Friday, May 11, 2012

Will Obama’s "Evolution" Bring ENDA Back to Life?

Just one day after President Obama publicly announced that his personal evolution is complete and he now believes same-sex couples should be allowed to marry, Sen. Tom Harkin (D-IA) has moved to resurrect the seemingly-dead Employment Non-Discrimination Act (ENDA).

You may recall that the bill has been introduced in Congress several times but hasn't successfully moved past the committee process.  While that may not seem likely to change anytime soon -- bill tracking service GovTrack’s current analysis gives ENDA only a 4% chance of being passed -- the president's announcement may have breathed new life into the measure and, if nothing else, served up yet another polarizing issue in this election year.

In its most recent form, ENDA would prohibit employers from discriminating against any employee or applicant based on the individual’s actual or perceived sexual orientation or gender identity.  Nothing in the bill would require employers to provide the same benefits to unmarried couples as to married couples.

President Obama has long supported the legislation, and Harkin called for a June 12 hearing to discuss the bill and its impact on the lesbian, gay, bisexual, and transgendered community. 

On a related front, the Equal Employment Opportunity Commission recently ruled that transgendered individuals can bring gender stereotyping discrimination claims under Title VII.  The ruling, which came in a case against Attorney General Eric Holder and the Justice Department, already has been described by some as a stepping stone toward general judicial acceptance that sexual orientation and gender identity are protected by Title VII.  Currently, the overwhelming majority of courts have held that federal law does not prohibit discrimination on the basis of those traits.

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