Monday, December 9, 2013

THE EMPLOYMENT NON-DISCRIMINATION ACT: IS ENDA THE DISCRIMINATION BILL TO END(A)LL DISCRIMINATION?

pic by Politico

Here’s the short answer: No.

Like most legislation, ENDA is chock-full of free passes and get-out clauses that protects the moneymakers in America and uses the average American worker as the poster-child for a cause. In theory, the bill would make it illegal for an employer to discriminate against a prospective or current employee on the basis of sexual orientation. However in reality ENDA is no more than—to borrow a term from Justice Ruth Bader Ginsburg—a “skim-milk” solution to workplace discrimination.

Opposition to the bill’s passage primarily comes in two forms:

1.     It’s unnecessary
2.     It doesn’t go far enough

In early November the Senate voted 64-32 in favor of the bill’s passage. However, getting it put to a vote in the House presents itself as the bigger problem. Speaker John Boehner (R-OH) has argued against the bill, stating that its passage will present “frivolous litigation” for employers and will hurt the American workforce. Op-eds featured on PolicyMic and the Boston Globe share the opinion that ENDA is unnecessary. Discrimination is bad for business, plus the overwhelming majority of businesses don’t discriminate anyway so there’s no need to put it in law. Alternatively, protecting the rights of the LGBT workforce strips the employer’s right to property and property-regulation.

Arguments that the bill doesn’t go far enough gesture heavily to the faith-based and ministerial exceptions that find themselves wheedled into the bill. Religious organizations, operated businesses and parochial schools are exempt from the illegality to discriminate against employees on the grounds of sexual orientation. The ministerial exception, established in Hosanna-Tabor EvangelicalLutheran Church and School v. Equal Employment Opportunity Commission (2012) heard before the Supreme Court, stated that federal discrimination laws do not apply to the manner in which a religious organization (or affiliated business) chooses to hire/fire employees. This case, which has served as a backbone defense for the recent firings of LGBT employees from Catholic schools, was not about an individual’s sexual orientation or violation of a “morality clause”, it was about a woman, Cheryl Perich, who was fired after being diagnosed with narcolepsy.

Um…what?

The decision to give LGBT teachers a firm heave-ho out of Catholic schools is met with (startlingly) substantial support, though in my experience I would quantify it at maybe 10 percent—and not all of these people are of the “[g]od hates fags” variety, some are just firm believers that the government has no business telling religious organizations what to do. But, narcolepsy? Does narcolepsy impact upon an individual’s ability to carry out a particular religious message? Sure, the gays may sneak in asides about the incongruity between theory and practice in between prayers—oh wait, that never happens either.

Let's get down to brass tacks: why is this decision so damning for the LGBT community?

First of all, it has given religious organizations a “stay the hell out of our business” rite of passage that most business owners would die for. If a person who was out on (legal!) disability leave, is diagnosed with narcolepsy during this time, gets cleared to return to work and finds that her job has been given away, threatens to file suit, gets sacked for “insubordination” DOESN’T have a case in court, what does that mean for the more abstract cases that are upheld by administrations under a seemingly omnipotent “morality clause”? Safe to say, not a rainbow and unicorn parade.

And we’re not even talking about a close call, escaped by the seat of our ass kind of decision. We are talking about a UNANIMOUS decision by all nine justices that said the federal government cannot interfere with the appointment or managing of employees in religious organizations.

The second problem is the term “ministerial.” On the surface it seems this only applies to clergy members, but alas this also applies to English teachers, art teachers, science teachers, PE teachers…etc. The idea that anyone can be said at any time in a religious organization to be carrying out a ministerial role on behalf of said religion, gives employers a blanket rationale for why someone is violating this role.

ENDA will put a dent in the ice-block of LGBT discrimination, but have no illusions it will not END with this bill.

In October I wrote a comment piece in the Guardian about Tippi McCullough, a teacher at a Catholic school in Little Rock Arkansas who was fired 40 MINUTES after marrying her long-time partner in New Mexico. Just yesterday, French and Spanish teacher, Michael Griffin, at Holy Ghost Preparatory School in Philadelphia was fired after 12 years for marrying his long-term partner in New Jersey. As in [Al] Fischer, [Carla] Hale, [Ken] Bencomo and McCullough’s cases, the school administration has cited a breach of contract on the grounds of “morality” and failure to conduct oneself in accordance with Church teachings. With the exception of Fischer who was fired in 2012, all of the aforementioned teachers have been fired since just March of this year.

Over the weekend it was reported that Myrtle Grove Christian School in North Carolina has refused state funding so that it can force parents and students to sign a form stating that they will not participate or offer support for the “gay lifestyle.” Which, as infuriating as the concept is full stop, the rejection of funding at least signposts the future transparency with which the school will operate; even if what is made transparent is an active practice of discrimination…in a school…that educates children.


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