Article summary. A bill introduced in Congress would prohibit covered employers from discriminating in employment decisions on the basis of an employee’s actual or perceived sexual orientation. The bill contains a broad exemption for religious organizations.
Earlier this year Congressman Barney Frank (D-MA) introduced the Employment Nondiscrimination Act of 2007 (H.R. 2015) in the House of Representatives. The bill has 170 co-sponsors. If enacted, it would prohibit discrimination in employment on the basis of actual or perceived sexual orientation or gender identity by employers that are engaged in interstate commerce and have at least 15 employees. The Act does not apply to volunteers who receive no compensation.
The Act exempts “the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief.” In addition, for any religious organization that is not “wholly exempt,” the Act “shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.”
The Act also specifies that “a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act.”
Covered employers are required to display posters for employees and applicants for employment, to whom the provisions of the Act apply, that describe the applicable provisions of the Act.
Passage of this legislation in the House of Representatives is not certain. The prospects for enactment in the Senate are less certain.
The following examples illustrate the application of the Employment Nondiscrimination Act of 2007, if enacted by Congress and signed into law by the President.
Example. A secular employer is engaged in commerce, and has ten employees. The Act does not apply to such an employer because it has fewer than 15 employees.
Example. A non-religious charitable organization has 25 employees, and several volunteers. The charity dismisses a volunteer who works with minors based on his perceived sexual orientation. The Act does not apply to uncompensated volunteers.
Example. A church-affiliated secondary school dismisses a student as a result of suspected homosexual activity. The Act only addresses employment discrimination based on sexual orientation. It does not apply to students who are not employees.
Example. A church is engaged in commerce and has five employees. It dismisses an employee as a result of her sexual orientation. The Act does not apply, for two reasons. First, the church has fewer than 15 employees, and second, the Act exempts the employment practices of religious organizations which have, as their primary purpose, religious ritual or worship or the teaching or spreading of religious doctrine or belief.
Example. A church is engaged in commerce and has 25 employees. It dismisses an employee as a result of his perceived sexual orientation. The Act does not apply even though the church has 15 or more employees, because it exempts the employment practices of religious organizations which have, as their primary purpose, religious ritual or worship or the teaching or spreading of religious doctrine or belief.
Example. A church is engaged in commerce and has 20 employees. The church does not allow homosexuals to become members. This position does not violate the Act.
Example. A church is engaged in commerce and has 15 or more employees. It dismissed a custodian due to his sexual orientation. The former custodian insists that the church violated the Act since the exemption for religious organizations does not apply to custodial or other “secular” positions. The former custodian is incorrect. The Act exempts “the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief.” The exemption is not limited to “religious” employees.
Example. A seminary does not consider an applicant for a professorship due to his sexual orientation. The Act would not protect the applicant since it exempts “the employment practices of a religious … educational institution … which has as its primary purpose … the teaching or spreading of religious doctrine or belief.”
Example. A hospice organization was established for religious and charitable purposes. Assuming that it is engaged in commerce and has 15 or more employees, it may not be wholly exempt under the Act if it does not have as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief. The organization rejects an application for a chaplaincy position because of the applicant’s sexual orientation. This decision will not violate the Act if the primary duties of the chaplaincy position consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.”
Example. A religious liberal arts college is engaged in commerce and has 15 or more employees. The college does not employ professors who are openly homosexual. The college may not be wholly exempt under the Act if it does not have as its primary purpose the teaching or spreading of religious doctrine or belief. However, the college’s policy of not hiring homosexual professors will not violate the Act if (1) it is a religious organization, and the primary duties of a professorship consist of teaching or spreading religious doctrine or belief, or supervision of persons teaching or spreading religious doctrine or belief; or (2) it is a religious educational institution and it requires that applicants for, and employees in, similar positions conform to those religious tenets that it declares significant. Such a declaration stating which of its religious tenets are significant shall not be subject to judicial or administrative review.
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