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ENDA Is Good, Could Be Even Better

Dena Sher,
ACLU Washington Legislative Office
Ian S. Thompson,
Senior Legislative Advocate,
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June 13, 2012

On Tuesday, the Senate Committee on Health, Education, Labor and Pensions held an important hearing on workplace discrimination experienced by those who are or perceived to be lesbian, gay, bisexual, or transgender (LGBT). The hearing addressed the need for federal legislation, the Employment Non-Discrimination Act (ENDA), to create uniform protections for LGBT people in the workplace. The sad reality remains that it is legal to fire or refuse to hire workers based on sexual orientation in 29 states and gender identity in 34 states.

The ACLU has long championed ENDA: American workers – who stand side-by-side in the workplace and contribute with equal measure in their jobs – should be able to stand on equal footing under the law. While our support for this essential legislation remains unchanged, we voiced concerns about two provisions. Things have changed in the nearly two decades since ENDA was first introduced and we believe the bill should be updated to reflect this reality.

We first suggested removing a provision that would permit employers to use the discriminatory and unconstitutional Defense of Marriage Act’s (DOMA) definition of marriage for purposes of employee benefits. In states where marriages of same-sex couples are legally recognized this would allow employers to treat married gay and lesbian employees as unmarried, thus enabling companies that would otherwise be prohibited under ENDA from discriminating in employee benefits to deny those benefits to married couples. As more states extend the freedom to marry to gay and lesbian couples and the ongoing legal challenges to DOMA work their way through the courts, Congress should not consider legislation that expands the reach of a discriminatory and unconstitutional law.

Second, we recommended that ENDA’s religious exemption be narrowed so that it does not grant religious organizations a blanket exemption from federal civil rights law. Under the exemption, all organizations that are permitted to discriminate on the basis of religion under Title VII would be permitted to discriminate on the basis of sexual orientation and gender identity under ENDA. We think this is far too broad. The ACLU’s position on this matter was mentioned at Tuesday’s hearing; here’s why we’re concerned.

Under Title VII – a federal civil rights law, enacted in 1964, that prohibits employment discrimination based on an individual’s race, color, religion, sex, and national origin – religious organizations are granted an exemption allowing them to prefer members of their own faith in hiring. This exemption’s purpose is to permit a religious organization to require those who carry out its work to share its faith (and has been interpreted to apply even when an employee’s work is not religious). But, it is not a blank check for religious organizations to discriminate for any reason. For example, when religious organizations have argued that this exemption gives them the ability to pay women less than men because of religious teachings about the appropriate roles of men and women, courts have not allowed Title VII’s religious exemption to authorize otherwise impermissible sex discrimination. The current ENDA religious exemption would depart from Title VII’s limited exemption that permits religious organizations to discriminate only on the basis of religion in hiring, and instead would give religious organizations a blank check to discriminate against LGBT people for any reason, religious or otherwise. In our view, the same rules should apply for all kinds of religiously-motivated discrimination.

And this blank check would not just be granted to houses of worship and parochial schools. Under Title VII, hospitals and newspapers, for example, have also been considered eligible for the exemption. Earlier this year, The New York Times reported on the trend of small hospitals with no religious affiliation merging with larger, religiously-affiliated institutions. As soon as one of these mergers goes through, under ENDA, the hundreds if not thousands of workers at that hospital instantly could be stripped of protections against discrimination based on sexual orientation or gender identity. This is simply wrong.

Committee Chairman Tom Harkin (D-Iowa) closed Tuesday’s hearing by observing that when Congress passed the Civil Rights Act of 1964 – which included Title VII – opponents argued that their religion required them to discriminate against others based on their race or sex. Congress rightly rejected those objections then and should do so once again with respect to sexual orientation and gender identity. We must not condone the notion that religion can be used to treat certain members of society as second-class citizens.

It is fundamentally unacceptable that in America in 2012 there are individuals who, when they go to work, are forced to deny and hide who they are and who they love for fear of losing their livelihood. While it is essential for Congress to pass ENDA, it should do so with these critical modifications. At the ACLU, we will be working with our allies and doing all that we can to ensure that when ENDA is eventually passed and signed into law, it will be as strong as it possibly can. LGBT Americans deserve no less.

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