Last month, we reported that the United States Supreme Court will hear arguments in the fall on whether protections under Title VII of the Civil Rights Act of 1964 prohibiting workplace discrimination based on “sex” extend to protect workers from discrimination based on sexual orientation and gender identity. While these cases will help resolve inconsistent decisions among the federal Circuit Courts of Appeal regarding employment discrimination based on sex, and will likely have sweeping implications for employers across the country, the fight for LGBTQ rights continues to develop in the other branches of government as well.
On May 17, 2019, by a 236-173 vote, the U.S. House of Representatives passed H.R.5, the Equality Act, which would afford broader protections from discrimination to LGBTQ individuals than what the Supreme Court is currently considering in the cases before it. The Equality Act seeks to amend the federal law, including Title VII, to explicitly prohibit discrimination on the basis of sexual orientation and gender identity in employment, but also in public accommodations (such as hotels, restaurants, etc.), housing, and education.
Though similar bills have been introduced in past sessions of Congress, the current bill, introduced by Congressmen David Cicilline (D-RI) and Brian Fitzpatrick (R-PA), as well as Senators Jeff Merkley (D-OR), Susan Collins (R-ME), Tammy Baldwin (D-WI), and Cory Booker (D-NJ), has gained more traction than its predecessors, largely due to broader support from the business community and a larger cultural conversation about the benefits of diversity and inclusion in the workplace. National associations have endorsed the bill, such as the U.S. Chamber of Commerce and others in their letter of March 13, 2019, stating that a “clear federal standard would better enable individuals to succeed based on their abilities and qualifications to perform a job,” and recognizing that equal opportunity enables business to attract and retain talent.
Despite this victory in the House, the bill faces an uphill battle in the Republican-controlled Senate.
Takeaways for Employers
While there is continued uncertainty regarding federal discrimination protections for LGBTQ workers, employers should ensure compliance with current state and local law, which may afford workers protections from workplace discrimination on the basis of sexual orientation, gender identity, and/or gender expression. Currently, 21 states and Washington, D.C. have anti-discrimination laws prohibiting discrimination on these bases, and many local laws afford additional protections. Employers in these states might also consider updating their policies and training modules to explicitly note these protections and lead workers through specific scenarios regarding sexual orientation and gender identity discrimination issues, even where specific training requirements are not mandated by state law.
Additionally, multi-state employers may elect to develop maximally inclusive policies, to extend these protections to all employees consistent with an organization’s values of inclusivity and fostering a culture of dignity and respect at work. Employers Council attorneys can provide resources and counsel to employers regarding the pros and cons of this approach.
Employers Council will continue to report on developments in this area.