Jottings By An Employer's Lawyer

Saturday, May 30, 2009

ENDA Back Into the Congressional Mix Soon

Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon.

According to the article, he intends on going with the full version of the Act which would extend Title VII protection not only for sexual orientation but for gender identity. It was the latter provision which caused a breakdown in negotiations between its proponents and the business community in the last Congress, and perhaps more importantly, set off a divide int the LGBT community itself.

Although it seems the general feeling is that most workplace legislation will await a resolution EFCA, given that a compromise was almost reached on this legislation in the last Congress, it could be one that moves on a slightly different and faster track.

Some reasons:
  • many states already have extended such protection, more on sexual orientation, but a substantial number on gender identity as well,
  • many large employers have extended their own internal protections, and combined with the state statutes means it is not as big a cause for that group;
  • the constituencies behind EFCA and ENDA are not necessarily the same, although there is considerable overlap; and
  • my sense that same sex marriage, not workplace rights, now seems to be the focal point for those for whom sexual orientation is a political issue.
Gender identity is still much less understood, a point that Representative Frank seems to understand, as he is looking to Congressional hearings for purposes of education on that part of the legislation. Dr. Weiss will be doing her part at her blog as she intends a series of educational postings on the issue.

Ironically, although it is much less understood, it is individuals who can make a claim of gender identity discrimination who have fared much better under at least some circuit's view of Title VII than those with a sexual orientation claim. See 9th Circuit Joins 6th on Transgender Cases and Transgendered Workers in the Mainstream Press.

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