ENDA Would Still Allow Discrimination Against LGBT Workers

While ENDA - the Employment Non-Discrimination Act - which remains stalled in the U.S. House of Representatives thanks to Congressional Republicans would be an improvement for those of us living in states like Virginia who currently have zero employment protections.  However, as passed by the U.S. Senate ENDA continues to contain a religious exemption that is so broad that one could drive a convoy of eighteen wheelers through it.   Sadly, the exemption is symptomatic of the undeserved and corrosive deference still give to religion.  Imagine if laws barring discrimination on age, national origin or even religious based discrimination contained a similar exemption and one quickly sees the ridiculousness of including such an exemption in a non-discrimination law.  The irony, of course, is that if anything is NOT an immutable characteristic, it is religious belief which ultimately is 100% a choice.  A piece in The Nation looks at how ENDA, if passed by Congress, would still give license to anti-gay discrimination in the work place. 

Most Americans workers have no protection from being fired because they are lesbian, gay, bisexual or transgender (LGBT). This fact comes as a shock to many people. Around three-quarters of the public assumes that LGBT workers already have federal job protection. But they don’t. Legislation to address that problem has been kicking around Congress for forty years—it is now called the Employment Non-Discrimination Act, or ENDA—but Congress has not succeeded in passing it.

In 1974, when the first federal bill to protect LGBT workers was introduced, the landscape for equality was unfriendly—and things got worse before they got better. But they did get better. The military’s ‘don’t ask, don’t tell’ policy, enacted in 1993, was repealed in 2010, and gay people now serve openly in the armed forces. The Defense of Marriage Act was passed in 1996, but it was declared unconstitutional by the Supreme Court in 2013. Now nineteen states and the District of Columbia recognize full marriage equality, with more to come.

This progress has made the lack of employment protection for LGBT people nonsensical. We can hardly imagine that a gay man could serve his country in the military, only to get fired for being gay when he returns to his civilian job. But in most parts of the country, that is exactly what could happen.

In the face of continued congressional inaction, President Obama has announced that he will issue an executive order to prohibit most federal contractors from discriminating against workers on the basis of sexual orientation or gender identity—protections that are already in place for race, gender and other categories. The president’s action is important, but it can only do so much. Congress must still enact ENDA.

But what should ENDA look like? The right answer to that question is simple: LGBT workers should have the same protection that other workers already enjoy under the 1964 Civil Rights Act—no more, no less. But something is getting in the way of that simple answer: the forty years of history that we have been dragging around with us like the wreckage of a derelict ship.

[O]nly one piece of flotsam is left in the statute: a provision called the “religious exemption.” Among federal anti-discrimination laws, it is unique to ENDA. And that is the very reason that it must be stricken. At issue is when religious organizations should get special exemptions from civil rights laws. Should they be allowed to discriminate in some circumstances when other employers cannot? 

One could take a range of approaches to this question. On one end, there is the view that the only special exemption should be the one that the Constitution actually requires: that churches and religious organizations remain free to choose ministers and other employees with ministerial duties free from any interference from government. On the other end, we have recently seen legislation like Arizona’s SB1062 that would create exceedingly broad religious exemptions that would even apply to for-profit businesses. 

We cannot have one approach to religious exemptions for discrimination based on gender or disability and a different approach for discrimination based on race or sexual orientation. To do so would be to accept the idea that some types of equality are inherently at odds with religion. That dangerous argument has been misused many times in our history. The unequal treatment of women, racial segregation, even slavery itself—all have been justified by religious doctrine.

The current draft of ENDA violates this important principle. It contains a broad religious exemption that takes protections away from LGBT people—and only from them. If you are a maintenance worker at a religious organization, you cannot be fired for being white or a woman, but if ENDA is not fixed, you could be fired for being gay. 

If that detritus were included in the law, then ENDA would stand for the intolerable idea that equal treatment of LGBT people is inherently incompatible with religious belief. We are long past the point where it is acceptable for Congress to endorse such polarizing stereotypes. This last vestige of appeasement from an earlier time must now be removed from ENDA.

All things considered, across the march of history religion has proven to be a pervasive evil that has brought wars, death and violence - it is still doing so at this very moment in Iraq - and it is far past time that it lose its undeserved deference.  The religious exemption needs to be stripped from ENDA and all non-discrimination laws.