Why the Hobby Lobby Case Puts Employees (And Your Happy Workplace) at Risk
Originally posted July 3, 2014 by Jeremy Quittner on www.inc.com.
The Supreme Court's ruling in support of Hobby Lobby on Monday may be a win for anti-abortion advocates, but it could also spell the end to long-sought anti-discrimination laws for other groups.
A case in point: the Employee Non-discrimination Act(ENDA), which would add LGBT workers to the roster of groups including racial minorities, women, and the disabled currently protected by federal non-discrimination statutes, such as Title VII of the Civil Rights Act.
The bill is aimed at granting these traditionally vulnerable groups protections against discrimination in hiring practices and in the workplace, among other things. And though ENDA has floated around in Congress without ever passing for close to two decades, it did enjoy some recent time in the sun, as recently as last year, when it passed in the Senate. Its proponents are hoping for another try this year. Yet after recent events, that optimism may now seem quaint.
Legal observers now say Monday's Supreme Court ruling in the case of Hobby Lobby Stores v. Burwell, basically renders that once-promising bill moot. Since the Court's decision effectively lets businesses object--on religious grounds--to most any federal mandate, not just the Affordable Care Act.
In addition to causing confusion and unease among business owners in general, this latest implication of the Hobby Lobby ruling indicates that owners might also expect significant problems in their own ranks. From discrimination against women and LGBT people to sexual harassment incidents, the ruling's repercussions could extend far and wide.
"The majority [opinion] said that you can't discriminate based on race. It did not mention same-sex marriage" or sexual identity, says Kevin Martin, a partner at Goodwin Procter in Boston, and a former clerk for Justice Antonin Scalia.
Speaking for the majority in Monday's 5 to 4 decision, Justice Samuel Alito suggests the Hobby Lobby ruling should not be construed to support racial discrimination:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked in religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
Nevertheless, Alito leaves open to question discrimination based on gender, sexual identity, and sexual expression. There's probably a good reason for that, notes Daniel O. Conkle, an expert on constitutional law, the First Amendment, and religion at Indiana University.
Extensive case law has already provided a precedent that forbids religious groups claiming an exemption from race-based discrimination, as Bob Jones University had decades ago. The university had sued the IRS, which revoked its tax-exempt status as a religious organization, based on its discriminatory admissions policies at the time.
Despite getting a recent boost, ENDA had been languishing for some time. Last year, the gay rights group Human Rights Campaign, reportedly helped place a religious exemption in the legislation, to make the bill more palatable to conservative lawmakers. The added measure included broad exceptions for any religious organization that opposed hiring LGBT people, as well as broad exemptions for small business owners with fewer than 15 employees. While that strategy worked in the Senate this winter-- ENDA passed 64 to 32--the bill stalled in the House.
Although President Obama signed an executive order in June, forbidding discrimination against LGBT federal contractor workers, currently, there is no federal law protecting people in the workplace on the basis of sexual identity or gender expression. Twenty-one states have added their own protections, and about 175 municipalities have as well. But in 29 states, it's still perfectly legal to fire LGBT employees based on their sexuality or gender expression.
About 75 percent of LGBT people say they have experienced discrimination at work, with an equivalent percentage saying they have been harassed at work, according to the Williams Institute, a gender identity law and public policy institute. Sixteen percent say they have lost a job due to their sexual orientation. Williams estimates there are about 8.2 million lesbian and gay workers in the U.S.
And after 20 years, particularly after the Hobby Lobby ruling, it now seems like ENDA's time has come and gone. LGBT people must try a new approach for workplace equality.
What Laws Relate to Antidiscrimination in the Workplace?
Originally posted May 12, 2014 by Bridget Miller on https://hrdailyadvisor.blr.com.
No employer wants to be accused of discrimination. Employers strive to treat employees fairly and act without improper bias. To do this and also remain in legal compliance, it’s more important than ever to understand the various laws that protect employees from different types of discrimination.
Here are the primary U.S. laws at the federal level that have antidiscrimination components. (Note: This article focuses on the laws that apply to private employers and does not distinguish which also apply to government entities. There are additional laws pertaining to antidiscrimination for government employees.)
- Title VII of the Civil Rights Act (Title VII). This is the first law most people think of when it comes to antidiscrimination. Title VII protects employees and applicants from discrimination based on gender, religion, color, national origin, or race. It also makes it illegal for employers to retaliate against employees who take protected actions. It applies to employers with 15 or more employees.
- Age Discrimination in Employment Act (ADEA). The ADEA states that employers cannot discriminate against individuals over 40 years old in employment decisions or in any terms or conditions of employment. It applies to employers with at least 20 employees.
- Equal Pay Act. The Equal Pay act states that men and women who perform equal work at the same employer should receive equal pay, as long as the jobs they perform are completed under similar conditions and require equal skills, responsibilities, and effort. The job titles do not have to be an exact match for the rules to apply. This act applies to all employers.
- Americans with Disabilities Act (ADA) This act states that employers cannot discriminate against qualified individuals who are disabled. It includes those with a history of being disabled or who are perceived as disabled, even if this is an incorrect perception. It applies to employers with 15 or more employees.
- Pregnancy Discrimination Act. This act is an amendment to the Civil Rights Act. This amendment takes the prohibition of discrimination based on gender a step further and specifically prohibits discrimination based on pregnancy, childbirth, or any related medical conditions. As a part of the Civil Rights Act, it also applies to employers with 15 or more employees.
- Genetic Information Nondiscrimination Act (GINA). GINA prohibits employers from asking employees for genetic information or requiring them to provide it. It also says that any genetic information obtained (even inadvertently) must be kept confidential and cannot be used in employment decisions. It applies to employers with at least 15 employees.
- Immigration Reform and Control Act (IRCA). This act states that employers cannot discriminate on the basis of citizenship or national origin. It also makes it illegal for employers to knowingly employ workers who are not authorized to work in the United States. It applies to employers with at least 4 employees.
This list is not intended to be fully comprehensive; it simply contains the laws that are most commonly cited and enforced pertaining to antidiscrimination. Employers should also note that some state laws provide further protection than these federal laws. Always check local laws and confer with employment counsel with questions. (This article does not constitute legal advice.)