Op-ed: Why ENDA Doesn’t Cut It for the ACLU

By Ian Thompson

Originally published on Advocate.com July 10 2014 5:06 AM ET

One year ago Matthew Barrett was offered a job as a food services director at Fontbonne Academy, a college prep high school in Milton, Mass. With 20 years of work in the food services industry, Matthew was clearly well qualified.

But two days after Matthew listed his husband as his emergency contact on standard employment paperwork, his job offer was rescinded.

Fontbonne is affiliated with the Roman Catholic Sisters of St. Joseph of Boston, and it didn’t matter that there was nothing religious about the food services job. An administrator told Matthew the school was unable to hire him because “the Catholic religion doesn’t recognize same-sex marriage.”

Examples like this show why passage of explicit federal workplace protections for LGBT people remain so important. Sadly, under the current version of the Employment Non-Discrimination Act, Matthew would be left without protection. Matthew has filed a complaint with the Massachusetts Commission Against Discrimination and is represented by our partners at Gay and Lesbian Advocates and Defenders.

ENDA currently has a discriminatory provision allowing religiously affiliated organizations — including hospitals, nursing homes, and universities — a blank check to engage in workplace discrimination against LGBT people.

This isn’t the rule for other kinds of prohibited discrimination, so the provision essentially says that anti-LGBT discrimination is different — more acceptable and legitimate — than discrimination against individuals based on their race or sex.

While the American Civil Liberties Union has long been at the forefront in raising significant concerns and objections to the scope of this provision, we, along with our LGBT legal partners, reached the point where we could no longer support ENDA.

It is unacceptable that the most important federal law for the LGBT community in American history would leave too many jobs and too many LGBT workers like Matthew without protection. And as the recent reaction to the Supreme Court’s decision in Hobby Lobby by opponents of equality shows, their demands for a license to discriminate will not stop here. Some are even urging President Obama to sanction taxpayer-funded discrimination against LGBT people by including an exemption in the forthcoming executive order for federal contractors.

The national outcry against Arizona’s “right to discriminate” law earlier this year demonstrated that the American people oppose efforts to misuse religious liberty as an excuse to engage in anti-LGBT discrimination. With each passing day, it is becoming more and more apparent that it is no longer true that exemptions are something we’re forced to accept to have any chance at equality. It’s now something that more and more of our community correctly understands as a core threat to our equality. The fight is far from over, and it’s one we can win.

The price for explicit protection in federal law cannot be a provision that gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have rightly rejected in the context of discrimination on the basis of race, sex, national origin, age, disability, or genetic information. LGBT people deserve no more and no less.

 

IAN THOMPSON is a legislative representative on issues related to LGBT rights in the ACLU's Washington legislative office and can be reached on Twitter @iantDC.