by Jeremy Leaming
Once again lawmakers in Congress have introduced legislation intended to advance equality for LGBT people, this time with a few more Republicans on board and in an atmosphere of heightened public support.
The Employment Non-Discrimination Act (ENDA) would prohibit employers from discriminating against people based on their sexual orientation or gender identity. As noted earlier this week, other variations of ENDA have languished in past congressional sessions. But the effort – to outlaw employment discrimination of LGBT people – is integral to advancing equality. The U.S. Supreme Court is considering cases involving marriage equality and nine states and the District of Columbia recognize same-sex marriages. Rhode Island and Delaware state lawmakers are considering legislation to allow same-sex couples to wed. (Rhode Island’s Senate has approved a marriage equality bill.)
So while there has been positive movement on marriage equality -- though a setback could be forthcoming depending on the how the Roberts Court handles the cases before it – efforts to bar employment discrimination against LGBT persons have seen more mixed results. As the ACLU notes more than 30 states include laws that fail to provide LGBT people solid protection from employment discrimination.
But Sen. Jeff Merkley (D-Ore.) in a press statement announcing the introduction of ENDA sounded an upbeat note, saying that “bipartisan coalitions” in both chambers are supporting the measure. Merkley’s statement concludes, “In a sign of the growing momentum to end discrimination against LGBT Americans, the Senate sponsors expect the Health, Education, Labor & Pensions Committee” to take action on the legislation in this Congress.
The ACLU, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center issued a statement today concluding, in part, that in a “country that values fairness and equal treatment under the law, we believe the current situation is unacceptable.” That situation centers on the fact that there remain far too many states without protections against employment discrimination of LGBT people.
The groups, however, carry “grave concerns with the religious exemption in ENDA.” It’s an incredibly broad exception the groups note. “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.”
The organizations vow to work to encourage ENDA’s sponsors to make the exemption more reasonable. The legal justification for allowing religiously affiliated employers to fire or refuse to hire LGBT persons is a departure from Title VII's exemption that allows religious organizations to hire workers of the same faith to help to carry out their work. But civil liberties groups like the ACLU are working to ensure that the current ENDA's exemption does not permit religiously affiliated groups from misusing Title VII as a cover for discriminating against workers solely on their sexual orientation or gender identity. The government has long been able to provide accomodations to religious groups, such as the TItle VII exemption, partly to ensure that it does not subvert the free exercise of religion.
There are other challenges as well, like the leadership of the U.S. House of Representatives that is seemingly beholden to an increasingly right-wing constituency.