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entitled 'Sexual-Orientation-Based Employment Discrimination: State and 
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GAO-02-665R: 

United States General Accounting Office: 
GAO: 

April 19, 2002: 

The Honorable Edward M. Kennedy:
The Honorable Joseph E. Lieberman:
The Honorable Arlen Specter:
The Honorable James Jeffords:
United States Senate: 

Subject: Sexual-Orientation-Based Employment Discrimination: State and 
Federal Status: 

Three federal statutes—Title VII of the Civil Rights Act of 1964, the 
Americans With Disabilities Act, and the Age Discrimination in 
Employment Act—together make it unlawful for an employer to 
discriminate against an employee on the basis of characteristics such 
as race, color, religion, sex, national origin, disability and age; 
these laws do not cover discrimination based on sexual orientation. In 
1997 and again in 2000, we reported on state[Footnote 1] statutes 
prohibiting discrimination in employment on the basis of sexual 
orientation.[Footnote 2] 

As the principal sponsors of 107th Cong., S. 1284, the Employment Non-
Discrimination Act of 2001 (ENDA-2001), a bill that would prohibit 
employment discrimination on the basis of sexual orientation, you asked 
us to provide some additional information. Specifically, you asked us 
for (1) a current list of states with statutes prohibiting 
discrimination in employment based on sexual orientation, (2) a brief 
description of Maryland’s new non-discrimination statute in comparison 
with ENDA-2001, and (3) any major differences between ENDA-2001 and 
106th Cong., S. 1276 (ENDA-99). 

States With Statutes Prohibiting Sexual-Orientation-Based Employment 
Discrimination: 

Thirteen states currently have laws that prohibit discrimination in 
employment on the basis of sexual orientation: California, Connecticut, 
Hawaii, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, 
Nevada, Rhode Island, Vermont, Wisconsin, and the District of Columbia. 
[Footnote 3] The content of these laws varies, but they share many 
significant features with one another.[Footnote 4] Twelve of the state 
laws were listed in our 2000 report.[Footnote 5] Maryland’s statute 
took effect on October 1, 2001. 

Maryland Non-Discrimination Law Similar To ENDA-2001: 

Maryland’s statute is broad in scope, prohibiting discrimination based 
on sexual orientation in public accommodations, housing, and 
employment. In many ways, its provisions relating to employment 
discrimination are similar to those of ENDA-2001. 

* The Maryland law defines sexual orientation as “the identification of 
an individual as to male or female homosexuality, heterosexuality or 
bisexuality.”
- ENDA-2001 defines sexual orientation similarly: “homosexuality,
bisexuality, or heterosexuality, whether the orientation is real or 
perceived.” 

* The Maryland law applies to private employers with 15 or more 
employees, State and local public employers, employment agencies, and 
labor organizations. 
- ENDA-2001 generally applies to private employers with 15 or more
employees, as well as employment agencies and labor organizations. 
Civilian federal employees, including the Congress, the White House, 
and the Executive Office of the President, are generally covered. 

* The Maryland law exempts tax-exempt private clubs, religious 
organizations for work connected with its activities, and religious 
educational institutions. 
- ENDA-2001 has very similar exemptions. It exempts tax-exempt “bona 
fide private membership” clubs (other than labor organizations), and 
all religious organizations, which is defined to include religious 
educational institutions. 

* The Maryland law designates the Maryland Commission on Human Rights to
handle discrimination complaints and provides for subsequent judicial
enforcement. 
-ENDA-2001 provides that the enforcement procedure would be the same as
that now followed for complaints of employment discrimination under 
Title VII of the Civil Rights Act of 1964. 

* The Maryland law prohibits retaliation against complainants, 
witnesses, and others who assist in an investigation. 
- ENDA-2001 expressly prohibits both retaliation and coercion. 

* The Maryland law provides a range of remedies, including cease and 
desist orders, affirmative action, reinstatement or hiring, with or 
without back pay, and “any other equitable relief” that is appropriate. 
- ENDA-2001 also permits a range of remedies, including back pay awards,
punitive damages[Footnote 6] and attorneys’ fees. It specifically 
prohibits quotas and preferential treatment. 

There Are Few Differences Between ENDA-99 AND ENDA-2001: 

In comparing ENDA-99 with the current ENDA-2001, we find the bills are 
very similar. Significant among the few differences are: 

* ENDA-2001 exempts any religious organization from coverage regardless
of employment activity. Under ENDA-99, this exemption was not available
where an employee’s duties for a religious organization pertained 
solely to activities of the organization that generate unrelated 
business taxable income subject to taxation under section 511(a) of the 
Internal Revenue Code. 

* ENDA-2001 contains for the first time a definition of “employee”. This
definition incorporates definitions from the Civil Rights Act of 1964 
[Footnote 7], Government Employee Rights Act of 1991[Footnote 8], and 
the Congressional Accountability Act of 1995.[Footnote 9] 

* ENDA-2001 provides that a state’s receipt or use of federal 
assistance for any state program or activity constitutes a waiver of 
sovereign immunity to a suit brought in federal court alleging 
discrimination in employment of that program or activity. 

This report was prepared by Stefanie Weldon, Senior Attorney. Please 
call me at (202) 512-8208 if you or your staff have any questions. 

Signed by: 

Dayna K. Shah: 
Associate General Counsel: 

[End of section] 

Footnotes: 

[1] Throughout this correspondence, we use the term “state” to include 
the District of Columbia. 

[2] Sexual-Orientation-Based Employment Discrimination: States’ 
Experience With Statutory Prohibitions, GAO/OGC-98-7, Oct. 23, 1997; 
Sexual-Orientation-Based Employment Discrimination: States’ Experience 
With Statutory Prohibitions Since 1997, GAO/OGC-00-27R, Apr. 28, 2000. 

[3] Maine enacted a statute in 1997 that was repealed by ballot 
referendum in 1998. A second statute enacted in 2000 provided it would 
not take effect unless endorsed by a majority of those voting in the 
state’s general elections; Maine voters defeated that initiative on 
Nov. 7, 2000. 

[4] See GAO/OGC-98-7, Oct. 23, 1997, where we summarized provisions of 
twelve state statutes (including Maine’s, which was subsequently 
repealed), and GAO/OGC-00-27R, Apr. 28, 2000, for a summary of Nevada’s 
statute. 

[5] In 2000, we also reported the number of formal complaints of 
employment discrimination based on sexual orientation filed in eleven 
of those states (Nevada’s statute at the time was too new to have any 
significant data). The percentage of sexual orientation complaints 
relative to total discrimination complaints filed ranged in 1999 from 
0.8 percent to 3.3 percent. We found no indication that the laws 
generated a significant amount of litigation. 

[6] Punitive damages are not available in actions against a federal or 
state employer. 

[7] 42 U.S.C.§§ 2000e(f) and 2000e-16(a). 

[8] 2 U.S.C. §1202(a)(1). 

[9] 2 U.S.C. §1301. 

[End of section] 

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