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ENDAIf Congress passes the Employment Non-Discrimination Act (ENDA) of 2013 introduced to the U.S. Senate that year, employment discrimination based on sexual orientation and gender identification would be prohibited. However, small business owners with fewer than 15 employees needn’t worry about this pending federal law; they are specifically exempt from the legislation. As written, the statute also does not apply to religious institutions and the U.S. Armed Forces.

Of course, that’s not to say such small businesses are entitled to discriminate against their employees in any manner. According to Bill Nolan, office managing partner of the Columbus location of Barnes &Thornburg LLP, even if ENDA doesn’t apply to a company, many states already have laws on the books designed to deter the same behaviors as does ENDA. Some municipalities, such as Columbus, have also passed legislation that mirrors the goals of ENDA, he says.

Meanwhile, Nolan also notes ENDA’s future is murky now that a Republican-led Congress is set to govern. Meanwhile, there was no action taken on the pending legislation in 2014. 

As written, ENDA prohibits discrimination in hiring, firing, terms and conditions based on sexual orientation, gender identity and perceived sexual identity. For example, the law would make it illegal to mistreat an effeminate male employer. It also forbids discriminating against an employee merely because they associate with people of a particular sexual orientation or gender identification. 

While Nolan is a strong advocate for equality in employment situations, his perspective as an attorney for employers makes him wary of legislation like ENDA. “From an employer standpoint, when another layer of protection (to the employee) is added, it gives one more cause of action and places more burdens on the employer. Laws like ENDA have a lot of impacts that were unintended and that complicates things for employers,” he says.

Remedies available to a plaintiff who successfully proves they were the victim of behaviors prohibited by ENDA, as written, mirror those granted in Title 7. More specifically, they would be entitled to reinstatement, back pay and discretionary attorney fees. However, says Nolan, the federal judiciary generally grants attorney fees to the successful party in discrimination cases. 

As written, a major component of ENDA relating to remedies troubles Nolan. “There is usually no downside to filing a case without merit,” he says, and that is troublesome. He hopes that if the law moves forward, that deficiency will be corrected.

Tami Kamin Meyer is an Ohio attorney and writer. She may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or @girlwithapen on Twitter. Last modified on Wednesday, 07 January 2015
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