Being in business these days involves managing all kinds of federal, state and local laws, regulations and other requirements, as well as keeping an eye on many other new ones under consideration.
It’s big job that never ends, and in all your free time, you still have to run your core business successfully!
So in an effort to make the information tracking aspect of your life a little easier, this month’s column is about a possible new federal law that would have an impact on the pupil transportation industry (and most other large employers) called the Employment Non-Discrimination Act, or ENDA.
At press time, ENDA was pending in the U.S. Congress, and if it passes, it will require new education and training within our industry, especially because employers could be subject to complex legal exposure for bias, both real and imagined.
In short, ENDA would ban hiring, firing or disciplining employees based on their sexual orientation, and it would include transgender persons. Among the practical considerations in the legislation, especially as it relates to transgender employees, is dress codes. The proposed bill stipulates that companies won’t be required to relax their standards but will be required to let transgender employees “adhere to the same dress or grooming standards as the gender to which the employee has transitioned or is transitioning.”
The concepts embodied by ENDA are not new or radical. In 1993, Minnesota was the first state to ban discrimination based on both sexual orientation and gender. Now, 10 states and Washington, D.C., have adopted similar policy.
Another dozen states have laws or policies that ban discrimination based on sexual orientation alone. And 15 other states have laws that have been interpreted to protect transgender persons.
Nevertheless, the bill is controversial.
Wikipedia lists some of the arguments commonly used for and against ENDA (for the citations and footnotes, go to http://en.wikipedia.org/wiki/Em ployment_Non-Discrimination_Act):
On the pro side, Wikipedia notes, “Most proponents of the law intend it to address cases where gay, lesbian and/or transgender employees have been discriminated against by their employer because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the judicial system because sexual orientation is not considered to be a ‘suspect class’ by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the U.S. Constitution’s guarantees of equal protection and due process to all. Advocates say that being gay, lesbian, bisexual or transgender is not a ‘lifestyle,’ but an identity, and that the ‘special rights’ argument does not apply to a group subject to widespread prejudice. According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender. There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.”
On the con side, Wikipedia notes, “ENDA has raised concerns over alleged conflicts between gay rights and religious freedoms. Judith Moldover [a legal professor at New York University] explained that ‘The conflict between sexual orientation discrimination and the duty to accommodate religious bias against homosexuals typically arises in three types of situations: refusal to service homosexual clients, refusal to participate in diversity programs and training, and supervisory conduct.’”
Some opponents of the law also argue that “sexual preference” is a choice. “They say the law creates a protected class that ‘promotes’ homosexuality and negatively affects their interpretation of family values,” Wikipedia notes.
ENDA legislation has been introduced in every Congress dating back to 1994. It failed to pass since not only were some of the provisions deemed too controversial, the political balance was more evenly divided in Congress. But that was then, and this is now.
Democrats now hold both houses of Congress and the White House, and they are the driving force behind this legislation. So far, there are 152 co-sponsors in the House and 38 in the Senate.
President Obama is said to support the bill’s passage, whereas his predecessor threatened to veto it if it reached his desk. Political analysts and amateur odds makers therefore handicap the bill in favor of passage this year.
You may want to spend some time learning more about ENDA and share the information with your human resources department.