Protected Characteristics On The Horizon: Sexual Orientation & Gender Identity 

(Published July 13, 2009)

 

On July 2, Delaware's governor signed into law a bill that adds sexual orientation as a class protected from employment discrimination. Now 21 states, plus the District of Columbia, provide employment protections on the basis of sexual orientation. Thirteen of those states, as well as the District of Columbia, also provide employment protections on the basis of gender identity.

 

A bill is currently under consideration in the U.S. House of Representatives that would expand these protections to both public and private employers in every state. The Employment Non-Discrimination Act of 2009 (HR 3017) (ENDA) reads, in part:

 

It shall be an unlawful employment practice for an employer:

 

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or 

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity. 

 

ENDA would also prohibit employers from retaliating against employees who oppose practices made unlawful by the Act or who participate in related investigations. An association discrimination provision is included in ENDA as well, which would make it illegal to discriminate against an employee or applicant based on the actual or perceived sexual orientation or gender identity of someone with whom they are associated.

 

Representative Barney Frank has been introducing versions of this bill since 1994, with little success. However, this latest version of ENDA has much more momentum. Sponsored again by Frank, it boasts well over 100 co-sponsors, from both sides of the political aisle, and it is expected to pass in the House. Plus, President Obama reportedly supports the bill's passage. It remains to be seen, however, if there will be enough support for it to survive a Senate filibuster.

 

Tip: To stay ahead of the legislative curve, consider adding sexual orientation and gender identity to the list of protected characteristics in your organization's discrimination and harassment policies.

 

ENDA would not require employers to provide benefits to domestic partners. However, last month, President Obama signed a Presidential Memorandum on Federal Benefits and Non-Discrimination, requiring all federal agencies to extend as many federal benefits as possible to gay/lesbian/bisexual/transgender (GLBT) families as current law allows. For civil service employees, that means domestic partners of federal employees can be added to the long-term care insurance program, and supervisors can be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children.

 

Of course, many employers already offer benefits to employees' domestic partners and non-biological, non-adopted children, of their own volition. Tip: Consider whether doing so might make you an employer of choice in your region and industry, bolstering your recruitment and retention efforts.

 

Related Topic(s): Discrimination/Sex Discrimination, Discrimination/Sexual Harassment