A Legislation Prediction- ENDA


ENDA, protecting gay, lesbian and transgender employees may pass into law in 2013

I was speaking to a class of HR students the other day and I was discussing the likelihood of new legislation being passed in 2013. I noted that not much employment legislation has been passed in the past four years and that was unlikely to change I the current term, barring a major change in Congress in the mid-term elections. But I did make one legislation prediction.
Based on several of different indicators I feel that the Employment Non-discrimination Act (ENDA) will have a chance to pass. Not a great chance, but better than any other employment legislation in 2013. For those of you unsure what ENDA is it would prohibit discrimination based on sexual orientation and gender identity in both public and private employment. It is an amendment to Title VII and was originally proposed in 2009 and has been unsuccessful in passing to date. Here are the reasons I feel this way:

  • President Obama refused to sign an executive order that would have required ENDA like regulations for federal contractors. He said that an executive order was not needed rather legislation was needed to cover the entire spectrum of workplaces.
  • The Equal Employment Opportunity Commission (EEOC) has published its Strategic Enforcement Plan for 2013. Prominent in this plan is a new focus on lesbian, gay and transgender discrimination, despite the fact that there is no current federal law providing protection for the LGBT community.
  • An increasing number of states are providing such protections in their legislation.
  • Large companies, such as Lockheed Martin, Raytheon, Boeing and Northrop Grumman already have policies providing such protections, as do many other companies.
  • Over the past 20 years there has been major shift in social attitudes toward the LGBT community with widespread acceptance becoming the norm in a large number of communities.

With the groundwork that has already be laid, I think there will more possibilities to have such legislation introduced and adopted, even in the House of Representative. We will have to wait and see.
Be proactive
One of the major complaints of many HR people is that they are far too often in reactive mode and don’t have opportunities to be proactive. Well here is one of them. Here is what you can do:

  • Make an assessment of how such a law would affect your organization such as hiring procedures, interviews, changes in healthcare structure, etc.
  • Draft a policy.
  • Write a position paper explaining to your upper management and make it clear to them what the company’s reaction needs to be.
  • Monitor SHRM for updates on any attempt to get ENDA passed.

It may not pass this year, but in all likelihood it will be the next employment based legislation to pass through Congress. So be prepared.

2 thoughts on “A Legislation Prediction- ENDA”

  1. If the legislation had been limited to add “sexual orientation” to the list of protected classes covered by Title VII, it would have passed by now. It is the addition of “transgender” or “gender identity” which raises concerns.

  2. Very interesting prognostication. I think you may be right — if he gets busy now while he has momentum. I’d be interested what your readers think: if the President signs only one executive order in this critical post election momentum phase, which would you like, or which do you think more likely? Restrictions on certain guns and ammo? Or Equal rights for LBGT under ENDA (as amending Title VII)? Both have critical impact for employers.

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