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Understanding the Equality Act

Published:  May 23, 2019

Last week, the United States House of Representatives overwhelmingly passed a bill, commonly referred to as the Equality Act, which would amend the Civil Rights Act of 1964 to add sexual orientation and gender identity as protected classes. Not only would this bill extend existing federal employment anti-discrimination law to cover sexual orientation and gender identity, it would specifically prohibit individuals from being denied access to locker rooms or dressing rooms based on their sexual orientation or gender identity. However, the bill is unlikely to be passed into law because it faces stronger opposition in the US Senate and by the President.

Although the bill is unlikely to be passed, at least in its current form, the issue may become moot, as the US Supreme Court is already set to tackle the question of whether existing sex/gender-based anti-discrimination law includes prohibitions on the basis of sexual orientation and/or gender identity. The Court is expected to hear arguments in two cases in its upcoming term, which specifically address the question: Bostock v. Clayton County and Altitude Express v. Zarda. This question has been the cause of much confusion at the federal level. The Circuit Courts are split on whether Title VII of the Civil Rights Act’s sex/gender-based protections extended to sexual orientation and/or gender identity. The US Equal Employment Opportunity Commission has taken the position that discrimination on the basis of sexual orientation and gender identity is discrimination on the basis of sex, and therefore, prohibited by Title VII of the Civil Rights Act. However, under the Trump administration, the US Department of Justice has taken the position that sexual orientation and gender identity are not protected by Title VII of the Civil Rights Act.

For employers in New England states, the issue is a moot point. All six New England states, as well as about a dozen other states, prohibit discrimination in employment on the basis of sexual orientation or gender identity. 

If you have any questions about the potential impact of this bill on your business, please do not hesitate to contact the attorneys at Royal, P.C.

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