Legislative Notice: S. 815 – Employment Non-Discrimination Act of 2013
Noteworthy
Floor Situation: On October 31, cloture was filed on the motion to proceed to S. 815. It is anticipated the Senate will hold its cloture vote on the motion to proceed on Monday, November 4, as part of a series of votes scheduled to begin at 5:30p.m.
Background: On July 10, the legislation was reported favorably by the HELP Committee by a vote of 15 to 7, with the support of three Republican committee members. The committee report, along with minority views, can be found here.
The Employment Non-Discrimination Act (ENDA) was originally introduced in 1994 by Senator Edward Kennedy. A vote by the full Senate was held in 1996, when it was rejected by a vote of 49 to 50. Senator Merkley introduced a version of the bill in 2009 that included a prohibition of discrimination based on sexual orientation and gender identity.
Executive Summary: S. 815 creates a new federal civil rights statute to prohibit employment discrimination on the basis of real or perceived sexual orientation or gender identity. The bill exempts the military, employers with fewer than 15 employees, certain private clubs, and religious organizations that are exempt from religious discrimination provisions of Title VII of the Civil Rights Act of 1964. Concerns have been raised that the religious exemption in the bill is too narrow; that the wording about gender identity “real or perceived” has the potential to increase litigation; and other issues.
Considerations
Narrow Religious Exemption: The bill raises questions as to the breadth and applicability of the religious exemption. The committee report notes that the legislation is intended to apply “to entities that are not primarily religious in purpose and character,” likely covering some faith-based institutions not affiliated with a particular religion. As such, the exemption in the bill may fail to cover some schools and businesses that are not affiliated with a particular denomination.
Costly litigation: The bill prohibits discrimination on the basis of “actual or perceived sexual orientation or gender identity.” Yet, the term “perceived” is not defined anywhere in the bill. In addition, the terms “transition” and “transitioning,” as they relate to gender identity, are not defined in the bill. There is concern these undefined terms will increase employer liability and needlessly require litigation to determine how the provision is to be applied. While the legislation seeks to follow requirements in existing civil rights laws that protect against discrimination on the basis of race, color, religion, gender, or national origin, the term “perceived” is not contained in existing civil rights statutes.
Impact on Shared Facilities: The legislation permits employers to have reasonable dress or grooming standards, as long as the employer allows a person who has undergone gender transition, or has given notice to the employer of such transition, to adhere to the standards for the gender to which they are transitioning. While the legislation states that employers would not be required to build new or additional facilities, it does not discuss how employers can accommodate the concerns of fellow employees, customers and the general public who may also utilize the shared facilities.
Impinges on States’ Rights: Currently, 38 states do not make “gender identity” a protected class under law. The legislation would usurp states’ rights and impose a federal standard on states where one does not currently exist.
Bill Provisions
Section 3
This section defines key terms in the bill. Many of the definitions come from existing federal civil rights laws, notably Title VII of the Civil Rights Act of 1964. The terms “employee” and “employer” exclude volunteers and private membership clubs from coverage. “Gender identity” is defined as the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual without regard to their identity designated at birth. The section does not contain a definition of “transition” or “transitioning” as it relates to gender identity.
Section 4
This section prohibits employers, employment agencies, joint labor-management committees, and labor unions from discriminating in employment or employment opportunities on the basis of actual or perceived sexual orientation or gender identity. Employment opportunities include hiring, firing, compensation, and other terms, conditions, or privileges of employment or union membership that adversely affect the status of the individual as an employee.
Section 4 also states that nothing in the bill is intended to provide preferential treatment or quotas to any person or group due to the actual or perceived sexual orientation or gender identity.
Section 5
This section prohibits retaliation against people because they oppose any practice prohibited by the Act or participate in an investigation or other proceeding authorized by the Act.
Section 6
This section exempts from coverage religious institutions that are currently exempt under Title VII of the Civil Rights Act of 1964.
Section 7
This section states that the Act does not apply to members of the Armed Forces, nor does it repeal or modify any other law that gives special preferences to veterans.
Section 8
This section states that nothing in the Act shall prohibit an employer from requiring an employee during work hours to adhere to reasonable dress and grooming standards provided that the employer permits an employee to adhere to the same dress or grooming standards for the gender to which the employee identifies. Nothing in the Act shall require the construction of new or additional facilities.
Section 9
This section prohibits the Equal Employment Opportunity Commission (EEOC) or the Department of Labor from requiring employers to collect data on sexual orientation or gender identity of employees under the Act. Data may be provided on a voluntary basis.
Section 10
The section authorizes the same enforcement powers, procedures, and remedies in current federal employment law to claims made under this Act. Individual relief available under Title VII is available under this Act, other than disparate impact claims. This section also clarifies that double-recovery of damages under both Title VII an ENDA is not permitted.
Section 11
This section abrogates state sovereign immunity and clarifies that states are not immune from suit for employment discrimination based on sexual orientation or gender identity against employees or applicants within a state program or activity that receives federal funds.
Section 12
This section states that a successful party in a lawsuit, other than the EEOC or the United States, is entitled to attorneys’ fees and litigation expenses.
Section 13
This section requires that employers post notices describing the requirements under the Act.
Section 14
This section authorizes, but does not require, regulations to enforce the Act.
Section 17
This section provides the effective date will be sixth months after enactment.
Administration Position
The Administration has not issued a formal position on the legislation.
Cost
The Congressional Budget Office estimates that implementing S. 815 would cost $47 million over the 2014-2018 period, mostly for the EEOC to handle additional discrimination cases.
Additionally, CBO notes that the bill would impose a number of intergovernmental and private-sector mandates on employers, employment agencies, and labor organizations. CBO estimates that the costs of complying with those mandates would not exceed the annual thresholds specified in the Unfunded Mandates Reform Act for intergovernmental or private-sector mandates ($75 million and $150 million in 2013, respectively, adjusted annually for inflation).
Possible Amendments
The amendment situation is unclear at this time.