Sen. Tammy Baldwin (D-Wis.) addressed reporters following
the vote on cloture on the Employment Non-Discrimination
Act in the U.S. Senate. (Washington Blade photo by Michael Key)
On Monday, the Employment Non-Discrimination Act passed a Senate cloture vote. This bill has been floating around Congress for decades, and needs to be passed — workplace discrimination based on sexual orientation or gender identity remains one of the biggest hurdles that LGBT Americans face, and nearly 90 percent of the American public supports workplace equality.
However, there are fundamental problems with this version of the bill that give us pause. Though LGBT workers desperately need workplace protections, the current version of ENDA includes broader religious carve-outs than have ever been granted in civil rights legislation, allowing opponents of full LGBT equality a powerful tool to discriminate in ways they have never been allowed before with any other protected class of Americans.
We agree that religious institutions should continue to be afforded the same exemptions they have had since the 1964 Civil Rights Act — but creating special rights for religious institutions to discriminate more broadly against LGBT Americans than against others is simply un-American. In the past, employers like hospitals and universities were required to have a religious reason to deny someone a job, i.e. there might be a religious requirement to be a hospital chaplain. Those exemptions were sensible in order to preserve religious liberty.
This version of ENDA, however, creates such broad religious exemptions that even a nurse at a Catholic hospital or a secretary at a Baptist university would be subject to discrimination for no other reason than being LGBT.
Imagine if we allowed that type of exemption for other protected classes from the Civil Rights Act. Would it be acceptable to fire a janitor at a Catholic hospital just because he was Jewish? Would we allow a Baptist university to deny a woman a job solely because of her gender? Given that religiously affiliated institutions are often the largest employer in many towns across the country, these special discriminatory rights will leave behind all of those non-clergy employees who are currently forced to live in the closet in order to take care of themselves and their families.
The legislative process is always a matter of compromise — but our core values should never be up for negotiation. And these special rights to discriminate will set a negative precedent for future work on LGBT equality, potentially creating questions around sheltering homeless LGBT youth or marriage equality.
Earlier this month, Tippi McCullough was fired after 15 years of outstanding teaching at Mount St. Mary Academy, a Catholic school in Arkansas. Was it because the quality of her work had dropped? No. The leadership of the school said that because she was a lesbian and chose to marry her partner in a civil marriage ceremony, she had been terminated. With such broad religious exemptions in the latest ENDA proposal, Tippi and thousands of other LGBT Americans will have to choose between marrying the person they love, or staying in the closet in order to keep their job.
We believe that legislation ending LGBT workplace discrimination should pass the Senate and the House and be signed into law by the president. And we certainly won’t stand in the way of this bill moving through the Senate because we know that, if passed by the House, it could offer much-needed protections to millions of LGBT workers. However, we believe there is still time to work with and educate those legislators who are still evolving as to why LGBT Americans deserve the same protections granted to others under the 1964 Civil Rights Act — no more, no less. In that spirit, we cannot stand by silently as this bill compromises our ability to gain full workplace equality for LGBT Americans.
Brian Silva is executive director of Marriage Equality USA. Heather Cronk is co-director of GetEQUAL.
