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Government-Funded Hiring Discrimination Is a Big Step in the Wrong Direction

Dena Sher,
ACLU Washington Legislative Office
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June 17, 2011

On Monday, we celebrated the 44th anniversary of an important civil rights milestone, the Supreme Court decision in the ACLU case Loving v. Virginia, which struck down state bans on interracial marriage. At an event at the Capitol, we screened The Loving Story (a terrific documentary) and hosted a panel discussion with the film’s director and producer, Nancy Buirski, one of the Lovings’ attorneys, Phil Hirschkop, and Reps. Jerrold Nadler and Bobby Scott (both of whom Laura Murphy—the director of ACLU’s Washington Legislative Office and our moderator for the evening—rightly called our most stalwart defenders of the Constitution).

One of the themes of the discussion was our nation’s continued movement toward greater equality. Everyone agreed that progress may not be as fast or as far as we might hope, but that we’ve come a long way to make good on the promise that “all men are created equal” for people of color, women, those who are or are not religious, people with disabilities, and those who are lesbian, gay, bisexual, or transgender.

Rep. Scott, however, expressed his profound disappointment in a government policy that is a serious step backward on our path toward equality.

He explained that under former President George W. Bush’s so-called faith-based initiative, the government has changed its focus from protecting against discrimination in hiring to supporting the employer’s right to discriminate. President Obama has allowed this discrimination to continue, as religious organizations that receive government funding may discriminate on the basis of religion in jobs paid for with this funding.

Rep. Scott asked: If we don’t enforce discrimination laws in federal contracts with religious organizations to provide goods and services for the government, how do we have the moral authority to enforce discrimination laws when a private employer (such as a manufacturer or office supply company), who may be devoutly religious, wants to hire only those who share his faith, with his own private money?

Rep. Scott recently grilled Assistant Attorney General Thomas Perez about this policy at a hearing on the U.S. Department of Justice Civil Rights Division, the second time in recent weeks he’s asked tough questions of someone from DOJ. Perez dodged his questions over and over again, clearly frustrating Rep. Scott. The congressman concluded:

I asked you to acknowledge that under your administration it’s possible to run a program and have an articulated policy of employment discrimination solely based on religion, and all you’ve given is a bunch of mumbo-jumbo, avoiding the question. The answer is yes. Yes, you can, under certain circumstances, tell a job applicant, no, you can’t have a job because we don’t hire people of your religion. And that’s the answer and you refuse to give it, I assume because you’re too embarrassed to acknowledge the facts.

It is embarrassing that a qualified candidate for a job, funded by the government to provide services to the government, could be told she will not be hired because she is the wrong religion. And it’s a big step in the wrong direction.

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