On the eve of America’s 2013 state and local elections, the Senate is looking to capitalize on growing support for LGBT equality by passing the Employment Non-Discrimination Act (ENDA). Over 60 Senators, the number required to avoid filibuster, voted to pass ENDA, breathing life into a bill that has major positive implications for LGBT Americans. As the name might suggest, ENDA bans workplace discrimination based on sexual orientation and gender identity and is modeled closely after the non-discrimination portions of Title VII and the Civil Rights Act of 1964.
If ENDA successfully passes through the House too, this passage would mark the largest federal legislative victory for LGBT advocates since the repeal of Don’t Ask Don’t Tell (DADT) in 2010. The repeal of DADT invalidated the policy presented during President Clinton’s term that openly gay and lesbian individuals could not serve in the military.
While ENDA’s passage would bring unprecedented federal endorsement of equality and protections to LGBT citizens, there are two significant issues presented by the bill. First, unlike employment non-discrimination legislation based on race, gender, ethnicity, or age ENDA has a broad exemption for small businesses with less than 15 employees and for religious employers. Under this exemption, Churches and other houses of worships are allowed to consider sexual orientation as a basis for employment decisions. Religiously affiliated organizations, like charities or hospitals, are also eligible for this exemption. Proponents of the religious exemption frame the debate in terms of preservation of free speech and freedom of religion for these employers. American Civil Liberties Union lobbyist, Ian Thompson said of the exemption, “We think this is a very dangerous road to go down.” Considering a decision by the D.C. District Court on November 1, 2013 upholding a challenge to mandatory birth control coverage by religious employers, such apprehension is not without reason.
Second, ENDA will have a very rough road ahead of it if it is to pass through the House. Bi-partisan support in the Senate has been a welcome relief in the weeks following the government shutdown. However, the republican controlled House of Representatives, the very culprits responsible for said shutdown, is filled with a majority not in support of ENDA. Speaker of the House, John Boehner’s spokesman Michael Steel said of ENDA, “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.” This “frivolous litigation” is the only legal recourse some LGBT individuals have left as a mechanism for fighting capricious employment discrimination in states without equal rights laws.
Pennsylvania is one of those states, where LGBT individuals are not protected equally under state law from employment discrimination. Gov. Corbett (R) and the State Legislature have prevented employment non-discrimination law from passing, making Pennsylvania a state with some of the lowest standards in terms of protection for its LGBT citizens. Twenty one states ban sexual orientation discrimination by statute, or state law: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
For LGBT citizens of the other twenty nine states, ENDA would expand the protection of federal law to these much needed areas.
President Obama wrote of this state-to-state discrepancy: “Right now, in 2013, in many states a person can be fired simply for being lesbian, gay, bisexual, or transgender. It’s offensive. It’s wrong. And it needs to stop, because in the United States of America, who you are and who you love should never be a fire-able offense.”
Amen, Mr. President.