Op-ed: A Loophole for Discrimination

From The Advocate:  http://www.advocate.com/commentary/2013/11/19/op-ed-loophole-discrimination

Can religious exemptions still knock the wind out of ENDA’s sails?

BY Ian Thompson
November 19 2013

As is now well known, history was recently made in the U.S. Senate with the 64-32 vote to pass the Employment Non-Discrimination Act. In the hours leading up to this landmark moment for LGBT Americans, senators by a vote of 55-43 rightly rejected an attempt to expand ENDA’s religious exemption.  The amendment, proposed by Republican Patrick Toomey of Pennsylvania, would have created an entirely new rule that it isn’t a part of any other federal or state law barring workplace discrimination. It could have allowed even for-profit companies (your friendly neighborhood Chick-fil-A, for example) to discriminate against LGBT workers and applicants if the owners claimed the business was “affiliated” with a particular religion.

The bipartisan rejection of the Toomey Amendment was a critical victory against efforts to misuse religious liberty as a license to discriminate against LGBT people. However, before we engage in too much self-congratulation, it is important to remember that ENDA’s existing religious exemption remains cause for concern.

In an op-ed I wrote for The Advocate in May, I explained that ENDA’s religious exemption could provide religiously affiliated organizations — far beyond houses of worship — with a blank check to engage in employment discrimination against LGBT people. It would allow these organizations to discriminate on the basis of sexual orientation and gender identity under ENDA — in any job and for any reason. Right now these organizations are allowed to prefer people of their own faith so that the organizations can require those who carry out their work to share their faith. But the organizations are not allowed to discriminate based on sex, race, or national origin under existing law. So the ENDA exemption essentially says that anti-LGBT discrimination is different — more legitimate — than discrimination against individuals based on their race or sex.

Magnifying these concerns is the reality that some courts have, for example, said that religiously affiliated hospitals count as “religious organizations” that would be eligible for the exemption. The implications for LGBT workers at these hospitals are stark. A hospital often employs hundreds, if not thousands, of workers, and may be one of the largest employers in a particular city or town. Should ENDA exclude from its protections LGBT doctors, nurses, clerical staff, janitors, and cafeteria employees simply because they work at a hospital with a religious affiliation?

Continue reading at:  http://www.advocate.com/commentary/2013/11/19/op-ed-loophole-discrimination

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