Last Thursday, November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64-32. Similar to existing federal nondiscrimination laws, ENDA would be enforced by the EEOC and would prohibit most employers with 15 or more employees and labor organizations from taking adverse employment action or treating employees differently because of their actual or perceived sexual orientation or gender identity. Although this is a significant step forward for this bill, ENDA still faces tough opposition in the GOP-led House of Representatives, where House Speaker John Boehner has reportedly said that he thinks the bill is unnecessary and will result in a wave of frivolous lawsuits against employers.
Despite ENDAs uncertain future, the District of Columbia and 17 states, including Minnesota, have already passed laws prohibiting discrimination on the basis of sexual orientation and gender identity and an additional 4 states prohibit discrimination based on sexual orientation alone. Accordingly, businesses that operate in states that currently recognize sexual orientation and gender identity as a protected class should be sure that their policies and practices comply with state and local laws. In addition, as we previously addressed, based on two recent U.S. Supreme Court decisions, all employers must ensure that their fringe and health benefits policies and leave policies treat legally married same sex couples equally.