What is discrimination?

The law defines illegal discrimination as treating someone less favorably – regarding wages, employee benefits, or other terms of employment – because of a protected status, such as race, sex, age, disability, religion, and national origin. The statuses protected under Federal law have remained relatively constant over the past 3 decades, but that may change if proposed legislation that just passed in the Senate somehow passes in the currently volatile House of Representatives. The legislation pending in Congress, the Employment Non-Discrimination Act (“ENDA”), would make sexual orientation and transgender identity protected statutes under Federal law.

The proposed legislation should not be controversial given that many States, including Minnesota under the Minnesota Human Rights Act, already outlaw discrimination based on sexual orientation. In addition, a growing number of States, including the State of Minnesota, have enacted marriage-equality laws that recognize the marriage of two men and the marriage of two women. More importantly, the pending legislation should strengthen employment law in the promotion of workplace fairness, in particular, and civil rights, in general.

Nonetheless, ENDA has become a lightning rod in the House of Representatives, where tone-deaf political bravado too often prevails. On top of that, the political climate – as illustrated by recent decisions of the Supreme Court under employment law and civil rights statutes – manifest an increasing indifference, if not hostility, to the predicament faced by victims of discrimination. In short, much work remains to be done before our nation is truly the land of equal opportunity.