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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Friday, September 25, 2009

ENDA Summary

Here is a section by section summary of ENDA that I wrote.

1. NAME: This Act may be cited as the `Employment Non-Discrimination Act of 2009'.

2. PURPOSES: The purposes of the Act are to address the history of discrimination against LGBT people, to provide comprehensive protection across the US, and to provide protection under the Fourteenth Amendment and the Congressional power to regulate interstate commerce.

3. DEFINITIONS: (selected definitions appear here)

EMPLOYER - a person or organization engaged in an industry affecting interstate commerce who has 15 or more employees for at least 20 weeks, or most government offices. It excludes bona fide private membership clubs and volunteers.

GENDER IDENTITY - 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.

SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.


(a) Employer Practices - It is an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate with respect to the compensation, terms, conditions, or privileges of employment; or

(2) to limit, segregate, or classify the employees or applicants in any way that would tend to deprive any individual of employment or adversely affect their status.

Discrimination is also prohibited on the basis of one’s association with those who are LGBT. Other organizations are also prohibited from discriminating, including employment agencies, labor unions, and training programs. The Act does not require or permit any preferential treatment or quotas Disparate impact lawsuits, which claim that employer actions have indirectly resulted in a reduced number of LGBT employees, are not permitted.


Discrimination is also not permitted based on a complaint of discrimination, or participation in claims investigation.


The Act does not apply to organizations exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964. In his testimony at the Congressional hearing on September 23, 2009, Acting EEOC Stuart Ishimura stated his belief that this would exempt such religious organizations not only from penalties for discrimination on the basis of religion, but from penalties under ENDA for any reason.


The Act does not apply to members of the Armed Forces, and does not change special rights for veterans


(a) Employer Rules and Policies – The Act does not prohibit employer policies if they apply to everyone equally regardless of sexual orientation or gender identity. It does not limit sexual harassment charges if the policy applies to everyone equally.

It does not require employers to permit access to shared shower or dressing facilities if nudity is unavoidable. The employer must provide access to facilities not inconsistent with an employee’s gender identity. However, construction of additional facilities shall not be required. Employers may have reasonable dress codes during working hours, but must permit employees who are undergoing or have undergone gender transition to adhere to the dress code of the new gender.

The Act does not require benefits for married couples to be extended to those who are unmarried, and marriage is defined as it is in DOMA.


The EEOC shall not collect statistics on actual or perceived sexual orientation or gender identity, or compel the collection of such statistics by covered entities.


The EEOC has the same powers it has under Title VII to enforce the Act. Government employers also have the same powers to enforce the Act, as they have under their current personnel codes. Courts have the same jurisdiction and powers as under Title VII and corresponding government personnel codes. The procedures and remedies for claims under ENDA are likewise the same.


States and state officials are not be immune under the 11th amendment from an ENDA suit in federal court.


The EEOC, government officials and boards in charge of personnel matters (except for the Attorney General), and courts have discretion to award reasonable attorney fees to a prevailing party, except for the EEOC or the United States



Employers shall post notices that describe the applicable provisions.


The EEOC and government officials in charge of personnel matters have authority to issue regulations to carry out this Act.


This Act shall not invalidate other federal, state or local laws.


If any provision of this Act is held to be invalid, the remainder of the Act shall not be affected by the invalidity.


This Act shall take effect on the date that is 6 months after the date of enactment of this Act and shall not apply to conduct occurring before the effective date.

The original text may be found at http://thomas.loc.gov, and search for Bill Number HR3017 or S1584

1 comment:

Mark Zamen said...

This is a very good post: accurate, succinct, and well expressed. The passage of ENDA would be a long overdue step in the right direction, for a large segment of society still regards gay men and women, among various minorities, as second-class citizens - or worse. That is one of the salient points of my recently released biographical novel, Broken Saint. It is based on my forty-year friendship with a gay man, and chronicles his internal and external conflicts as he battles for acceptance (of himself and by others). More information is available at http://www.eloquentbooks.com/BrokenSaint.html or authorautobahn.webs.com/bookpeek.htm.

Mark Zamen, author