The Second Obama Term: New Employment Protections For LGBT Individuals Possible

President Barack Obama's second term will likely bring new employment protections for lesbian, gay, bisexual, and transgender individuals.

President Barack Obama's election in 2008 ushered in a period of increased regulation of U.S. employers. The Equal Employment Opportunity Commission (EEOC or Commission) promulgated new employee-friendly guidance on the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act, and the use of background checks in employment decisions. As President Obama begins his second term, it is anticipated that this trend will continue, with more employee-friendly FMLA and ADA regulations. But perhaps one of the largest changes on the horizon—one that could have a dramatic impact on the EEOC's enforcement focus and lead to a significant uptick in civil litigation—is the potential addition of sexual orientation and gender identity to the list of categories protected by federal anti-discrimination laws.

Employment Non-Discrimination Act and EEOC Cases Under Title VII

Currently, 21 states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation; 16 states and the District of Columbia also protect gender identity. However, federal law currently does not protect either category. Proposed legislation known as the Employment Non-Discrimination Act (ENDA) would change that, banning discrimination on the basis of both sexual orientation and gender identity. ENDA has percolated in Congress for years without much attention, but it has gained traction recently and is expected to be taken up again in 2013. Indeed, it appears that President Obama intends to push ENDA to the front of his agenda, calling in his recent inaugural address for lesbian, gay, bisexual, and transgender (LGBT) equality under the law and explicitly comparing the fight for LGBT rights to the historic battles for civil rights and women's equality. If the positive public response to the inaugural address is any indication, we can expect ENDA to gain momentum this year. But, even if ENDA does not pass right away, many advocates anticipate that President Obama will introduce some federal protection for LGBT workers by executive order, banning federal contractors from discriminating against employees on the basis of sexual orientation and gender identity. Many believe that such an executive order by President Obama would lay the groundwork for the passage of...