The Equality Act: Replace a Tenuous Judicial Status Quo with a Permanent Legislative Solution to Ensure Workplace Opportunity for LGBTQ2+ People

6 Min Read By: Donald C. Davis

IN BRIEF

  • Federal law does not provide consistent nondiscrimination protection based on sexual orientation or gender identity.
  • The U.S. Supreme Court will soon decide whether current Title VII prohibits discrimination on the basis of sexual orientation and/or gender identity.
  • However, the Equality Act, which has passed the House of Representatives, is a legislative solution that would amend existing civil rights law to include sexual orientation and gender identity as protected classes.

There has been much recent media attention around the Equality Act, especially after it passed in the U.S. House of Representatives on May 17, 2019. The act has been heralded as a first-of-its-kind bill and comes at a time when, according to the New York Times, “departments across the Trump administration have dismantled policies friendly to gay, bisexual and transgender individuals, like barring transgender recruits from serving in the military or formally rejecting complaints filed by transgender students who are barred from restrooms that match their gender identity.” Recently, the Department of Justice filed an amicus brief opposing protections for LGBTQ individuals in the trio of cases now before the U.S. Supreme Court that will decide whether Title VII already prohibits sexual orientation and gender identity discrimination.

Background

Despite significant progress both legislatively and judicially, lesbian, gay, bisexual, transgender, and queer (LGBTQ) Americans still lack the most basic of legal protections in states across the country and at the federal level. This deficit in legal protection means that it is still lawful for an employer to fire or refuse to hire gay, lesbian, and bisexual people. In addition, despite federal judicial decisions that have recognized that Title VII prohibits discrimination against transgender and gender nonconforming individuals, there is no national standard, and many state laws remain hostile to transgender status.

The patchwork nature of federal and state laws providing various degrees of protection—or none at all—leaves millions of people subject to uncertainty and potential discrimination that adversely impacts their livelihoods. A common illustration of the unconscionable unfairness of the legal status quo is a gay, lesbian, or bisexual person that can legally be fired on Monday simply for lawfully marrying the person she or he loves on Sunday.

Our nation’s civil rights laws prohibit and provide remedies for discrimination in areas such as employment, public accommodations, housing, and education on the basis of certain protected classes, such as race, color, national origin, sex, disability, and religion. However, as explained above, federal law does not provide consistent nondiscrimination protections based on sexual orientation or gender identity. The need for these protections is clear, especially in light of the current political climate that has been hostile to LGBTQ rights; in fact, nearly two-thirds of LGBTQ Americans report having experienced discrimination in their personal lives. Alarmingly high percentages of that cohort report that such discrimination has adversely impacted their work environment as well as their physical, psychological, and spiritual well-being.

According to the Human Rights Campaign, the leading LGBTQ rights advocacy group in the United States, “[d]ecades of civil rights history show that civil rights laws are effective in decreasing discrimination because they provide strong federal remedies targeted to specific vulnerable groups.” Explicitly including sexual orientation and gender identity in these fundamental laws would afford LGBTQ people the exact same protections that already exist under federal law. In other words, the aim is not to seek a special class of rights for LGBTQ persons, but to guarantee that they enjoy the same protections others already have.

Further, research shows broad public support for legislation that would ensure equal protection for LGBTQ persons, including a groundswell of support in the business community.[1]

What Is the Equality Act?

If enacted, the Equality Act (H.R. 5, S. 788, 116th Congress) would provide consistent and explicit nondiscrimination protections for LGBTQ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.

The Equality Act would amend existing civil rights law—including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and several other laws regarding employment with the federal government—to explicitly include sexual orientation and gender identity as protected characteristics. The legislation also amends the Civil Rights Act of 1964 to prohibit discrimination in public spaces and services and federally funded programs on the basis of sex.

Additionally, the Equality Act would update the public spaces and services covered in current law to include retail stores, services such as banks and legal services, and transportation services. These important updates would strengthen existing protections for everyone.

Legislative History of the Act

The bipartisan Equality Act was introduced in the House of Representatives by Reps. David Cicilline (D-RI) and Brian Fitzpatrick (R-PA), and in the Senate by Sens. Jeff Merkley (D-OR), Susan Collins (R-ME), Tammy Baldwin (D-WI), and Cory Booker (D-NJ), on March 13, 2019. The bill was introduced with 287 original cosponsors—the most congressional support that any piece of pro-LGBTQ legislation has received upon introduction.

Made a legislative priority by Speaker Nancy Pelosi, the act passed the House on May 17, 2019, by a vote of 236-173. All Democratic members and eight Republicans voted for it. Its passage marked the first time legislation of its kind—that includes broad protections and remedies for LGBTQ people without religious exemptions—has ever passed in either chamber of Congress.

Why Now and Why Not?

Whether Title VII, as it is currently written, prohibits discrimination on the basis of sexual orientation and/or gender identity will soon be answered by the U.S. Supreme Court as it takes up three cases in its 2019–2020 term. Predicting what the Court will do, especially before oral argument, may be a fool’s errand, but the current conservative bent of the Court means that a broad interpretation of Title VII is unlikely. The stakes are high, however. If a majority of justices narrowly read Title VII’s prohibition against discrimination on the basis of sex, their decision would reverse two federal courts of appeal sitting en banc that have managed to find majorities across an ideological spectrum to hold that Title VII protects workers from discrimination on the basis of sexual orientation.[2] Further, one might reasonably predict that such a narrow reading of Title VII would reverse the Court’s own decision in Price Waterhouse v. Hopkins, a case decided in 1989 that broadly read Title VII’s prohibition against sex discrimination to include sex discrimination claims based on gender stereotyping.[3] A narrow decision might also upset the Court’s unanimous 1998 decision in Oncale v. Hopkins that made same-sex sexual harassment claims actionable.[4] Hopkins, Oncale, and their progeny have contributed to progress in workplace gender equality over the last few decades.[5]

A simple and unambiguous legislative solution is waiting in the wings with the Equality Act. It would appease textual conservatives who do not oppose LGBTQ rights but who chafe at the thought of judicial overreach in interpreting statutory language. It would appease progressives who are nervous at the thought that a single Supreme Court decision could turn back decades of progress in the direction of gender equality in the workplace. Finally, the business community supports it. Corporate America has led the way with inclusive nondiscrimination policies; the law must catch up.

The question is not why, but when? The answer is now. Congress must finish the task it started.


[1] The nonpartisan Public Religion Research Institute (PRRI) found that, nationally, support for a bill like the Equality Act topped 70 percent, which includes a majority of Democrats, Republicans, and Independents. In addition, the Equality Act has been endorsed by the Business Coalition for the Equality Act, a group of more than 200 major companies with operations in all 50 states, headquarters spanning 27 states, and a collective revenue of $3.8 trillion. In total, these companies employ more than 10.9 million people across the United States. See Human Rights Campaign, Business Coalition for the Equality Act.

[2] See Davis & Litchfield, 1 LGBTQ Employment Law Practice Guide §§ 1.03 (Matthew Bender 2018).

[3] Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989).

[4] See Davis & Litchfield, supra note 2, at §§ 1.02.

[5] Id.

ABOUT THE AUTHOR

Donald C. Davis

Don provides clients with representation and counsel on a broad range of employment matters. He has extensive experience handling issues pertaining to employment contracts, wage and hour disputes, employment…

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