The State of the Union and Employment Law

President Obama’s State of the Union Address highlighted several legislative initiatives that potentially affect the employer/employee relationship. Two of the more noteworthy are:

  • Supporting workplace fairness for women by passing the Paycheck Fairness Act, which would strengthen the Equal Pay Act; and
  • Advancing workplace equality for Lesbian, Gay, Bisexual, and Transgender (LGBT) workers by adding sexual orientation and gender identity to the list of statuses that are federally protected from employment discrimination. The Employment Non-Discrimination Act, which has passed the U.S. Senate, but not the House of Representatives, would provide such federal protections for LGBT workers.

The Equal Pay Act (EPA), once a dominant force in federal anti-discrimination law, could well be revitalized if President Obama’s Paycheck Fairness Act strengthens the EPA. Some argue that the EPA, which protects against gender-based discrimination in pay, has been weakened by the Court-expanded exception for “differential factors other than gender.” The Paycheck Fairness Act would try to close or narrow this loophole by requiring such a factor to be strictly job-related and increasing the level of proof required. An old lion may roar again.

The expansion of Title VII protection to LGBT workers would be a significant broadening of federal anti-discrimination protection. But employers should recall that sexual orientation and gender identity discrimination are already prohibited by many state laws, including the Minnesota Human Rights Act, so proactive measures already in place may make a change in federal protection of lesser impact in some states than it may be in other states.

Takeaway: The President’s State of the Union Agenda was decidedly domestic in its focus, and federal discrimination protection is a traditional domestic policy point. Indeed, both of the legislation initiatives discussed above have been tried and defeated in the legislative process in this and previous administrations. But their renewal has the potential of a real impact on employment law. Minnesota Employer will keep you updated.