July 24, 2015
This week, Congressional Democrats introduced legislation to add protection for both sexual orientation and gender identity to all aspects of Title VII of the Civil Rights Act, going beyond previous efforts, which limited expansion to employment discrimination. With the recent U.S. Supreme Court decision on same-sex marriage as a backdrop, 150 Members of Congress cosponsored the Equality Act (S. 1858/H.R. 3185), amending Title VII to prohibit discrimination in employment, housing, banking and a number of other areas. Meanwhile, the Equal Employment Opportunity Commission is taking the position that Title VII already prohibits employment discrimination based on sexual orientation and gender identity. A recent EEOC ruling, approved by a 3 to 2 vote, that a Department of Transportation employee who alleges discrimination based on his sexual orientation can pursue a claim under Title VII's prohibition against sex discrimination, marks the first time the EEOC formally has ruled Title VII prohibits bias based on sexual orientation. Although until now the courts have ruled otherwise, the EEOC decided "sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex." The EEOC's decision will likely face a strong challenge in the courts. Meanwhile, although it is unlikely the Republican Congress will consider the Equality Act, Congressional Republicans are reportedly drafting an alternative that would increase legal protections while protecting tax-exempt organizations and individuals who object to same-sex marriage based on religious or moral grounds.