Senate Passes ENDA With Amendment

The Senate for the first time approved the Employment Non-Discrimination Act (S. 815), a bill that would prohibit employment discrimination on the basis one’s actual or perceived sexual orientation or gender identity.  The final vote was 64-32, with all Democrats present and 10 Republicans voting in ENDA’s favor.

The bill would make it unlawful for employers with 15 or more employees:

(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.

A detailed discussion of the bill’s provisions can be found here.

The final version of the Senate measure contains an amendment related to the bill’s exemption for religious entities.  ENDA expressly states that it does not apply to “a corporation, association, education institution, or institution of hiring learning, or society that is exempt from the religious discrimination provisions of Title VII of the Civil Rights Act.”  The amendment offered by Sen. Rob Portman (R-OH) builds upon this exemption, preventing government retaliation against religious entities that avail themselves of the religious exemption.  For example, a state or federal agency would be prohibited from penalizing or withholding licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from an organization that takes advantage of the religious employer exclusion. 

Although the Senate’s passage of ENDA is a milestone for this bill, House Speaker John Boehner (R-OH) has already said he will not bring it up for House consideration, effectively killing the bill for the foreseeable future.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.