On February 25, 2021, the United States House of Representatives passed the Equality Act, leading the way for a vote in the Senate. The Equality Act has been decades in the making and would prohibit discrimination based on sexual orientation and gender identity. In 2019, the Equality Act was passed in the House but blocked by the Senate at the time. Given the current composition of the Senate, despite significant opposition, it is speculated by many that the Act will pass and become law.
The legislature states that the Equality Act is designed to address the government’s compelling interest in preventing discrimination, and it will further such interest “in the least restrictive way because only by forbidding discrimination is it possible to avert or redress the harms” felt by the LGBTQ community. More specifically, the Equality Act would amend several Federal statutes, including Title VII of the Civil Rights Act of 1964, the Congressional Accountability Act of 1995, and the Fair Housing Act. In sum, the amendments would add the phrase “including sexual orientation and gender identity” to the definition of the protected group of “sex”. Prior to this, sexual orientation and gender identity were not directly stated as or indirectly inferred to be a part of a protected group under these laws. As a result, in the absence of protections for members of the LGBTQ community, discrimination was found to occur in key areas, such as employment, housing, healthcare, banking, and commerce.
Furthermore, the Equality Act would provide sweeping protections for members of the LGBTQ community that could affect business owners. Namely, the Equality Act would disallow discrimination based on sexual orientation and gender identity on the part of businesses that provide “public accommodations”, such as stores, shopping centers, online retailers or service providers, salons, banks, gas stations, food banks, service or care centers, shelters, travel agencies, funeral parlors, or business that provides health care, accounting, or legal services.
It is important to note that in prior case law challenges, a common defense or justification for discrimination based on sexual orientation and gender identity has been religious freedom and free speech. The Equality Act addresses this head on by clarifying the breadth of the Religious Freedom Restoration Act of 1993 and prohibiting it from being used as a basis for challenging the protections of the Equality Act. In sum, this inclusion in the Equality Act aims to remove the possibility of using the Religious Freedom Restoration Act as a means of challenging the Equality Act and its amendments.
Assuming the Equality Act becomes law under a Biden presidency, the Act would provide sweeping protections for members of the LGBTQ community. Updates on the progress of the Equality Act will be forthcoming. In the meantime, for more information regarding how this law may impact your business, please contact the authors.