Efforts To Expand Federal Non-Discrimination Law

Employers throughout the country should take note of Congressional efforts to pass the Employment Non-Discrimination Act of 2007 (the "Act"). The bill, variations of which were proposed during the mid-1990's, was reintroduced in the House of Representatives on April 24, 2007 as H.R. 2015. Essentially, the proposed legislation would expand the scope of Title VII to make it an unlawful employment practice for an employer having 15 or more employees to discriminate with respect to the compensation, terms, conditions or privileges of employment based on an individual's sexual orientation or gender identity, whether perceived or actual. This is the first time a version of the bill has included the term "gender identity." Some States have anti-discrimination laws which are more expansive than current Federal law in that they already prohibit the termination of employment based on sexual orientation and gender identity. However, many States still permit discharge based on those characteristics.

This one's a bit tricky since the bill fails to define the term "perceived." As you might expect, such an ambiguity could open the floodgates of litigation based on allegations of perception rather than fact. That's a scary and potentially costly prospect for many employers as it could, IMHO, ostensibly legitimize bad-faith claims of discrimination for extortionate purposes. Open the door just an itsy bitsy crack and ... well, you know.

Although the Senate may introduce its own version of the bill in the near future, the Act is likely to be dead on arrival under the current administration. Of course, that could change in a heartbeat if a Democrat occupies the White House after the next election. In any event, I think Congress will have to either specifically define or eliminate the term "perceived" from the Act (in whatever version) in order to prevent possible abuse.