The Employment Non-discrimination Act After Hobby Lobby: Striving for Progress—Not Perfection

Workplace discrimination based on sexual orientation and gender identity is pervasive in our society. In 2008, “the General Social Survey found that of the nationally representative sample of [lesbians and gays], 37 percent had experienced workplace harassment in the last five years, and 12 percent had lost a job because of their sexual orientation.” In one of the largest surveys of transgender individuals, “90 percent of respondents . . . reported having experienced harassment or mistreatment at work, or had taken actions to avoid it, and 47 percent reported having been discriminated against in hiring, promotion, or job retention because of their gender identity.”

Despite the pervasiveness of discrimination based on sexual orientation and gender identity, federal legislation that explicitly prohibits it does not exist. To combat sexual orientation and gender identity discrimination, the Employment Non-Discrimination Act (ENDA) has been proposed. ENDA, if enacted, would explicitly prohibit discrimination based on “actual or perceived sexual orientation or gender identity.” On November 7, 2013, the Senate passed ENDA. However, John Boehner, Speaker of the House, stated there was “no way” that ENDA would be voted on in 2014, asserting that it was “unnecessary and would provide the basis for frivolous lawsuits” because there are laws already in place to protect the lesbian, gay, bisexual, and transgender (LGBT) community in the workplace. As former House Speaker Boehner predicted, the House never voted on ENDA in 2014, and to date, the House has yet to vote on it.

Unsurprisingly, Boehner was sharply criticized for his statements regarding ENDA. He is correct, however, in his assertion that there are protections available for the LGBT community in the workplace. First, some states have already passed laws that explicitly protect the LGBT community from workplace discrimination. Second, the LGBT community may find protection via Title VII using gender stereotypes as the basis of the claim. Third, the Equal Employment Opportunity Commission (EEOC) has taken a clear stance that discrimination based on gender identity falls under sex discrimination for Title VII claims.