Compromising Equality: An Analysis of the Religious Exemption in the Employment Non-Discrimination Act and its Impact on LGBT Workers

Abstract

On November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (“2013 ENDA”), a bill that attempted to incorporate both sexual orientation and gender identity as protected classes under Title VII of the Civil Rights Act of 1964. The 2013 ENDA was an important initiative that addressed a long history of employment discrimination against gay, lesbian, bisexual, and transgendered employees. The bill, however, provided a broad exemption for religiously affiliated organizations operating in secular fields. This religious exemption excluded a significant number of organizations hiring secular-in-function employees from the bill’s prohibition of discriminatory practices. Although Congress dismissed the 2013 ENDA in September 2014, the history of the bill suggests that future attempts by Congress to pass a similar antidiscrimination bill will likely offer the same broad exemption for secular-in-function but religious-in-name organizations. This Note examines the religious exemption issue and suggests that religiously affiliated but secular-in-function organizations be subject to a bona fide occupational qualification to enable them to practice their faith without undermining the very purpose of the proposed legislation.