On November 7, 2013, the United States Senate passed S815, the Employment Non-Discrimination Act (ENDA), barring employment discrimination on the basis of actual or perceived sexual orientation or gender identity for covered entities. This bill seeks to extend protection to lesbian, gay, bisexual, and transgender (LGBT) employees and applicants, so covered employers with 15 or more employees, employment agencies, and labor unions are prohibited from discriminating against these individuals in employment based on their sexual orientation or gender identity. The proposed law would not apply to the relationship between the U.S. and members of the armed forces, employers with fewer than 15 employees, and religious organizations.
Where States and Businesses Stand Now
While there is no federal law specifically prohibiting discrimination in employment based on an individuals’ sexual orientation or gender identity in private employment, many states and some municipalities across the country have enacted laws to protect individuals against discrimination in employment based on sexual orientation and/or gender identity. And while there are still places in the country where discrimination based on sexual orientation and/or gender identity is not prohibited, the Washington Post reports that the majority of U.S. businesses have established policies addressing this type of discrimination. Of companies included in the Fortune 500, 87 percent promote non-discrimination policies (including sexual orientation) and 56 percent also include gender identity. Farther up the ladder, 93 percent of Fortune 100 companies include sexual orientation as a protected characteristic in their non-discrimination policies and 82 percent include gender identity.
Many smaller businesses favor this approach as well. According to a poll by the Center for American Progress, seven out of 10 small businesses have banned discrimination on the basis of sexual orientation and six out of 10 do the same on the basis of gender identity. These small businesses "report that there were virtually no costs associated with implementing and maintaining these non-discrimination policies."
While ENDA legislation remains stalled in Congress, U.S. businesses that don't have LGBT anti-discrimination policies in place should be mindful of staying in full compliance with federal and state anti-discrimination laws, and consult with their legal counsel.