ENDA and religious exemptions
amklaf at NULS.LAW.NWU.EDU
Fri Oct 10 19:56:52 PDT 1997
The proposed federal Employment Non-Discrimination Act (ENDA) would
prohibit discrimination in public and private employment on the basis of
sexual orientation. Religious organizations, religious schools, the armed
services, and firms with fewer than 15 employees would be exempt from
coverage. Preferential treatment or quotas based on sexual orientation
would be specifically prohibited. The bill was considered by the Senate in
September 1996 and failed by a vote of 49-50, but it has been reintroduced
in the present Congress.
I've been thinking about the arguments for legislation of this sort, and
lately have been mulling over a complication that may be of interest to
this list. For purposes of this discussion, it is necessary to stipulate
(what I'm sure many are unprepared to concede) that a law of this sort
would be a good idea. If gays are to be protected from discrimination,
what should the law look like?
I have said, in conversations with some of you, that it would make sense
for this statute to include a religious exemption, so that persons who had
strong religious objections to employing homosexuals would not be required
to do so. (Here I set aside the complication that the surviving part of
the Religious Freedom Restoration Act, which was invalidated only as
applied to state legislation, would probably incorporate such an exemption
into the statute even if it were just enacted as it is now written. The
question is whether a religious exemption is a good idea.) I endorsed the
exemption because it appeared to me that the exemption would have little
effect on anyone's economic status or opportunities. Most employers, I
have been willing to bet, are unlikely to invoke the exemption, and
discrimination doesn't matter if only a small subset of the market is
engaging in it. (It would be arbitrary and unfair for me to refuse to hire
anyone with eyebrows that are less than three inches long, but legislation
isn't necessary, because other employers will bid up the wages of the
short-eyebrowed to the level they would have reached if I didn't
I wonder, though, whether employers' sensibilities aren't already covered
by the exemption for businesses with less than 15 employees. As businesses
grow larger, their economic importance becomes greater, and the denial of
opportunities to work for that business is more likely to be a hardship.
If the largest business in town is owned by a person with religious
objections to homosexuality, then the purpose of the statute would be
defeated by allowing that business an exemption.
There is, of course, no question of giving religious exemptions to large
bureaucratic corporations. They are not moral actors, and so their moral
sensibilities needn't concern us. But what about proprietorships,
closely-held corporations, and the like? These are likely to have owners
whose identity is bound up with the business, but they may control a great
many jobs and have great power over people's opportunities, particularly in
specialized areas of the economy.
I haven't got a clear answer to this question. It may be that the relevant
proprietorships and the like will still represent a sufficiently
insignificant slice of the economy that exempting them won't impair the
statute. But the 15-employee rule seems like a more reliable benchmark.
Is there a consideration that I've missed that would ameliorate my worries
on this score?
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
akoppelman at nwu.edu
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