Earlier this month the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss the merits of the bipartisan Employment Non-Discrimination Act (ENDA) (H.R. 1397, S. 811), legislation that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. ENDA has had a long, bumpy road in Congress for obvious reasons but is again making progress and has President Obama's support.
Wisconsin, under the Wisconsin Fair Employment Act (WFEA), is one of 21 states that currently have policies banning discrimination based on sexual orientation. The EEOC has been creative in attempting to find protection in the absence of an enacted ENDA in protecting gender identity, change of sex and/or transgender status when it determined in Macy v. Holder that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is cognizable under Title VII of the Civil Rights Act.
Even though employees in Wisconsin have ENDA-like protection, given Governor Walker's repeal of the law that had afforded claimants under the WFEA the chance to seek punitive and compensatory damages, ENDA would provide the same remedies available under Title VII providing further protection for Wisconsin employees.