Senate Passes Bill Banning Employment Discrimination Based on Sexual Orientation

Bloomberg Law for HR Professionals is a complete, one-stop resource, continuously updated, providing HR professionals with fast answers to a wide range of domestic and international human resources...

Nov. 7 --The Senate Nov. 7 passed the Employment Nondiscrimination Act (S. 815), which would ban employment discrimination on the basis of sexual orientation or gender identity, on a bipartisan vote of 64-32, but the measure faces an uncertain future in the House.

The vote marked the first time the Senate had considered a measure banning employment discrimination on the basis of sexual orientation since 1996, when similar legislation failed to pass by a single vote. The latest version of the bill, unlike the one considered 17 years ago, also would ban discrimination based on gender identity.

The bill, which is patterned on Title VII of the 1964 Civil Rights Act, would cover all employers with more than 15 employees. It contains language exempting religiously affiliated employers, defined as those who also are exempt from the religious discrimination provisions of Title VII.

Ten Republicans joined their Democratic colleagues in voting for ENDA--Sens. Kelly Ayotte (N.H.), Susan Collins (Maine), Jeff Flake (Ariz.), Orrin Hatch (Utah), Dean Heller (Nev.), Mark Kirk (Ill.), John McCain (Ariz.), Lisa Murkowski (Alaska), Rob Portman (Ohio) and Pat Toomey (Pa.).

Earlier in the week, Sen. Tom Harkin (D-Iowa), the chairman of the Committee on Health, Education, Labor and Pensions, and a sponsor of ENDA, called the bill “very simple and very clear.”

“It states that private businesses, public employers and labor unions cannot make employment decisions--hiring, firing, promotion or compensation--because of a person's actual or perceived sexual orientation or gender identity,” Harkin said. “It contains exemptions for small businesses and religious organizations, and current rules applicable to the armed forces are not affected.”

Harkin also emphasized that the bill “expressly prohibits disparate impact claims,” which challenge employment practices that have a disproportionate adverse impact on members of a particular group.

President Barack Obama also has expressed support for ENDA. In an official statement of administration policy Nov. 4, the White House said the administration “urges swift passage” of the bill.

Secretary of Labor Thomas E. Perez in a Nov. 7 statement following the Senate vote said: “Protecting the workplace rights of LGBT workers is a moral imperative that is long overdue. We still have a long road ahead of us, but today's historic vote moves us one step closer to a nation that truly embodies its founding principles of equality, opportunity and fairness for all.”

ENDA still faces a difficult climb, however. Michael Steel, a spokesman for House Speaker John Boehner (R-Ohio), recently reiterated Boehner's long-standing opposition to the bill.

“The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” Steel said.

Text of the bill is available at

Request Bloomberg Law for HR Professionals