Jottings By An Employer's Lawyer

Monday, May 07, 2007

Is This the Year? Protection for Gays and Transgendered Employees?

Not unexpectedly with a Democratically controlled Congress there has been an onslaught of employment related legislation, including the reintroduction for the first time since 2003 of legislation that would extend Title VII to include sexual orientation. Somewhat surprisingly, the legislation also includes protection against individuals based on gender identity. Surprising, because the general consensus seems to be that will make the Act harder to pass than one based simply on sexual orientation.

The proposed Employment Non-Discrimination Act of 2007 would prohibit discrimination on the basis of perceived or actual:

  • GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth; or
  • SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.

A timeline of past efforts for similar legislation can be found here.

Who knows what legislation will end up being pushed now that it appears we are in a full-swing presidential election season, but this could be one of the social oriented wedge issues, like many which were described in a terrific editoral by Arnold Garcia, Jr. in yesterday's Austin American Statesman talking about the Texas legislature: With clock ticking, legislature rushes to solve nonexistent problems. His description of the types of issues being dealt with is classic:

Social issues are to modern politicians what bread and circuses were to Roman ones — a cheap and easy way to distract the populace with political and intellectual trinkets.

Before an onslaught of email, I am not putting the current proposed federal legislation in that category; but it is similar in the sense that how a politician votes could have important electoral implications.

As one who represents employers, there is always concern when yet another group is empowered by legislation to sue. Personally, it is hard to make any other general argument. More specifically, anytime legislation contains the word "perceived" I know that we are heading down an even slippier, potentially more litigious slope.


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