Collision of Religious and Gay Rights in the Workplace

By Ritter, Bob | The Humanist, January-February 2008 | Go to article overview

Collision of Religious and Gay Rights in the Workplace


Ritter, Bob, The Humanist


IN THE CONSTITUTION, the free exercise of religion is an absolute right. However, the right must occasionally be tempered when the exercise of such freedom conflicts with other people's rights. Two bills pending in Congress, the Employment Non-Discrimination Act of 2007 (ENDA, H.R. 3685) and the Workplace Religious Freedom Act of 2007 (WRFA, H.R. 1431), shed light on this conflict in the workplace.

ENDA, passed in the House on November 7, 2007, would add "sexual orientation" to the list of protected groups (classified by race, religion, ethnicity, sex, age, disability, and pregnancy), thereby granting broad protections against discrimination in the workplace for gay men, lesbians, and bisexuals.

Specifically, the bill would make it illegal for an employer "to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation." Essentially this means that an employer cannot refuse to hire a person if he or she identifies as, or is perceived to be, a gay man, a lesbian, or bisexual. Nor may an employer terminate for the same reason. The Act exempts certain religious organizations and the military.

Senator Edward Kennedy (D-MA) has said he will soon introduce a similar measure in the Senate. The early reaction of Republican senators has been that a carefully worded bill that doesn't include protection for "gender identity" (transsexual and transgender individuals) and possibly a broader exemption for religious-oriented employers (like religious bookstores and faith-based organizations) might pass early next year.

The second bill pending involves accommodation of religious freedom in the workplace. Currently, under Title VII of the Civil Rights Act of 1964, an employer is required to make a reasonable accommodation for the sincerely held religious views of their employees, absent "undue hardship." The Supreme Court, in Trans World Airlines v. Hardison, interpreted undue hardship to mean anything more than a "de minimis cost." WRFA, pending before the House Subcommittee on Health, Employment, Labor, and Pensions, would raise the employer's burden to "an accommodation requiring significant difficulty or expense." Clearly, this would make it harder for an employer to successfully maintain an undue hardship defense.

From a humanist perspective, this change, if enacted, is worrisome because it would further elevate the rights of the religious over the nonreligious. Assuming both ENDA and WRFA become law (although neither is assured of passage), the potential for conflicts between the two abound.

In an October 31, 2007, New York Law Journal article titled "Employer's Dilemma: When Religious Expression and Gay Rights Cross," Judith Moldover, who specializes in labor and employment law, held that the conflict between sexual orientation discrimination (ENDA) and the duty of an employer to accommodate an employee's religious bias against homosexuals (WRFA) typically arises in three areas: "the refusal to service homosexual clients, refusal to participate in diversity programs and training, and supervisory conduct."

Three types of hypothetical conflicts thus arise. And because neither ENDA nor WRFA have been tested in the courts to determine their constitutionality or precisely how each will be applied, there is no single correct solution in each of the three types of cases. Each case depends upon the facts of the situation and requires a careful balance of the rights of those involved within the framework of applicable law.

Take an example in which a medical center employs three counselors who are required to rotate between offices in two cities. Under current law, a court would most likely find that an employer could terminate a counselor for refusing to provide counseling services to a homosexual patient because such an accommodation could only be accomplished by shifting responsibilities among the three counselors and therefore creates an undue hardship for the employer. …

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