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Congress Likely to Pass Employment Non-Discrimination Act

Congress Likely to Pass Employment Non-Discrimination Act

There is little doubt that Congress and the White House are moving rapidly to pass laws affecting the workplace.  In fact, the first piece of legislation signed by President Obama was the Lilly Ledbetter Fair Pay Act which expanded the limitations period applicable to some claims of unfair compensation under the Equal Pay Act.

This year, Congress stands poised to pass legislation that has been on and off the table since it was first introduced by the late Senator Kennedy in 1994:  the protection of employees and applicants from discrimination based upon “sexual orientation.”  HR 3017 and S 1584, commonly called the “Employment Non-Discrimination Act” are now moving through the House and Senate.   Generally speaking, the bills would preclude covered employers from failing to hire, terminating, or otherwise discriminating against both job applicants and employees based upon the individual’s sexual orientation, which could include bisexualty, homosexuality and heterosexuality (by way of reverse discrimination).

Since shortly after its enactment, courts and commentators have grappled with whether Title VII’s protection against discrimination based upon “gender” should include protection based upon “sexual orientation.”  The courts have almost uniformly rejected the idea.  If the Employment Non-Discrimination Act is passed, however, there will be no more debate.  Most observers believe that, given the rapid movement of Congress and the White House on other employment legislation this year, the Employment Non-Discrimination Act, may finally pass.  And at least this commentator believes we will see many, many more changes to come.