The U.S. Supreme Court’s decisions on June 26, 2013 striking down portions of the Defense of Marriage Act (U.S. v. Windsor) and California’s Proposition 8 (Hollingsworth v. Perry) were greeted with loud applause by the LGBT community and tens of millions of others who have championed marriage equality. These decisions reinforced the notion that at least on the national level, courts, not legislatures, provided the best forum to pursue equal rights based on sexual orientation and gender identity.
The Windsor and Hollingsworth decisions were issued in the midst of a sea change in the public’s opinion regarding the legalization of same-sex marriage. As recently as November 2010, a poll taken by CNN during mid-term elections revealed only 41 percent of voters supported same-sex marriage. By July 2013, a Gallup poll showed that 52 percent of Americans would vote in favor of a law that would legalize such unions in all 50 states.
While the tailwinds behind efforts to expand marriage rights for gay couples have strengthened, less progress has been made in extending equal employment protections to LGBT workers. However, this might change in the very near future – and this change will most likely spring from the legislative branch, not the judiciary.
Earlier this week Senate Majority Leader Harry Reid promised to reintroduce the Employment Non-Discrimination Act (“ENDA”) in the Senate before Thanksgiving. If enacted, ENDA would amend Title VII to include sexual orientation and gender identity as protected characteristics alongside race, color, sex, religion and national origin. Before now, courts have repeatedly held that sexual orientation and gender identity are not protected characteristic under Title VII and gay and transgender plaintiffs have been mostly limited to claiming gender discrimination based on “sex stereotyping” — disparate treatment based on an individual’s failure to look or act like someone of his or her own gender.
ENDA has been introduced in almost every Congress since 1994 but has never gained much traction aside from House approval of a watered-down version in 2007. Senator Reid believes this is about to change and has stated he feels confident that the Senate will pass ENDA. Even if this happens, it is entirely uncertain whether there is sufficient support in the House to cause ENDA to cross President Obama’s desk for signature. However, given the recent momentum behind expanding gay rights, it appears it is only a matter of when, not if, ENDA or a similar bill will extend employment protections to LGBT workers.