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In bill to prohibit workplace bias, broad exemption holds danger

Tuesday, December 17, 2013
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Rein in the exemption in the federal Employment Non-Discrimination Act, known as ENDA. Do not allow the shield of religious liberty to be warped into a sword of discrimination!

That’s my message for all friends of civil rights and reproductive justice in Congress. Leaders of both causes took heart last month from passage by the U.S. Senate of ENDA, the landmark bill to outlaw discrimination on the basis of sexual orientation and gender identity in most workplaces.

endaBut unless the language of ENDA’s religious exemption strikes a better balance to reflect the true meaning of religious liberty, core American principles and millions of American working men and women have a great deal at risk.

It will take grassroots pressure and pushing by equality-minded advocates and policy-makers to make that balance happen. Who’s pushing the other way?

Some religious potentates who oppose women’s right to control their fertility and their pregnancies also oppose anti-bias laws. They claim religious principle allows them to discriminate freely. But no federal law, least of all one intended to stop bias on the job, should allow them to have it both ways.

Here’s why the exemption matters so much. The organization I lead, the Religious Coalition for Reproductive Choice, works at the intersection of faith and fairness in a free society. The ENDA language goes way beyond prior exemptions from other civil rights standards, including the landmark 1964 law.

It also upsets the balance struck by the federal Affordable Care Act and its guarantee of coverage to American women workers for medically approved contraceptives.

In addition to moving those goalposts, the ENDA language misshapes religious liberty from a protection for individuals’ free exercise of their faith into a tool for effectuating prejudice against other disfavored people.

It gets worse. The ENDA language goes a giant leap too far in allowing whole new categories of employers, such as large hospitals or healthcare providers, to claim religious grounds for creating whole categories of jobs from which they can bar or bounce workers they know or presume to be lesbian, gay, bisexual, or transgender.

This is, to put it mildly, a real and repugnant outcome from that language.

We support the first two parts of the ENDA exemption, one for houses of worship (which uses the same language as Title VII of the Civil Rights Act of 1964) and another for people in so-called “ministerial” positions, where religion is crucial to their work and public role.

We DO NOT support the third piece of the exemption, which would allow a broad range of religious-affiliated organizations to create different classes of jobs through a process that’s not even subject to judicial review and then codify hiring and firing rules that enshrine discrimination.

No exemption should allow nonprofit institutions like large hospitals, which receive billions in public money, to become a breeding ground for bias without recourse for workers.

By choosing to serve the general public and employ the general public, and especially when organizations are nonprofits and receive public dollars yet don’t pay taxes, they don’t also get the right to discriminate. They can’t have it both ways.

As Abraham Lincoln wrote in 1859, just before becoming president and leading our democracy through the war to reunite the nation, “Those who deny freedom to others deserve it not for themselves.”

Liberty under our set of laws is a reciprocal deal. Believing in religious liberty means that we defend people’s right to practice their religion according to their own religious beliefs, whether or not we agree with them.

We do not give them license to act out prejudice on others and create wide berths in our workforce for them to do so with impunity. ENDA should not go down that path.

I have faith that justice-driven heads, hands, hearts, and voices – working together – can get this exemption language back on track.

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