The legal landscape for LGBT people today is quickly changing and hard to predict, but the trend over the last few years has been overwhelmingly positive—from the U.S. Supreme Court decision overturning the federal Defense of Marriage Act and California’s Proposition 8 being ruled unconstitutional, to the growing legion of states that have come to recognize same-sex marriage either by legislation or litigation. However, the work is far from done and marriage equality is only one front of the war—and potentially not even the most important.
What is truly at the center of the LGBT human-rights movement is the effort to advance state and federal legislation protecting people from workplace discrimination on the basis of sexual orientation or gender identity. The effort has crystallized around the Employment Non-Discrimination Act (ENDA), which has been introduced in every session of Congress since 1994 except one. If, after 20 years of congressional limbo, it’s signed into law, ENDA would bar employers from firing or not hiring someone because of their “actual or perceived sexual orientation or gender identity.”
ENDA’s repeated failure over a 19-year history to clear the hurdles of the legislative process belies its remarkably broad support in the American populace. According to the American Civil Liberties Union, close to 75 percent of all Americans support the idea that workplace discrimination against LGBT people should be illegal. Even more strikingly, nine out of 10 Americans believe that workplace discrimination laws for LGBT people already exist. Perception is not reality in this case—both federally and in most states in the United States. The reality is that in a majority of states (29, at last count), you can be fired for being LGB, and you can be fired for being T (transgender) in 33. Obviously, it is very important to address the ongoing problem presented by the rest of the jurisdictions, including Pennsylvania, which turn a blind eye to discrimination based on sexual orientation and gender identity.
Despite the general support for workplace equality in the American electorate, a smaller, but extremely outspoken, group is vehemently opposed to ENDA. Most of these objections come from the religious right, which has been vigorously opposing LGBT rights for decades. Most of their arguments are founded on homophobia and fear rather than legal reasoning or policy rationale. Thankfully, U.S. Supreme Court decisions in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), have since prohibited laws based on a simple dislike for a particular sexual orientation as an adequate justification for public policy. As such, opponents to ENDA have turned to other pretexts for objecting to the bill, such as the dreaded “opening the floodgates” effect on employment litigation. Yet, one needs only to look at the effects of the most recent major piece of federal civil rights legislation: the Americans with Disability Act of 1990. The ADA has certainly resulted in some litigation, but it has not resulted in the crushing burden on public accommodations that its critics feared. With ENDA, the argument that it will stifle small businesses’ hiring freedom is moot, because as it is currently written, ENDA would exempt businesses of fewer than 15 employees from its coverage.
Another focal point of resistance to ENDA is its effect on religious institutions. As a result of fears over religious institutions being forced to hire people of whose lifestyle they disapprove, the bill includes an exemption for religious institutions. The exemption consists of three parts: houses of worship and parochial schools, positions that involve teaching or transmitting religious doctrine, and religious organizations (broadest of all), which would require their employees to adhere to a certain code of religiously inspired conduct. This would allow a broad class of employers to discriminate against people because of their “actual or perceived sexual orientation or gender identity,” including administrators and teachers at religiously affiliated schools, and all employees of religiously affiliated hospitals. All of the major federal civil-rights laws of the 20th century (including Title VII of the Civil Rights Act of 1964 and Title III of the Americans with Disabilities Act of 1990) have contained an exemption for houses of worship, but ENDA’s broad proposed exemption for all sorts of other “religious organizations” like hospitals and schools would go much farther than either of those. The “religious exemptions” turn this legal mandate into merely a policy recommendation, essentially turning ENDA into SPLENDA.
Some on the religious right feel as if this hole isn’t wide enough. They object on the grounds that private, for-profit employers that are not formally associated with any church or other religious group will be subject to the law even if the owners or some of the employees hold strong religious convictions against LGBT people. Several major companies have been in the news lately for just this sort of corporate conviction. Chick-fil-A caused outrage when it condemned marriage equality on religious grounds, and Hobby Lobby has been involved in the high-profile fight against the contraceptive coverage mandate in the Affordable Care Act. Numerous conservative critics have voiced concerns that ENDA would force employers to “reward” workers based on their sexual orientation or gender identity, but this is a straw man and disturbingly inaccurate: ENDA would simply prevent employers from firing employees or not hiring them in the first place only because they are LGBT. They could still fire them for being incompetent or otherwise unfit, and the burden would be on the employee to show discrimination. If any private company with an honestly held “religious conviction” against LGBT rights could hire or fire people based on their sexual orientation or gender identity, ENDA would be totally useless. After all, how could a court tell if a “religious conviction” is genuine or honestly held?
A future with ENDA is not actually that mysterious. We can tell how the law might be applied because courts have grappled with these issues in other contexts and under other anti-discrimination laws. For example, in Prowel v. Wise Business Forms, 579 F. 3d 285 (2009), the U.S. Court of Appeals for the Third Circuit held that discrimination based on failure to conform to gender norms was illegal under Title VII of the Civil Rights Act of 1964 in a case involving a gay man who described himself as effeminate and who was harassed at work because of it. He couldn’t bring a claim that he was harassed because he was gay (which is not covered under Title VII), but with legal maneuvering, he could bring a claim on the grounds that he was harassed because he didn’t conform to preexisting gender stereotypes. The Equal Employment Opportunity Commission also found in the 2012 proceeding of Macy v. Holder, Appeal No. 0120120821 (EEOC Apr. 20 2012), that Title VII applies to employers that fire or fail to hire on the grounds of gender identity or because of an intent to marry a person of the same sex. These cases show promise in the fight against workplace discrimination, but they also highlight the fact that a comprehensive law is needed to fill the gaps and fix the inconsistencies. LGBT rights attorneys have made significant progress within the bounds of the existing law, but shouldn’t have to spend their time grasping at straws under Title VII. By passing comprehensive anti-discrimination legislation, Congress can free up LGBT activists and lawyers to move on to the next equality challenge.
There are those who feel that between the religious exemption, the exemption for small businesses, and other concessions written into ENDA, there is no point in pursuing this version of the act, despite the best of intentions behind it. They fear that by passing ENDA, Congress will make it harder for future efforts to fight gender identity and sexual orientation-based discrimination to gain traction. Hopefully, that won’t be the case and the LGBT community will get the same opportunities and rights as their heterosexual peers in any workplace, since apparently now life, liberty and the pursuit of happiness don’t count if you’re working somewhere with under 15 employees with a code of religiously inspired conduct.
The unfortunate truth is, with discriminatory loopholes and gender identity on the chopping block as the bill moves forward to the Republican-dominated House, we will likely see a version of ENDA passed that is even more akin to SPLENDA, an artificial version of the bill meant to satisfy the sweet tooth of supporters but lacking real substance. This is one of those times where I hope I’m wrong and that a robust ENDA is passed. The time is ripe for change and the American public knows it.
Read more: http://www.thelegalintelligencer.com/id=1202650919175/Protecting-the-Rights-of-LGBT-People-in-the-Workplace#ixzz2z5Er80bW