3. Why are these protections important? LGBT people and women face widespread discrimination in employment and services from entities accepting federal funds and as recipients of federal financial assistance. The Equality Act will ensure that everyone, regardless of their sexual orientation, gender identity, or sex can participate in federal programs that are supported by taxpayers.
1. Who is protected under the employment section of the Equality Act? Title VII of the Civil Rights Act of 1964 currently prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. It codifies the protection against discrimination on the basis of sex stereotyping detailed in Price Waterhouse v. Hopkins, a landmark Supreme Court case, as well as recent decisions by courts and the Equal Employment Opportunity Commission affirming workplace protections for LGBT people. Under the Act, “gender identity” means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, regardless of the individuals designated sex at birth. Sexual orientation means homosexuality, heterosexuality, or bisexuality. The Act clarifies and confirms that discrimination based on sexual orientation or gender identity is a form of sex discrimination.
2. How will the Equality Act impact a businesss equal employment obligations under Title VII? The Equality Act updates Title VII by making explicit that sexual orientation and gender identity are protected characteristics, and makes clear that discrimination against LGBT people in hiring, firing, and promotions is unlawful. It also confirms that LGBT people must have access to all federal remedies currently available under Title VII. This will not only protect LGBT people from discrimination, but it will also help eliminate uncertainty and confusion for businesses by providing employers and employees alike with clear rules that everyone knows and can follow.
3. What does this mean for bona fide occupational qualifications? The Equality Act does not alter the general reach and applicability of the bona fide occupational qualifications (BFOQ) defense. It is important to note that courts have deemed very few BFOQs to be permissible in practice.
The Act requires that an individual’s sexual orientation or gender identity may not be a factor in such decisions
4. How will the Equality Act impact sex-segregated facilities? Under the Equality Act, companies with sex-segregated facilities including restrooms and locker rooms must provide access to gender-appropriate facilities for individuals in accordance with their gender identity.
However, when a BFOQ is used to justify employment or training decisions on the basis of sex, individuals must be recognized as qualified in accordance with their gender identity
5. What actions of an employer are covered under the Equality Act? The Equality Act adds explicit protections against sexual orientation and gender identity discrimination to Title VII. Therefore, the same standards under existing law apply to sexual orientation and gender identity discrimination. Current law applies to an employer’s decisions regarding employment and employment opportunities, such as hiring, firing, promotion, training, or compensation and benefits.
6. What would an individual have to show to prove discrimination under the Equality Act? The Equality Act makes clear that the same standards under existing law apply to sexual orientation and gender identity discrimination. The individual must demonstrate that the discrimination was based on a covered characteristic. For example, it is acceptable differential treatment for a company to refuse hire a lesbian who is a teenager for a full time position based on her age. However, it is impermissible discrimination for a company to refuse to hire a woman simply because she is married to another woman. Individuals claiming discrimination bear the burden of proving that discrimination based on sexual orientation or gender identity occurred, and that they were otherwise qualified for the opportunity. The employer can present evidence to show the adverse action was taken because of some legitimate, non-discriminatory reason. For example, an employer cannot terminate an employee simply because the employees parent or spouse is transgender. This would be discrimination based on that individuals association with someone who is transgender and is therefore unlawful. However, an employer retains the same rights regarding decisions pertaining to hiring, promotion, and termination that are currently available under Title VII. Thus, an employer could lawfully terminate an employee who is not performing well or is violating company policy regardless of the sexual orientation or gender identity of that employee.