50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 20: Bipartisan Gridlock Prevents Sexual Orientation From Becoming A Protected Class

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The Employment Non-Discrimination Act (ENDA), if passed, would become the first federal legislation that prohibits employers from discriminating against individuals based on their actual or perceived sexual orientation and/or gender identity.  Several states, including California, have already passed similar legislation.  The California legislature amended the Fair Employment Housing Act in 2000 to include sexual orientation as a protected class, and again in 2004 include gender (and gender identity) as a lawful basis for employment discrimination claims. On the federal level, however, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based only on race, color, religion, sex and national origin, falls short of extending these protections to transgender individuals.  Due to the bipartisan gridlock, ENDA has failed to afford these protections as well.

While 21 states have passed non-discrimination laws that cover sexual orientation and/or gender identity, similar efforts by the federal government have been unsuccessful for nearly two decades, and history appears to be repeating itself.  ENDA passed easily through the Senate last November, but the bill has since been languishing in the House.

Both the Senate and House have their own versions of ENDA.  They at least agree that the bill should (a) be limited to claims of disparate treatment, (b) exempt the military and religious organizations from the legislation, and (c) prohibit the Equal Employment Opportunity Commission (EEOC) from compelling employers to collect statistics on sexual orientation or gender identity.  However, this may be the only agreement Congress has on ENDA.

But regardless of whether ENDA becomes legislation, employers should take note of the federal trend in favor of protecting sexual orientation and gender identity in the workplace.  Specifically, the Equal Employment Opportunity Commission (EEOC) recently has been expanding VII to include sexual orientation and gender identity as protected classes.  On April 20, 2012, the Commission in See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), held that transgender individuals may state a claim for sex discrimination under Title VII.  More recently, on August 13, 2013, the EEOC Office of Federal Operations (OFO) in Couch v. Department of Energy, EEOC Appeal No. 0120131136, found that “Title VII’s prohibition on the basis of sex includes discrimination on the basis of ‘gender’ . . . [and] fail[ure] to conform to gender-based expectations.”

 

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