By a vote of 64-32, the Senate voted on November 7, 2013 to pass the Employment Non-Discrimination Act (ENDA). ENDA would prohibit employers, employment agencies, and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions. The scope of the protections provided and procedures for enforcement are nearly identical to those under Title VII. Interestingly, however, the legislation specifically provides that claims based on a disparate impact theory will not be permitted. Although passage by the Senate takes the legislation one step closer to becoming law, its prospects in the House appear dim. Speaker of the House Boehner has indicated that he does not intend to allow the legislation to come up for a vote. Employers in Illinois should note that the Illinois Human Rights Act already prohibits discrimination on the basis of sexual orientation and the Chicago Human Relations Ordinance and Cook County Human Rights Ordinance prohibit discrimination on the basis of both sexual orientation and gender identity.
The Illinois legislature passed landmark legislation on November 5, 2013 that will legalize same-sex marriages in the state (The Religious Freedom and Marriage Fairness Act). The bill is currently scheduled to be signed by Governor Quinn on November 20th and to go into effect on June 1, 2014. One state legislator has proposed an amendment that would make the legislation effective earlier in the year, but that amendment has not yet been acted upon. Employers should begin to prepare for changes in the workplace resulting from the legislation. For example, the definition of “spouse” in the Family and Medical Leave Act will now apply to same-sex spouses who reside in Illinois (see our earlier post on the FMLA guidance on this topic). Spousal benefits under medical plans and retirement plans will now be applicable to Illinois same-sex spouses and Illinois same-sex spouses will have COBRA rights. Employers should review plans, policies, forms and procedures to make sure they contemplate equal treatment for same-sex spouses. Also, keep in mind that Illinois will continue to permit couples (whether same-sex or opposite-sex) to choose a civil union over a marriage. Accordingly, to the extent federal law recognizes marriages but not civil unions, employers will need to continue to recognize this distinction in their benefit administration.