Yesterday, companion bills were introduced into the House and Senate seeking the passage of the Equality Act of 2015, which would prohibit discrimination on the basis of sex, gender identity, and sexual orientation. The Equality Act would impact eight key areas of federal anti-discrimination law which presently do not protect the LGBT community: public accommodations, public education, federal funding, employment, housing, Title IX and XI, equal credit opportunity, and jury service. With respect to employment, the Equality Act would amend Title VII of the Civil Rights Act of 1964 to create protected classes for sexual orientation and gender identity, prohibiting discrimination on those grounds.
Presently, in the private employment context, there is no such federal protection. Title VII only prohibits discrimination in the terms and conditions of employment based on “sex.” This protection has been determined not to include “sexual orientation,” although delineating the division between the two forms of discrimination has certainly been a challenge for the courts. Furthermore, the Virginia Human Rights Act does not prohibit workplace discrimination based on sexual orientation in Virginia, although protections are available in Virginia’s public sector, as well as in certain localities such as Arlington and Alexandria.
The Equality Act will face an uphill battle in a Republican-controlled Congress, and will have to overcome the same challenges that plagued its predecessor, the Employment Non-Discrimination Act. The ENDA has been introduced into Congress in various forms for more than a decade, but has never survived the House. The Equality Act effectively replaces the ENDA and takes a much broader approach, addressing sexual orientation discrimination not only in the workplace but also in numerous other areas in which protected classes are recognized under federal law.
Only time will tell if the Equality Act can succeed where the ENDA has failed. However, regardless of its success in this Congress, the introduction of the Act, as well as the Supreme Court’s recent decision in Obergfell v. Hodges, certainly indicates the direction of the prevailing winds on these issues. Indeed, the Act has already garnered influential support, including from the world’s most valuable company, Apple. As a result, prudent employers should take this opportunity to consider how their workplace practices would be affected by the expansion of federal anti-discrimination protection sought by the Equality Act, and take affirmative steps to prepare for changes that are likely on the horizon.
The Employment Team at Sands Anderson will be following the Equality Act and other similar developments in workplace law. For assistance with these issues or any other employment matters, please feel free to contact us.