Shortly after the election, we published a blog entitled discussing then-President-Elect Joe Biden’s vow to make passage of the Equality Act (prohibiting most forms of discrimination based on sexual orientation and gender identity) a legislative priority within his first 100 days in office. While an admirable goal, the legislation’s fate lies with Congress. Now that Democrats have won control of the Senate, albeit narrowly, it is more likely than ever that the Equality Act will pass. Accordingly, businesses should start reviewing employee handbooks, hiring protocols and other policies and procedures.
While it will be some time before Congress takes up the Equality Act, Biden wasted no time signing a number of Executive Orders, many of which were directed at reconfirming America’s commitment to diversity, equality and inclusion. Mere hours after his inauguration, Biden signed the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” Therein, he made clear, “It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”
As we’ve previously reported, the Supreme Court, in Bostock v. Clayton, held that Title VII of the Civil Rights Act of 1964’s prohibition on employment discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity. The Executive Order extends the holding in Bostock to also protect federal employees. It also noted, as many scholars predicted, that “[u]nder Bostock‘s reasoning, laws that prohibit sex discrimination,” such as Title IX of the Education Amendments of 1972, the Fair Housing Act, and the Immigration and Nationality Act, likewise “prohibit discrimination on the basis of gender identity or sexual orientation….” Accordingly, while the Equality Act has not yet passed, based on the holding in Bostock and this new Executive Order, it is likely that discrimination on the basis of sexual orientation or gender identity across the board – in employment, housing, education, public accommodations, immigration, etc. – could result in liability. The Order also directs all federal agencies to, within 100 days, “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that relate to sex discrimination or that are or may be inconsistent with the rest of the order; “consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in” the order; and to develop a plan to carry out those objectives. We will continue to watch changes proposed by federal agencies to assess the impact on our clients and other businesses.
Even if the Equality Act fails to garner enough votes to pass this year, Biden’s demonstrated commitment to LGBTQ rights – passing of the Executive Order, repealing the transgender military ban, and nominating the first openly gay Cabinet official (Pete Buttigieg) and first transgender American to a position needing Senate confirmation (Dr. Rachel Levine) – is likely to spawn additional protections at the state and local level.
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