Seeking to capitalize on the political momentum generated by the U.S. Supreme Court’s recent landmark decision legalizing same-sex marriage, Democratic members of Congress recently unveiled a broad piece of proposed legislation which would greatly and expressly expand civil rights’ protections afforded to members of the lesbian, gay, bisexual and transgender community in the United States.
On July 23, 2015, Senator Jeff Merkley (D-Ore.) and Representative David Cicilline (D-R.I.) introduced The Equality Act. If passed, the Equality Act would extend the 1964 Civil Rights Act’s protections against racial and sex-based discrimination to include–and ban–discrimination on the basis of both sexual orientation and gender identity. If passed, the Equality Act would prohibit discrimination against LGBT persons in categories ranging from employment to housing to education to jury selection and service. Additionally, the proposed legislation would broaden areas of illegal discrimination in “public accommodation.” Presently, only 19 states have laws prohibiting discrimination based on an individual’s sexual orientation and/or gender identity.
Since 1994, Democratic members of Congress have sought to pass legislation known as the Employment Non-Discrimination Act (the “ENDA”). As proposed, the ENDA sought to amend only Title VII of the 1964 Civil Rights Act by expressly enumerating “sexual orientation” and “gender identity” as protected classes under Title VII–thus prohibiting employers from discriminating against LGBT individuals in employment decisions. Despite several close attempts, Congress has yet to pass the ENDA. The Equality Act, as written, would accomplish the same goals as the ENDA and beyond.
One key issue of contention during Congressional debate over the ENDA dealt with objections (and potential exceptions) based on religious liberty. While the Equality Act does preserve exemptions for religious corporations, schools and associations in areas such as hiring, the Equality Act expressly prohibits use of the federal Religious Freedom Restoration Act–and most likely, its state counterparts–to justify discrimination that would otherwise be banned under the Act. Experts expect this provision to be a key area of division during debate over the Act, as both federal and state religious freedom acts have been relied-upon by business owners and others with sincerely-held religious objections to same-sex marriage in declining to service LGBT customers.
Recently, the U.S. EEOC issued guidance and opinions setting forth its belief that Title VII, as written, provides employment protection for individuals on the basis of sexual orientation. However, this position has yet to be fully adopted at the judicial level. If passed, the Equality Act would nullify this debate and present employers with two additional protected characteristics (and practically speaking, 4 new protected classes) for which they must account.
Additionally, the Equality Act would require employers and other businesses to review other aspects of their operations–to its employees, its customers, and to the public at-large–to ensure “public accommodation” compliance for LGBT individuals. The most common and immediate example cited by industry professionals revolves around employer/company “bathroom policies,” as it involves transgender individuals.
Presently, the Equality Act has over 200 Congressional co-sponsors in both the House and Senate–but none from the Republican side of the aisle. While remaining optimistic, co-sponsors Sen. Merkley and Rep. Cicilline admit that ultimate passage of the Equality Act will be difficult without some bi-partisan support.