100 Human Resources Management for Public and Nonprofi t Organizations
ENDA seeks to extend federal employment discrimination protections
currently provided based on race, religion, sex, national origin, age, and
disability to sexual orientation. If the act were to be passed, it would apply
to private employers with fi fteen or more employees, employment agen-
cies, labor organizations, and civilian federal employees. It would prohibit
public and private employers, employment agencies, and labor unions
from using an individual ’ s sexual orientation as the basis for employment
decisions, such as hiring, fi ring, promotion, or compensation. It would
also provide for the same procedures, and similar, but somewhat more
limited, remedies as are permitted under Title VII and the Americans
with Disabilities Act. And it would apply to employees of state and local
governments.
Exemptions to ENDA would include businesses with fewer than fi fteen
employees, it would not apply to the uniformed members of the armed
forces, and it would exempt veterans ’ preferences. The act would exempt
tax - exempt private membership clubs and all religious organizations,
which is defi ned to include religious educational institutions. It would not
permit quotas or preferential treatment based on sexual orientation or
allow a disparate impact claim similar to the one available under Title VII
of the Civil Rights Act of 1964. Therefore, an employer would not be required
to justify a neutral practice that might have a statistically disparate impact
on individuals because of their sexual orientation. It also would not permit
the imposition of affi rmative action for a violation of ENDA or allow the
Equal Employment Opportunity Commission to collect statistics on sexual
orientation or compel employers to collect such statistics, and it could not be
applied retroactively. Finally, the law, if passed, would not require employers
to provide domestic partnership benefi ts.
Originally ENDA included a provision that would also prohibit dis-
crimination on the basis of gender identity or gender expression, often
referred to as transgendered , but its elimination was necessary to obtain the
support of many of those who voted to support the bill.
Although no federal protection currently exists, many state and local gov-
ernments have enacted their own laws that prohibit discrimination against
gays and lesbians. Some states have amended their human rights acts spe-
cifi cally to prohibit discrimination in employment on the basis of actual or
perceived sexual orientation. In other states, governors have issued executive
orders. Approximately two hundred counties and municipalities prohibit such
discrimination.
There are a number of support groups for public employees across
the federal, state, and local governments. In California, the Golden State