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LGBT Employment Policy Update: July 2014

July 21, 2014

Author: Julia Saenz

Empire Justice Center Withdraws Support for ENDA

Empire Justice Center joins several major LGBT rights groups, including the National Gay & Lesbian Task Force and a coalition led by the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights, in withdrawing our support for the federal Employment Non-Discrimination Act (ENDA) because the bill’s overly broad religious exemption is discriminatory.

ENDA [H.R. 1755 (Polis)/S.815 (Merkley)] is a federal bill that would ban discrimination against employees based on actual or perceived sexual orientation or gender identity in workplaces with more than 15 employees.  The U.S. Senate took an historic stand for workplace equality and passed ENDA for the first time last November.  Unfortunately, the current version of the bill contains a religious exemption that is much broader than the one under existing employment nondiscrimination law, Title VII of the Civil Rights Act of 1964.  Under ENDA’s current religious exemption, religious institutions could still legally discriminate against LGBT workers in even non-ministerial positions.  Title VII’s religious exemption is much more narrow and allows certain religious organizations to prefer employees who share the same religious faith - preferring employees of a certain sex, national origin, race or color is illegal. [1] 

A fully inclusive ENDA, without undermining carve-outs, is so crucial because there is currently no federal law that explicitly protects workers from anti-LGBT discrimination.  What’s more, 29 states still have no state law banning anti-LGB discrimination. [2]  New York and 32 other states have no such protection for transgender people. [3]  This means that the 90% of transgender employees and 15% - 43% of LGB employees nationally who report experiencing harassment, mistreatment or discrimination at work often have no access to justice. [4]

President Obama Signs Pro-LGBT Executive Order!

To address this wide gap in civil rights protections, President Obama signed an Executive Order today barring illegal gender identity or sexual orientation based harassment and discrimination against employees of federal contractors and employees of the federal government.  This will have wide-reaching effects, as federal contractors employ 22% of the American civilian workforce, or about 28 million people. [5]  The federal government also employs approximately 2,723,000 people. [6]

Fortunately, the Executive Order does not contain any religious exemption.  On the heels of the U.S. Supreme Court’s Hobby Lobby decision, certain religious leaders recently sent a statement to President Obama requesting that he amend the Executive Order to include a religious exemption.

On June 14, 2014, leading legal scholars  countered this entreaty with a letter to the President urging him to omit any such religious exemption in the promised Executive Order.  The letter makes clear that the proposed exemption would be unprecedented and is not required by either the United States Constitution or relevant federal laws.  Instead, such an exemption would "relegate LGBT protections to a lesser status than existing protections against discrimination, and allow religious employers to create or maintain discriminatory workplaces with substantial public funding."

We applaud President Obama for signing this fully inclusive Executive Order and are firmly against the discriminatory religious exemption in the current version of ENDA.  We support federal provisions that give LGBT workers full and equal access to civil rights protections.

It’s time to tell the House of Representatives that we can’t wait even one more day for basic human rights. Visit the Human Rights Campaign’s action center to tell members of Congress we need the House to pass ENDA without the overly broad religious exemption now!

U.S. Department of Labor Commits to Transgender Equality

The U.S. Department of Labor (DOL) announced on June 30, 2014 that it will be “updating enforcement protocols and anti-discrimination guidance to clarify that we [at DOL] provide the full protection of the federal non-discrimination laws that we enforce to transgender individuals.”  DOL Secretary Tom Perez goes on to emphasize that these changes reflect the current legal landscape regarding workplace protections for transgender employees.

End Notes:
 [1] U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, available at (last visited June 18, 2014).
 [2] Lambda Legal, In Your State, available at (last visited June 17, 2014) [hereinafter “In Your State”].
 [3] In Your State, supra note 2.
 [4] Jaime M. Grant, ET AL., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3 (2011), available at
 [5] Office of Federal Contract Compliance Programs, Facts on Executive Order 11246 — Affirmative Action, available at (revised Jan., 2002).
 [6] Floyd Norris, Bloated Government? Federal Employment at 47-Year Low, NY TIMES, October 22, 2013,


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