Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Justly Fighting Job Discrimination
By Stanley Carlson-Thies
September 13, 2013
The Employment Non Discrimination Act (ENDA) raises big issues about how to justly reconcile differing convictions about sexual conduct and the sometimes conflicting interests of employees and employers. ENDA proposes to forbid job discrimination on the bases of sexual orientation and gender identity (transgender status). This bill has broad consequences for religious freedom and religious organizations.
ENDA bills have been proposed regularly in Congress since the mid-1990s. But while a number of states and big (and small) cities have adopted this worker protection, the federal bills have never gotten far. Most recently, the House adopted an ENDA bill in 2007, but the Senate did not act. The Senate Committee on Health, Education, Labor, and Pensions (HELP) recently voted favorably on the current bill (S. 815), and Senate leaders promise floor action this fall. However, it seems unlikely that the current House will even consider an ENDA bill. In the meantime, there has also been pressure on the president to adopt an ENDA Executive Order that would apply just to federal contractors.
Many would argue that sexual orientation and gender identity have more to do with conduct and are not necessarily immutable characteristics. This means that the case is less obvious for writing these factors into nondiscrimination law on a par with race, national origin, sex, or age. Whatever one’s views about the mysteries of sexual identity, many major religious communities have a long-standing conviction that sexual activity is reserved for the man-woman marriage relationship. Consequently, their religious organizations have a conduct standard applying that conviction to employees of every sexual orientation.
Respecting these convictions, the Senate ENDA bill and its House companion include a religious exemption. It’s noteworthy that the HELP Committee agreed to modify the bill without any discussion so that employers won’t be charged with transgender discrimination before regulators have even set out in detail what such discrimination might be.
That’s the good news. Unjust job discrimination ought to stop, and our society’s respect for religious conviction requires protecting the distinctive practices of religious organizations. However, we must carefully consider some of the significant flaws in this bill.
The religious exemption in the bill seems strong, and some LGBT groups want to drastically weaken it. It exempts from ENDA’s provisions any employer covered by the religious hiring exemption of Title VII of the 1964 Civil Rights Act. Employers free to consider religion in hiring will be able to maintain their employee conduct standards despite ENDA. Yet there are disputes over which organizations are religious enough to be covered by that Title VII exemption. Some courts and the current administration exclude businesses by definition, which would leave unprotected commercial religious broadcasters, for-profit religious publishers and bookstores, and many other faith-based businesses. There is no ready fix for this problem.
Additionally, the bill as written does not protect religious organizations from government retaliation. In fact, some ENDA advocates have praised the exemption because it will expose discriminatory organizations, which can then be stripped of government funds, licenses, and other benefits. Without an anti-retaliation provision, the exemption is empty.
There is also this large problem: Despite the religious exemption, activist judges could interpret the enactment of ENDA to be further evidence that government has a “compelling interest” to protect LGBT rights, even at the expense of religious freedom. That would weaken the protections that the Religious Freedom Restoration Act offers religious persons and organizations by continuing the contemporary trend to subordinate religious freedom to anti-discrimination requirements. Congress must add language to forestall this problem.
Even with these fixes, ENDA will remain flawed. However, because workplace discrimination is wrong, a bill like this will move in this Congress or the next. Congress needs to remedy the religious freedom flaws before then. After all, the government’s authentic compelling interest is to protect the freedom of religious exercise even as it safeguards other rights.
- Stanley Carlson-Thies is the president and founder of the Institutional Religious Freedom Alliance. He also serves as a Fellow of the Center for Public Justice.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”