Proposed Expansion of Discrimination Protections
The proposed Employment Non-Discrimination Act adds gender identity and sexual orientation to the protected classes of race, religion, gender, national origin, age and disability. Currently only 16 states and D.C. have laws that prohibit discrimination based on sexual orientation and gender identity and federal employment discrimination laws do not recognize either. Passage of this bill will protect millions of Americans from unfair discrimination in the workplace.
However, Section 6: Exemption for Religious Organizations, ensures gender identity and sexual orientation based employment discrimination will still be protected. The Title VII exemption language referenced in this section exempted a “religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” This has been interpreted by the courts to include hospitals, universities, community centers and international relief organizations and does not require the employee’s position require performance of religious functions.
Millions of Employees Still Left Defenseless
Large employers with limited religious purposes can discriminate. Although religiously affiliated hospitals and schools have the primary secular purposes of healing and education, they are free to discriminate under this exemption. Religiously affiliated hospitals account for 13% of the total hospitals in the US with approximately 600,000 employees. The over 970 religiously affiliated colleges or universities in the US employ over 483,000 teachers. Millions of employees are not protected.
Employees in positions with no religious connection are still vulnerable. Courts have found this exemption to apply to any employment action by a religious organization no matter the type of employee affected. Courts have exempted employers even when their employees connection to religious activity was non-existent; a university softball coach (Ginsburg v. Concordia), a professor at a university (Killenger v. Samford University), a nurse (Kennedy v. St. Josephs Ministries) or a student event organizer (Hall v. Baptist Memorial Health Care Corp.).
Employers across the country are treated differently by federal law. Deciding whether an organization is covered by this exemption varies by jurisdiction, and is vague and ambiguous. Some jurisdictions use the vague balancing test of weighing the secular aspects of an organization against the religious aspects. Other jurisdictions rely upon a 9 factor test, judging such factors as whether it produces a secular product, whether the organization has a religious purpose and whether the organizations holds itself out to the public as religious (LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n). Other jurisdictions simply evaluate organizations on a case by case basis (Killenger v. Samford University). This produces arbitrary and sometimes conflicting results, and provides an exemption to discriminate based on religious beliefs to a wide range of organizations with attenuated religious connections.
Discrimination is Never Justified
No other class loses its protections to religious discrimination. Title VII does not allow religious organizations to discriminate on the basis of race, gender, national origin, sex, age, or disability, even if they have a sincere religious belief in the discriminatory action. A religious organization is not permitted to deny benefits to married women but not to married men by asserting a religious based view that only men can be the head of a household. By exempting these organizations from this legislation, we are going back on this principal and declaring religion is a valid reason to be racist, sexist, or discriminate against others.
The original Title VII exemption protects preferential treatment, not defending mistreatment. Title VII exemptions allow religious organizations to give employment preference to members of their own religion. A similar exemption in this legislation be would allowing organizations that serve only the LGBT community to give preference in hiring to LGBT applicants.
This exemption frustrates the intended purpose of the bill. Exempting so many organizations, many which have a long track record of discrimination against the LGBT community, undermines the purpose of the Employment Non-Discrimination Act “to address the history and persistent, widespread pattern of discrimination on the bases of sexual orientation and gender identity.” This exemption not only allows the discrimination to continue, but validates hate.
Religious Liberty Rights Are Protected Without Exemption
No exemption is needed, as the First Amendment adequately addresses religious liberty concerns. The “ministerial exception” bars employees that perform religious functions from bringing claims under Title VII. Based in the First Amendment principle protecting church administration from government entanglement, the exception protects the religious freedom of organizations in hiring and firing employees with religious functions. Not limited to ordained clergy, it has most recently been applied to teachers at parochial schools for whom occasionally conducting worship is a duty.
No religious organizations will be forced to violate their religious tenets. Religious organizations may give preferential treatment in hiring and firing to members of their religious community. If an applicant or employee is not an acting member of the religious community living by the religion’s tenants, they are not entitled to receive any preferential treatment. If the employee performs religious functions, they may be fired at will under the “ministerial exception.”
The Constitution does not require laws to accommodate religiously motivated hate. The First Amendment’s Free Exercise Clause has never stood for the principal that religious belief trumps all other laws. As Justice Scalia wrote “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Limited government regulation of religious organization employment is not a substantial burden on religious freedom. Regulating the employment of religious organizations is not a new endeavor. Minimum wage laws, required background checks, and child labor laws all apply to religious organizations.