Understanding those very grave concerns about ENDA’s religious exemption

By Cathy Kristofferson, April 29, 2013

endarelexempHere on this BLOG Thursday, we reported that directly preceding the introduction of the Employment Non-Discrimination Act (ENDA) of 2013, a press release came out expressing “very grave concerns” about the religious exemption clause contained in the Bill.

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The American Civil Liberties Union, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center issued press release points out the following:

“It could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people. Some courts have said that even hospitals and universities may be able to claim the exemption; thus, it is possible that a religiously affiliated hospital could fire a transgender doctor or a religiously affiliated university could terminate a gay groundskeeper.”

So, let’s back up.  Title VII of the 1964 Civil Rights Act prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin.  Religious entities, however, are given exemptions for employment decisions such as hiring, firing, and promotions based on the employee’s religion:

Section 702(a): This subchapter shall not apply to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, education institution, or society of its activities.

Section 703(e)(2):  it shall not be an unlawful employment practice for a school, college, university, or educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

titleviiSo Title VII’s religious exemption allows religious employers to take the employee’s religion into account.  For example, a Mormon place of employment could exclude a groundskeeper if s/he is Catholic.  The new ENDA Bill allows a “religious employer” to  take an employee’s sexual orientation or  into account allowing religious employers to ‘broaden’ into another category/protected class.  So a Mormon place of employment may exclude a Mormon groundskeeper if s/he is gay.   “In other words ENDA gives religious organizations a legal right to discriminate on the basis of sexual orientation and gender identity.”

Misuse of the Title VII exemption, allowing religiously affiliated employers to hire employees to “carry out their work” used as a cover for discriminating against workers solely on their sexual orientation or gender identity, is a concern that the exemption raises, as currently provided in the Bill.

haleThe entirety of employers that the religious exemption in ENDA applies to has been ‘glossed over’ in multiple online articles as applying ONLY to the two categories of 1) non-profit organizations whose primary work is religious and 2)  for-profit small businesses which have less than 15 employees.   This description is misleading because in fact ANY religiously affiliated employer would still be allowed to hire, fire and not promote based on an employee’s sexual orientation and/or gender identity.  Those “very grave concerns”  expressed in the press release Thursday morning saying the religious exemption in the Bill as introduced would “allow hospitals and universities with any religious affiliation to discriminate” is in fact unacceptable.

Teachers and coaches at religiously affiliated schools, who seem to be the most publicized of discriminatory firings, would still happen.  The Ohio Catholic High School that fired 19 year veteran physical education teacher Carla Hale after her name appeared in her mother’s obituary could still do so legally.  Surely we can get a better ENDA than that!

The argument given by proponents is that without the religious exemption, ENDA would be struck down by the Supreme Court.  From Freedom To Work:

‘ENDA’s drafters recognized that religious liberty is one of our nation’s founding principles. The bill protects the First Amendment religious freedom rights of churches to come to whatever conclusion they wish about LGBT people. Some churches and religious organizations will choose discrimination and some churches will choose inclusion of all of God’s children. ENDA does not force the choice of the federal government upon any church, and therefore ensures that ENDA will not be struck down someday by the U.S. Supreme Court for violating religious liberties.”

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A loophole created in 2009 by the Supreme Court in their decision of the Gross v. FBL Financial case is also highlighted as a shortcoming of he current version of ENDA.  That decision increased the standard of proof for cases of age discrimination beyond the standard for discrimination based on race, sex, national origin and religion.   Cases of LGBT discrimination would also face a higher standard of proof unless a fix is written into the version of the bill just introduced.

Also noted as an issue is that sexual orientation and gender identity do not have equal standing with the other protected classes.  Does this mean that religion has a higher standing?  If so, this is playing right into the Right’s hand allowing for what Scott Lively calls the ‘First Amendment Supremacy Clause’ – religious bigotry trumping LGBT discrimination.

Sen. Merkley, who introduced the bill in the Senate, has stated that issues highlighted at introduction would likely be addressed in the coming months during the committee-markup process.  Let’s hope that the “very grave concerns” raised can be eliminated.

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