Equality Act Passes House, Faces Senate

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

In the latest demonstration of the employment law priorities of the Biden administration, the U.S. House of Representatives passed the Equality Act, a civil rights bill that would prohibit discrimination against individuals on the basis of sexual orientation and gender identity in employment, credit, jury service, federal funding, housing and public accommodations.

H.R. 5, which was introduced in prior years and most recently approved in the House in 2019, would update sections 703, 704(b), 706(g)(2)(A) and 717 of Title VII’s use of the term “sex” to “sex (including sexual orientation and gender identity).” In addition, Section 704(b) would be changed from “employment” to “employment, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.”

The measure would similarly tweak sections 301(b) and 302(a)(1) of the Government Employee Rights Act by replacing “sex” with “sex (including sexual orientation and gender identity).”

As it pertains to Title VII, the Equality Act would officially codify the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which banned employers from discriminating against employees based on gender identity or sexual orientation, by including sexual orientation and gender identity as protected characteristics under the law. In addition, the Equality Act would substantially expand the areas to which those discrimination protections apply.

After passing the House by a vote of 224 to 206 on February 25, with three Republicans joining Democrats to vote in favor of the bill, it moved to the Senate, where it faces an uphill battle.

Opponents of the bill argue that the proposed law could infringe on religious liberty by, for example, forcing church halls to rent space for LGBTQ ceremonies.

The bill has the support of President Joseph Biden, who called it “long overdue” and “a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all.”

“Full equality has been denied to LGBTQ+ Americans and their families for far too long,” he said in a statement, noting that he signed an executive order on his first day in office directing federal agencies to implement the Bostock ruling. “Now, it’s time for Congress to secure these protections once and for all by passing the Equality Act—because no one should ever face discrimination or live in fear because of who they are or whom they love.”

To read the Equality Act, click here.

Why it matters: Although President Biden has declared the Equality Act a priority for his first 100 days in office, the bill faces significant obstacles to passage in the Senate, as at least 10 Republicans would need to vote in support of the bill to avoid a filibuster.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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