U.S. Congress Considers LGBTQ Discrimination

By Douglas Lipsky

On February 25, 2021, the U.S. House of Representatives passed the Equality Act, a measure that would, among other things, codify the 2020 U.S. Supreme Court ruling prohibiting discrimination in employment based on sexual orientation and gender identity. 

While LGBTQ workers in New York have legal protections under city and state law, many continue to experienced workplace discrimination. If you have been treated unfairly by an employer on the basis of your sexual orientation or gender identity or expression, talk to an employment lawyer. In the meantime, let’s take a brief look at the Equality Act.

The Coming Federal Prohibition Against LGBTQ Discrimination

The proposed legislation would amend the Civil Rights Act of 1964 by expanding the definition of sex to include sexual orientation, gender identity, and actual or perceived LGBTQ status. 

The measure goes a step further than the Supreme Court’s ruling (Bostock v. Clayton County) by imposing far-reaching prohibitions against discrimination not only in employment, but in health care, housing, public accommodations, public education, credit, and federal jury service based on sex, sexual orientation, and gender identity.

This is not the first time that Congress has attempted to address LGBTQ discrimination. The Employment Non-Discrimination Act (ENDA) was first introduced in the early 1990s (and reintroduced in 2013) to prohibit workplace discrimination on the basis of sexual orientation and gender identity. 

Key Provisions of the Equality Act

The Equality Act would not only extend LGBTQ nondiscrimination rights beyond employment but also expand existing legal rights provided under the Civil Rights Act (CRA). In short, the proposed legislation would amend the definition of “sex” under the CRA to include:

  • A sex stereotype
  • Pregnancy, childbirth, or a related medical condition (which was previously added to CRA with the passage of the Pregnancy Discrimination Act of 1978)
  • Sexual orientation
  • Gender identity
  • Sex characteristics, including intersex traits

In particular, sexual orientation is defined as homosexuality, heterosexuality, or bisexuality, while gender identity includes “the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” 

The Equality Act would prohibit discrimination based on an actual protected characteristic as well as a perception concerning the race, color, religion, sex, sexual orientation, gender identity, or national origin of the individual. Finally, the Equality Act would also prohibit discrimination in public accommodations as well as discrimination by recipients of federal funds, including educational institutions.

Next Steps for the Equality Act

As mentioned above, the proposed legislation has passed in the House and will now be taken up in the Senate. Given the 50-50 split in the Senate, it remains to be seen whether The Equality Act will be passed. 

In the meantime, laws in at least 23 states, including New York, prohibit discrimination on the basis of sexual orientation and gender identity. Nonetheless, the best way for members of the LGBTQ community to protect their rights is to consult with an experienced employment discrimination attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.