Fact Sheet: Employment Non-Discrimination Act

The Employment Non-Discrimination Act (ENDA) would include sexual orientation among the Federal employment discrimination protections currently provided to Americans based on race, religion, gender, national origin, age and disability. The ACLU believes that ENDA is an important step towards ensuring fairness in the workplace, and continues our nation's tradition of judging employees by their ability and performance.

• ENDA prohibits employers from using an individual's sexual orientation in all aspects of employment, including hiring, firing, promotion, compensation, and most terms and conditions of employment.
• ENDA's ban on workplace discrimination protects heterosexuals as well as lesbians and gay men. It protects workers who are discriminated against because they associate with gay and lesbian co-workers, or are perceived to be gay. It also shields workers who oppose anti-gay discrimination from retaliation.
• With few exceptions, several of which are noted below, ENDA provides for the same protections as existing civil rights laws barring discrimination in the workplace, including enforcement, remedies, notification procedures, and its definitions.

"Disparate impact" claims cannot be made under ENDA. (Under Title VII of the Civil Rights Act of 1964, disparate impact claims can be made if an individual can demonstrate how an employment policy

negatively disadvantages a protected group -- even if the terms of the policy do not explicitly discriminate, and there is no proof of an intent to discriminate.) Therefore, neutral policies which may disproportionately impact lesbian and gay workers are not covered by ENDA.

ENDA forbids the use of quotas and preferential treatment of any kind based on sexual orientation.

ENDA exempts religious organizations, including schools and institutions or higher learning owned or operated by a religious organization.

ENDA has no effect on the armed services. It does not apply to current military policies concerning lesbian and gay service members, nor does it apply to special veterans benefits.

ENDA does not require employers to provide benefits to the partners of employees. It neither requires or forbids "domestic partnership" plans that provide such benefits.

ENDA exempts smaller businesses with fewer than fifteen employees, as do existing civil rights protections.

ENDA does not apply retroactively.