J. Michael Smith, Esq.
Michael P. Farris, Esq.
Oppose H.R. 3685, the Employment Non-Discrimination Act (ENDA)
Director of Federal Relations
October 15, 2007
Congress is considering H.R. 3685, the Employment Non-Discrimination Act (ENDA), a bill that would forbid employers of over 15 persons from discriminating in employment or hiring against any person based upon that person’s “sexual orientation.”
ENDA had been introduced earlier this year in the House of Representatives as H.R. 2015. H.R. 2015 contained a very narrow religious exemption that would have effectively only exempted churches. Faced with mounting criticism over this and other issues in the bill, the bill’s supporters introduced the new ENDA bill, H.R. 3685. H.R. 3685 removed hiring protections for people based on their “gender identity,” and also changed the religious exemption to one which seems to be more inclusive on first examination. However, the new religious exemption in H.R. 3685 could actually result in more litigation against organizations, as discussed below.
Reasons to Oppose H.R. 3685, ENDA:
- ENDA would open the door to expensive lawsuits against employers. This is because of the new religious exemption language in H.R. 3685. While it simply says, “this Act shall not apply to a religious organization,” the definition of a religious“religious organization” based on differing state laws. Even if a judge ultimately ruled that an organization was a religious organization and could refuse to hire someone based on that person’s sexual orientation, many organizations would face expensive lawsuits leading up to this outcome. ENDA would result in costly, time-consuming lawsuits against organizations such as HSLDA, private religious schools and colleges, large homeschool support groups and co-ops that employ more than 15 people, and others. Furthermore, a judicial decision would turn on the specific facts of the case, meaning that an organization which thought itself to be religious and thus exempt from ENDA, could ultimately lose its court case and have to hire an individual whose sexual orientation interfered with the organization’s mission statement.
- ENDA could open the door to more federal laws which would restrict the freedom of employers and possibly even organizations and churches, from deciding whom they will hire.
- ENDA would extend protected class status to people based on their “actual or perceived sexual orientation.” This adds a completely new class of persons to the current class of federally protected persons. Currently, federal class protection applies only to persons who meet three standards: an obvious, immutable characteristic; a history of discrimination evidenced by economic disenfranchisement; and political powerlessness. ENDA would add “actual or perceived sexual orientation” to current protected classes such as race or sex.
ENDA represents an intrusion of the federal government into matters that should be left to the conscience of employers and the decisions of private companies. For this reason and the reasons listed above, HSLDA urges Congress to oppose H.R. 3685, the Employment Non-Discrimination Act.