Law at the Jesus Creed: David Opderbeck

Last updated on: January 8, 2010 at 5:46 am by Scot McKnight

Law at the Jesus Creed: David Opderbeck 2010-01-08T05:46:59-06:00 Scot McKnight

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Today I received a broadcast email from the Family Research Council, a prominent conservative Christian group, urging me to “Stop Obama’s Crossdresser Protection Bill.” The email referred to the “Employment Non-Discrimination Act” (ENDA), which would prohibit employment discrimination against homosexual and “transgendered” people. According to the email, “[a]ll American employers including Christian owned business and potentially Christian ministries would be affected.”

According to the email, President Obama recently appointed a transgendered person, Mitchell (Amanda) Simpson, to a post in the Commerce Department. “The day after Simpson began work,” the email states, “[t]he New York Times reported that the main website advertising jobs with the federal government now says there will be no ‘discrimination’ based on ‘gender identity’- even though Congress has never passed a law saying that.” (Emphasis in original) The email notes that this new policy only applies to federal employees, but then raises the specter of ENDA extending the policy to the private sector.

Should the law prohibit employment discrimination against homosexual and “transgendered” people? Does the FRC email fairly lay out the issues?

I’ll be honest:
the FRC email seems somewhat disingenuous to me, although (or perhaps
because) the underlying issues are complex.

Let’s start with the government jobs website, USAJobs.gov. There is nothing on the site’s homepage about the gender
identity policy. However, a bit of
digging reveals a link to this Equal Employment Opportunity Policy
Statement: “The United States Government does not
discriminate in employment on the basis of race, color, religion, sex, national
origin, political affiliation, sexual orientation, gender identity, marital
status, disability, age, membership in an employee organization, or other
non-merit factor.” The American Civil
Liberties Union blog reported on January 6, 2010 that “gender identity” was
in fact recently added to this list by the Obama Administration. (In fact, I
suspect that the FRC email and the ALCU blog are playing off of each other.)

The
reference to “non-merit factors” is a potential key to the EEO statement. Existing
federal law prohibits job discrimination, among other things, based on “conduct which does not adversely affect the
performance of the employee or applicant or the performance of others.” I’m not aware of any evidence suggesting
that cross-dressing or sex-reassignment surgery affect one’s ability to perform
the basic duties required by most federal government jobs. Moreover, I’m certain that most social
conservatives aren’t really worried about whether a guy in an Armani cocktail
dress can write reports on grain production for the Commerce Department just as
well as a guy in a Brooks Brothers men’s pinstriped business suit (or a guy in
metrosexual skinny jeans, or a guy working from home in his underwear…).

Is the new EEO
policy for federal government jobs consistent with existing federal law? Is it bad policy? Does the FRC email critique the EEO
policy in a fair and balanced way?

Turning to ENDA, there are several
bills currently pending before Congress that are designed to extended federal
employment discrimination protection to the categories of sexual orientation
and gender identity. Under current
civil rights law, it is unclear whether federal employment discrimination
protections apply to these categories.
A number of states exclude these categories from protection under state
law.

Each of the pending ENDA bills
includes the following provision:
“This
Act shall not apply to a corporation, association, educational institution, or
society that is exempt from the religious discrimination provisions of title
VII of the Civil Rights Acts of 1964. . . .” Such exempt organizations generally include churches and
social welfare organizations with specifically religious purposes. It is conceivable that a court could
construe Title VII narrowly and require some religiously-affiliated organization
or institution to comply with ENDA.
But as the law is written, it clearly would not require religious organizations to do so.

It is true, however, that businesses that are owned or managed by people with certain religious convictions, but that do
not qualify for a Title VII exemption, would be required to comply. For example, an accounting firm owned by
a Christian who opposes homosexual practice would not be permitted to
discriminate in employment based on sexual orientation or “gender
identity.”

Does the FRC email truthfully portray the
purpose and potential effect of ENDA?
Should Christian-owned businesses not organized for specifically
religious purposes be prohibited under federal law from discriminating in
employment based on sexual orientation and/or gender identity?

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