LGBT groups warn of shortcomings as ENDA reintroduced

Today’s reintroduction of the Employment Non-Discrimination Act (ENDA) in the Senate and House of Representatives has largely been greeted with cheers, but some are expressing “grave concerns” over language they say would allow rampant workplace discrimination.

US Capitol.JPGIn a statement released today, the American Civil Liberties Union, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center criticized the bill’s religious exemption, as introduced.

“It could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people,” the groups argue. 

The religious exemption, which takes into account beliefs that may prevent a religious organization from hiring someone due to their sexual orientation or gender identity, has long been a sticking point for opponents of ENDA. But while conservative ENDA opponents have argued the religious exemption does not go far enough in previous versions of ENDA, today’s criticism shows some supporters of ENDA believe it now goes too far.

“It gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual’s race, sex, national origin, age, or disability,” the four progressive organizations wrote, adding that the exemption could, for example, allow hospitals and universities with any religious affiliation to discriminate.

“This sweeping, unprecedented exemption undermines the core goal of ENDA by leaving too many jobs, and LGBT workers, outside the scope of its protections,” the statement reads.

Although the four organizations state they are fully committed to ENDA’s passage, the quick criticism of ENDA’s language the day of its introduction signals a front that is not completely unified behind all aspects of the bill as it stands now. Like most major pieces of legislation, ENDA is expected to undergo an extensive markup process in committee.

There are also concerns regarding an apparent loophole created by the Supreme Court’s 2009 ruling in Gross v. FBL Financial, which increased the standard of proof for cases of age discrimination beyond the standard for discrimination based on race, sex, national origin and religion. Were the current version of ENDA to become law, cases of LGBT discrimination would also face a higher standard of proof unless a fix is written into the bill. 

“If the legal loophole created by the case Gross v. FBL Financial does not get fixed before ENDA becomes law, there will be gay and transgender victims of discrimination with worthy cases who are denied justice because of the unequal standard created by the conservative activists on the Supreme Court,” said Tico Almeida, president of Freedom to Work. “Gay and transgender plaintiffs deserve to have the same standard of proof applied to their cases as individuals who bring racial or religious discrimination claims under Title VII of the Civil Rights Act.”

Notably, Sen. Jeff Merkley (D-Ore.), lead sponsor of ENDA in the Senate, and Sen. Tom Harkin (D-Iowa), an ENDA supporter who chairs the committee overseeing the legislation, both sponsored legislation in 2012 to fix the issues created by the Supreme Court’s decision in cases of age discrimination.

Earlier this week, Merkley told Metro Weekly that various concerns about the bill, as introduced, would likely be addressed in the coming months during the committee-markup process.

Read the Senate version of ENDA here:

Employment Non-Discrimination Act 2013

Justin Snow is Metro Weekly's political editor and White House correspondent. He can be reached at jsnow@metroweekly.com.

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