ENDA: Now, it’s all about religion

Opposition to ENDA –the Employment Non-Discrimination Act– was all about the bathrooms in the last Congressional session. This time around, it’s about religion.
National Religious Broadcasters Association spokesman Craig Parshall told the Senate Committee on Health, Education, Labor & Pensions Tuesday (June 12) that ENDA would impose a “chilling effect” on religious organizations that would be monumental. He said ENDA poses a “substantial unconstitutional burden” on religious organizations that would “interfere with their ability to pursue their missions.”
Parshall was the only one of five witnesses at the hearing to testify against ENDA. He said the language of the bill would prohibit a religious employer from firing an employee who did not share the organization’s religious tenets. The employee, said Parshal, could sue under ENDA and claim he or she was fired, instead, for being gay or transgender.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on race, color, religion, sex, and national origin. It exempts “religious organizations” and “religious educational institutions” from the mandate concerning religion, enabling such organizations to give preference to employees who share their religion. But it doesn’t allow religious organizations to discriminate against employees based on race, sex, or the other covered categories and claim that as religiously-based.
Parshall claimed that ENDA Section 6, concerning “Exemption for Religious Organizations,” would create “huge problems” for courts by failing to provide a “clear” definition of who gets the exemption and in what circumstances.
Section 6 is a one-sentence paragraph stating: “This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964….”
Samuel Bagenstos, a professor of law at the University of Michigan, took issue with Parshal’s complaint, saying that the religious exemption is quite broad—so much so the ACLU has objected to the language.
“Once [courts] decide that this is a religious corporation, a religious association, educational institution, or society, for example, that’s the end of the matter. That institution gets an exemption under ENDA,” said Bagenstos.
Bagenstos also emphasized the need for ENDA, noting that while some courts have ruled that discrimination based on sex stereotypes is considered prohibited by Title 7, courts have not extended that to discrimination based on sexual orientation or gender identity.
“There is a need for a comprehensive, clear federal standard that applies across the country,” said Bagenstos.
Senator Tom Harkin, the Democrat chair of the committee, held his tongue until the very end of the 90-minute hearing, then made clear what he thought about Parshal’s claim:
“I want to be as protective as anyone of religious liberty in this country,” said Harkin, “but I’d also remind people that, in 1964, when we passed the Civil Rights Act, arguments were made that this would violate the religious liberty of employers— to ban discrimination on the basis of race. So we’ve been through this before.”
“This [discrimination] has no place in our society,” said Harkin.
Harkin noted that Tuesday’s hearing marked the first time that a transgender witness testified before the Senate. Kylar Broadus, founder of Trans People of Color Coalition, from Missouri, told lawmakers his personal story. He noted that his driver’s license indicated he was a female, but was thrown out of women’s bathrooms because of his male appearance. When he chose to begin living as “the real me,” he was harassed by his employer who refused to allow him to dress as a man.
ENDA, he said, would go a long way to protect people who suffer employment discrimination based on gender identity.
Other witnesses included M.V. Badgett, a demographic researcher at the Williams Institute for Sexual Orientation Law and Public Policy; and Ken Charles, vice president of diversity and inclusion of the General Mills Corporation.
U.S. Senator Jeff Merkley (D-Ore.) introduced ENDA in the current session of the Senate (S.811) and Rep. Barney Frank introduced it to the House (H.R. 1397). While the legislation got hearings in both chambers during the last Congressional session, it did not get a committee vote in either. That is the likely fate of the legislation again this Congressional session, as Republicans continue to hold the majority in the House.
The Senate bill this session currently has 41 co-sponsors, including Illinois senators Dick Durbin, a Democrat, and Mark Kirk, a Republican; California senators Dianne Feinstein and Barbara Boxer, both Democrats; Michigan senators Carl Levin and Debbie Stabenow, both Democrats; Massachusetts Senator John Kerry, a Democrat; Pennsylvania Senator Bob Casey, a Democrat; and Ohio Senator Sherrod Brown, a Democrat.

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