The Equality Act, introduced by Senator Jeff Merkley of Oregon and Representative David Cicilline of Rhode Island on July 23, 2015, is the first truly comprehensive federal measure attempting to provide legal equality for LGBT people in the United States. It goes far beyond all prior bills on this topic, because none of the bills introduced in Congress included gender identity until relatively recently and the main federal bills of recent vintage have been narrowly focused on employment discrimination. By contrast, this bill gathers together references to the broad range of federal anti-discrimination statutes and inserts both “sexual orientation” and “gender identity” into every list of forbidden reasons for discrimination. Additionally, correcting a long-standing omission, it also adds “sex” to the list of prohibited grounds where it is not already included, most prominently in the public accommodations provision of the Civil Rights Act of 1964.
The bill as proposed would apply to public accommodations (establishments providing goods, services or programs to the public), public facilities, public education, employment (both governmental and non-governmental), housing, credit, and federal jury service. The public accommodations provisions had not been revised in the half-century since the Civil Rights Act of 1964 was adopted, so the drafters took the opportunity to introduce a new definition that will make clear that every establishment or operation that provides goods, services or programs to the public is covered, regardless of whether it has a fixed physical location. This last point was important to express because some state public accommodations laws have been narrowly interpreted to apply only to the issue of equal access to particular places where goods or services are provided. Because of the limits of federal jurisdiction, however, the Civil Rights Act’s employment provisions do not apply to small local businesses with fewer than 15 employees, and this bill would not change that. Similarly, the Fair Housing Act has not been applied to owner-occupied rental housing or roommate decisions, and this bill would not change that. Some state and local anti-discrimination laws do address smaller employers and residential property owners, but those operations have generally not been considered appropriate for federal regulation.
Some of the most significant aspects of the bill have to do with the things it doesn’t say.
For example, unlike the various versions of the Employment Non-Discrimination Act (ENDA) introduced in Congress over the past twenty years, this bill does not exclude disparate impact claims. ENDA would have prohibited only disparate treatment — situations where an employer adopted a policy or made a decision which explicitly treated one group of people worse than another group of people, or where under the circumstances it could be shown that a decision was motivated by discriminatory animus against a particular group. But Title VII of the Civil Rights Act has long been interpreted by the Supreme Court to extend to situations where an employer adopts a “facially neutral” policy or practice that has the effect of disadvantaging people because of their group identity as defined by a prohibited reason for discrimination. For example, in an early case the Supreme Court said that an employer who suddenly adopted a high school diploma requirement after Title VII went into effect was violating the ban on race discrimination, because that requirement screened out a much greater number of African-American applicants then applicants from other racial groups. In such cases, the Court ruled (and Congress later amended the statute to provide) that an employer who adopts a policy or practice that has such a disparate impact may escape liability by proving that the practice is consistent with business necessity. Translated into everyday language, the employer needs to show that the particular skill, experience, credential or characteristic involved is actually important to do the job.
Another example of a significant omission in the employment discrimination provisions has to do with the “bona fide occupational qualification” (BFOQ) defense. Title VII of the Civil Rights Act allows for the possibility that sometimes sex, religion or national origin may actually be a legitimate qualification for a particular job, so it provides that it is not an “unlawful employment practice for an employer make an employment decision based on sex, religion or national origin” where one of those characteristics is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Notably absent from that list is “race or color,” as Congress concluded that race or color can never be a bona fide occupational qualification. Thus, it is interesting that the Equality Bill does not add “sexual orientation” or “gender identity” to the BFOQ list. The drafters of this bill have made the judgment that sexual orientation or gender identity can never be a “bona fide occupational qualification.” They could not imagine a situation where an employer should be able to say that they will never hire a gay or transgender person for a particular position regardless of that person’s knowledge, skill, experience, or other qualifications for the job. Expect this to become a topic of some debate when the bill gets its first committee hearing.
Of course, as Title VII includes “sex” as potentially being a bona fide occupation, the Equality Bill anticipates potential issues by providing that where sex is a bona fide occupational qualification, “individuals are recognized as qualified in accordance with their gender identity.” That means that if an employer can show that a particular job can only be filled by a man, a transgender man would not be disqualified from that job, and if only a woman could do the job, then a transgender woman would not be disqualified from that job. Federal courts have emphasized that the BFOQ exception should be very narrowly construed, putting a heavy burden on employers to show that the overwhelming majority of women would not be able to perform a job in question in a way that would fulfill the employer’s legitimate needs. The leading case involved applications from women for positions as guards in maximum security all-male prisons housing violent sex offenders, and Supreme Court (by a divided vote) concluded that the state could exclude women from those jobs on the ground that their presence in that environment would likely provoke serious security problems. But municipal employers quickly failed in their attempts to exclude women as police officers or fire fighters under this theory.
Of course, in tandem with this BFOQ section is a provision allowing religiously-affiliated educational institutions to limit their hiring to adherents to their religion. This is a potential flash-point when it comes to LGBT applicants and employees, as we have seen with parochial schools firing teachers after their same-sex marriages come to the attention of administrators. Interestingly, the Equality Bill does not broaden this religious exemption to expressly allow religiously-affiliated educational institutions to refuse to hire LGBT people because the religion objects to homosexuality or transgender status. But there is something else unsaid in Title VII that is pertinent to this issue. The Supreme Court has recognized a “ministerial exemption” for religious organizations under the First Amendment’s Free Exercise Clause, and has construed it to extend beyond employment of priests, ministers, rabbis and other “ordained” religious leaders to employees of religious schools who perform “ministerial” functions, such as teaching religious doctrine or participating in leading religious activities. One suspects that courts will apply this ministerial exemption to shield religious schools from Title VII claims by LGBT individuals whose job functions would fall within that category when the employer claims that it would be incompatible with the school’s religious mission to employ them. When this bill finally becomes law, expect this to be an area of contention. There is already a growing volume of litigation in which discharged employees are contesting the scope of the ministerial exemption in religiously-affiliated educational institutions, and it is likely that the additional of sexual orientation and gender identity to Title VII will add to that.
It is worth noting, in this connection, that the BFOQ provision allows employers to discriminate based on religion when that is a bona fide occupational qualification, but Title VII itself does not allow religious employers to discriminate on the basis of race or color, or the other Title VII characteristics when they would not qualify as a BFOQ. However, the ministerial exception would obviously shelter the Catholic Church from Title VII liability for refusing to let women be priests, or from taking national origin in account in deciding to make decisions about which priests to assign to which parishes, since the constitutional protection basically gives a religious organization a free hand in selecting its ministers, defining their jobs and determining their benefits.
The Equality Bill does directly address religion in another way, including a provision to reconcile the Equality Act with the federal Religious Freedom Restoration Act (RFRA), which was passed by Congress in reaction to a Supreme Court decision in 1990 that held that the Free Exercise Clause does not excuse people from complying with general laws that do not directly target religious practices. In RFRA as it was originally passed, Congress said that neither the federal government nor state or local governments could impose a substantial burden on a person’s religious practices unless the government had a compelling public objective for doing so and the law it adopted was the least intrusive alternative way to achieve that objective. The Supreme Court subsequently said that Congress did not have authority to apply RFRA to state and local governments, so it now works only as a limitation on the burdens imposed by federal law. Some states have moved to fill that “gap” by adopting state-level RFRA statutes, which have now become flash-points in the battles surrounding marriage equality.
More recently, the Supreme Court has ruled that federal RFRA’s protection of “persons” extends to legal persons as defined in the U.S. Code, which includes business corporations. In the infamous case of Hobby Lobby Stores v. Burwell, the Court said that a family-owned corporation whose owners had religious objections to certain kinds of contraception could not be required under the Affordable Care Act to provide coverage for those forms of contraception for their employees. Justice Ruth Bader Ginsburg’s dissent sounded the alarm on discrimination, suggesting that some employers might rely on RFRA to discriminate based on their religious beliefs against, for example, gay people. She cited a case where a gym owned by a Christian fundamentalist had excluded gay people from membership in violation of a state anti-discrimination law, and the state courts had ruled that the policy against discrimination outweighed the owner’s religious objections. Would that case come out the same way under the Supreme Court’s interpretation of RFRA? In his opinion for the Supreme Court, Justice Samuel Alito said that RFRA could not be used to defend against a race discrimination claim, leaving open the question whether it could be used to defend against other kinds of discrimination claims. The drafters of the Equality Act have anticipated that issue, providing specifically that federal RFRA “shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.” This language refers to the various anti-discrimination titles of the U.S. Code that are mentioned in the bill.
Taking on one of the most contentious issues in debates over gender identity discrimination, the Equality Bill’s employment section provides that “an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, in according with the individual’s gender identity.”
Over the past few years, federal agencies and courts have begun to accept the argument that discrimination because of sexual orientation or gender identity is a kind of sex discrimination, that would already be covered by existing statutes. The Equal Employment Opportunity Commission has issued rulings to that effect, most recently on sexual orientation just a week ago. The Department of Housing and Urban Development has recognized gender identity discrimination claims under the Fair Housing Act, the Education Department has found a basis for some protection in public education, and the Justice Department has also ruled on gender identity claims. This does not obviate the need for the Equality Bill, since the courts have not been unanimous in accepting these administrative rulings, and they have yet to be tested in the Supreme Court. Consequently, the explicit addition of sexual orientation and gender identity to federal civil rights statutes would be more than merely symbolic. Furthermore, in order to pin down the point, the Equality Bill explicitly provides that were federal civil rights laws ban sex discrimination, that should be interpreted to include sexual orientation and gender identity discrimination as well. This would “lock in” those administrative rulings as correct interpretations of the statute.
Symbolism is itself important. One of the purposes for passing civil rights legislation is to prevent such discrimination from happening by declaring a public policy against it and incentivizing employers, business owners, public officials and landlords to avoid litigation by refraining from discrimination. Surveys of state and local civil rights agencies that have been enforcing laws that forbid sexual orientation and gender identity discrimination reveal that they do not receive a large volume of complaints, most likely because the publicity and debate around the adoption of those local laws helped to change minds and deter discrimination from occurring. The extended national discussion that is likely to accompany the process of adopting the Equality Act may have the same salutary effect.