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A new federal civil rights bill banning discrimination against lesbian, gay, bisexual and transgender individuals could have big implications for employers.
Dubbed the Equality Act of 2015, the bill, introduced simultaneously in the Senate and House of Representatives on Thursday by Rep. David Cicilline, D-R.I., and Sen. Jeff Merkley, D-Ore., extends protections under existing federal anti-discrimination laws to include discrimination based on sexual orientation and gender identity, in addition to already protected classes such as sex, race and religion.
The bill, H.R. 3185 in the House and S. 1858 in the Senate, has 205 Democrat and Independent co-sponsors, according to representatives for Sen. Merkley and Rep. Cicilline.
Specifically, the bill would expand protections against discrimination based on sexual orientation and gender identity in employment, education, public accommodations, housing, credit, jury service and federal funding.
“The absence of explicit prohibitions of discrimination on the basis of sexual orientation and gender identity under federal statutory law, as well as some conflicting case law on how broadly sex discrimination provisions apply, has created uncertainty for employers and other entities covered by these laws. This lack of clear coverage also causes unnecessary hardships for LGBT people,” the bill states.
Thirty-one states lack laws to protect individuals from employment discrimination based on sexual orientation and gender identity, according to the Human Rights Campaign advocacy group.
If passed, the legislation would make it difficult for employers to “deny benefits to a same-sex spouse when you're providing benefits to an opposite-sex spouse,” said Todd Solomon, Chicago-based partner with law firm McDermott Will & Emery L.L.P.
Currently, self-funded health plans could exclude same-sex spouses on the health plan, Mr. Solomon said. The U.S. Equal Employment Opportunity Commission has interpreted sex discrimination to include sexual orientation, but the courts have yet to test that, he said.
The Equality Act would “create an even clearer path for a discrimination claim” because it could be brought as a sexual orientation claim under federal law, he said.
It is not clear, however, if protections against discrimination over health benefits would extend to transgender employees, Mr. Solomon said.
“It's very hard to claim that it's discrimination just because a health plan has been written to not cover transgender procedures, because health plans can be written to not cover lots of things,” such as bariatric surgery, he said.
Currently, there is no legal requirement for most private-sector employers with self-funded plans or even fully insured plans to provide transgender employees with transition-related health benefits, experts say.
It is clear, however, that the bill would prevent employers from firing employees based on sexual orientation and gender identity, Mr. Solomon said. That protection is available in some states, but not federally.
“It would be a big deal,” he said.
Several large employers, including Apple Inc., Dow Chemical Co. and Levi Strauss & Co., have announced their support for the Equality Act. According to the Human Rights Campaign, Dow said, “Full inclusion of our LGBT colleagues and citizens is quite simply the right thing to do — for business and for society.”
Levi Strauss said, “Ensuring fairness in our workplaces and communities is both the right thing to do and simply good business.”
Bills like the Equality Act, which attempt to include sexual orientation and gender identity in the list of federal discrimination protections, have been introduced many times in Congress and have failed.
But this time, the legislation has a more “realistic chance of passing,” as the political climate and public opinion have been shifting in favor of supporting LGBT rights, Mr. Solomon said.
As awareness for transgender issues increases, more employers are including coverage for transition-related health care as a way to foster an inclusive workplace environment while attracting and retaining workers.