The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or, depending on the version of the bill, gender identity, by employers with at least 15 employees.
ENDA has been introduced in every Congress since 1994 except the 109th. Similar legislation has been introduced without passage since 1974. The bill gained its best chance at passing after the Democratic Party gained the majority after twelve years of Republican majorities in the 2006 midterm elections. In 2007, gender identity protections were added to the legislation for the first time. Some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion and dropped it from the bill, which passed the House and then died in the Senate. President George W. Bush threatened to veto the measure. LGBT advocacy organizations and the LGBT community were divided over support of the modified bill.
In 2009, following Democratic gains in the 2008 elections, and after the divisiveness of the 2007 debate, Rep. Barney Frank introduced a transgender-inclusive version of ENDA. He introduced it again in 2011, and Senator Jeff Merkley introduced it in the Senate. On November 7, 2013, Merkley's bill passed the Senate with bipartisan support by a vote of 64–32. President Barack Obama supported the bill's passage, but the House Rules Committee voted against it.
From 2015 on, LGBT rights advocates moved to support the Equality Act, a bill with far more comprehensive protections than ENDA. The Equality Act would prohibit discrimination on the basis of sexual orientation and gender identity not only in employment, but also housing, public accommodations, public education, federal funding, credit, and jury service.
On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation and gender identity. The ruling was only on employment, like ENDA. LGBT rights advocates welcomed the ruling and called on Congress to pass the Equality Act, noting that as of 2020, 29 states do not have the full protections the Equality Act would provide for the LGBT community.
Evidence of employment discrimination on the basis of sexual orientation and gender identity
In states that have anti-discrimination policies in place, LGBT complaints are equivalent to the number of complaints filed based on sex and fewer than the number of complaints filed based on race.Evidence Discrimination based on sexual orientation occurs at a similar rate as sex and race at 4.7 per 10,000, as compared to discrimination based on sex at 5.4 and race at 6.5. EEOC statistics from 2018 show that 1,811 LGBT complaints were filed.
The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government. Thirty percent of state and local LGBT employees live in California and New York. In comparison, less than half of one half of one percent of LGBT state and local employees live in Montana, North Dakota and Wyoming combined. As one might expect, many of the documented complaints of discrimination by state and local governments against LGBT employees are in California and New York. Surveys that seek to document discrimination on the basis of perceived sexual orientation and/or gender identity are often conducted with a pool of self identified LGBT people, making it difficult to ascertain the impact of this type of discrimination on non-LGBT individuals.
One source of evidence for hiring discrimination against openly gay men comes from a field experiment that sent two fictitious but realistic resumes to roughly 1,700 entry-level job openings. The two resumes were very similar in terms of the applicant's qualifications, but one resume for each opening mentioned that the applicant had been part of a gay organization in college. The results showed that applicants without the gay signal had an 11.5 percent chance of being called for an interview; openly gay applicants had only a 7.2 percent chance. The callback gap varied widely according to the location of the job. Most of the overall gap detected in the study was driven by the Southern and Midwestern states in the sample – Texas, Florida, and Ohio. The Western and Northeastern states in the sample (California, Nevada, Pennsylvania, and New York) had only small and statistically insignificant callback gaps.Tilcsik, A. (2011). Pride and prejudice: Employment discrimination against openly gay men in the United States. American Journal of Sociology, 117, 586–626.
Transgender people may experience higher rates of discrimination than the LGB population. A survey of transgender and gender non-conforming people conducted by the National Center for Transgender Equality found 90 percent of respondents experienced harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it. In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate of between 15 and 57 percent of the population.
In a survey conducted by Harris Interactive, 38 percent of LGBT people report incomes less than $35,000, compared to 33 percent of all U.S. adults over age 18.
Provisions The current version of the bill under consideration in Congress prohibits private employers with more than 15 employees from discriminating on the basis of some sexual orientations or gender identity. Sexual orientation is limited to "homosexuality, heterosexuality, or bisexuality," thereby legalizing discrimination against asexual individuals. Religious organizations are provided an exception, broader than that found in the Civil Rights Act of 1964. Non-profit membership-only clubs, except labor unions, are similarly exempt.
All versions of the bill, irrespective of the military's changing policies with respect to service by open gays and lesbians, have provided an exclusion for the military as an employer of members of the armed forces, though not as an employer of civilians.103rd Congress: "For purposes of this Act, the term 'employment or employment opportunities' does not apply to the relationship between the United States and members of the Armed Forces."; 112th Congress: "In this Act, the term 'employment' does not apply to the relationship between the United States and members of the Armed Forces."
Since the 111th Congress, the legislation has included language to prevent any reading of the law as a modification of the federal definition of marriage established in the Defense of Marriage Act (1995).111th and 112th Congresses: "In this Act, the term 'married' refers to marriage as such term is defined in section 7 of title 1, United States Code (commonly known as the 'Defense of Marriage Act')." Since the 110th Congress, a related provision aimed at non-marital legal relations like civil unions and domestic partnerships prevents requiring an employer to treat unmarried and married couples similarly.112th Congress: "Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits."
Legislative activity
On May 14, 1974, Reps. Bella Abzug (D-NY) and Ed Koch (D-NY) introduced , an "Equality Act" which would have added "sex, marital status or sexual orientation" to the protected classes specified in the Civil Rights Act of 1964, thus prohibiting discrimination in employment and access to public accommodations and facilities.(October 13, 2007) U.S. Congressmember Bella S. Abzug Stonewall.org. Accessed October 20, 2007. The bill died in June 1974 but a similarly named bill would later be introduced in the 115th United States Congress on May 2, 2017.
In the early 1990s, supporters of the legislation decided to focus on employment. Rep. Gerry Studds introduced the Employment Non-Discrimination Act on June 23, 1994.[Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).] The legislation failed in 1994 and 1995.Wendland, Joel. (April 9, 2007) A New Beginning for ENDA The Williams Institute, UCLA School of Law. Accessed October 20, 2007. In 1996, the bill failed on a 49–50 vote in the Senate and was not voted on in the House.Manley, Roslyn. (June 17, 2003) New "Unified" Bill to Replace ENDA: A Left Coast Perspective TG Crossroads. Accessed October 20, 2007; MetroWeekly: Chris Geidner, "Double Defeat," September 15, 2011, accessed February 10, 2012 Massachusetts Senator Edward Kennedy "believed that other senators looking for 'cover' on their vote in favor of DOMA might be more inclined to support ENDA." Early versions of ENDA did not include provisions to protect transgender people from discrimination and ENDA was not introduced in the 109th Congress.
110th Congress
In the 110th United States Congress there were two versions of the bill, both of which provided employment protections similar to Title VII of the Civil Rights Act of 1964. Reps. Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce introduced on April 24, 2007. It included gender identity within its protections. It defined gender identity 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 allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."Weiss, Jillian Todd. (April 26, 2007) The text of ENDA Transgender Workplace Diversity Blog. Accessed October 20, 2007.
When that bill died in committee, Frank split it into two, both of which he introduced on September 27, 2007. did not include gender identity, and it exempted employer dress codes. , was specifically for gender identity. The bill for sexual orientation had one successful vote. With the October 18 endorsement of the Education and Labor Committee, the House of Representatives passed it on November 7 by a vote of 235–184 (with 14 members not voting),Final Vote Results For HR 3685 but it died in the Senate. The bill for gender identity, by contrast, never went to a vote.
Some LGBT activist organizations refused to support H.R. 3685 because of its failure to cover gender identity.http://nosubstitutes.org An exception was the Human Rights Campaign, which received wide criticism from the LGBT community for supporting a non-inclusive ENDA. The LGBT activist organizations that refused to support H.R. 3685 argued that not including transgender people undermined the underlying principle of ENDA. They claimed that failure to include gender identity/expression weakened the protection for the portion of the LGBT population that most needed its protections: gender non-conforming people, who they claimed are discriminated against in greater numbers than their gender-conforming compatriots. Moreover, groups such as the National LGBTQ Task Force, among others, later withdrew support in 2014 due to the ENDA's broad religious exemptions. Others argued that this was ENDA's best chance of passing Congress in thirty years, that civil rights victories have historically been incremental, that concerns about the legislation's protections were unfounded, and that forgoing a chance to provide immediate workplace protections to millions of lesbians, gays and bisexuals was politically and morally wrong.
111th Congress