Obermayer Rebmann Maxwell & Hippel LLP

Third in a Series of Blogs Regarding the Presidential Transition

In a recent interview with the Philadelphia Gay News, Joe Biden vowed to make enactment of the Equality Act a legislative priority within his first 100 days in office.  The Equality Act would prohibit discrimination on the basis of sexual orientation and gender identity with regard to employment, housing, public accommodations, public facilities, public education, federal funding, credit, and jury service.  If enacted, it would amend existing civil rights laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other laws regarding employment with the federal government.  The Equality Act was passed by the House of Representatives in 2019, but stalled in the Republican-controlled Senate. 

As previously discussed by HR Legalist, in June of 2020, the Supreme Court of the United States held in the consolidated cases of Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G & G.R. Harris Funeral Homes, Inc. v. EEOC (collectively referred to as Bostock), that discrimination on the basis of sexual orientation and gender identity constitutes discrimination on the basis of sex as already prohibited by Title VII.  However, the decision did nothing to stop continued discrimination against LGBTQ Americans in many other respects.  If passed, the Equality Act would prohibit discrimination far beyond the employment law context. 

In addition, the Equality Act would eliminate a major loophole left open by the Supreme Court.  Justice Gorsuch noted in the majority opinion of Bostock that the Religious Freedom Restoration Act (“RFRA”) was one possible source of protection for religious dissenters.  The RFRA prohibits the federal government from enacting laws which substantially interfere with religious freedom.  However, the Equality Act specifically states that the RFRA shall not provide a defense to a claim under the Act.  Thus, if passed, businesses would be unable reject job applicants, deny housing applications or refuse to provide services to LGBT individuals because of their religious beliefs.  It is inevitable that such a provision would ultimately find its way before the Supreme Court, whose current conservative majority would possibly invalidate that provision.  However, unless and until such law is enjoined, it would eliminate businesses’ ability to defend discrimination by citing religious freedom.

We will not know which party controls the Senate until January 5, 2021, at the earliest.  If the Democrats gain control of the Senate, the Equality Act is likely to pass shortly after Biden’s inauguration.  Accordingly, businesses should start reviewing employee handbooks, hiring protocols and other policies and procedures.  Irrespective of control of the Senate, Biden will have a variety of other tools at his disposal immediately upon inauguration – namely, Executive Orders and directives to federal agencies.  Specifically, Biden has promised to restore full implementation of President Obama’s executive order prohibiting discrimination by federal contractors.  He has also agreed to direct the Department of Defense to allow transgender service members to serve openly, receive needed medical treatment and be free from discrimination.  As with any politician, Biden has made a number of promises to provide added protections and benefits to LGBTQ Americans.  Only time will tell whether those promises become a reality.  As those changes take place, we will update you regarding the potential impact on your business. 

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