End Around ENDA?

by Baker Donelson
Contact

For several years, lesbian, gay, bisexual and transgender (LGBT) rights groups have been lobbying Congress to pass the Employment Nondiscrimination Act (ENDA), which would prohibit sexual orientation and gender identity discrimination in all workplaces. The latest version of ENDA was passed in the Senate in November of 2013 (S. 815), but it is unlikely to see a vote in the House of Representatives.

Surprisingly, at least six national gay rights groups just recently withdrew their support for ENDA – not because of what the bill stands for, but because of a religious exemption that was added to the bill last year in a successful effort to attract Republican support in the Senate (which is identical to the religious exemption found in Title VII – see below). This withdrawal of support comes on the heels of the United States Supreme Court's Hobby Lobby decision that held that closely held companies can refuse on religious grounds to provide employees with contraceptive coverage (see related articles in this same issue). In a nutshell, these groups have voiced concerns over how ENDA's religious exemption could be interpreted in court challenges in the wake of Hobby Lobby. Not all gay rights advocacy groups, however, agree with this posture. The Human Rights Campaign argues that the passage of ENDA, even with the religious exemption, would provide workplace protections to millions of LGBT people.

Including a religious exemption in ENDA would not seem to be such a controversial issue, since Title VII of the 1964 Civil Rights Act, barring discrimination based on race, sex, religion and national origin, includes an exemption allowing religious organizations, companies and educational institutions to make employment-related decisions based on a worker's religion.

In any event, since ENDA stands little chance of being passed, why the commotion? As President Obama has made clear, if Congress will not act on legislation that he supports and if it is within the executive power, he will not hesitate to put pen to paper and draft an executive order that will at least apply to those entities that do business with the federal government. Consequently, on June 16, 2014, the White House announced that President Obama will issue an executive order banning sexual orientation and gender identity discrimination by federal contractors.

As of this writing, the executive order's scope and wording have not yet been announced. One reason for this may be the squabble over the wording of a religious exemption to be included in the executive order, or whether the executive order will even contain a religious exemption. A group of fourteen religious leaders wrote a letter to President Obama on July 1, 2014, urging him to include a religious exemption akin to the ones found in Title VII and the Senate-passed ENDA. These leaders argue that without such an exemption, the executive order would significantly and substantively hamper the work of religious organizations that have consistently served in common purpose with the federal government and would come at an unreasonable cost to the common good, national unity and religious freedom. On the other hand, some gay rights advocates contend that a religious exemption will provide a "blank check" for religiously-affiliated entities to engage in workplace discrimination against LGBT individuals.

Although the White House has supported ENDA with a religious exemption, some gay rights leaders believe that President Obama will not include a religious exemption in the planned executive order.

Stay tuned for further updates as we continue to follow developments in the executive branch that have a significant impact on the contracting community.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.