Congress Considers Expanding Protections Based on Sexual Orientation, Gender Identity

Author: Beth P. Zoller, XpertHR Legal Editor

Employers can no longer ignore issues related to sexual orientation and transgender status in the workplace. Congressional lawmakers recently reintroduced two bills that would expand current federal protections to lesbian, gay, bisexual and transgender (LGBT) individuals. The bills may gain some momentum due to White House and bipartisan support.

The Employment Non-Discrimination Act

The Employment Non-Discrimination Act would prohibit employers from engaging in various employment practices because of an individual's actual or perceived sexual orientation or gender identity. H.R. 1755; S. 815. These practices would include:

  • Failing or refusing to hire, discharge or otherwise discriminate against any LGBT individuals with respect to compensation, terms, conditions or privileges of employment;
  • Limiting, segregating or classifying LGBT employees or applicants for employment in any way that would deprive or tend to deprive him or her of employment or otherwise adversely affect his or her status as an employee; and
  • Retaliating against individuals who exercise their rights under this bill.

The Employment Non-Discrimination Act would exempt religious entities and the military. In addition, employers could continue to implement dress codes under the proposed law, provided that individuals who are transitioning follow the dress or grooming standards associated with their intended gender. Applicants or employees would receive remedies available under [Article:discrimination "Title VII of the Civil Rights Act"].

The Family and Medical Leave Inclusion Act

The Family and Medical Leave Inclusion Act would expand the protections of the Family and Medical Leave Act to same-sex partners. H.R. 1751; S. 846. Specifically, the proposed law would allow eligible employees to take up to 12 weeks of unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent who has a serious health condition.

LGBT Issues in the Workplace

Although federal law does not specifically protect LGBT individual from employment discrimination, more federal courts have been willing to extend protection to such individuals under Title VII as a form of discrimination based on sex. In addition, many state laws and municipal ordinances have been amended to add explicit language prohibiting employment discrimination based on sexual orientation, gender identity and transgender status.

To learn more about LGBT rights in the workplace, join XpertHR in conjunction with for a webinar on April 30, 2013 at 11 a.m. EST entitled "LGBT (Lesbian, Gay, Bisexual & Transgender) Issues in the Workplace" presented by Fisher Phillips Partner Myra Creighton. Click here to attend.