The Employment Non-Discrimination Act (“ENDA”) is proposed legislation that would prohibit most employers from discriminating on the basis of actual or perceived sexual orientation or gender identity. The Senate passed the bill in November, but the proposal is currently languishing in the House.
President Obama supports ENDA. Recently, though, LGBT activists have criticized him for not pushing the proposed legislation harder and for not creating an executive order that would create ENDA-like protections for employees of federal contractors.
Republican lawmakers, though, are the ones who will ultimately rue not enacting ENDA while they have the chance. Here’s why….
The LBGT community called for ENDA because Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, sex, religion, national origin, age, and disability, does not mention sexual orientation. Historically, courts have refused to recognize claims by gays and lesbians under Title VII as a form of sex discrimination. A thin line of cases holds that some claims by gays and lesbians might count as impermissible “sex-stereotyping,” but these cases have been limited to scenarios in which the employee was targeted because of an appearance or demeanor that didn’t conform with traditional gender roles, not necessarily because of her sexual orientation.
Not so now.
On March 31, U.S. District Judge Colleen Kollar-Kotelly in D.C. ruled that Peter Terveer could move forward with his claim under Title VII. Terveer, who is gay, is suing his employer because of alleged mistreatment by John Mech, his former supervisor. Apparently, Mech was initially rather keen on Terveer, even inviting him to join Mech’s family on social outings, possibly in an attempt to set up Terveer with Mech’s single daughter, Katie. Alas, social media snitched: Katie noticed on Facebook that Terveer “liked” a page for same-sex parents. Katie allegedly posted a comment that read, “Don’t tell me you’re weird like that.” When word got back to the elder Mech, he sent Terveer an email mentioning his daughter, attaching a picture of assault rifles with the caption “Diversity: Let’s Celebrate It.” According to Terveer, this began a pattern of hostility from Mech, including repeated lectures about the sinfulness of homosexuality.
Terveer’s employer moved to dismiss his Title VII sex discrimination claims because he was not the apparent victim of sex-stereotyping. Mech did not mistreat Terveer because Terveer acted or appeared effeminate. (After all, he thought he was straight enough to try to hook him up with his daughter.) Judge Kollar-Kotelly denied the employer’s motion. She agreed with Terveer that simply being a homosexual male was enough to challenge Mech’s stereotypes about being male and, thus, could lead to a cognizable Title VII claim.
This single ruling may prefigure a wider move toward expanding the application of Title VII to cover workplace discrimination based on sexual orientation, even without the passage of ENDA. What does this mean for conservative Congress members who have balked at passing the anti-discrimination legislation?
ENDA differs from Title VII in several critical ways. Most notably, ENDA expressly exempts religious employers from its provisions.
Title VII only allows religious employers to discriminate based on religion. Title VII permits religious employers to favor their co-religionists in employment decisions. Under Title VII, employers still cannot discriminate based on race or any other prohibited criteria, even if they insist that religious beliefs motivate the discrimination. Title VII cannot protect a church that says that God told them not to hire black people.
On the other hand, any religious entity that is currently exempt from Title VII’s prohibition on employment discrimination based on religion is entirely exempt from ENDA. ENDA can protect a church that says that God told them not to hire gay people.
Republican Congress members should think twice about refusing to enact legislation that would provide ENDA’s key protection of religious freedom. If they fail to do so, and the push to expand the scope of Title VII in the courts continues, no such protection will exist.
Of course, there are good reasons to oppose ENDA and, indeed, most anti-discrimination laws. They impair free association rights of private actors. Their enforcement bloats the government further. Libertarians should bristle at more legislation, especially of the sort that potentially interferes with important basic freedoms.
ENDA is a undoubtedly a compromise for minimal-state purists, but it is one that House Republicans ought to make.
What about social conservatives who resist employment protections for gay people simply because they don’t think that America should condone LGBT lifestyles? Frankly, those conservatives need to face that they will eventually, inevitably lose that battle in the public forum. Those social conservatives can continue to clutch their sincerely held beliefs, but most Americans will not — and do not — agree. Ninety-four percent of Fortune 100 companies and 87 percent of Fortune 500 companies already have their own policies that prohibit discrimination based on sexual orientation. Twenty-one states and the District of Columbia currently outlaw employment discrimination based on sexual orientation. Sixteen prohibit discrimination based on gender identity. Whether one likes it or not, these figures will likely grow.
Even many social conservatives who oppose same-sex marriage need not object to anti-discrimination laws like ENDA. One can reasonably argue that marriage ought to be defined as a particular sort of relationship between one man and one woman, while also arguing that we won’t accept bosses antagonizing gay workers simply for being gay. After all, many social conservatives who believe that heterosexual sex outside of marriage is also immoral don’t think it’s fair for a boss to discriminate against a straight employee who spends the night at his girlfriend’s house. They may disapprove of the behavior, but they concede that these sorts of choices shouldn’t influence what happens in the workplace. Treating people fairly in employment practices simply does not cut to the heart of even conservative Christian theology in the way that defining marriage does.
For those of us who think that same-sex marriage is a good policy for voters to choose to adopt, but don’t think that gays and lesbians qualify as a constitutionally protected class under existing Equal Protection analysis, ENDA works well. This is legislation, not a creeping re-interpretation of constitutional text.
Better to legislate than let courts decide. Congress can either legislate from the halls of the Capitol, or they can remain idle and let judges legislate from the bench. If members of Congress do their jobs, then their constituents will have the benefit of ENDA’s religious exemptions. If instead courts are left to expand application of Title VII to fit our culture’s evolving notions of how to treat LGBT employees, then religious freedom will end up less protected. Smart conservatives will take the better deal while they still can.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at email@example.com