Senate votes to pass ENDA, covering gay and transgendered workers: Employers face new risks

Senate votes to pass ENDA, covering gay and transgendered workers: Employers face new risks

LGBTs want changeToday, the Senate voted 64-to-32 to pass the Employment Non-Discrimination Act (ENDA), which would ban workplace bias based on sexual orientation or transgender status. It is uncertain whether it will pass the House, since House Speaker John Boehner has expressed opposition to the bill, and may not even bring it to a vote. ENDA’s costs outweigh its potential benefits, as I explain herehere, and here.

The Heritage Foundation raises a series of objections to ENDA, some of which have more merit than others, at this link.

The ENDA bill is more costly to private employers than business realizes, and will impose costs even on some employers that sensibly hire and fire based on merit, not based on sexual orientation or other irrelevant factors.

Trial lawyers will profit at business’s expense if the bill becomes law.  As I have explained in the above-linked commentaries, its superficially evenhanded attorneys fees provisions will be interpreted in a pro-plaintiff, heads-I-win, tails-you-lose way by the courts due to the Christiansburg Garment decision and its progeny construing the same language in other statutes (meaning that workers will recover attorneys fees, and damages, when they win, but companies will get nothing in attorney fees when they win and prove themselves innocent of discrimination).

Moreover, the courts will read into its vague “terms or conditions of employment” language costly causes of action for “harassment” over comments by co-workers that allegedly create a “hostile work environment” for gays or the transgendered.  That potentially includes comments on religious and political issues related to sexual orientation (like same-sex marriage), that don’t reflect the employer’s own views or any homophobia on the part of the employer (in some cases, for comments that an employer never even learned about prior to a lawsuit), thus encroaching on free speech in the workplace.

Some supporters of ENDA openly hope to use it to squelch viewpoints that offend them. For example, a detractor of the New York Post, who dislikes its coverage of gay celebrities and public figures, hopes that the Post’s gay employees will sue the newspaper if ENDA passes, under the theory that its content creates a hostile work environment for gay employees. In Seattle, a city human rights commission official suggested that complainant John Dill might have had a valid sexual-orientation harassment claim based on allegations that a co-worker listened to conservative talk radio shows and posted a letter from a congresswoman skeptical of repealing the military’s ban on gays.

Some religiously-oriented employers, such as Christian bookstores, could theoretically be sued under ENDA for a hostile environment by disgruntled employees based partly on anti-gay publications that they sell, since there is no BFOQ exception in ENDA (although I would expect it to take a few years before any such lawsuits are brought, given the outcry they might cause, at least until the legal culture becomes significantly more willing to suppress anti-LGBT views).

For additional potential problems with the bill, see these links.


Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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