The Lawletter Vol 38 No 10
A bill (S. 815) that would provide employment discrimination protections to individuals based on their sexual orientation and gender identity passed the U.S. Senate on November 7, 2013 by a 64-32 vote. Called the Employment Non-Discrimination Act of 2013 ("ENDA"), the bill would extend federal employment laws, which currently prevent employment discrimination on the basis of race, religion, gender, national origin, age, and disability, to cover sexual orientation and gender identity as well. The House introduced an inclusive version of ENDA (H.R. 1755) on April 25, 2013 and referred it to the Subcommittee on Workforce Protections. The bill has 200 cosponsors, but it is unlikely to be taken up by the full House in the foreseeable future. Boehner Sees 'No Basis or Need' for ENDA. ENDA would prohibit employers, employment agencies, labor organizations, and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment on the basis of their actual or perceived sexual orientation or gender identity. "Sexual orientation" is defined as homosexuality, heterosexuality, or bisexuality, and "gender identity" is defined as the 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.
Regardless of the ultimate outcome of ENDA, counsel should be aware that 21 states have already amended their civil rights and fair employment practices statutes to prohibit discrimination on the basis of sexual orientation. Seventeen of these states include gender identity within the prohibition, with a few states adding civil union or domestic partnership satus to the protected class.
Oregon's legislation is representative. Adopted in 2008, it prohibits discrimination based on sexual orientation and/or gender identity and provides legal recognition of domestic partnerships between same-sex couples. More specifically, it bans lesbian, gay, bisexual, and transgender discrimination in the workplace, housing, and public accommodations. Employers, employment agencies, and labor organizations are prohibited from discriminating in terms of employment, compensation, membership, and job referrals, unless in the employment or job referrals there is a bona fide occupational qualification reasonably necessary to the normal operation of an employer's business. The law makes exceptions regarding churches and other religious institutions in certain situations, such as employment actions based on a bona fide religious belief about sexual orientation; or employment positions closely connected to the primary purpose of the church or religious institution and where there is no connection to a nonreligious/nonchurch commercial or business activity; or employment directly related to the operation of the church or religious institution, such as clergy, religious instructors, and support staff. The law does not prohibit an employer from enforcing an otherwise valid dress code or policy, as long as the employer provides, on a case-by-case basis, reasonable accommodation of an individual based on the health and safety needs of the individual.
The Oregon law also established legal recognition of same-sex domestic partnerships so that domestic partners have the same responsibilities, privileges, immunities, rights, and benefits as married couples. With these measures, Oregon became the 18th state to establish antidiscrimination protections based on sexual orientation and the eighth state to extend broad recognition to same-sex couples.