Written by Don Byrd
The Employment Non-Discrimination Act (ENDA) would prohibit hiring and firing discrimination based on sexual orientation and gender identity. In a Senate Committee hearing yesterday, concerns were raised that the ban would limit religious freedom by stopping religious employers from hiring in accordance with religious beliefs.
But is that true?
A report issued by the Center for American Progress argues the measure provides sufficient religious exemptions. It not only incorporates the exemption language of Title VII of the Civil Rights Act, the report claims, it goes even further in protecting religious organizations.
ENDA’s religious exemption allows religious organizations to also take into account an individual’s sexual orientation or gender identity. In other words ENDA gives religious organizations a legal right to discriminate on the basis of sexual orientation and gender identity.
By contrast, Title VII does not permit religious organizations to discriminate on the basis of an individual’s race, color, sex, or national origin. . . . [U]nder Title VII a Lutheran school can hire or fire a teacher for being a Mormon, but not for being a woman or for being Asian American. If ENDA passed, a Lutheran school would also be able to fire or not hire a teacher for being gay or transgender, but would still not be able to do so for being a woman or for being Asian American. In this way ENDA’s religious exemption is broader than that found in Title VII.
(Of course, Title VII does permit religious organizations to discriminate on the basis of race, color, sex or national origin, when the position in question is deemed ministerial in nature. And, as we saw in the Supreme Court’s Hosanna-Tabor ruling earlier this year, that “ministerial exception” is broadly interpreted, avoiding judicial entanglement in religious affairs.)
As a result, ENDA would presumably have no impact on religious organizations. And the ministerial exemption would not even be needed to protect discrimination based on sexual identity or gender for ministerial positions. Religious organizations are allowed to discriminate on those terms for every position.
So, what about religious owners of secular businesses? They would not be exempt from ENDA’s non-discrimination provisions. The Center for American Progress offers this helpful explanation.
A Christian owner of an otherwise secular business, for example, does not have an exemption under ENDA, meaning that he or she would not be able to fire an employee who is gay or transgender. This same business owner could also not fire someone for his or her religious beliefs, per Title VII.
Is that protection enough? Or is discrimination in employment based upon the employer’s religious beliefs central to free exercise?
