Equality Act: Frequently Asked Questions
This FAQ was prepared by American Civil Liberties Union, Center for American Progress, Family Equality Council, Human Rights Campaign, Lambda Legal, National Center for Transgender Equality, National LGBTQ Task Force Action Fund, SAGE and Transgender Law Center.
I. GENERAL QUESTIONS
1. Who will be protected under the Equality Act?
The Equality Act protects lesbian, gay, bisexual, transgender (LGBT) and gender nonconforming people based on their actual or perceived sexual orientation or gender identity from discrimination. It also updates the law to add protections from discrimination on the basis of sex where those protections are not already in existing law. It also includes protections for those who associate with others who are targets of unlawful discrimination (for example, children of LGBT people).
2. What does the Equality Act do?
The Equality Act prohibits discrimination based on an individual’s sexual orientation or gender identity at work and in the context of housing, credit, education, and jury service. It also prohibits discrimination based on sexual orientation, gender identity, and sex in programs that receive federal funding and places of public accommodations, while also expanding the list of protected places of public accommodations to include retail stores, transportation services like airports, taxis and bus stations, and service providers like accountants.
3. Why is the Equality Act necessary?
LGBT people across the country remain vulnerable to discrimination on a daily basis and too often have little recourse. In many states, same-sex couples have the right to marry but have no explicit non-discrimination protection under state law. The current patchwork of protections for LGBT people across the country is inadequate. Every person, every employer and every business should know that discrimination is wrong and illegal, no matter where they live or work. LGBT people and their families need clear, consistent protections against discrimination under federal law.
4. Who supports the Equality Act?
- The American Public - Polls have consistently shown overwhelming support for the principle of equal job opportunities for LGBT people. A recent poll shows 7 out of 10 Americans support a comprehensive non-discrimination bill that provides protection on the basis of sexual orientation and gender identity (Greenberg Quinlan Rosner Research poll, March 2015).
- American Business - Corporate America knows that basic fairness is good for business. 89% of Fortune 500 companies have non-discrimination policies that include sexual orientation, and 66% also cover gender identity. Additionally, 66% of small businesses believe that business owners shouldn’t be able to deny goods or services to someone who is LGBT based on religious beliefs, and eight in ten entrepreneurs say they would support a federal law banning discrimination against LGBT people in public accommodations and employment (Greenberg Quinlan Rosner poll, July 2015).
5. Is it true there is no effective recourse for discrimination against LGBT people under existing laws?
While we have made some progress, LGBT people still lack a clear and secure guarantee that the law protects them. The Equal Employment Opportunity Commission and a growing number of courts have recognized that both sexual orientation and gender identity discrimination are forms of unlawful sex discrimination. But there is not yet a clear and explicit federal law that protects LGBT people—and there is no protection at all in key areas such as public accommodations and jury service. This means that LGBT people across the country remain vulnerable to discrimination on a daily basis and too often have little or no recourse. While protections under existing law are important, each employee should not need a lawyer to help get or keep a job – every person and every employer should know that discrimination is wrong and illegal.
Without comprehensive federal protections, the basic rights of LGBT people vary state to state. In some instances, individuals lose rights and protections the moment they cross the border into a neighboring state. Only 22 states have clear laws barring discrimination based on sexual orientation in employment and housing, and a mere 19 states have such protections for transgender individuals. In the context of public accommodations, only 21 states provide protections on the basis of sexual orientation and 17 on the basis of gender identity. Some municipalities have similar ordinances, but the majority of LGBT people across this country have no clear protection.
Under our current patchwork of protections, in many states a same-sex couple could legally marry one day and risk being evicted from their apartment or denied legal services the next – simply because of who they are. The Equality Act will put an end to this kind of unfair, inconsistent treatment of LGBT people.
6. Are religious entities covered under the Equality Act?
The Equality Act updates the law to add explicit protections for sex, sexual orientation, and gender identity to existing civil rights laws. It does not change the religious exemptions already in place in federal law. Those religious entities that are currently exempt will remain exempt, with regard to expressing a preference for people of their faith in employment, under Sections 702(a) and 703(e) of Title VII) and for the sale, rental, or occupancy of a dwelling owned by a religious organization for non-commercial purposes (under Section 3607 of the Fair Housing Act) will remain allowed to do so.
II. FEDERAL PROTECTIONS FOR LGBT PEOPLE
Title II Public Accommodations
1. Who is protected from discrimination in public accommodations under the equality act?
Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodation on the basis of race, color, religion, or national origin. The Equality Act adds protections against discrimination on the basis of sex, sexual orientation, and gender identity, which will prohibit discrimination against LGBT people and women in places of public accommodation
2. Does the Equality Act change what is considered a “public accommodation?”
Yes. In addition to the places of public accommodation like restaurants and hotels already included in the 1964 Civil Rights Act, the Equality Act updates the law to ensure that other important providers of goods and services like stores, accountants, and banks do not discriminate on the basis of any protected characteristic. Transportation providers including trains, taxis, and airlines are also included within the Equality Act.
3. Why are these protections necessary?
LGBT people and women, particularly pregnant and breastfeeding women, experience discrimination and harassment while accessing public accommodations across a wide range of contexts – including restaurants, stores, hotels, theaters, and transportation services. People of color also continue to face persistent discrimination on a daily basis in stores, salons, and in accessing transportation including car services and taxis. Whether denied service or experiencing unfair treatment or harassment, this discrimination impedes individuals from fully participating in social and public spaces. Updating the law will ensure that no one is denied the ability to fully participate in social and public spaces just because of who they are.
Title IV Desegregation of Public Education
1. Who is protected from discrimination in education under the Equality Act?
Title IV of the Civil Rights Act of 1964 currently prohibits discrimination on the basis of race, color, religion, sex, or national origin. The Equality Act adds sexual orientation and gender identity to this list of protected characteristics that cannot be used as a basis for assigning public school students to particular schools or programs within public schools. By including sexual orientation and gender identity as explicitly protected categories under Title IV, the Equality Act makes clear that individuals who have experienced discrimination in admission or enrollment at a public school or college may file a complaint with the Attorney General.
2. What schools are covered under the Equality Act?
Title IV covers all public schools including elementary or secondary educational institutions and public colleges, which include any institution of higher education or any technical or vocational school above the secondary school level that is operated by a state. Title IV does not cover private schools. The Equality Act neither alters the types of schools covered by Title IV nor applies to private schools itself.
Title VI Federal Funding
1. Who is protected from discrimination in federal funding under the Equality Act?
Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally assisted programs on the basis of race, color, and national origin. The Equality Act adds discrimination on the basis of sex, sexual orientation, and gender identity to this list of protected characteristics. This would prohibit discrimination against LGBT people and women in federally assisted programs or services and would make denying LGBT people access to federal benefits or excluding them from a federally assisted program solely on the basis of their sex, sexual orientation, or gender identity unlawful. The bill would also ensure that both women and men are protected against sex discrimination with federal funds.
2. What entities are covered under the federal funding portion of the Equality Act?
The Equality Act only amends Title VI by including sex, sexual orientation, and gender identity as protected characteristics. Therefore, the entities covered under that title are not changed by the Equality Act. Any entity that accepts federal funding, whether through a contract, grant, award, or other form of funding, is a covered entity. Acceptance of federal funds is voluntary.
3. Why are these protections important?
LGBT people and women face widespread discrimination in employment and services from entities accepting federal funds and as recipients of federal financial assistance. The Equality Act will ensure that everyone, regardless of their sexual orientation, gender identity, or sex can participate in federal programs that are supported by taxpayers.
Title VII Employment
1. Who is protected under the employment section of the Equality Act?
Title VII of the Civil Rights Act of 1964 currently prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. The Equality Act adds sexual orientation and gender identity explicitly to that list. It codifies the protection against discrimination on the basis of sex stereotyping detailed in Price Waterhouse v. Hopkins, a landmark Supreme Court case, as well as recent decisions by courts and the Equal Employment Opportunity Commission affirming workplace protections for LGBT people. Under the Act, “gender identity” means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth. Sexual orientation means homosexuality, heterosexuality, or bisexuality. The Act clarifies and confirms that discrimination based on sexual orientation or gender identity is a form of sex discrimination.
2. How will the Equality Act impact a business’s equal employment obligations under Title VII?
The Equality Act updates Title VII by making explicit that sexual orientation and gender identity are protected characteristics, and makes clear that discrimination against LGBT people in hiring, firing, and promotions is unlawful. It also confirms that LGBT people must have access to all federal remedies currently available under Title VII.
This will not only protect LGBT people from discrimination, but it will also help eliminate uncertainty and confusion for businesses by providing employers and employees alike with clear rules that everyone knows and can follow.
3. What does this mean for bona fide occupational qualifications?
The Equality Act does not alter the general reach and applicability of the bona fide occupational qualifications (BFOQ) defense. However, when a BFOQ is used to justify employment or training decisions on the basis of sex, individuals must be recognized as qualified in accordance with their gender identity. It is important to note that courts have deemed very few BFOQs to be permissible in practice.
4. How will the Equality Act impact sex-segregated facilities?
Under the Equality Act, companies with sex-segregated facilities including restrooms and locker rooms must provide access to gender-appropriate facilities for individuals in accordance with their gender identity.
5. What actions of an employer are covered under the Equality Act?
The Equality Act adds explicit protections against sexual orientation and gender identity discrimination to Title VII. Therefore, the same standards under existing law apply to sexual orientation and gender identity discrimination. Current law applies to an employer's decisions regarding employment and employment opportunities, such as hiring, firing, promotion, training, or compensation and benefits. The Act requires that an individual's sexual orientation or gender identity may not be a factor in such decisions.
6. What would an individual have to show to prove discrimination under the Equality Act?
The Equality Act makes clear that the same standards under existing law apply to sexual orientation and gender identity discrimination. The individual must demonstrate that the discrimination was based on a covered characteristic. For example, it is acceptable differential treatment for a company to refuse hire a lesbian who is a teenager for a full time position based on her age. However, it is impermissible discrimination for a company to refuse to hire a woman simply because she is married to another woman.
Individuals claiming discrimination bear the burden of proving that discrimination based on sexual orientation or gender identity occurred, and that they were otherwise qualified for the opportunity. The employer can present evidence to show the adverse action was taken because of some legitimate, non-discriminatory reason. For example, an employer cannot terminate an employee simply because the employee’s parent or spouse is transgender. This would be discrimination based on that individual’s association with someone who is transgender and is therefore unlawful. However, an employer retains the same rights regarding decisions pertaining to hiring, promotion, and termination that are currently available under Title VII. Thus, an employer could lawfully terminate an employee who is not performing well or is violating company policy regardless of the sexual orientation or gender identity of that employee.
7. Won’t this result in a flood of unnecessary law suits?
No. In 2013, the Government Accountability Office (GAO) issued a report surveying the number of claims filed with state authorities in 21 states and D.C. that have statutes barring employment discrimination based on sexual orientation, 17 of which (and D.C.) also barred discrimination based on gender identity. The GAO found that “the administrative complaint data reported to [the GAO] by states for 2007 through 2012 show relatively few employment discrimination complaints based on sexual orientation and gender identity.” On average, claims based on sexual orientation or gender identity were about 3-4% of the total number of employment discrimination claims. (Report GAO-13-700R, July 31, 2013). (Note: the number of states providing employment protections on the basis of sexual orientation and gender identity has risen since the GAO survey concluded.)
In 22 states and hundreds of localities across the country, employers have already been bound by laws that prohibit discrimination against at least some members of the LGBT community. Hundreds of companies have voluntarily adopted EEO policies that include sexual orientation and gender identity. If protecting LGBT employees created a tidal wave of litigation or bankrupted companies, we certainly would have seen that. Instead, non-discrimination laws can decrease the incidents of discrimination by placing both employers and employees on notice that discriminatory behavior is both unacceptable and illegal. We have seen businesses succeed and American families protected – and that should be the reality for our entire nation. Further, the Equal Employment Opportunity Commission has been accepting claims of gender identity discrimination since 2011 and of sexual orientation discrimination since 2013 for processing and voluntary resolution. The Equality Act thus codifies this existing area of sex discrimination guidance and practice, providing increased clarity for everyone.
8. What kind of relief is available under the Equality Act for employment discrimination?
The Equality Act adds explicit references to sexual orientation and gender identity within Title VII. It makes clear that the same enforcement mechanisms and remedies under existing law also apply to sexual orientation and gender identity discrimination. This means a complainant must go through the administrative mechanism of the Equal Employment Opportunity Commission. That person may then file a lawsuit in federal court and, if successful, may receive injunctive relief, such as reinstatement and/or back pay. Compensatory and punitive money damages may be received to the extent such damages are allowed under Title VII. Attorney's fees are available.
Fair Housing Act
1. Who is protected from discrimination in housing under the Equality Act?
The Fair Housing Act currently prohibits discrimination in housing by landlords and real estate companies as well as other entities, including municipalities, banks, and other lending institutions and homeowners insurance companies on the basis of race, color, religion, sex, national original, familial status, or disability. The Equality Act writes sexual orientation and gender identity into this Fair Housing Act list of protected personal characteristics. This includes protections from discrimination in the sale or rental of housing and access to brokerage services based on sexual orientation or gender identity.
2. What entities are covered under the Equality Act?
The Fair Housing Act and the Equality Act apply to direct providers of housing, which include landlords and real estate companies, as well as other entities involved with homeownership or rental. It also applies to municipalities, banks, and other lending institutions and insurance companies. It does not apply to private home owners renting a room or apartment in their own home. It also does not cover individuals seeking roommates.
3. Does the Equality Act have an exemption for religious organizations?
Yes. The Equality Act amends the Fair Housing Act without changing the religious exemption that is currently part of the Fair Housing Act. This exemption preserves the right of a religious organization or nonprofit institution operated by a religious organization to sell, rent, or occupy a dwelling that the organization owns or operates for persons of the same religion as long as it is not operated for commercial purposes.
4. Why are federal housing protections important for LGBT people?
National surveys, including a study commissioned by the Department of Housing and Urban Development show that LGBT people frequently experience discrimination when seeking to rent or purchase a home. Housing discrimination takes a variety of forms. Same-sex couples may experience discrimination when shopping for a home or renting an apartment by a prospective landlord or seller. Real estate agents may also refuse to show a same-sex couple or transgender person a home in a particular area of the city simply because of who they are.
5. Will the Equality Act require owner-occupied rental housing to comply with non-discrimination requirements?
No. The Fair Housing Act includes exemptions for both owner-occupied rental housing with three or fewer units, as well as individual roommate arrangements. The Equality Act would not alter these protections and homeowners and individuals seeking a roommate could continue to make these choices without taking the FHA into account.
Equal Credit Opportunity Act
1. What does the Equality Act mean for credit?
The Equal Credit Opportunity Act prohibits discrimination on the basis of race, color, religion, national origin, sex, marital status or age with respect to credit transactions. The Equality Act adds sexual orientation and gender identity as protected personal characteristics under the Equal Credit Opportunity Act. The Equality Act does not alter the ability of a creditor to make lawful inquiries regarding marital status, age or public assistance, or to use empirical data in determining an applicant’s credit-worthiness.
2. How are same-sex spouses treated for credit purposes under the Equality Act?
The Equality Act amends the Equal Credit Opportunity Act to recognize all spouses including those who are of the same-sex consistent with the U.S. Supreme Court decision in Obergefell v. Hodges.
Jury Selection and Service Act
1. Who is protected from discrimination in jury service under the Equality Act?
The Jury Selection and Services Act currently ensures that citizens cannot be excluded from jury service simply on the basis of race, color, religion, sex, national origin, or economic status. The Equality Act adds sexual orientation and gender identity as protected characteristics under § 1862 of the Jury Selection and Services Act.
2. What courts are covered by the Equality Act?
The Jury Selection and Services Act only prohibits discrimination in the context of federal courts.
3. Why is jury service important for the LGBT community?
The right to an impartial jury of one’s peers and the right to serve on a jury are basic rights included in the Bill of Rights. These are fundamental and foundational to the fairness we expect and deserve from our legal system and democracy. The LGBT community has a long history of experiencing discrimination when being considered for jury service, and also as litigants, witnesses and lawyers in cases decided by biased juries that lacked openly LGBT members. Routine exclusion of LGBT people from jury service too often results in a miscarriage of justice.
III. MISCELLANEOUS QUESTIONS
1. Why does the Equality Act need to protect people who are perceived to be gay or transgender?
Individuals who are perceived to be gay or transgender, but who are not, often face the same discrimination experienced by LGBT people. Therefore, it is necessary for the Equality Act to cover these individuals. Similar discrimination occurs based on mistaken perceptions about race, national origin, and religion, thus the Equality Act ensures that anyone who experiences discrimination because of others’ mistaken perceptions about them has grounds to remedy the discrimination.
2. Why does the Equality Act protect people who associate with LGBT people from discrimination?
Like the Fair Housing Amendments Act and the Americans with Disabilities Act, which prohibit discrimination against those who associate with people with disabilities, the Equality Act prohibits discrimination against people who associate with LGBT people. Heterosexual people, including parents and siblings of LGBT people, are often subject to harassment and other discrimination at work and in public accommodations because of their association with their family member or friend. Children of LGBT people also face discrimination and harassment at school, in clubs, and in places of public accommodation including parks. Such individuals are not perceived to be gay or transgender themselves (and therefore, would not be covered on that basis), but rather, are discriminated against solely because of their association. The Equality Act also clarifies existing law to ensure that these protections apply to anyone who experiences discrimination because they associate with someone of a different race, sex, religion, or national origin.
3. Why does the Equal Act address the Religious Freedom Restoration Act (RFRA)?
The federal government has a well-settled compelling interest in eradicating discrimination through robust enforcement of our non-discrimination laws. That means businesses covered by federal civil rights laws should not be able to use RFRA to discriminate, but we should not leave that as an open question for the courts. Making this explicit ensures that the federal government doesn’t have to defend non-discrimination laws against businesses that want to engage in harmful discrimination, including at the taxpayers’ expense.
4. Why are the terms “Sexual Orientation” and “Gender Identity” included within “Sex”?
Numerous federal courts and administrative agencies responsible for enforcing our nation’s civil rights laws, including the EEOC most visibly, have recognized both sexual orientation and gender identity as included within the definition of sex for purposes of discrimination. For example, applying Supreme Court rulings against gender stereotyping and sexual harassment, federal courts and the EEOC have determined that discrimination against an employee on the basis of sexual orientation or gender identity is in fact unlawful sex discrimination. The Equality Act recognizes and codifies these legal precedents.