Establishing Civil Rights Denied: LGBT Employment Protections
August 28th, 2009 | Imani Webb-Smith
The Civil Rights Act of 1964 made sweeping reforms in employment discrimination law; making it illegal for an employer to discriminate on the basis of sex, race, color, religion or national origin, while other federal laws protect against age and disability discrimination. These protections are still not extended to individuals on the basis of sexual orientation or gender identity. Currently, there are three major bills pending passage that would work to amend this and grant equal protection to groups historically discriminated against in the workplace.
The Employment Non-Discrimination Act H.R. 3017 (ENDA) is a proposed bill in the United States Congress that, if enacted, would prohibit discrimination against employees on the basis of sexual orientation, gender identity, and disability. ENDA would extend these rights to individual employees in the private sector. These protections are necessary as the absence of federal laws that consistently protects LGBT individuals makes it legal in 20 states to discriminate based on sexual orientation and in 13 states to discriminate on the basis of gender identity or expression.
ENDA would provide basic protections against workplace discrimination on the basis of gender identity or sexual orientation. ENDA is closely modeled on civil rights laws already in existence, such as Title VII of the Civil Rights Act of 1964 (prohibiting workplace discrimination based on race, color, religion, sex or national origin), and the American with Disabilities Act (ADA).
ENDA would extend civil protections currently provided under Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity. It would prohibit both public and private employers from taking into account an individual’s sexual orientation or gender identity as the basis for employment decisions. Additionally, ENDA would provide somewhat limited remedies for those employees who are discriminated against.
In order to address some concerns about its scope raised by its opponents, ENDA does not apply to religious organizations, cover businesses with fewer than fifteen employees, apply to members of the armed forces, allow for quotas or preferential treatment based on sexual orientation or gender identity, allow a “disparate impact claim,” allow the imposition of affirmative action for ENDA violations or apply retroactively.
Since 1994, ENDA has been introduced into every Congress (though without gender identity protection), though it has yet to pass. In 2009, ENDA was introduced in the 111th Congress in the House with 177 original co-sponsors. Senate introduction is expected to come shortly.
The Local Law Enforcement Hate Crimes Prevention Act of 2009 (LLEHCPA or The Matthew Shepard Act) is another bill currently before the United States Congress that would expand the 1994 US federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability. If passed, this law would grant the Department of Justice (DOJ), the power to investigate and prosecute bias-motivated violence by providing them with jurisdiction over crimes of violence that would include sexual orientation, gender identity or disability.
The LLEHCPA was introduced in the 111th Congress by Reps. John Conyers and Mark Kirk in the House, and the Matthew Shepard Act was introduced by Senator Edward Kennedy in the Senate. The House passed the Act on April 29, 2009, and the Senate voted to proceed with the Matthew Shepard Act as an amendment to the Department of Defense Authorization bill on July 23, 2009. The Senate and House versions must be reconciled before being sent to the President’s desk.
Finally, the Military Readiness Act (MREA) is also pending. This bill is more controversial than the other two, as it attempts to overturn “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” (DADT)—the policy that prohibits gays from serving openly in the U.S. Armed Forces at the risk of being fired. Under DADT, around 13,000 service members have been discharged since 1994 due to their sexual orientation.
MREA would replace DADT and its requirements that those serving or wishing to serve in the U.S. Armed Forces neither disclose their sexual preferences, nor engage in homosexual acts with a non-discrimination policy. MREA is slightly retroactive, as it allows former servicewomen or men discharged under DADT to re-enter the military.
MREA is currently in the House; there is no Senate bill at this time.
Workplace Fairness has set up an email action alert that allows you to contact your representatives and urge them to support the MREA.
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Tags: age discrimination, Don't Ask Don't Tell, Gender Discrimination, gender identity, Imani Webb-Smith, LGBT, Matthew Shepard, sexual orientation, sexual orientation discrimination
