The US Supreme Court’s decision to throw out the Defense of Marriage Act (DOMA) forces the federal government to recognize same-sex marriages in the states (currently 12) that allow them. But ending employment discrimination against lesbian, gay, bisexual, and transgender (LGBT) people more broadly is the province of another law that is currently stuck in the US Congress: the Employment Non-Discrimination Act (ENDA).
The end of DOMA will affect a swathe of policies, including benefits to federal employees, tax filings, even immigration. Companies, on the other hand, mostly see these issues through non-discrimination policies and employee benefits. In some 29 states, there is no law prohibiting discrimination based on sexual orientation, while federal employees are protected only by a malleable presidential decision. ENDA would make non-discrimination the law of the land.
Non-discrimination policies and the availability of same-sex benefits in the private sector vary widely across industry and region, although 88% of Fortune 500 companies specifically ban discrimination against gay employees. Currently, a little more than half of American companies offer their same-sex employees the equivalent of marriage benefits; that number has risen rapidly in recent years, mirroring the growing acceptance of gay marriage in the US and a trend toward offering benefits to domestic partners, not just married couples.
The issue came to the front in May when Exxon’s shareholders rejected a proposal from New York state’s pension manager to specifically recognize LGBT employees. After the fact, Exxon’s board said that its existing equal opportunity policies provide blanket protection to those groups. Still, corporations large and small endorse the proposed law, and the pronounced neutrality of the US Chamber of Commerce, an organization that typically pushes against restrictions on US business, rings loudly.
ENDA already has bipartisan sponsorship in the Senate and the House, as well as President Obama’s endorsement; its advocates expect that court decisions affirming the federal government’s recognition of same-sex marriage will deplete objections from social conservatives and allow the legislation to be enacted. The end of DOMA will also mean the federal government—the largest employer in the United States—will begin to offer same-sex benefits, increasing the share of employees who access and expect them. It could also make same-sex benefits cheaper for private companies by changing their tax treatment.
When constitutionally-recognized marriages and same-sex tax treatment are the law of the land, it won’t be long before non-discrimination policies follow.