Hunton Employment & Labor Perspectives

The House of Representatives passed the Equality Act (H.R. 5 – 116th Congress) this past Friday, May 17, mostly along party lines – the resolution passed with a 236 to 173 vote, with only 8 of the “aye” votes cast by Republicans.  The Equality Act would amend various civil rights laws, including the Civil Rights Act of 1964 (“Civil Rights Act”), the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other laws regarding employment with the federal government, to explicitly include sexual orientation and gender identity as protected characteristics.

The legislation would amend the portion of the Civil Rights Act, Title II, which prohibits discrimination or segregation “in places of public accommodation.”  Title II of the Civil Rights Act already prohibits discrimination “on the ground of race, color, religion, or national origin,”42 U.S.C. § 2000a(a), but the Equality act would add the protected category of sex, which specifically includes sexual orientation and gender identity in the definition.  It would also expand the definition of “public accommodation” in 42 U.S.C. § 2000a(b) (this is different from the definition of “public accommodation” in other parts of the Civil Rights Act, such as the definition in Title III at 42 U.S.C. § 12181(7) related to disability discrimination) to include retail stores, banks, transportation services, and health care services.

While the House passing the Equality Act is a big victory for advocates of the law, including LGBTQ groups, the legislation faces much tougher odds in the Senate.  However, even if the Equality Act does not pass the Senate, the Supreme Court has already agreed to take up three cases that will likely decide, in part, whether anti-LGBTQ discrimination in the workplace is already prohibited by existing civil rights laws.  In the consolidated cases of Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator claimed they were fired based on their sexual orientation.  In those cases, the Supreme Court will consider whether the prohibition in Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.  Also, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, the Supreme Court will consider whether Title VII bars discrimination against transgender people based on either their status as transgender or sex stereotyping under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which indicates that a company cannot discriminate based on stereotypes of how a man or woman should appear or behave.

We will continue to monitor and provide updates on this proposed legislation and the above Supreme Court cases in the coming months.