SECTION-BY-SECTION ANALYSIS

Section 1: This section of the bill designates it as the `Employment Non-Discrimination Act of 2007.'

Section 2: Defines the purposes of the Act, namely: to provide a comprehensive Federal prohibition on employment discrimination on the basis of sexual orientation; to provide meaningful remedies against such discrimination; and to invoke congressional powers, including the enforcement clause of the Fourteenth Amendment to the Constitution, the Commerce Clause and the Spending Clause.

Section 3: Provides definitions of key terms used in the Act, most of which come directly from existing Federal civil rights laws, primarily Title VII of the Civil Rights Act of 1964 (`Title VII'). The Act defines `sexual orientation' as `homosexuality, heterosexuality, or bisexuality.' The term employer includes a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. The definitions of `employee' and `employer' exclude volunteers and private membership clubs from the coverage of the Act. The term religious organization means a religious corporation, association or society; or a school, college, university or other educational institution or institution if the institution is in whole or substantial part controlled, managed, owned, or supported by a particular religion, religious corporation, association or society; or the curriculum of the institution is directed toward the propagation of a particular religion. This definition of a religious organization is taken directly from Title VIPs descriptions of religious organizations exempt from that law's religious discrimination prohibitions. If an organization qualifies for Title VII's religious exemption from religious discrimination claims, it would qualify for ENDA's religious organization exemption as well.

Section 4: Prohibits employers, employment agencies, labor organizations, and joint labor-management committees from discriminating in employment or employment opportunities on the basis of actual or perceived sexual orientation. With respect to the latter, ENDA creates a cause of action for any individual--whether actually homosexual or heterosexual--who is discriminated against because that individual is `perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with that individual's sex. Employment opportunities include hiring, firing, compensation, and other terms, conditions, or privileges of employment or union membership. In accordance with Title VII, the phrase `terms, conditions, or privileges of employment' includes requiring GLB people to work in a discriminatorily hostile or abusive environment. In other words, ENDA creates an actionable discrimination claim based on hostile work environment when, for example, the workplace is permeated with discriminatory intimidation, ridicule, or insult that is 33 sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. 132

[Footnote]

[Footnote 132: See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).]

Modeled after a provision of the Americans with Disabilities Act (`ADA') and case law under Title VII, Section 4 also prohibits discrimination based on the actual or perceived sexual orientation of someone with whom an employee associates. Section 4 sets forth the Act's prohibition on quotas and preferential treatment based on sexual orientation. ENDA does not require employers to justify neutral practices that may result in a disparate impact against people of a particular sexual orientation. As a result, the disparate impact claim available under Title VII is not available under this Act.

Section 5: Prohibits retaliation against individuals because they oppose any practice prohibited by the Act or participate in an investigation or other proceeding authorized by the Act. This section is modeled on Title VII's retaliation prohibition, and retaliation claims under the act will be treated like similar claims under Title VII, including providing protection from retaliation where a person reasonably believes the practice in question is an unlawful employment practice.

[Footnote 133: ]

[Footnote 133: See Clark County School District v. Breeden, 532 U.S. 268 (2001).]

Section 6: This section provides that the Act shall not apply to religious organizations. Religious organizations, defined in Section 2 above, are identical to religious organizations described in Title VII. In other words, insofar as a religious organization is exempt from Title VII religious discrimination claims, it is exempt from sexual orientation discrimination claims under ENDA.

Section 7: Explicitly provides that the Act does not apply to uniformed members of the Armed Forces. The Act does not affect current law on gay men, lesbians, and bisexuals in the military. Similar to Title VII, section 7 further provides that the act does not repeal or modify any other law that gives special preferences to veterans.

Section 8: Defines how the Act would apply to employer workplace rules and policies and employee benefits. Section 8 clarifies that the Act does not affect an employer's authority to regulate employee conduct (including, explicitly, sexual harassment) to same the extent currently allowed under law, so long as that regulation does not intentionally circumvent the purposes of the Act and is neutral with regard to sexual orientation in both design and implementation. The term `intentionally' here carries no further import than the intentionality required to make a disparate treatment claim, as opposed to a disparate impact claim. This section clarifies that it is unlawful to condition a term or condition of employment either on being married or being eligible to marry in states where same-sex marriage is not permitted, as such a condition would constitute a subterfuge for disparate treatment against GLB workers. This section also makes clear that nothing in the Act shall be construed to require that an employer treat a couple who are not married, including a same-sex couple, in the same manner as an employer treats a married couple for purposes of employee benefits.

Section 9: Expressly prohibits the EEOC from collecting statistics on sexual orientation or requiring employers to collect such statistics.

Section 10: Authorizes the same enforcement powers, procedures, and remedies that currently exist in Federal employment law. All individual relief that is available under Title VII is available under ENDA, although disparate impact claims are not permitted.

Section 11: Waives the states' Eleventh Amendment immunity from suit for discrimination based on sexual orientation. This section is based on Congress' enforcement powers pursuant to Section 5 of the Fourteenth Amendment to the U.S. Constitution, as well as Congress' spending power under Article I. If the Federal government or the states violate this Act, they are subject to the same action and remedies as other employers, except that punitive damages are not available.

Section 12: Provides that a successful party, other than the EEOC or the United States, is entitled to attorneys' fees and litigation expenses.

Section 13: Sets forth a covered entity's duty to post notices describing the requirements of the law.

Section 14: Authorizes, but does not require, the issuance of regulations to enforce the Act.

Section 15: Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).

Section 16: Ensures that if one or more provisions of the Act are held invalid by a court, the balance of the Act will remain in effect.

Section 17: Provides that ENDA will take effect sixty days after its enactment and will not apply retroactively.