Yesterday, the Senate approved the Employment NonDiscrimination Act (“ENDA”).  The ENDA would amend Title VII to include sexual orientation and related issues in the definition of protected classes.  Political pundits do not give the ENDA much chance of passing the House.  This is nothing new.  The ENDA has been proposed periodically in Congress since 1994 and has failed to become law each time.  But, here is why employers should take notice – the EEOC’s Strategic Enforcement Plan.

The EEOC has as part of its Strategic Enforcement Plan expansion of Title VII to “address emerging and developing issues.”  According to the Plan, these issues include “coverage of lesbian, gay, bisexual and transgender [LGBT] individuals under Title VII.”  Much as it has done with litigation over the use of criminal convictions, the EEOC is seeking to push the envelope here.  Employers should expect to see the EEOC accepting charges on sex discrimination with the sexual orientation as the issue. And, the EEOC will be pursuing cases on this basis in an effort to change the law.

At the heart of the EEOC’s position is that the term “sex” includes discrimination based on sexual orientation and gender identity.  And, at least one circuit court agreed when it allowed an effeminate gay man’s claims to proceed based on allegations of gender stereotyping.  Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009).

Employers should not wait for passage of the ENDA to take a hard look at their policies and practices when it comes to issues of sexual orientation and gender identity.