Sound the death knell of discrimination—the Equality Act will protect you

Congressional Democrats introduce a new bill, the Equality Act, which seeks to amend the Civil Rights Act of 1964 and provide sweeping protections for sexual and gender minorities across America.

Photo by Victoria Pickering (Flickr).

Following suit from the recent EEOC opinion on sexual orientation discrimination in the workplace, Congressional Democrats introduced the Equality Act to extend federal civil rights protections in employment, education, housing, public accommodations, and other areas in the United States.  The Equality Act would greatly expand on protections under the Civil Rights Act of 1964 to better align with our country’s trend towards equality for all.

“Discrimination has no place in our nation’s laws . . .”

In the midst of the great civil rights movement led by men like Martin Luther King, Jr. and supported by Lyndon B. Johnson and JFK, the Civil Rights Act of 1964 was born.  During a time in our country where African American citizens were fighting for equality, the United States government stepped up to grant equal protection of the laws to minority citizens, encompassing race, color, ethnicity, national origin, religion, and gender.

Today, we know this Act as Title VII, which prohibits discrimination based on certain characteristics in the employment context.  Although the United States provides several pieces of legislation that protect individuals from discrimination, there have yet to be laws passed that prohibits discrimination in certain public sectors or discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) people.

In comes the Equality Act, an act that would extend protections to LGBT people and women in many areas.  This bill is far reaching, and honestly, consequential.  However, this isn’t the first time an act attempting to cover discrimination prohibitions for LGBT people has tried to be introduced in Congress.  In April 2013, Senator Merkley—the same lead Senator for the Equality Act—introduced the Employment Non-Discrimination Act of 2013 ( “EDNA”).  The EDNA specifically targeted discrimination against LGBT people in the employment context, and has been repeatedly defeated (similar versions of EDNA have been introduced since 1994).

The Equality Act, however, is much more extensive, and would not only cover employment discrimination, but would also bar discrimination in the areas of credit, education, employment, federal funding, housing, jury service, and public accommodations.  “Discrimination has no place in our nation’s laws . . .” said Senator Jeff Merkley, lead Senate sponsor for the bill.

The Act would prohibit discrimination based on sexual orientation and gender identity, and enhance protections for women

The Equality Act is based on the same premise as the Civil Rights Act of 1964—certain minority groups (here, LGBT people and women) experience wide-spread discrimination in the United States, and these actions should be illegal.  The Act would prohibit discrimination based on sexual orientation and gender identity, and enhance protections for women.

More specifically, the Equality Act seeks to explicitly provide equal protection for the LGBT citizens of the United States—which to date no federal law provides.  Among these protections include prohibiting corporations from refusing to hire people based on sexual orientation, prevent businesses—like the recent Colorado bakery—from refusing service based on sexual orientation (including putting a stop to the religious exception in this context), banning discrimination in housing based on sexual orientation and gender identity, prohibiting sex-segregated facilities—like restrooms—to deny individuals based on gender identity, and preventing hospitals from refusing to treat transgender people for basic healthcare needs.

Women will also see an expansion of protections if the Equality Act is passed.  Although many Americans think women gained equal protections decades ago, there are several areas in which women are still being discriminated against, and no federal law to protect them.  The Civil Rights Act of 1964, along with other federal laws, prevents discrimination in employment (and housing with other laws) based on sex.  However, there are no laws that prevent discrimination against women in public accommodations or recipients of federal funds.

The Act would ban sex discrimination in public establishments, including those trying to bar women from breast feeding in public.  It would also prevent not allowing federal funds to go to women-owned businesses, prohibit charging women more in business transactions than their male counterparts, and even provide a legal remedy for harassment based on gender (which means no more cat-calling!).

Essentially, the Acts says that a religious exemption under the federal RFRA can’t be invoked to abrogate any protections under the Civil Rights Act

Perhaps most notably, the Equality Act seeks to end religious excuses for sex and sexual orientation discrimination—an exemption that is deeply valued by many Americans.  Specifically, the Act states that the “Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provides a basis for challenging the application or enforcement of a covered title.”  Essentially, the Act says that a religious exemption under the federal RFRA can’t be invoked to abrogate any protections under the Civil Rights Act.

Many opponents of the Act state that this legislation would endanger religious liberty and freedom of speech.  Freedom of religion has been a longstanding tradition in the United States, and a sincerely held right to the American people.  As such, many fear that an Act this extensive and overbroad would interfere with a liberty that has historically been protected.

Supporters of bill recognize the difficulty of pushing a bill like the Equality Act

Especially because of the RFRA attack, the Equality Act has very unlikely chances of passing in a Republican dominated Congress.  And even if the bill were to pass through Congress, it will likely be challenged from conservatives and those who cling to their religious freedoms.  As Roger Clegg stated, “There are lots of bakeries to choose from. And the fact that there are isolated incidents of discrimination does not create a substantial effect on interstate commerce, and does not give Congress the right to abrogate the religious liberty of all Americans.”

The Equality Act has 40 co-sponsors, and has collected 155 signatories.  In response to conservative concerns, supporters of the bill state that comprehensive federal action is needed because of the lack of anti-discrimination laws in more than 30 states.  “Baldwin, the Senate’s only openly gay or lesbian member, said the Equality Act is ‘about freedom, the freedom to realize the American promise of full equality.’”

But even supporters of bill recognize the difficulty of pushing a bill like the Equality Act through Congress.  Cory Booker pointed out, “We have a hard road ahead of us. American history is replete with the testimony that the rights of Americans, women, African-Americans, Latinos, religious freedoms—that those are not accomplished easily. It takes struggle.”

Regardless, the Equality Act is historic, and if passed, would demonstrate how far the United States has come since the civil rights movement.  It would seem that America is becoming more tolerant of individual differences, and our government is recognizing a need for greater protections for LGBT people and women.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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