In our blog two months ago, we covered some of the issues that are poised to potentially affect the employment practices environment, including the unconstitutionality of DOMA, an uptick in religious discrimination and age discrimination, the use of criminal background checks for employment purposes, etc. Now we have ENDA, the Employment Non-Discrimination Act, once again in the forefront of political debate.

ENDA would ban discrimination on the basis of sexual orientation and gender identity, and appears to have enough votes to pass the legislation in the U.S. Senate. If passed by the Senate the bill will move onto the House where it will have more difficulty getting the yes votes it needs. In fact, House Speaker Boehner (R., Ohio) has objected to the measure, stating that it would incite a wave of lawsuits from individuals who feel they’ve experienced discrimination at work because of their sexual orientation or gender identity. “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small-business jobs,” said Boehner spokesman Michael Steel.

However, there is some evidence showing that Boehner’s concerns may not be founded. The U.S. Government Accountability Office (GAO) this past July had looked into the number of complaints filed in the states with laws on the books forbidding discrimination against lesbian, gay and bisexual workers. The data shows relatively few employment discrimination complaints based on sexual orientation and gender identity. In Wisconsin, for example, only 69 of the 3,383 employment discrimination grievances filed in 2012 – or 2% – included sexual orientation as a basis. In Oregon, it was 30 out of 1,676 complaints (1.8%); in New York, 243 out of 5,032 (4.8%); and in California, 1,104 out of 19,839 (5.6%).

Bear in mind, however, that the low numbers partly reflect the fact that only a small percentage (4%) of the U.S. population identifies as gay, lesbian or bisexual, according to the Williams Institute, a research organization based at the University of California School of Law. The Institute estimates that 500,000 Americans are transgender. The relatively minimal complaints may also indicate that LGBT workers are faring well in the workplace, said Fred Sainz, a spokesperson at the Human Rights Campaign, an LGBT advocacy group.

Background on ENDA

ENDA has been introduced repeatedly since 1994, but has failed to pass every time. Current federal laws prevent workplace discrimination based upon age, color, disability, genetic information, national origin, race, religion and, sex, but no such protections occur for sexual orientation and gender identity. There are, however, 21 states and the District of Columbia that have laws prohibiting workplace discrimination based on sexual orientation. Seventeen states and DC also bar discrimination based on sexual identity.

Furthermore, over the last two decades there has been a shift in public sentiment that may impact the way House votes. According to a study from the Public Religion Research Institute, 73% of Americans favor laws protecting gays and lesbians from job discrimination, and 75% want Congress to pass such legislation. Fifty-five percent of those approving of such legislative protection are Republican.

Regardless of the fate of the bill, the important issue is that firms have internal policies that prohibit discrimination in the workplace, including the type of practices that fall under ENDA. These policies need to be clearly stated and distributed to all employees, with proper training for hiring, firing, promoting and other employment practices.

What’s more, proper Employment Practices Liability Insurance needs to be secured to offer protection in the event of a lawsuit alleging discrimination of any kind. IPOA can provide your hotel and resort insureds with EPLI coverage through our HotelPro program. Take a look at our EPLI Premium Indication form to get an idea of cost for your clients.

Sources: USA Today, WSJ, Huffington Post