A New Protected Classification? Congressional Action is in the Pipeline

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By Gregory D. Hanscom

Unless you were completely ignoring the news over the past couple of weeks, it was difficult to miss the debate spurred by the religious freedom bills that were passed in both Indiana and Arkansas.

This nationwide debate refocused attention on what many people believe to be pervasive discrimination against individuals on the basis of sexual orientation and gender identity. As this debate was ongoing, many people (lawyers and non-lawyers alike) were surprised to learn that sexual orientation and gender identity are not protected classifications under federal and many state anti-discrimination statutes.

Congress now appears poised to address this issue head-on.

New anti-discrimination legislation is coming

Rep. David Cicilline, D-R.I., and Sen. Jeff Merkley, D-OR, recently announced that they expect to introduce “comprehensive” legislation in both chambers of Congress aimed at protecting individuals from discrimination on the basis of sexual orientation and gender identity.

This yet to be introduced “comprehensive” legislation will likely cover discrimination in areas such as employment, housing and commercial transaction, but also include some type of religious exemption.

On the employment side, many anticipate the legislation will, in substance, be similar to the Employment Non-Discrimination Act or ENDA, a piece of legislation that has essentially been introduced during every Congressional session since 1994.

Boiled down to its basics, ENDA, if enacted, would prohibit discrimination in hiring and employment on the basis of sexual orientation and gender identity by employers with 15 or more employees. In 2013, ENDA was passed by the Senate with strong bipartisan support, but it became bogged down in the House and never made it to President Obama’s desk.

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While some remain skeptical that a new comprehensive anti-discrimination law will actually make it through Congress and enacted into law, the issue of discrimination against individuals on the basis of sexual orientation and gender identity will not be going away anytime soon.

State and local laws are possible, too

With every passing day, Congressional action on this issue seems more and more likely. However, even if federal anti-discrimination laws do not change in the short term, this debate, reinvigorated by the passage of religious freedom laws, will likely result in significant legislative activity at the state and local levels of government.

Employers must stay apprised of potential changes to anti-discrimination laws at all levels, not just the federal level, of government as the debate continues over the rights of individuals in the LGBT community.

This was originally published on Fisher & Phillips Government Solutions blog.

Greg Hanscom is an associate in the Philadelphia office of the law firm Fisher & Phillips. He focuses his practice on matters relating to employee defection, employee recruitment, trade secrets and covenants not to compete. He litigates and provides counseling to employers concerning legal claims and issues arising from the movement of employees between competitor firms. Contact him at ghanscom@laborlawyers.com.

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3 Comments on “A New Protected Classification? Congressional Action is in the Pipeline

  1. 30 years ago the anti gays were screaming no special rights. Now they want special exemptions? I thought they didn’t like special rights. As for these “Religious Freedom Restoration Bills”, they all focus on one thing. Carving out special rights for anti-gay Christians. They do nothing else. The same people pushing these laws made sure SSM bans made it a crime for clergy to practice their faith by performing a RELIGIOUS SSM. Indian’s law called for a $1000 fine and 180 days in jail for any member of clergy that performed even a religious SS ceremony. Religious freedom? BULL!
    You can put lip stick on a pig, dress it in a tutu and call it Martha Graham but that won’t make it one of he most incredible dancers ever seen. It’s still just a silly looking pig, just like these new laws for “religious Freedom”.

  2. Meanwhile laws against age discrimination, while on the books, are NOT ENFORCED.

    Laws against discriminating against US Citizens in favor of H1B visa holders are NOT ENFORCED.

    But they’ll DEFINITELY enforce the ENDA law – by diverting resources away from other protected groups which won’t be protected anymore.

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