ABANDONING ENDA.

This article provides the first comprehensive analysis of ENDA's shortcomings vis- ` a-vis Title VII of the Civil Rights Act of 1964. Whereas federal courts are increasingly likely to perceive LGBT-related employment discrimination as actionable sex discrimination under Title VII, the inclusion of gender identity protections in recent versions of ENDA has significantly diminished the bill's prospects for passage. This article contends that advocates should abandon their efforts to enact ENDA in favor of allowing Title VII's "sex" provision to continue on its LGBT-inclusive evolution. Title VII stands to provide LGBT persons with three distinct advantages relative to ENDA. First, Title VII allows plaintiffs to contest discrimination on either a disparate treatment or disparate impact theory. ENDA, in contrast, would permit only disparate treatment claims such that facially neutral employment practices having a disproportionately adverse effect on LGBT persons would not be actionable. Second, Title VII permits voluntary affirmative action plans whereas ENDA would prohibit preferential treatment on the basis of sexual orientation or gender identity even if LGBT persons were significantly underrepresented in a given workforce. Third, Title VII allows religious organizations to discriminate on the basis of religion but not race, color, ethnicity, or sex. ENDA, conversely, would allow religious organizations to discriminate on the basis of sexual orientation or gender identity without having to justify the discrimination on religious precepts. This article examines the feasibility of applying Title VII's protections to LGBT persons and concludes that, notwithstanding certain logistical difficulties in the short-run, LGBT individuals would benefit from the availability of disparate impact claims, voluntary affirmative action plans, and limited exemptions for religious organizations so that ENDA should be abandoned in favor of Title VII. [ABSTRACT FROM AUTHOR]