8 Thoughts on Employment Non-Discrimination Legislation

Over the past couple of weeks, several readers have asked us about our thoughts on the proposed Employment Non-Discrimination Act, the fact that some religiously affiliated organizations are seeking exemptions, and the recent withdrawal of support from some groups on the left. Other LGBT Christian bloggers have been touching on this subject recently, so we thought we would add our voice to the discussion. We’ve mentioned before that we really don’t enjoy politics, and we’re both boringly moderate, leaning slightly left or slightly right depending upon the issue. Because of this, we’ve decided to approach the topic by listing a few random thoughts on employment non-discrimination legislation and the varied ways we’ve observed friends and acquaintances reacting to news about the ENDA. Here they are, in no particular order:

Both celibate and non-celibate LGBT people face discrimination in hiring and in the workplace. As you can read more about in this post, Lindsey has had firsthand experience with workplace discrimination. This has occurred despite the fact that Lindsey has never had a job where Lindsey has even felt safe to mention Sarah, and it happened at one job years before the two of us had ever met. We’ve also heard about experiences of discrimination that celibate LGBT friends of ours have experienced at their jobs. Because of this, it would be hard to convince us that most religiously affiliated organizations would hire any LGBT person living a traditional sexual ethic and are only concerned about being forced to hire non-celibate LGBT people.

Religiously affiliated employers can elect not to receive federal funding. If the ENDA were to pass and there were no/few provisions for religious exemption, any religiously affiliated organization that did not want to hire LGBT people could elect to stop receiving federal funds in order to be able to continue their current hiring practices. We’re not saying this would be easy, ideal, or even possible in all cases. Some religiously affiliated employers would no longer be able to keep their doors open without the money they currently receive from the government. But it’s incorrect to say that passing the ENDA would mean all these organizations would be banned from existing if they failed to adopt the new regulations. It’s also incorrect to suggest that these employers are being threatened with criminal charges.

Bullying and other forms of discrimination are difficult to address if sexual orientation and gender identity are not protected categories. Both of us have experienced tension within workplaces where the company non-discrimination statement fails to include sexual orientation and gender identity. In these kinds of workplaces, reporting derogatory statements and gay/trans jokes or even confronting a coworker personally about hurtful remarks and actions means outing oneself. It means making oneself even more of a potential target for harassment, and sometimes risking one’s job. We think it’s absurd that an attempt to make one’s workplace safer could result in becoming unemployed. We also find it unreasonable to expect that workplace discrimination will lessen over time if some kind of non-discrimination legislation isn’t passed.

We’re very uncomfortable with the idea that employers should be free to pry into the personal lives of their employees and potential hires. Many LGBT people never mention their sexual orientations/gender identities to employers or prospective employers. As mentioned above, Lindsey has never worked in an environment where it has felt comfortable to mention Sarah. Sarah is also extremely guarded about mentioning Lindsey to anyone at work. The only way a person at our jobs who is not a friend would learn about our LGBT status is to ask us about it directly. We wonder why some employers would consider very private matters like one’s sexual activity or lack thereof indicative of one’s ability to do well in a job…unless of course the job has something to do with sex.

But at the same time, some organizations do have narrowly-defined missions and mandates. Some religiously affiliated organizations feel strongly that all their employees should follow a core set of behavioral standards because they represent their employers publicly and their employers represent the associated religions publicly. Many religious organizations want to be able to hire selectively from a pool of candidates who are part of a certain religion or are at least willing to sign a statement of commitment to upholding certain values. It doesn’t make sense to expect an employer to hire someone whose values do not align with those of the organization. Both of us have worked for religious employers who have required that we sign values statements. It makes sense to us that if this is an expectation for being hired and the potential hire disagrees with the content of such a document, the employer should not have to hire that person. This has nothing to do with one’s sexual orientation or gender identity.

Freedom of religion is a right guaranteed by the First Amendment of the U.S. Constitution. One assertion we hear often is that religious organizations and religiously affiliated employers should “catch up with the times.” According to this claim, if a religiously affiliated employer’s values do not coincide with particular values of secular society, the government should be able to impose restrictions upon that employer so its religious values will not be forced upon others. But this argument places artificial boundaries upon the constitutional right to freedom of religion. This is a complicated issue because the right to freedom of religion naturally fosters a pluralistic society in which deeply held beliefs will collide with one another. When organizations have explicit religious tenets at the core of their missions and a piece of legislation could potentially threaten their ability to carry out those missions, concerns about this should be taken seriously and not automatically dismissed as attempts to force one religion’s values upon society as a whole.

Federal non-discrimination legislation is not a cure-all for LGBT discrimination, bullying, and harassment in the workplace and in the hiring process. As much as we believe that there is a need for legislation to make sexual orientation and gender identity protected categories nationwide, we realize that if the ENDA eventually passes, it will not solve the larger problem entirely. It’s likely that there will always be employers who do not want to hire LGBT people or do not want to keep them on staff once they have been hired. The same is true for other protected categories such as sex, race, religion, and national origin. Non-discrimination legislation isn’t going to stop all employers from discriminating — many will just adopt more indirect ways of doing it that can’t be proven in a court of law. This doesn’t mean the ENDA would be useless, but it does mean that the problem of LGBT workplace and hiring discrimination needs to be addressed in other ways as well.

In general, there’s a glaring need for better conversation about this topic and all its intricate parts. Most people we know who feel strongly one way or another about the ENDA and other non-discrimination legislation have good reasons for holding the positions they do. The LGBT community is rightly concerned about workplace and hiring discrimination. Religiously affiliated employers are rightly concerned about religious freedom. But the caricatures that emerge from debate about the ENDA do no favors to anyone on either side, or anywhere in the middle. It doesn’t help when progressives paint religious conservatives as hateful bigots who are obsessed with sex, and it only contributes to further vitriol when religious conservatives describe progressives (especially of the LGBT variety) as entitled crybabies who are out to destroy Christianity and American freedom. These discussions require significant nuance and appreciation for different perspectives. A little humility from all parties involved wouldn’t hurt either.

Do you have more thoughts on employment non-discrimination legislation, ENDA or otherwise? We would enjoy discussing those with you in the comments.

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