Questions and Answers about the Employment Non-Discrimination Act (ENDA), S. 1284/H.R. 2692

Document Date: February 26, 2002

The Employment Non-Discrimination Act is pending federal legislation that would ban discrimination based on sexual orientation in all aspects of employment, including hiring, firing, promotion, compensation, and most terms and conditions of employment. The bill would also protect workers from retaliation.

Why should Congress address employment discrimination against gay, lesbian and bisexual workers?

During the last fifty years, Congress has responded when it found that the merit system was not working, and that some Americans were being denied employment for reasons that were arbitrary and unfair, such as discrimination based on race, religion, gender, national origin, and disability. When Congress has found such discrimination, its response has been to pass laws aimed at restoring the merit system by making sure that arbitrary considerations do not govern access to employment. Those laws, we believe, have been — and continue to be — an essential part of making the Fourteenth Amendment’s promise of equal protection of the law a reality. ENDA offers this Congress the opportunity to ensure workplace equality for everyone by protecting lesbians, gay men, and bisexuals from discrimination in employment.

Why does the legislation only address discrimination that occurs in the workplace?

In most circumstances in America today, employment is essential to any kind of a decent life, and can be essential to survival. To deprive anyone of employment is to deprive them of sustenance. Employment discrimination against gay, lesbian and bisexual workers is pervasive. The ACLU receives a flood of calls from men and women who have lost or been denied jobs, or failed to receive promotions, because of discrimination based on sexual orientation.

Are there any state or local laws that already address workplace discrimination against gay, lesbian or bisexual workers?

Twelve states, many local governments, and hundreds of large corporations, schools, and universities ban discrimination based on sexual orientation. Even with those state and local laws, however, only a small percentage of workers are protected against workplace discrimination based on sexual orientation. Contrary to popular belief, the vast majority of workers receive no protection from state or local laws.

Are gay and lesbian workers singled out in this law?

No. The ban on discrimination will protect heterosexuals, lesbians and gay men, as well as workers who associate with gay and lesbian co-workers. Without ENDA, many hard-working men and women will have no protection against discrimination.

To whom does ENDA apply?

It applies only to discrimination in employment, not to housing and public accommodations, and only to employers with 15 or more employees.

Does ENDA apply to the military?

No. ENDA does not apply to the armed forces and will have no effect on veterans’ preference programs.

Does ENDA affect religious organizations or religious schools?

ENDA also does not apply to religious organizations. The exemption explicitly states that religious schools are not subject to ENDA.

How are gay and lesbian workers discriminated against in the workplace?

Studies and experience show that discrimination against lesbians and gay men in the workplace is harmful and arbitrary. In one case, which unfortunately is all too common, an outstanding high school teacher in Utah named Wendy Weaver was told that she must hide her sexual orientation if she wants to continue working. Despite her seventeen years of experience and consistently superior evaluations, Ms. Weaver received a warning from her school administrators that she may lose her job if she makes any “comments, announcements or statements to students, staff members or parents of students regarding [her] homosexual orientation or lifestyle.”

Is ENDA modeled after any civil rights laws that are currently in use?

Yes. In its basic structure, ENDA parallels Title VII of the Civil Rights Act of 1964, the law that prohibits employment discrimination based on race, religion, gender, and national origin. It provides the same procedures and remedies that Title VII provides, except that it explicitly excludes any of the affirmative action relief that is sometimes available to address race and gender discrimination.

Does ENDA grant special rights to gay and lesbian employees?

No. As the Supreme Court recently observed in Evans v. Romer, anti-discrimination laws are not “special rights.” To most of us, the right to have and keep a job, as the court observed, is taken for granted, either because we are already protected against discrimination or because we do not face discrimination. But for those who do face discrimination, there is nothing “special” about a law aimed at preserving one’s ability to work–the most essential aspect of day-to-day life in America.

Does ENDA encourage the use of quotas?

No. ENDA expressly forbids the uses of quotas or preferential treatment.

Some domestic partnership laws permit the partners of gay or lesbian public employees to be eligible for health benefits. Is that a part of ENDA as well?

No. ENDA does not require that fringe benefits be provided to the partners of lesbian and gay workers.

Has the ACLU received complaints from gays and lesbians about workplace discrimination?

Yes. Just one of the many calls that the ACLU receives from gay and lesbian employees who have lost or have been denied a job because of their sexual orientation came from Robin Shahar, an outstanding new attorney who lost a job offer at the State of Georgia Department of Law. The ACLU’s Lesbian and Gay Rights Project filed a lawsuit on behalf of Ms. Shahar, who graduated sixth in her class from Emory University Law School, was an editor of the Emory University Law Review, and clerked for the Georgia Department of Law. Despite those outstanding credentials, the state withdrew its job offer after finding that Ms. Shahar is a lesbian. The United States Court of Appeals for the Eleventh Circuit decided that Ms. Shahar had no valid claim to fight the discrimination against her. That court would not have reached that decision if ENDA were law.

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