by Nelsy C. Gomez, Labor & Employment and Immigration Practice Groups, Cozen O’Connor
The 2013 U.S. Supreme Court cases on the federal Defense of Marriage Act and California’s Proposition 8 will likely have major impact on gay and lesbian rights.
However, beyond these cases there may be a greater expansion of employment rights for LGBT individuals. This potential expansion is one of the catalysts underlying the new U.S. Equal Employment Opportunity Commission (EEOC) 2013 – 2016 Strategic Enforcement Plan (SEP), and the Employment Non-Discrimination Act of 2013 (ENDA) now before Congress.
The SEP lists six top EEOC enforcement priorities covering such issues as employment and recruitment discrimination, equal pay, retaliation, and harassment. The EEOC will now review and screen each charge filed to determine whether the charge raises a SEP priority issue. If it does, the EEOC will give it the highest enforcement effort and assign additional investigatory resources to pursue it. One of the six SEP priorities is the notion of emerging and developing issues, defined as including “significant events, demographic changes, developing theories [and] new legislation …” As a specific example, the Commission cites “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”
This SEP priority indicates that LGBT workplace rights will be central in defining and prosecuting employment discrimination. But a second major development suggests even more vigorous enforcement. In April 2013 a bipartisan group of senators and representatives introduced the ENDA, which would prohibit most employers from discriminating against employees based on sexual orientation or gender identity. While similar bills have come before Congress for nearly twenty years without being acted upon, the prospects for a successful vote this year are greater than ever.
Currently, twenty-one states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation; federal law currently does not offer such protection. As introduced, the ENDA would amend Title VII of the Civil Rights Act to prohibit employers with at least fifteen employees and other covered entities from discriminating against employees on the basis of sexual orientation or gender identity. Unlawful practices would include discharging, refusing to hire, retaliating against, or otherwise adversely affecting the status of an individual because of actual, or perceived, sexual orientation or gender identity. A covered entity must post a notice of employees’ rights under ENDA. An interesting aspect of ENDA would allow businesses and organizations already exempt from the religious discrimination provisions of Title VII of the Civil Rights Act to also be exempt from ENDA.
It is important to note that ENDA may not receive congressional approval. If it does make it past that hurdle, President Obama’s express call during his inaugural address for greater LGBT rights indicates he would willingly sign it into law. Regardless of what happens with ENDA, the EEOC’s enforcement priorities make it abundantly clear that proactive employers should consider including gender stereotyping, sexual orientation, and gender identity in their anti-discrimination and harassment policies and training programs.
Nelsy C. Gómez is a member of the Labor & Employment and Immigration Practice Groups of Cozen O’Connor in the firm’s Houston office.