The Employment Non-Discrimination Act: Requiring Fairness for All Employees Regardless of Sexual Orientation or Gender Identity

Following our nation's observance of Labor Day, ACS is pleased to distribute "The Employment Non-Discrimination Act: Requiring Fairness for All Employees Regardless of Sexual Orientation or Gender Identity," an Issue Brief by Maxine Eichner, Professor of Law at the University of North Carolina School of Law. In this Issue Brief, Professor Eichner discusses how gaps in federal law leave many lesbian, gay, bisexual, and transgender (LGBT) workers unprotected against workplace discrimination. Collectively, Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit discrimination on the basis of race, religion, color, national origin, sex, age, and disability, but federal law contains no explicit protection against discrimination based on LGBT status. Limited protection has been offered through some case law interpreting Title VII antidiscrimination and sexual harassment law, but for the most part, LGBT workers are forced to endure incomplete and inadequate protection based on state and local law, if they are lucky enough to live and work in jurisdictions where such protections exist at all. Professor Eichner expresses her view that passage of the Employment Non-Discrimination Act (ENDA) would help fill the void in legal protections. The author states:

"ENDA would ban discrimination based on sexual orientation and gender identity with respect to hiring, firing, and terms of employment. The bill would also protect workers from retaliation. In this way, ENDA is an important step toward ensuring fairness for LGBT workers. The legislation stands for the proposition that like other employees, gay, lesbian, bisexual, and transgender employees should be judged based on their work performance, rather than on their sexual orientation or gender identity."

Professor Eichner opines that ENDA honors an important principle in American law, which is that "[e]mployment decisions should be based on a person's qualifications and job performance, rather than on characteristics unrelated to their work." The Issue Brief concludes with the author's view that:

"The passage of ENDA is a modest, pragmatic step that would help ensure that these workers are judged fairly . . . . In this way ENDA would bring us closer toward realizing the vital promise of ensuring that all persons are treated with equal justice, equal opportunity, and equal dignity under the law."

Read the full Issue Brief here: The Employment Non-Discrimination Act: Requiring Fairness for All Employees Regardless of Sexual Orientation or Gender Identity