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In 1964, Title VII of the Civil Rights Act was enacted to protect workers from employment discrimination on the basis of race, color, religion, sex or national origin. Since that time, members of Congress have attempted to enact comparable legislation to protect employees from sexual-orientation and gender-identity discrimination. Despite these attempts, there is no federal law that protects against such discrimination. Although a number of state laws, local laws and ordinances prohibit sexual-orientation and gender-identity discrimination, many wonder whether this will be the year that Congress passes legislation addressing the issue. This article will examine the federal legislation now under consideration and the way in which existing laws are being used to protect employees from sexual-orientation and gender-identity discrimination, and will explore what passage of federal legislation prohibiting such discrimination will mean for businesses. On April 24, a bipartisan group of representatives introduced the Employment Non-Discrimination Act of 2007 (ENDA) in the U.S. House of Representatives (H.R. 2015). (Previous versions had been introduced in Congress in 1994, 1995, 1997, 1999, 2001 and 2003.) The ENDA would prohibit covered entities from: • Firing, refusing to hire or taking any other action that would harm a person’s status as an employee based on that person’s sexual orientation or gender identity, whether perceived or actual. • Discriminating against an employee as a result of the sexual orientation or gender identity of someone with whom the employee associates. • Discriminating against an individual because that person has opposed an unlawful employment practice or one the individual reasonably believed was an unlawful employment practice. • Discriminating against an employee who participated in any manner in an investigation, proceeding or hearing under the ENDA. The entities covered by the legislation would include private employers with 15 or more employees; federal, state and local governments; labor unions; and employment agencies. In the ENDA’s most recent version, the military and certain religious entities would be exempted from coverage. Generally, the Equal Employment Opportunity Commission would have enforcement power. If an employee’s complaint cannot be resolved by the EEOC, the individual would be allowed to file suit in federal court for damages, including attorney fees. On Sept. 5, the House Health, Employment, Labor and Pensions Subcommittee held a hearing to examine the ENDA. During the hearing, members discussed whether the legislation would be appropriate and administratively feasible. Based on this recent activity, the ENDA appears to be a topic that will be hotly debated, especially in light of the impending 2008 presidential election. As of the date of this article, the House had not voted on the current version of the ENDA. Despite the lack of federal legislation banning sexual-orientation or gender-identity discrimination, employers should be aware that such discrimination in the workplace can violate existing laws. Beginning with Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the U.S. Supreme Court held that same-sex harassment was actionable under Title VII. Since this ruling, courts have held that victims of same-sex harassment could prove sex discrimination by offering proof of sexual desire for the victim, evidence of hostility to the presence of a particular gender in the workplace or evidence that a victim was targeted because he or she did not conform to stereotypes of his or her gender. See, e.g., Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). Although the above methods for establishing harassment are not exhaustive, gender stereotyping is one of the more common approaches used by plaintiffs. This most likely is because courts have increasingly interpreted Title VII to protect employees who are discriminated against for failing to conform to gender stereotypes. See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Gender stereotyping was first recognized in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, a senior manager was denied partnership, at least in part, because of her partners’ perceptions that she did not look and behave like a stereotypical woman. During the partnership evaluation process, colleagues commented that she overcompensated for being a woman and could “use a course in charm school.” In addition, she was explicitly advised that, to improve her chances for partnership, she should walk, talk and dress more femininely, wear makeup and have her hair styled. Although the Supreme Court reversed the verdict in favor of the plaintiff on other grounds, the case is significant because the justices found that discrimination based on the socially constructed norms associated with gender is actionable under Title VII. Similarly, a plaintiff subjected to retaliation for making a claim of discrimination or opposing discrimination may be able to bring a Title VII claim, even if he or she cannot make out an actionable gender-discrimination claim. Thus, employers must continue to ensure that their supervisors make employment decisions based on work ability rather than factors that have no bearing on job performance. Also, employers should monitor the workplace to ensure that employees do not create retaliatory environments for employees who have made or opposed alleged discrimination. Other protections Some courts have held that it constitutes religious discrimination to harass an employee because of the employee’s failure to live a lifestyle consistent with the employer’s religious belief. See, e.g., Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997). This same reasoning may be applied in the context of sexual-orientation or gender-identity discrimination. For instance, at least one court has held that when discrimination is based on a religious dislike of a plaintiff’s sexual orientation, it could constitute improper religious discrimination. Del Erdmann v. Tranquility Inc., 155 F. Supp. 2d 1152 (N.D. Calif. 2001). The Gender Motivated Violence Act (GMVA), 42 U.S.C. 13981, was enacted in 1994 as part of federal legislation entitled the Violence Against Women Act. The GMVA provides a federal cause of action for victims of gender-motivated violence. The GMVA expressly applies to public conduct, action taken under color of state law and private conduct. Although some have interpreted this legislation to protect solely women and only in the context of domestic violence, at least one court has held that the GMVA is gender neutral and could apply in contexts other than domestic violence. Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000). Just as courts have interpreted Title VII to prohibit hostility to a particular sex in the workplace and gender stereotyping, courts may find that the GMVA provides a cause of action if gender-motivated violence is directed at an employee because of his or her sexual orientation or gender identity. Although the Americans With Disabilities Act of 1990 and the Rehabilitation Act of 1973 explicitly exclude transgender workers from their scope, some employees have turned to state disability statutes to argue that gender-identity discrimination is prohibited disability discrimination. Specifically, employees have argued that gender dysphoria, a medically diagnosable condition with prescribed medical treatments, is a protected disability under state disability statutes. This argument is controversial, however, because it relies on the classification of gender dysphoria as a mental disorder. Under the Family and Medical Leave Act of 1993 (FMLA), eligible employees are entitled to up to 12 weeks of unpaid leave each 12 months for, among other reasons, the employee’s serious health condition � say, for example, that an employee requires in-patient care, is incapacitated, requires visits to a health care provider and/or has a condition that results in continuing treatment or multiple treatments. Surgery to change or modify his or her gender presentation, for example, might qualify an employee for FMLA leave. Failure to provide such leave or other FMLA rights and benefits could be actionable. Another method for contesting sexual-orientation or gender-identity discrimination is through common law claims such as wrongful discharge, tortious interference with contract, assault, battery and defamation. Two of the common law claims most likely to provide a basis for raising such claims are breach of contract and intentional infliction of emotional distress. Although most American workers are “at will” employees (meaning the employer can fire the employee, or the employee can leave, for any reason not prohibited by law), a number of courts have found that employer policies or handbooks can modify this employment relationship. Thus, in the absence of a disclaimer disavowing any intent to create a contractual relationship, an employer’s policy prohibiting sexual-orientation or gender-identity discrimination may form the basis for a breach of contract action. In addition, if workplace behavior toward an employee based on his or her sexual orientation or gender identity rises to the level of extreme and outrageous conduct, an employee may be able to pursue a claim for intentional infliction of emotional distress. Further, public employers must be careful not to deprive employees of equal protection, violate First Amendment free speech rights or contravene executive orders prohibiting sexual-orientation or gender-identity discrimination. There can be no denying that passage of the ENDA would give employees another arrow in their quiver of possible employment claims against employers. Thus, the question for businesses becomes, “What is in it for us?” As with most legislation, there are benefits and costs associated with the ENDA. Passage of the ENDA would provide a number of benefits to businesses. First, federal legislation would add consistency to this area of the law. Currently, approximately 20 states and the District of Columbia prohibit discrimination based on sexual orientation and approximately 13 states and the District of Columbia prohibit discrimination based on gender identity. Various municipalities have passed similar ordinances. Given the number of businesses that have employees and offices in different counties and states, the ENDA would provide a more uniform standard. Second, employment decisions based on irrelevant factors rather than merit and ability harm workplace morale. This in turn can result in lower productivity for businesses. Third, laws that protect employees allow for a freer exchange of workplace ideas and a greater diversity of opinions. Fourth, employers will have a larger pool of candidates to select from because no one is self-selecting himself out of the process or being eliminated based on factors that have no bearing on job performance. Fifth, companies with policies promoting tolerance will benefit from an increase in goodwill from employees, clients and customers. Finally, some employers believe it is the right approach regardless of federal requirements. Costs to business There inevitably will be costs to businesses if the ENDA becomes law. The ENDA would expose employers to additional liability. For example, legitimate searches on the Internet may alert employers to a candidate’s or employee’s sexual orientation. This knowledge might expose employers to liability for employment decisions. The ENDA could cost companies time and money to defend claims of discrimination. There most likely will be a need for additional training to inform employees about proper behavior and to advise supervisors how to address complaints of sexual-orientation and gender-identity discrimination. And the ENDA would require employers to post notices about prohibited discrimination. Finally, there could be confusion regarding the ENDA’s application. For example, it would be illegal for an employer to condition an action on a person being married or eligible to marry. However, the proposed legislation also says that married and unmarried couples may be treated differently for benefits purposes. Regardless of which side individuals and business come down on, the debate over legislation to prohibit discrimination based on sexual orientation and gender identity is certain to continue both inside and outside the Beltway. Carolyn M. Plump is a partner in the labor and employment practice group of Mitts Milavec in Philadelphia. Previously, she was an assistant counsel to the U.S. Senate, where she advised, trained and represented Senate offices regarding compliance with federal labor and employment laws.

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