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.INTRODUCTIONIn December 2013, Mark Zmuda, vice principal at Eastside Catholic High School near Seattle, Washington, reluctantly resigned his position after the high school's administration suggested that he leave the school.1 The former vice principal was well regarded among students and other faculty at Eastside Catholic.2 Nonetheless, once the administration became aware that he had married his partner, another male, it asked for Mr. Zmuda's resignation.3Employment practices that target lesbian, gay, bisexual, and transgendered (LGBT) employees are not uncommon, especially among religious sects whose tenets are particularly supportive of protecting a traditional heterosexual lifestyle.4 When Eastside Catholic discharged Mr. Zmuda, he joined a great number of LGBT employees across the United States who face sexualitybased harassment or who otherwise suffer under discriminatory employment practices.5 Although some states have addressed these issues, many states do not provide comprehensive protection from employment discrimination based on either sexual orientation or gender identity grounds, while other states have no protections for LGBT employees at all.6 Additionally, LGBT workers have little or no remedy under federal law.7 In 1964, Congress introduced the Civil Rights Act, which included Title VII, a provision designed to combat employment discrimination on the basis of race, sex, religion, and national origin.8 Despite the non-discriminatory spirit of Title VII, federal courts have long held that it does not protect LGBT employees against workplace discrimination based on their LGBT identity. 9Mr. Zmuda's termination based on his sexual orientation and similar ordeals faced by other LGBT individuals are not simply stories of sexualitybased discrimination.10 They are instead a reflection of the tension between LGBT employment rights and religious interests.11 Many religious groups in the United States openly and vocally disapprove of homosexuality, oppose gay marriage, and generally disfavor any sexual identity that diverges from traditional heterosexuality.12 Moreover, as a result of their religious affiliation, many organizations offering secular and general public services such as high schools, universities, hospitals, and nursing homes, have the power to hire and fire employees based upon their sexual identities and preferences.13 As illustrated by Mr. Zmuda's case, these religiously affiliated organizations may legally exercise this power to the detriment of LGBT employees.14On November 7, 2013, the U.S. Senate passed the Employment NonDiscrimination Act ("2013 ENDA"), a bill that incorporated both sexual orientation and gender identity into Title VII as protected classes. …