The Employment Non-Discrimination Act and the Future of LGBT Workplace Protections in the United States

When a colleague told me a few weeks ago that it is legal in 29 states for someone to be fired solely because they are gay, I almost didn’t believe him. Although I know of the still prevalent discrimination faced by LGBT individuals in the United States, I was surprised (to say the least) that majority lawmakers in many states still openly oppose employment protections for gay, bisexual and transgender persons.

As most of you know, in Canada, discrimination in the private realm is prohibited in all provinces by the Human Rights Acts and by the Quebec Charter of Human Rights and Freedoms. Sexual orientation is explicitly listed as a ground of discrimination in each province’s legislation. In addition, although the Canadian Charter of Rights and Freedoms does not list sexual orientation as a ground under Section 15, Supreme Court case law has firmly established it as an analogous ground deserving protection on the same level as religion, race, gender and other grounds. Not so in the States, apparently, where sexual orientation is not considered a suspect class by most states and the federal courts. Only 21 states prohibit discrimination based on sexual orientation or sexual identity, making it technically legal for an employer to fire someone because they are gay, in the other 29 states.

In the face of these patchwork gaps, American human rights groups have been advocating for the adoption of a federal bill titled the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in hiring and employment on the basis of sexual orientation and gender identity by nonreligious employers with over 15 employees. ENDA has been proposed in every Congress since 1994 except for one.

On April 25, 2013, Democratic senator Jeff Merkley (Oregon) introduced an ENDA bill in the Senate. Click here for the text of the bill. ENDA passed the cloture vote last night, November 4th. It had the support of 61 senators, one vote over the threshold to move the bill to a fuller vote, ever since Republican Senator Dean Heller of Nevada announced on Monday morning he would back ENDA.

Many politicians and business people have publicly voiced their support for the adoption of ENDA, not the least of whom is President Barack Obama, who penned a blog item for the Huffington Post on November 3rd, urging Congress to pass the bill. Read it here. In addition to denouncing the current state of the law as discriminatory, President Obama also points out that non-discrimination laws and policies are favoured by Fortune 500 companies because they make economic sense. Tim Cook, the CEO of Apple, made the same point in the Wall Street Journal this past weekend, in an article entitled “Workplace Equality Is Good for Business”.

Stay tuned for future updates on the fate of ENDA. While ENDA is expected to pass a fuller vote in the Senate, it faces a challenging road ahead in the Republican-controlled House of Representatives.


  1. It’s nice to see a bill like this being put forward and supported so publicly. But, I worry that leaving asexuality out of the definitions will hurt efforts to have their orientation taken seriously.