While the introduction of the Employment Non-Discrimination Act in Congress in late April was greeted with cheers by many, four legal groups said that the bill’s religious exemption was an invitation to some employers to discriminate against members of the lesbian, gay, bisexual, and transgender community.
ENDA would ban discrimination based on sexual orientation and gender identity in employment. If enacted, the bar would apply to businesses with 15 or more employees, labor unions, employment and training agencies, and state and federal employers except for the armed forces.
One section exempts religious organizations — a legal term that does not have an agreed-upon definition in the federal courts — from ENDA’s provisions. The bill refers to Title VII of the Civil Rights Act of 1964 to define that exemption. Among its provisions, the 1964 act banned discrimination in employment, schools, and public accommodations based on race, color, religion, sex, and national origin.
While churches, mosques, temples, and similar institutions are generally considered exempt from anti-discrimination provisions under the First Amendment of the US Constitution, entities that have a religious nature or affiliation, such as a Roman Catholic hospital or a Baptist university, may be exempted from the ban on religious discrimination so they can hire those who share their religious views. ENDA’s language, the groups argued, goes further and exempts such affiliated organizations entirely from its provisions.
“If you have the right to prefer certain members of your own religion, then under Title VII’s exemption, you have the right to be free from any claim of sexual orientation or gender identity discrimination under ENDA,” said Greg Nevins, an attorney at Lambda Legal. “What ENDA would allow them to do is discriminate on a basis other than religion, which would be new.”
Nevins said that there is “quite a division in the courts” about how to define an exempt religious organization.
The gay rights law firm joined the American Civil Liberties Union (ACLU), the National Center for Lesbian Rights (NCLR), and the Transgender Law Center in raising this concern in an April 25 statement.
ENDA was introduced in the House with 161 sponsors, including three Republicans. In the Senate, the bill had five sponsors, including two Republicans. Given that Republicans currently control the House, ENDA is unlikely to get a vote.
The religious exemption issue was raised in 2007, but the discussion over ENDA that year was consumed by the acrimony over excluding gender identity as a protected class.
“It was brought up in 2007,” Nevins said. “I don’t know if it was brought up since then.”
The 2007 version also allowed companies to give employee benefits to the married spouses of their heterosexual employees and deny those same benefits to the married spouses of their gay and lesbian employees. The 2007 version cited the federal Defense of Marriage Act (DOMA) to define marriage. That language, which was added to buy the neutrality of major business lobbies, is not in the 2013 bill.
“There were some things in prior legislation in prior Congresses that were improved,” Nevins said, and then, referring to the religious exemption, added, “This wasn’t one of them.”
Jared Polis, an openly gay Colorado Democrat, is ENDA’s lead sponsor in the House.
“I am proud to have worked with the Senate co-sponsors and Representative Ileana Ros-Lehtinen on a bi-partisan and bi-cameral bill, which gives us a better shot at moving the Employment Non-Discrimination Act forward,” he said in a statement. “There were several improvements that I was pleased were included in both the Senate and House language, including the removal of discriminatory language restating the Defense of Marriage Act and a different approach to shared facilities that better reflects successful approaches under state law and respects the rights of transgender individuals. The bill’s religious exemption has not changed. Like last Congress, the bill includes a broad religious exemption. As we move forward, we will continue to strengthen the Employment Non-Discrimination Act in both the Senate and the House.”