Recently, the press has been abuzz over the United States Senate’s passage of the Employment Non-Discrimination Act (ENDA), which, if signed into law, would prohibit workplace discrimination under federal law on the basis of sexual orientation and gender identity. While the bill faces an uncertain future in the House of Representatives — House Speaker John Boehner has indicated his opposition to the bill, making it unlikely that the bill will be put up for vote during this session of Congress — the political climate in Washington has shifted in a way that makes it likely that ENDA will, at some point in the next few years, become the law of the land.
Should ENDA become law in its current form, its effect would likely be less pronounced in Wisconsin than in some other states. Wisconsin law already includes “sexual orientation” as a protected characteristic, meaning that employers may not discriminate against employees or applicants for employment on the basis of a person’s sexual orientation. Similarly, employers may not retaliate against any employee who opposes sexual orientation discrimination in the workplace, files a complaint of sexual orientation discrimination, or testifies or otherwise assists in any investigation or hearing regarding a sexual orientation discrimination complaint. Because Wisconsin law defines “sexual orientation” more broadly than what is currently proposed in ENDA — to include those individuals who are regarded as having a particular sexual preference regardless of whether or not such a preference actually exists — ENDA’s passage would likely have a negligible effect on Wisconsin employers in the area of sexual orientation discrimination.
Where ENDA would substantially change the current landscape in Wisconsin is in its prohibition of “gender identity” discrimination. Gender identity discrimination is currently prohibited by statute in 17 states (including our neighbors Illinois, Iowa, and Minnesota), but not here in Wisconsin.
The ENDA bill passed by the Senate defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” The bill goes on to address two hot-button issues related to gender identity in the workplace: dress/grooming standards and gender-specific bathrooms. With regard to the former, while the bill states that “[n]othing in this Act shall prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law,” it goes on to state that any employee who has undergone or is undergoing “gender transition” must be allowed to adhere to the same dress or grooming standards as the gender to which the employee is transitioning if they so choose. This means that an employee who informs an employer that the employee is transitioning from male to female, for example, must be allowed to dress as a female if the employee wishes to do so. The term “gender transition” is not defined in the statute; therefore, it is unclear what, if any steps the employee must take in order to qualify for this protection under the law. On the subject of bathrooms, the bill specifies that employers are not required to construct new or additional facilities to comply with ENDA. However, the bill does not address how an employer should handle the issue of employees who wish to use a bathroom designated for members of the other biological sex (for example, employees in “gender transition”).
ENDA is not the law of the land yet, but employers looking toward the future may want to consider what, if any, implications its passage may have on their policies. In the meantime, we will monitor developments and post updates here if and when the bill becomes law.