Last month, in a historic case, the U.S. Supreme Court recognized that same-sex couples—like their heterosexual counterparts— have the constitutional right to marry. On the heels of this decision, federal agencies and (surprisingly) Congress have been very busy! On July 15, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) ruled in a 3-2 decision that discrimination based on sexual orientation is covered by the prohibition on sex discrimination in the workplace contained in Title VII of the Civil Rights Act of 1964 (“Title VII”). As discussed in detail by HRLegalist, at present, there is no federal statute that expressly prohibits discrimination on the basis of sexual orientation—but, Congress is looking to change that.
On Thursday, July 23, 2015, Congressional Democrats proposed The Equality Act, a federal bill that would amend Title VII to extend protection against sexual orientation and gender identity discrimination. The bill was introduced into the U.S. Senate by Senator Jeff Merkley (D-OR) and by Representative David Cicilline (D-RI) in the House of Representatives. The bill has several co-sponsors—40 co-sponsors from the Senate and 155 signatories in the House—including Senator Cory Booker (D-NJ) and Representative John Lewis (D-GA).
The proposed legislation utilizes the long-pending, Employment Non-Discrimination Act (ENDA), as a framework. Under the Equality Act, discrimination based on gender identity and sexual orientation will be expressly prohibited in both the private and public sector. The bill would drastically expand the workplace protections for LGBTQ employees, who currently must rely on an inconsistent patchwork of state laws in twenty-two states that prohibit employment discrimination on the basis of sexual orientation. If the Equality Act is passed, Title VII’s definition of “sex” discrimination will be amended to include sex, sexual orientation and gender identity.
The Equality Act adopts the following definitions of “gender identity” and “sexual orientation” which were first proposed in 1996 by the ENDA:
- Gender Identity: the term “gender identity” means the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.
- Sexual Orientation: the term “sexual orientation” means homosexuality, heterosexuality or bisexuality.
In addition to creating new statutorily protected categories, the Equality Act also codifies the various positions taken by both federal agencies and courts alike, which in the absence of an express prohibition against sexual orientation and gender identity in federal anti-discrimination laws, have held that sexual orientation and gender identity bias are forms of sex discrimination prohibited by Title VII. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (holding that discrimination against an individual because that person is transgender—i.e., gender identity discrimination—is discrimination because of sex and therefore covered under Title VII); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011) and Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) (finding that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII).
Under the Equality Act, LGBTQ employees will have several avenues of protection, as the bill explicitly recognizes that discrimination can be multi-faceted. The bill makes the express finding that a single instance of discrimination may have more than one bias. For example, discrimination against a pregnant lesbian could be based on her sex, her sexual orientation, her pregnancy or on the basis of multiple factors.
Senator Merkley, the lead Senate sponsor, summarized the rationale and purpose behind the Equality Act and the significance of the Supreme Court’s decision as a catalyst for the sweeping changes proposed by the bill, stating: “Discrimination has no place in our nation’s laws. If it is wrong in marriage, it is wrong in employment. If it’s wrong in employment, it is wrong in housing. If it’s wrong in housing, it’s wrong in education and jury duty and mortgages.”
The Equality Act is intended to address the reality that discrimination against the LGBTQ community is real, pervasive and often unchecked. While it is presently just proposed legislation, the very fact that such a comprehensive bill has been introduced is a testament to the societal change that the recent Supreme Court decision has ushered in. Employers should keep a careful eye on Congress as the passage of this law will have far-reaching effects on workplace policies.