Employment Non-Discrimination Act

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The Employment Non-Discrimination Act (ENDA) is a proposed piece of legislation in the United States Congress that would render discrimination in employment on the basis of sexual orientation and gender identity illegal — though as is the case with most legislation of this kind in the U.S., "small" and religious employers would be exempted. "Employment" covers a range of topics, such as hiring, promotion, firing, and salaries.

In 2020, SCOTUS held in Bostock v. Clayton County that the Civil Rights Act of 1964 already protects workers from discrimination on the basis of sexual orientation and gender identity, as a result of its protections on the basis of sex. The proposed Equality Act is a more recent bill similar to the ENDA.

Background and history

In 29 and 34 of the 50 states, it is legal under state law to refuse to hire or terminate people because they are lesbian, gay, bisexual, transgender, et cetera. By population numbers, this means that well over half the American workforce lives without any kind of employment protection and can be fired just for being LGBT.

Some kind of federal protection for gay workers has been introduced in Congress since 1974. ENDA as we know it today, with protections for gay workers only, has been around since 1994, and was introduced in its current form in 2007 with the addition of transgender protections. Gender identity was actually dropped from the bill in 2007 due to fears that it wouldn't be passable — a questionable move, considering the president was George W. Bush, who would have vetoed the bill regardless — causing a spat between the advocacy organizations that withdrew their support after trans protections were dropped (most of them) and the Human Rights Campaign. These events caused transgender political advocates to turn against the Human Rights Campaign and Congressman Barney Frank, the architect of the protections' elimination, a relationship which has yet to fully heal.

In any case, while ENDA has been introduced in some form nearly every Congress since 1994, it has never passed the Senate, and only passed the House a single time — even when Democrats held the majority in both houses.

Opposition

ENDA has faced the usual knee-jerk homophobia and transphobia from religious concern trolls and "family values" types, as might be expected. It also faces some objection from putative fiscal conservatives on the grounds that either (a) discrimination against LGBT individuals doesn't happen and (b) prohibiting discrimination would put too much bureaucratic pressure on businesses and stifle job creation. Indeed, the myth that "gays earn more than non-gays" is remarkably prevalent. Recent research suggests that, on the contrary, same-sex couples make much less than straight couples. However, the point is further complicated by economic research showing that while gay men tend to earn less than their straight counterparts, lesbian women tend to earn more. Proponents of ENDA have countered the idea that it puts an unreasonable strain on business by pointing to the numerous states in which some kind of ENDA is already on the books, and showing that this is not the case.

Libertarians tend to oppose ENDA on philosophical grounds, just as they tend to oppose any anti-discrimination laws.

Implications

In 2012, Maryland became the only state to have legalized same-sex marriage without having any protections for transgender workers. New York State, similarly, legalized gay marriage without protections for transgender workers in the private sector. At the federal level, the only recent LGBT rights-related bills were the repeal of the "don't ask, don't tell" policy and ban on lesbian, gay, and bisexual members of the military.

The trend away from ENDA in the LGBT rights movement has been contentious. Critics argue that it is much more important first for supposedly disadvantaged LGBT individuals to be secure in their employment, and additional rights to come afterward, than for the right of entry into traditional institutions like the military and marriage to be the top priority. It is also demonstrative of the fact that a vast majority of people in the U.S. erroneously believe that it is already illegal at the federal level to discriminate in employment against LGBT individuals.

See also

• American Equality Bill
• Civil Rights Act