While extending Title VII protection to gender identity, Macy v. Department of Alcohol, Tobacco, Firearms and Explosives doesn’t directly impact federal discrimination claims based on sexual orientation. Efforts to include gays and lesbians as a protected class through the Employment Non-Discrimination Act (ENDA) started in 1974 but repeatedly stalled in Congress. A Senate hearing was scheduled for June 12 on the current version, which includes protection for transgender individuals as well as gays and lesbians, but with a Republican-controlled House, ENDA has little chance of passing in this Congress. “If ENDA doesn’t pass, we are left with a situation where gender identity is protected on the federal level [by Equal Employment Opportunity Commission (EEOC) enforcement under Macy] and sexual orientation isn’t,” says Jackson Lewis Partner Michelle Phillips.
From the employer standpoint, ENDA offers a solution to navigating a patchwork of confusing federal, state and local regulations regarding sexual orientation and gender identity, says Denise Visconti, a Littler Mendelson shareholder.
And despite Macy, some believe ENDA still needs to protect against gender identity discrimination. New York University Law School Professor Art Leonard points out that under a future administration, the EEOC could reverse Macy. “It’s an important ruling, but until you have it locked into a statute, you don’t really have it locked down,” he says.