Intent Good, Details Bad - The Employee Non-Discrimination Act (ENDA)

Get ready for more legislation coming your way in the near future.  This time, it's about something no one in society can agree on, but HR people are fairly consistent in championing and providing - an environment free of harassment and discrimination. 

What's the topic this time?  The Employee Non-Discrimination Act (ENDA), which is focused on expanding Title 7 to include sexual orientation as a protected class.  Here's a summary of the bill to get you warmed up:

"In an attempt to broaden Title VII, the Employment Non-Discrimination Act (“ENDA”) proposes to add “actual or perceived sexual orientation” to the list. ENDA will affect HR professionals on several levels, including how to conduct interviews, hiring and firing employees, instituting policies and procedures, and ultimately creating a workplace that is heterosexual, homosexual, and bisexual friendly.

On April 24, 2007, Representatives Barney Frank (D-Mass.), Chris Shays (R-Conn.), Tammy Baldwin (D–Wisc.), and Deborah Pryce (R–Ohio) proposed a version of ENDA which would prohibit discrimination against employees on the basis of sexual orientation and gender identity. Subsequently, on September 27, 2007, Representative Frank introduced a version of ENDA excluding “gender identity.” ENDA then passed the House Education and Labor Committee on October 18, 2007, and on November 7, 2007, ENDA passed the full House of Representatives by a vote of 235-184. Currently, the act is placed on the Senate Legislative Calendar under General Orders and is expected to receive consideration from the Senate this fall (most likely after the Presidential election).

ENDA’s purpose is to provide a comprehensive federal prohibition of employment discrimination on the basis of actual or perceived sexual orientation. The act mentions several areas in which discrimination is banned, including labor organizations, employment policies and procedures, training programs, and employment agencies essentially mirroring existing Title VII language on those issues. Furthermore, the act does reject quotas, disparate impact claims, and provides an exemption for religious organizations.

Many of us (including me) have had sexual orientation language in the anti-harassment and discrimination policies for years, so I regard this type of legislation as a non-event in many ways.  Additionally, I've been fortunate to have worked for some great companies, with managers at all levels who didn't/don't judge or act based on someone's sexual orientation.

Here's the only problem I have with the bill.  It over-reaches by including an "associational discrimination" clause, which makes unlawful discrimination against persons who associate with others who are homosexual, heterosexual, or bisexual, i.e., every human being on the face of the planet. Of course, the ENDA does not further define what association means but would very likely encompass such things as being friendly towards an individual or spending time with them outside of work.

You're kidding me right?  Friends of those with a "perceived orientation"?  That's overreaching in my eyes. 

Many folks that I've read are also wary of the "perceived orientation" language in the bill.  I'm not.  While more and more people are candid about their orientation, there are also many more who aren't, and the perception of their orientation is always in play in the workplace by managers, co-workers and vendors alike.  It's the reality.  Additionally, others are concerned about the act imposing on religious rights.  Most of the folks I know with strong religious beliefs in the workplace understand not everyone shares their beliefs, and as a result they have to be moderate in the workplace.

SHRM has come out in full support of the bill, and that's good in many ways, predictable in others.  Rather than take on the associational discrimination clause, I'm sure they felt they had to support, because we all know what happens if you're an HR pro who questions any part of the orientation argument - you're branded as intolerant by the folks with the extreme point of view.  Intolerant isn't a good place to be in the people business, so rather than talk about the issues with the bill, SHRM simply accepted it as is.

My favorite future defense after taking an EEOC charge from a heterosexual "friend" of someone with a gay friend in the same workplace?  Hey - the gay friend you are referring to is still working here...

Next...

Comments

[Sandi Mays]

I couldn't agree more. Friends of those with a "perceived orientation"

How did that language get in there?

Discrimination is abhorrent, but these laws are getting crazy.

[Jenn Barnes / HR Wench]

Associational discrimination claims have been interpreted as valid in many courts, even when the law does NOT contain specific text regarding association (such as Title VII). For example:

Holcomb v. Iona College (Caucasian former emp sued alleging his termination was based on his race, and the fact that his wife was African American)

Thompson v. North American Stainless (Emp was terminated after his fiance - who also worked there - filed a gender discrimination charge)

Trujillo v. Pacificorp (2 emps that were a couple claim they were terminated due to the medical costs incurred by their dependent son) This one falls under the ADA, of course, which has associational discrimination wording in it.

[KD]

Jenn -

Thanks for checking in. To build off part of your point, I'd rather let the courts look at each situation and hold employers accountable for things that may be associational in nature, rather than spelling it out in the law.

I think employers should be progressive enough to get this done on their own. With that in mind, if the courts are already applying it, the HR and business worlds don't need the associational tag in this piece of legislation.

Good rule of thumb - by spelling it out, you're going to incur 10 bogus claims for every one with merit. I can't support that and most of the HR world that has to defend the bogus claims wouldn't support it either.

Good call on the fact that courts are already applying it though. Let's let them do that...

Thanks - KD