Wednesday, January 13, 2010

Federal jobs website bans gender identity discrimination…is ENDA coming next?

Last week, the Obama Administration quietly added language to its EEO statement on the federal government’s jobs website ( that explicitly bans employment discrimination based on gender identity. While the change may only apply to federal jobs, since the federal government is the country’s largest employer, the Administration’s move could have a real impact. By making gender identity a protected class, the Obama Administration has made its strongest commitment yet to protecting transgender applicants and employees from discrimination. And, since sexual orientation discrimination is already prohibited, the change is also a significant step toward ending employment discrimination of LGBT applicants and employees in the federal workforce.

The change was hinted at in June 2009 when President Obama issued a memorandum directing the Office of Personnel Management to issue guidance to all executive departments and federal agencies regarding compliance with, and implementation of, the civil service laws, which make it unlawful to discriminate against applicants and employees for and in federal employment on the basis of factors not related to job performance. The memorandum also extended certain employee benefits to the same-sex partners of federal employees. In particular, domestic partners of federal employees can be added to the federal government’s long-term care insurance program, and federal employees must be allowed to use their sick leave to take care of domestic partners and non-biological, non-adopted children.

In a January 6 statement, Human Rights Campaign media director Michael Cole said: “[d]iscrimination has no place in the federal workforce and this common sense measure puts our country’s largest employer in line with other major American businesses. Already, 207 Fortune 500 companies have policies that ban gender identity discrimination and the number among Fortune 100 companies is 69. Not only will the federal government improve their ability to recruit and retain the best and the brightest, they will serve as an example of creating fair and equitable workplaces.”

“Employment discrimination can have a devastating effect on transgender Americans and the families they support,” said Christopher Anders, ACLU Senior Legislative Counsel in a January 6 statement. “With its new policy, the federal government is setting a good example for all employers. Although many state governments and businesses already provide workplace protections for transgender employees, explicit protection of transgender federal employees will likely be a catalyst for many more states and businesses to apply the federal policy.” Currently, 13 states (California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington), the District of Columbia and many municipalities and counties have laws prohibiting discrimination on the basis of sexual orientation and gender identity in employment. Other states have laws that protect against employment discrimination based on sexual orientation, but not gender identity.

What does all this mean for ENDA? Well advocates of the bill are hoping this development will provide the necessary boost in Congress’ efforts to pass the long-gestating Employment Non-Discrimination Act (S. 1584/H.R. 3017).

ENDA would prohibit employment discrimination against individuals based on their sexual orientation or gender identity. The bill would mirror Title VII, prohibiting private employers, employment agencies, labor organizations and joint labor-management committees from firing, refusing to hire or discriminating against those employed or seeking employment based on their perceived or actual sexual orientation or gender identity. The bill would also prohibit retaliation, covering individuals who have opposed unlawful practices or who have participated in an employment discrimination proceeding. ENDA’s provisions also impact public sector employers, but do not apply to religious organizations as defined by Title VII, volunteers who receive no compensation, private membership clubs or uniformed members of the Armed Forces.

The bill would define “sexual orientation” as homosexuality, heterosexuality or bisexuality. “Gender identity” would mean 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.

While markup of the bill by the House Education and Labor Committee was scheduled for November 18, 2009, it was postponed, confirmed committee spokesperson Aaron Albright. Lawmakers are still “ironing out details” on the legislation, he said. Albright would not speculate when the bill would next be scheduled for a markup. During markup, the House committee was to consider amendments to the legislation before voting to report out the legislation to the full House. On November 5, the Senate Health, Education, Labor and Pensions Committee held a hearing on ENDA. Testifying before the committee, Thomas Perez, the DOJ's Assistant Attorney General for Civil Rights, voiced “the Administration's strong support for fully-inclusive legislation that prohibits discrimination on the basis of sexual orientation and gender identity,” adding that the bill remains a “top legislative priority” for the Administration. Committee Chair Sen. Tom Harkin (D-Iowa) said: “We’re going to move this bill next year.”

Given the ground swell of support for ENDA by the Administration and Congressional leadership, it is a forgone conclusion that the bill is a part of their 2010 labor and employment legislative agenda. As such, employers should anticipate that passage of ENDA is likely this year. This means employers should expect to revise their employment policies and train their managers and supervisors accordingly.

1 comment:

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