The Employment Non-Discrimination Act (ENDA) is a piece of legislation that is broadly designed to prevent employers from discriminating against employees on the basis of their sexual orientation or gender identity. Though ENDA is not expected to pass through the House of Representatives, more interesting is the fact that many pro-civil rights and LGBT advocacy groups have actually withdrawn their support for the legislation.
With ENDA, at least in its current form, seemingly at its end (pardon the pun), many employers may erroneously believe that they can terminate, refuse to hire, or otherwise discriminate based on an employee’s sexual orientation. Such behavior could have very significant and immediate consequences for the employer, up to and including defending itself in a lawsuit. As employee-side counsel, we hope to provide employees with information about how they can protect their rights. Of equal importance, however, we want to give notice to employers and to our colleagues across the aisle about how a company can find itself involved in litigation when it has engaged in discriminatory practices based on an employee’s sexual orientation. But before discussing the nuts and bolts of discrimination law, it is first important to review ENDA’s history and learn a bit more about the intricacies of the legislation and the impact that recent judicial opinions have had on the likelihood of its passage.