Today the Senate has adopted an amendment to the Employment Non-Discrimination Act (ENDA) from Sen. Rob Portman (R-Ohio) that would prevent retaliation against religious organizations. It was only Monday, the ENDA achieved enough support in the Senate to move the bill towards a vote on final passage. The ENDA is a bill that would make discrimination based on “an individual’s actual or perceived sexual orientation or gender identity” illegal in such areas as hiring, firing and compensation in both the private and public workplaces. The measure would treat “sexual orientation” and “gender identity” in a fashion similar to other federally protected categories, such as race, gender, age and religion.
As it stands now, twenty-one states and the District of Columbia have laws prohibiting workplace discrimination on the basis of sexual orientation and many corporations have their own fully inclusive policies in place. Current federal laws prevent workplace discrimination based upon age, color, disability, genetic information, national origin, race, religion and, sex, but no such protections occur for sexual orientation and gender identity.
Different versions of the ENDA have been introduced since 1994 and the Senate last considered a version of ENDA in 1996, but the bill failed by one vote. There are reports that the bill is unlikely to even be brought to a vote in the House as Speaker John Boehner is not in favor of the bill. Boehner spokesman Michael Steel said in an email that “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.” The Washington Post has reported that states with laws similar to ENDA “have not seen a noticeable increase in litigation based on sexual orientation or gender identity.”
If the bill is passed, potential remedies for violating the law would be on par with other cases of employment discrimination. The former employee could potentially get the job or promotion they were denied, be awarded back pay and litigation costs and/or related compensatory or punitive damages.