Categories: Retail

By Nancy L. Gunzenhauser

With the Supreme Court’s influential decision in June, declaring the Defense of Marriage Act unconstitutional, the tides are moving in favor of federal legislation on gay, lesbian, and transgender workplace rights.  On November 7, 2013, the Senate passed the Employment Non-Discrimination Act (“ENDA”), prohibiting employment discrimination on the basis of both sexual orientation and gender identity.

ENDA has quite the history in Congress; it has been introduced in every legislative session since 1994, except for one year.  Throughout the bill’s history, it has also undergone changes in the protections guaranteed.  The first ENDA bill, introduced by a bipartisan group in the House on June 23, 1994, prohibited discrimination on the basis of sexual orientation of the employee or an associate of the employee.  The bill did not provide for a disparate impact claim. This version had a broad religious exemption.  In 2007, the House’s version of ENDA included gender identity as a protected category for the first time.  By the following Congressional session, both houses’ versions of ENDA included gender identity as a protected category.  Prior to this Senate’s passage of ENDA, neither house of Congress has ever passed any form of an ENDA bill.  The Senate came close to passing the bill in 1996 with a 49-50 vote.

Several senators, on both sides, disagreed with ENDA’s religious exemption.  Two amendments were brought by Senators prior to the vote.  The first, introduced by Rob Portman (R-Ohio), sought protection against retaliation of religious employers who receive funding through government contracts; this amendment passed.  A second amendment, introduced by Pat Toomey (R-Pa.), sought a broader religious exemption to secular companies who are affiliated with religious associations or societies; this amendment did not pass.

Notwithstanding the procedural hurdle of passing in the Senate, ENDA faces a large challenge in the 113th Congressional House of Representatives.  Leaders of the Republican-controlled House have indicated opposition to ENDA; although there may be greater pressure than before to at least consider the bill. It is likely that this bill may be lost in the south wing of the Capitol.

ENDA proposes new federal law; however, twenty-one states (and the District of Columbia) already have laws prohibiting discrimination in employment on the basis of sexual orientation and/or gender identity.  Many cities or municipalities also have workplace protections for LGBT employees.  According to the Human Rights Campaign, 88% of Fortune 500 companies already have policies prohibiting discrimination based on sexual orientation.

Back to Workforce Bulletin Blog

Search This Blog

Blog Editors

Related Services



Jump to Page


Sign up to receive an email notification when new Workforce Bulletin posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.