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ENDA – Federal Bill to Prohibit Sexual Orientation Discrimination May Have Limited Impact in Connecticut

Posted in Discrimination & Harassment

The big headlines this week in employment law centeredThe U.S. Capitol - Public Domain around the passage in the U.S. House of Representatives of the Employment Non-Discrimination Act (ENDA).  Various blogs have written about the law generally and they provide a good foundation for understanding the law in general. In particular:

  • The Volokh Conspiracy has summarized the law and added a scholarly approach to analyzing it. 
  • Workplace Horizons has continued their tracking of the bill and notes that Senator Ted Kennedy plans to introduce a similar piece of legislation in the Senate. 
  • Workplace Prof notes that a Presidential veto is likely, even though some compromises (such as excluding gender identity) have been made. 

Connecticut, however, already has a law that prohibits discrimination based on sexual orientation. So is this a big deal?

The early answer is, probably not.  One significant caveat is that the legislation — which has already been modified extensively — is likely to go through another round of compromises at the Senate.  Thus, it is difficult to predict what will end up in the final piece of legislation.  Connecticut recently revised its laws on sexual orientation and civil union earlier this year, as noted in an earlier blog post

Assuming the legislation remains the same as printed now, there are several distinctions that would need to be determined under Connecticut law. First, ENDA appears to allow for claims of discrimination based on the perception of a person’s sexual orientation. Connecticut has no corresponding provision and thus, ENDA would "trump" the state law and allow such a claim.  The definition of "sexual orientation" also differs under Conn. Gen. Stat. Sec. 46a-81a, with Connecticut defining it as having a "preference" for homosexuality, heterosexuality or bisexuality.

Second, ENDA only applies to employers who have 15 or more employees; Connecticut’s law applies to much smaller employers.  Thus, Connecticut law will control here given the broad definition.

Third, ENDA contains an exemption from compliance for religious institutions, copying the protected afforded to those institutions under Title VII.   Connecticut does have an exemption for sexual orientation claims against religious organizations, but it is unclear if courts will interpret this statute differently than ENDA, if passed. 

All told, if passed, ENDA will certainly have some impact on Connecticut laws. However, at this stage, the impact would be minor — particularly when compared to other states who do not have such laws.