDA claims.

ENDA and Same Sex Marriage

ENDA would not entirely end the current debate over same sex marriage. The bill explicitly provides nothing “shall be construed to require a covered entity to treat a couple who are not married in the same manner as the covered entity treats a married couple for purposes of employee benefits.” ENDA excludes same-sex marriage from this provision by incorporating the definition of marriage used in the federal Defense of Marriage Act. However, this exclusion expressly applies only to “benefits,” which is undefined. Therefore, it may be illegal to deny same-sex married couples certain privileges that are conferred upon male-female couples.

Gender Identity Protections Excluded

California’s Fair Employment and Housing Act and local ordinances prohibit discrimination not only based on sexual orientation, but also on the basis of “gender identity.” Title VII does not extend to gender identity, but does cover “sex” – the biological and physiological differences between men and women.

ENDA in its current formulation would not apply to gender identity. ENDA defines “sexual orientation” as homosexuality, heterosexuality or bisexuality. A predecessor bill (H.R. 2015) included “gender identity,” defined as “the 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.” This definition generally applies to transgendered persons äóñ which has been defined by at least one transgender organization as an “umbrella term that can be used to describe people whose gender expression is non-conforming and/or whose gender identity is different from their birth assigned gender.”

ENDA was introduced as an amended version of H.R. 2015 in an attempt to attract additional votes needed to pass the law. The exclusion of gender identity protections was a key change made to accomplish that goal. Other key changes included deleting related provisions that permitted employers to deny access to certain shared dressing facilities, and for imposing certain dress codes, based on actual/perceived gender identity.

Even without explicit protections against gender identity discrimination in Title VII, courts in some cases have upheld sex discrimination claims based on antipathy towards someone’s gender. For example, one court held it was unlawful to discriminate against a woman on the basis of her sex, in part because she was perceived as “too masculine.” Similarly, the Ninth Circuit Court of Appeals has held sexual harassment claims were valid when abuse was directed towards a male employee because he was “feminine.”

Recommendations

ENDA’s greatest impact will be felt in states that do not already prohibit employment discrimination based on sexual orientation discrimination. Multi-state employers will have to adapt their policies and procedures to comply with this new law.

Employers also must consider how to deal with the changing laws surrounding this issue. There are same-sex couples whose marriages are grandfathered under Prop. 8. However, post-Prop. 8 marriages are invalid. At the same time, federal law does not recognize same-sex marriages. California law grants protections to registered “domestic partners” as well, who must be treated as married for all intents and purposes.

At the end of the day, the law prohibits “discrimination” – treating people differently from others based on protected characteristics. Employers should endeavor to treat married couples and registered domestic partners the same regardless of biological sex. Until the law is settled in this area, this principle is easier to say than it is to do. Employers should proceed with caution while the politicians and judges continue to sort it out.

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