Friday, May 11, 2007

Are new protected classes on the horizon?

While some companies voluntarily choose to implement policies that state that they will not discrimination on the basis of sexual orientation, under federal law and the law of most states (including Ohio) it is perfectly legal for employers to make employment decisions based on that characteristic. With the Democrats now controlling Congress, however, change in the law might be on the horizon. Pending in Congress is the Employment Non-Discrimination Act of 2007. That bill would prohibit would prohibit discrimination on the basis of perceived or actual gender identity (which is defined as 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 (which is defined as homosexuality, heterosexuality, or bisexuality). While most reasonable people can agree in principle that discrimination in any form is wrong, I question the inclusion of "perceived" in the bill's protection, especially when courts often protect sexual stereotypes as a form of gender discrimination. This bill is still a long way from becoming law, but it does bear watching as passage in its current form would potentially open a new floodgate of litigation.

Another bill that is currently pending on Capitol Hill is the Genetic Information Nondiscrimination Act of 2007. Among other changes, that bill, which overwhelmingly passed by a vote of 420-3 in the House, makes it an "unlawful employment practice," as that term is used by the Equal Employment Opportunity Commission, for an employer, employment agency or labor organization to use genetic information in making hiring, firing, or promotion decisions. In other words, genetic discrimination would be treated in the same way as other forms of discrimination. While I'm not sure how an employer would necessarily acquire employees' genetic information, given the overwhelming support in the House, it's fair to assume this bill will soon become law, and also bears watching.