New bias bill could make it easier to sue you
August 6, 2009 by Sam NarisiPosted in: Law, Special Report
If the Employment Non-Discrimination Act (ENDA) passes, hiring managers will need training on how to avoid new types of discrimination.
The bill was introduced to the Senate Wednesday and was previously introduced to the House on June 24.
If passed, the bill would ban workplace discrimination against lesbian, gay and bisexual people as well as transgender individuals.
ENDA is similar to existing discrimination laws like the Civil Rights Act of 1964 — for example, it prohibits retaliation and would cover companies with 15 or more employees. The bill also includes exemptions for religious organizations in some cases.
One of the trickiest parts for employers may be enforcing dress codes. The bill says companies won’t be required to relax their standards, but will have to let transgender employees “adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.”
Will it pass?
The bill’s been introduced several times before, but ENDA may have the numbers on its side this time, with 152 co-sponsors in the House so far, 38 in the Senate, a Democratic majority in Congress and the support of the President.
Experts say the bill has a chance to become law by the end of this year.
What should HR do?
If ENDA passes, HR will need to:
- Offer training to managers on interviewing and hiring in compliance with the law, as well as handling potentially uncomfortable situations (for example, learning a job applicant is a transgender person), and
- Review harassment policies and add provisions related to sexual orientation and gender identity.
August 7th, 2009 at 2:39 pm
HR will once again have it’s hands full as it has to continue to deal with the ……. agenda of this administration. Fortunately, it appears the general population now realizes the reality that has resulted from the last election and that elections do, indeed, have consequences, something they had forgotten since the Jimmy Carter era. Appears not too many buying into this “change you can believe in” these days. Can’t wait to hear the reaction from employees over which restrooms or locker rooms these blessed individuals will be allowed to use.
August 7th, 2009 at 3:14 pm
The intrusion of the federal gov’t into every aspect of a business is much too much. Our business is very labor intensive. Heavy lifting and sometimes long hours. We require a physical exam and drug test.( Which is also demanded by our insurance co.) If these he-shes or she-hes cant pass the test or if the can’t handle the job and we terminate, then we will probably get sued anyway.
August 7th, 2009 at 3:28 pm
The intrusion of the federal gov’t intdo every aspect of a business is much too much
August 8th, 2009 at 12:15 pm
Perhaps the training could be integrated with training for other “uncomfortable” situations too. Like learning that an applicant is only “passing for white”. Or “doesn’t look Jewish”. Both those situations still cause discomfort to some.
Also important is training for new hires in how to deal with the inevitable racism or transphobia in the workplace. Finding a “Golden Mean” between having to tolerate unconscionable conduct, and not taking umbrage at any slight, however minor.
Basically, being reasonable, using common sense. Realising that some people will never be comfortable around those of other races, for example, but that that isn’t necessary. Behaving in a professional manner is.
August 10th, 2009 at 9:57 am
As HR professionals, when faced with what appears to be a challenging situation – it would be a
lot easier to look for ways we can be welcoming and inclusive, looking for positive outcomes that will benefit everyone – the individual and the company. Look among the staff already present – do you really know ‘who’s who?!?!’ And, does it really matter?
If individuals bring talent and experience to the table and add value to the company – does it really matter if they are “only passing for white”; or “doesn’t look Jewish”? Working out restroom and locker room issues seem minor to some of the other issues we deal with with ’so-called’ straight people. Seems to be a lot of ‘to-do’ about what is just more of what we already do when working with a diverse workforce.
August 11th, 2009 at 6:13 pm
Unfortunately, history in this country as well as continuing subtle types of discrimination make it necessary that federal laws be passed making certain behaviors by employers unlawful. Regardless of whether someone in HR or the business thinks that this bill will be a hassle or cost money for training, it’s obviously necessary that businesses have to be told right out “do not discriminate”.
August 12th, 2009 at 3:51 pm
When will discrimination against overweight individuals be illegal? I would think that law should pass before some “transgender” law passes. Discrimination against fat folks is still widely tolerated. If we are going to end “discrimination” it should end against everyone, not just the chosen few. Educated, capable people with the skillset to perform the job should be given the opportunity no matter what color, religion, sexual orientation or size they are. Equal opportunity is supposed to be the American way, we were founded on that premise.
August 12th, 2009 at 5:33 pm
Joyce – agree. Unfortunately, legislation will not end discrimination, as we’ve already experienced despite Civil Rights 1964 and later. It has however improved employment conditions widely, but we have still a long way to go, after all that law is only about 45 years old. It may not be until the next generation that we finally see much greater progress in wiping out some discriminations. These things take a while because deep rooted ideas have to be “bred” out of society. Age discrimination is a big theme in today’s world — and it unfortunately lives well in the business world and with the recent ruling by the Supreme Court it has put a burden on the over 40 plaintiff to prove discrimination because of age. Perhaps we should have one sweeping legislation that addresses all characteristics that one may possess that would cause employers to discriminate. Employers may feel that hiring the obese would put too much of a burden on their health care costs? Perhaps that’s another reason to support national health care reform.
August 12th, 2009 at 5:47 pm
Tom-
With comments like your last one, is it any wonder a law like this has been in the works? Homosexual, transexual, bisexual, transgender . . . these people are already in the workplace, and just as many thrive as anyone else in the right atmosphere and are productive employees. If I were you, I’d work on the workplace treating everyone respectfully and equally now, or you may have some troubles when this does eventually become law. It also sounds like your bitterness toward the new administration, not just this one issue, may be clouding your judgement.
Right on Michelle. Very eloquently put.
August 14th, 2009 at 1:02 pm
Tom – If you are in charge of HR then you are most definitely in the wrong business. Your distaste for our administration and obvious bias towards “these blessed individuals” is scary. No one is asking for special rights. Treat everyone equally and there should not be an issue. I’m afraid your comments can only lead one to believe that your biggest struggles are within yourself. Good luck!
August 21st, 2009 at 5:02 pm
Hey Tom and Jerry,
Chet is on point with his comments, as are Michelle and Jaden. It’s opinions like Tom & Jerry’s that make government intervention a necessity and a requirement, because there are some people who fly under the radar with biases that no one would ever detect – sounds like that might be the case with the two of you. If an applicant demonstrates they can do the job, pass all required pre-employment testing, that is the only thing that should matter – what they wear to work or which bathroom they use is none of anyone’s business, unless of course you happen to spend more time in the bathroom then you do at your desk?? As for consequences??? I can assure you that NO ONE will ever forget the last 8 years of incompetence, and the mess it has created for this country to be felt for years and years to come. If Bill Clinton was impeached for a victimless crime, then this previous administration’s actions rises to the level of criminal treason; the consequences of irresponsible behavior, arrogance, greed and lack of oversight in the financial sector alone has brought not only this country, but the entire world to the brink of financial disaster. Businesses offshoring jobs without any limits or oversight by the government put millions of Americans out of work, no income and no benefits, while executives walked away with billions of dollars of employees hard earned money. Tom and Jerry need to stop the cartoon fiction and get real!
August 24th, 2009 at 8:36 am
JT – You are right on . . . .!!!!!
August 24th, 2009 at 9:20 am
JT — so true!
August 26th, 2009 at 11:58 am
It took awhile for the questioning of Tom and Jerry’s comments. I am glad that there are true HR Professionals that know how to be professional.
September 15th, 2009 at 11:10 am
I think the age issue has not been addressed by HR professionals. Do you notice that every job listed states either 2-5 years experience or 5-10 years experience. Although asking an applicant’s age is ilegal other than if they are over 18, many job sites and company websites ask for high school or college graduation dates which make it difficult for anyone in their 40s or 50s to get a fair shake.