Several senators introduced the Employment Non-Discrimination Act of 2009 (ENDA) on August 5, 2009, in the U.S. Senate. If it becomes law, the bill would prohibit discrimination based on sexual orientation and gender identity. ENDA’s provisions are similar to the prohibitions against discrimination based on race, sex, national origin, and religion as stated in Title VII of the Civil Rights Act of 1964 (Title VII). ENDA includes the same definition of “employer” as is contained in Title VII, meaning that ENDA would apply to employers with at least 15 employees.

Specifically, the bill protects sexual orientation, which is defined as homosexuality, heterosexuality, and bisexuality. Unlike previous versions of ENDA introduced into the U.S. House of Representatives, this bill includes additional protection against discrimination based on gender identity, which is defined 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.” Furthermore, ENDA prohibits discrimination as to an employee’s actual or perceived sexual orientation and/or gender identity. ENDA also includes language prohibiting discrimination for an employee’s mere association with another employee that is protected under ENDA. Finally, as with all Title VII protections, ENDA prohibits retaliation against employees who exercise their rights under it.

Employers should monitor ENDA’s progress through Congress and consider drafting new policies and procedures in preparation for ENDA. While there is no guarantee that this will become law, it is likely that some form of bill protecting sexual orientation will become law in the near future.