The Exception That Doesn't Prove the Rule: Why Congress Should Narrow ENDA's Religious Exemption to Protect the Rights of LGBT Employees

IntroductionThe current state of protections for lesbian, gay, bisexual, and transgender (LGBT) employees in the workplace is far from adequate. Anywhere from 15-40% of gay and lesbian employees and nearly 90% of transgender employees have experienced discrimination or harassment at some point in their careers.1 Yet victims of discrimination based on sexual orientation or gender identity must navigate a patchwork of federal, state, and local laws and regulations that often provide insufficient or no protection for employees.2The Employment Non-Discrimination Act (ENDA) would remedy this inadequate regulatory scheme by creating a national standard of LGBT protection that prohibits employers from discriminating on the basis of sexual orientation and gender identity. ENDA would provide employees with recourse for their employers' discriminatory decisions regarding hiring and firing or wages, as well as any workplace harassment or other discriminatory treatment regarding the terms and conditions of employment.3 An overwhelming majority of Americans support a federal law banning such discrimination,4 and ENDA has received bipartisan support in Congress.5Critics of the bill argue, however, that antidiscrimination laws infringe on First Amendment rights when unaccompanied by exemptions for faith-based organizations with religiously-grounded objections to the conduct the antidiscrimination laws seek to protect.* * 6 These critics argue that under ENDA, religious organizations that object to homosexuality and transgenderism could be forced to employ individuals whose conduct is opposed to the organizations' religious missions and beliefs.7 This criticism has led Congress to include a broad religious exemption allowing organizations that qualify as religious employers to discriminate against LGBT employees without regard to any of ENDA's provisions.8This Note seeks to make sense of ENDA's religious exemption, which is significandy broader than the religious exemption included in Tide VIE It recommends narrowing the scope of ENDA's exemption to provide more comprehensive protections to LGBT employees while simultaneously safeguarding employers' First Amendment rights. Part I provides background on both Tide VII and ENDA and their respective religious exemptions, which, although seemingly identical, apply to very different groups of employees. Part II argues that ENDA's religious exemption is overbroad because it allows religious employers to discriminate against LGBT employees even in cases where the discrimination is not based on a religiously-grounded objection. Because the exemption provides employers with protection beyond that which is necessary to safeguard their First Amendment rights, it fails to appropriately balance the protection of religious freedom and the individual rights of LGBT employees. Part III recommends that Congress amend ENDA's religious exemption to allow religious employers to discriminate against only those employees who fall under Title VII's ministerial exception, which allows religious organizations the freedom to discriminate in the hiring and firing of employees who publicly represent the religious views of the organization. This Note concludes by explaining how the proposed amendment, though an imperfect response to the gap in coverage for LGBT employees, will provide an acceptable balance between protecting the individual rights of LGBT employees and the religious freedom of their employers.I. BackgroundA. Religious Employers and the First AmendmentThe First Amendment of the U.S. Constitution gives religious employers the power to make religiously-based employment decisions free from government interference.9 The Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."10 The first clause of the Amendment, known as the Establishment Clause, prohibits the government from establishing a national religion or giving preference to one religion over another. …