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Federal LGBT Employment Law: The ENDA of Discrimination?

By Aditi Mukherji, JD | Last updated on

Is the time ripe for the Employment Non-Discrimination Act (ENDA) to finally pass?

Supporters of same-sex marriage celebrated the Supreme Court rulings as landmark decisions that moved the nation closer to full equality. But many people are already turning their focus to the fact that it’s still perfectly legal in a majority of states to discriminate against the LGBT community, and to do so in employment.

Is ENDA the next step?


Though it's hard to believe, there are zero ENDA-like federal statutes on the books, so it's completely legal to fire someone for being gay in 29 states that don't have their own non-discrimination laws, reports Salon. In 34 states, you can fire people for being transgender. ENDA would bar workplace discrimination on the basis of sexual orientation or gender identity, providing protections to LGBT individuals.

Currently, Title VII of the Civil Rights Act of 1964 puts race, gender, religion and national origin off limits as far as employment decisions including hiring, firing, promotions, demotions, reductions in hours, along with many others. ENDA would provide the same protections for lesbian, gay, bisexual and transgender people.

ENDA has been introduced just about every year since 1994 -- always to no avail. But as we all realize from the Supreme Court rulings, this year is different for the gay rights movement. Sen. Tim Johnson (D-S.D.) became the 53rd cosponsor of ENDA on Tuesday, leaving just three Democratic senators who have not signed on, reports the Huffington Post.

Increased support this year means businesses would be smart to prepare for compliance.

The Times, They Are a Changin'

A majority of Americans would support banning workplace discrimination against gay and lesbian workers, according to a new HuffPost/YouGov poll. The survey found that 52 percent of Americans said they favored a law prohibiting discrimination by employers against gays and lesbians, while 35 percent said they opposed the idea.

With the post-2012 election sea change on gay rights, Oregon Senator Jeff Merkley , who is spearheading ENDA, said to Salon many of his colleagues "who were sitting on the fence are now taking a fresh look at the issue."

If you have clients who feel a bit iffy on the subject of LGBT rights in the workplace, seize the Supreme Court's landmark rulings and the groundswell of support for ENDA as an opportunity for you to encourage them to reassess their stance.

Rather than wait for LGBT employment rights to become federal law, it may be worthwhile to advise clients to craft or update their LGBT anti-discrimination policies now. While you're at it, update your own policy, too.

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