Currently, employers subject to Title VII of the Civil Rights Act of 1964 (those with 15 or more employees) may not discriminate against employees or applicants on the basis of race, color, religion, sex, or national origin. A proposed addition to these protections, the Employment Nondiscrimination Act ("ENDA"), which is currently being considered by the United States Senate, would expand the law to also protect employees on the basis of their sexual orientation.

Under the current law, gay and lesbian individuals have occasionally been able to pursue claims of discrimination where they alleged that they were mistreated because they did not meet the stereotypical image of their gender. However, the courts have uniformly rejected claims presented as discrimination on account of sexual orientation. The new law would allow employees and applicants to directly pursue claims of discrimination and harassment based on sexual orientation.

H.R. 3685, sponsored by Rep. Barney Frank (D-MA), passed the House of Representatives on November 7, 2007 by a vote of 235-184. The bill, as originally introduced, included protections for transgender workers. Those provisions were eliminated, and an exemption for religious institutions was added prior to passage of the bill.

The ENDA would offer the following new protections:

• It prohibits an employer from discriminating against an employee with respect to the conditions and privileges of employment based on the employee's actual or perceived sexual orientation.

• It prevents employment agencies from refusing to refer workers based on actual or perceived sexual orientation.

The ENDA also clarifies areas in which it does not offer new protections:

• It does not require employers to provide the same benefits to unmarried couples as they do to married couples.

• It does not require or allow preferential treatment or quotas for any individual or group because of their actual or perceived sexual orientation.

The bill is currently in the Senate, although it has not yet come up for a vote. Senators Edward Kennedy (D-MA) and Susan Collins (R-ME) have also discussed introducing a separate, similar bill in the Senate. The Senate came within one vote of passing a similar law during its 1996 session. A Senate vote on the house version of the ENDA or a similar alternative is expected sometime during the 2008 session. It is unclear whether President Bush would veto the ENDA if it is passed by the Senate, although he vowed to veto an earlier version of the bill.

Many states already provide legal protections for gay and lesbian workers. North Carolina does not have any statewide protections for gay and lesbian workers, but some cities and counties within our state have local ordinances which protect employees and applicants from discrimination based on sexual orientation. Many companies have voluntarily adopted policies protecting gay workers from discrimination. Employers should stay alert for news of the ENDA. We will continue to track the bill’s progress as it moves through Congress and report to you in future Employer Alerts. If the legislation becomes law, employers will need to reexamine their employment practices to ensure they comply with the new law.