ENDA's Religious Loophole

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November 7, 2013
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Lambda Legal Supervising Senior Staff Attorney Gregory R. Nevins

The U.S. Senate has passed an inclusive Employment Non-Discrimination Act (ENDA). That 64 senators, including members of both parties, would approve a bill that prohibits discrimination on the basis of sexual orientation, gender identity and expression is momentous indeed, given that just six years ago, the House of Representatives removed protections for transgender workers before voting to pass the bill. Today, however, our whole LGBT community stood together and won.

But we still have some work to do: First, ENDA needs to be approved by the House of Representatives. And Lambda Legal and some other LGBT organizations have criticized this version of ENDA as having an overly broad religious exemption.

Here is the religious exemption issue in a nutshell:

  • The federal employment law of the land for the last half century, Title VII, prohibits employment discrimination on the basis of an employee’s race, color, national origin, sex, or religion. It provides that a “religious corporation, association, educational institution, or society” can discriminate on the basis of religion, but not on the basis of race, color, national origin or sex.
  • But the current version of ENDA would allow a “religious corporation, association, educational institution, or society” to discriminate on the basis of sexual orientation or gender identity — even though that employer cannot discriminate on the basis of race, color, national origin or sex.

What is the harm that might come from this broad religious exemption? A religiously affiliated hospital, social welfare agency or private school might feel free to refuse employment or fire a nurse, janitor or social worker because the person is lesbian, gay, bisexual or transgender.

So if you’re thinking that passage of ENDA will be a big step forward in banning LGBT discrimination in workplaces nationwide, you’re right. If you’re thinking that passage of this version is less than a full loaf, because it says that LGBT discrimination is not as bad as other types of discrimination that we don’t let employers get away with, you’re right too.

If you live in one of the states where one or both of your senators voted in favor of ENDA, call his or her office and say thank you. They went to the floor with the ENDA they had, not the ENDA we wish they had, and they voted for fairness. Next, since the battle now shifts to the House, call your representative and tell him or her both to support ENDA and improve it.

Read today's press release.