By Julie Dabrowski | 63 Am. U. L. Rev. 1957 (2014)
The current state of protections for lesbian, gay, bisexual, and transgender (LGBT) employees in the workplace is far from adequate. Anywhere from 15–40% of gay and lesbian employees and nearly 90% of transgender employees have experienced discrimination or harassment at some point in their careers. Yet victims of discrimination based on sexual orientation or gender identity must navigate a patchwork of federal, state, and local laws and regulations that often provide insufficient or no protection for employees.
The Employment Non-Discrimination Act (ENDA) would remedy this inadequate regulatory scheme by creating a national standard of LGBT protection that prohibits employers from discriminating on the basis of sexual orientation and gender identity. ENDA would provide employees with recourse for their employers’ discriminatory decisions regarding hiring and firing or wages, as well as any workplace harassment or other discriminatory treatment regarding the terms and conditions of employment. An overwhelming majority of Americans support a federal law banning such discrimination, and ENDA has received bipartisan support in Congress.
Critics of the bill argue, however, that antidiscrimination laws infringe on First Amendment rights when unaccompanied by exemptions for faith-based organizations with religiously-grounded objections to the conduct the antidiscrimination laws seek to protect. These critics argue that under ENDA, religious organizations that object to homosexuality and transgenderism could be forced to employ individuals whose conduct is opposed to the organizations’ religious missions and beliefs. This criticism has led Congress to include a broad religious exemption allowing organizations that qualify as religious employers to discriminate against LGBT employees without regard to any of ENDA’s provisions.
This Note seeks to make sense of ENDA’s religious exemption, which is significantly broader than the religious exemption included in Title VII. It recommends narrowing the scope of ENDA’s exemption to provide more comprehensive protections to LGBT employees while simultaneously safeguarding employers’ First Amendment rights.