The US Senate Health, Education, Labor and Pensions Committee (HELP) on Wednesday approved a version [S 815] of the Employment Non-Discrimination Act (ENDA) that prohibits employers from discriminating against workers on the basis of sexual orientation and gender identity. As federal law currently stands, employers are only prohibited from discriminating on the basis of race, religion, sex, national origin, disability and age. In addition, only a minority of states extend employment protections to the LGBT community, meaning that workers can be discriminated against in the area of employment solely for being LGBT. The Obama administration praised HELP's approval of the bill:
The President has long supported an inclusive ENDA, which would enshrine into law strong, lasting and comprehensive protections against employment discrimination on the basis of sexual orientation or gender identity. We look forward to the full Senate's consideration of ENDA, and continue to urge the House to move forward on this bill that upholds America's core values of fairness and equality.
The bill will now go before the full Senate for a vote before proceeding to the House of Representatives. Discrimination based on sexual orientation and gender identity has been a controversial issue worldwide. In January the Virginia Senate approved legislation that would prohibit the state government from discriminating against its employees based on sexual orientation. HELP held a hearing in June 2012 regarding ENDA, focusing on discrimination faced by LGBT employees across the country. Earlier in June 2012 JURIST guest columnist Brynne Madway argued that the LGBT community must shift some of its focus to promoting anti-discrimination laws, noting that only a small number of states have nondiscrimination laws that include gender identity and sexual orientation.
The most recent issue of Engage: The Journal of the Federalist Society's Practice Groups, features a relevant article on the issue of "conscience exemptions" in employment law, among elsewhere. Lynn Wardle, professor at Brigham Young University's J. Reuben Clark Law School, writes:
The term “conscience exemptions” is used today to describe provisions of law that are intended to protect personal rights of conscience (including especially religious conscience) by creating exceptions to particular legal commands or prohibitions. While concern over protecting rights of conscience is as old as our nation, and an essential cornerstone of our Constitution, the contemporary term “conscience exemption” is a misleading phrase that does not fully capture the meaning and importance of protecting rights of conscience of individuals and groups of individuals in our constitutional system.
“Conscience exemptions” regarding two subjects in particular have been the focus of political controversy in the past forty years: abortion and same-sex marriage. . . .
[W]hen it appeared that some state might legalize same-sex marriage, and especially since 2003 when the Massachusetts became the first state to announce that it would legalize same-sex marriage, there has been proposal, discussion, and some limited adoption of “conscience exemptions” that protect some individuals and entities with religious or moral objection to same-sex marriage from any legal duty to or liability for declining to assist in creating same-sex marriages. All seven states that have legalized same-sex marriage by some political process (legislative or popular initiative) have enacted some explicit-but-limited statutory protection for some rights of conscience. On the other hand, both of the states that have legalized same-sex marriage by judicial decree have no similar conscience protections—either by judicial decision or legislation.
Protection for rights of conscience of objectors to same-sex marriage has become a critical factor in the contest over legalizing same-sex marriage. . . .