The bipartisan introduction of the Employment Non-Discrimination Act (ENDA) today reflects the strong national consensus that workers should be evaluated on their merits, not sexual orientation or gender identity. As organizations that have, for decades, challenged LGBT workplace discrimination in the courts and worked for passage of inclusive non-discrimination laws at the local, state, and federal level, our commitment to the passage of a robust ENDA remains absolute and resolute. The continued need for this legislation is clear and it is of vital importance to LGBT people across the country.
Despite the remarkable progress – cultural, political, and legal – that LGBT people have made in recent years, there are currently 34 states that lack workplace non-discrimination laws that are fully inclusive of LGBT people. This patchwork of protection continues to leave LGBT people vulnerable to workplace discrimination. We hear the stories every day from our clients and the tens of thousands of LGBT people who contact LGBT legal organizations like ours every year. In a country that values fairness and equal treatment under the law, we believe the current situation is unacceptable.
We greatly appreciate the efforts of Sens. Merkley (D-Ore.) and Kirk (R-Ill.) and Reps. Polis (D-Colo.) and Ros-Lehtinen (R-Fla.) in making a number of significant improvements to ENDA. These include removing language that would have reaffirmed the discriminatory and unconstitutional Defense of Marriage Act.
While we applaud the progress that has been made, we stand united in expressing very grave concerns with the religious exemption in ENDA. It could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people. Some courts have said that even hospitals and universities may be able to claim the exemption; thus, it is possible that a religiously affiliated hospital could fire a transgender doctor or a religiously affiliated university could terminate a gay groundskeeper. 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. This sweeping, unprecedented exemption undermines the core goal of ENDA by leaving too many jobs, and LGBT workers, outside the scope of its protections.
We are fully committed to continuing to work for the passage of ENDA and an appropriate exemption for religious organizations. We remain hopeful that our allies in Congress will agree that singling out LGBT people alone for this kind of unequal and unfair exemption to otherwise applicable non-discrimination laws has no place in this historic legislation.
American Civil Liberties Union
National Center for Lesbian Rights
Transgender Law Center