March 3, 2021
On February 25th, 2021, the House of Representatives narrowly passed the Equality Act (the “Act”). The Equality Act is a bill that would extend anti-discrimination protections for the lesbian, gay, bisexual, and transgender community in employment, housing, and public accommodations. With a 224 to 206 vote, the Act was passed by a small margin almost entirely upon party lines. There were just three Republicans who voted in favor of the Act. Now, the bill must obtain 60 votes in the Senate to become law.
What exactly would the Act do?
The Act modifies the language of Title VII of the Civil Rights Act of 1964 to include “sexual orientation and gender identity” as part of sex. In essence, if passed, the Act would extend Title VII to all lesbian, gay, bisexual, and transgender individuals.
What does this mean for employers?
Advances in legislative protections for LGBTQ employees is not a new development – similar bills have been proposed since the 1970s. In fact, an earlier iteration of the Act was passed in the House in May 2019, but the Republican-led Senate did not move forward with the proposal. Furthermore, in June 2020 the Supreme Court delivered a decisive ruling in the case Bostock v. Clayton County. That ruling held discrimination against LGBTQ employees is considered sex discrimination under Title VII of the Civil Rights Act of 1964.
However, the Act expands upon the Supreme Court’s ruling. Bostock affirmed protections against discrimination for LGBTQ employees, whereas the Act currently pending in the Senate would expand protections to LGBTQ individuals in housing and public accommodations.
Currently, protections against discrimination on the basis of sexual orientation and gender identity in employment, housing, and public accommodations exist in 21 states, including Connecticut, New York, and New Jersey. It is likely the Biden Administration will encourage more states to follow suit. At the national level, beyond federal legislation, employers can anticipate increased calls for diversity and inclusion, and greater developments in the LGBTQ movement.
Conclusion
As the Senate is equally divided between Democrats and Republicans, it is unlikely for the Act to receive the 60 votes it needs to defeat a filibuster and pass. However, if the bill garners enough support in Congress, President Biden has already affirmed his intent to sign the bill into law.
Employers should be prepared for these changes regardless of whether or not this particular iteration of the Act is enshrined into federal law. One way or another, there is a high chance that there will be an increase in protections against discrimination for LGBTQ individuals as the Biden Administration runs its course.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
