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