REPUBLICAN VIEWS, H.R. 3685

Committee Republicans are generally committed to the principle that discrimination in the workplace is unacceptable. It is for that reason that we support the current-law protections provided under Title VII of the Civil Rights Act. However, we also believe that before imposing any new federal mandates in this area, even those cloaked in the honorable moniker of `non-discrimination,' the Committee and Congress must thoroughly and thoughtfully examine the need for such mandates and must evaluate the substantive implications of the legislative proposals. In this regard, the Committee has fallen short. Not only has the Majority provided little compelling evidence as to the need for this legislation, but they have also failed to fully address the substantive concerns it raises.

Remarkably, although absent from the bill reported by the Committee, the issue of providing discrimination protections on the basis of gender identity remains clearly on the Majority's agenda for future consideration. Indeed, at the conclusion of the Committee's consideration of H.R. 3685, several Committee Democrats voiced their intent to amend the bill during its consideration by the full House of Representatives by inserting additional protections for gender identity. While we do not question the right of our Democrat colleagues to offer such amendments, we do believe their expressed intention to do so begs an important question: Why was an amendment to include protections from discrimination on the basis gender identity not offered by these Members during the Committee's consideration of the bill? Indeed, why were gender identity protections--expressly provided in H.R. 2015--dropped from the bill that was brought before the Committee? The answer, of course, is rooted in the fact that extending non-discrimination protections to gender identity not only raises substantive and policy-related questions that the Majority cannot answer, it is also politically untenable. That Committee Democrats would forgo the opportunity to include such protections during the Committee's consideration of the bill merely underscores this fact.

Finally, we are troubled by the fact this legislation is proceeding to the House floor without adequately resolving outstanding issues and urge that the House of Representatives reject it, along with any amendments that seek to include protections based on gender identity.

The bill fails to protect the hiring prerogatives of religious schools

H.R. 3685 attempts to provide an exemption for religious organizations, including religious educational institutions. However, the bill's definition of `religious organizations' contains a two-part test used to determine if an educational institution qualifies for an exemption. This test, found in Section 3(a)(8) of the bill, requires that the school be `controlled, managed, owned, or supported by a particular religion'; or, have its curriculum `directed toward the propagation of a particular religion.' (emphasis added). Although this exemption is broader than that contained in H.R. 2015, it still does not provide the broad protections that exist under current law. Moreover, it fails to cover non-denominational religious schools and invites the federal government to investigate the religious nature of schools' curricula, effects we find unacceptable.

Despite assertions by the Majority that the exemption in H.R. 3685 is the same as the exemption found in Title VII, a plain reading of both reveals the Majority's assertion is incorrect. Current law, under Title VII, as amended, broadly exempts religious corporations, associations, societies, and educational institutions. 11

[Footnote] Title VII also contains a provision, the so-called `bona fide occupational qualification' (BFOQ), which provides further protections applicable to educational institutions in certain rare circumstances. 12

[Footnote] The BFOQ provision is rarely utilized in practice, because of the initially broad protections for educational institutions contained in Title VII. However, H.R. 3685 changes the nature of the exemption under Title VII with respect to educational institutions because, rather than simply providing a broad exemption for `educational institutions,' it qualifies the exemption for such institutions by using the BFOA provision exclusively. This creates several unresolved problems.

[Footnote 11: See, 42 U.S.C. Section 2000e-1.]

[Footnote 12: See, 42 U.S.C. Section 2000e-2(e)(2).]

For example, a non-denominational, independent faith-based school that is not controlled or supported by a `particular' religion, or whose curriculum is not directed toward propagation of a `particular' religion, may not be exempt from this legislation, even though religion forms the foundation of its mission. Unfortunately, there are many schools that may be penalized by this provision. One such institution, Wheaton College in Wheaton, Illinois, expressed serious concerns about the religious exemption in H.R. 3685. In a letter dated October 3, 2007 to Congressman Tim Walberg, the President of Wheaton College, Duane Litfin, stated as follows:

On behalf of Wheaton College I want to register our concern about a bill that has been introduced in the U.S. House titled `To prohibit employment discrimination on the basis of sexual orientation or gender identity,' and referred to as the Employment Non-Discrimination Act or ENDA (HR 3685), Appropriately, the Act provides a religious exemption consistent with the Civil Rights Act as Amended in 1972. However, the categorical religious exemption is undermined in Section 3(a)(8) of the Act by a problematic definition of religious organization that casts doubt on whether Wheaton College would be exempt. As I understand the definition language, educational institutions that are themselves religious but that are not controlled by some other religious organization, such as a church or a denomination, may not be covered by the religious exemption.

Wheaton College has a clearly defined religious identity, dating back to its founding in 1860, including a Statement of Faith to which all of our employees give assent, and a Community Covenant to which all of the members of our community adhere, Nevertheless, Wheaton College is not controlled by a religious corporation, but rather by a self-perpetuating Board of Trustees.

Surely a religious college such as Wheaton should be permitted the same protection of its religiously motivated hiring rights as those colleges that are controlled by churches or other religious organizations.

Since 1972 when the Civil Rights Act was amended to forthrightly protect the mission-critical hiring rights of religious organizations, including religious higher education, we have been able to grow and expand our service to our communities with a robust religious mission and distinctive approach because we have had the ability to select all of our staff on a religious, mission-critical basis. Our continued existence as a distinctively religious institution, and with it, a diverse and thriving higher education sector, is threatened because the proposed ENDA, with its limiting and non-categorical religious exemption, does not clearly and fully ensure our religious, mission-critical staffing freedom.

I urge you to remove the problematic religious definition language currently in ENDA and ensure that the Act categorically exempts religious organizations as in Section 702(a) of Title VII of the Civil Rights Act of 1964, as amended.

The concerns expressed by Mr. Litfin are not unique to Wheaton College. Indeed, the impact of the insufficient religious exemption has engendered comments from numerous organizations, who expressed serious reservations similar to those expressed by Wheaton College. Those commentators included:

The Council for Christian Colleges & Universities

Agudath Israel of America

The American Association of Christian Colleges & Seminaries, Inc.

The American Association of Christian Schools

The Family Research Council

The Ethics & Religious Liberty Commission of the Southern Baptist Convention

The Traditional Values Coalition

The American Center for Law and Justice

This is by no means a comprehensive list of concerned parties, but reflects the concern of many impacted institutions and organizations who find the current exemption to be wholly insufficient.

Additional concerns regarding the so-called religious exemption are also worthy of mention. For example, if the current exemption were to be enacted, religious schools would likely be subjected to a `denominational' test. Such a test would inevitably `entangle' the federal government in the practice of religion, since it invites courts to examine the beliefs and practices of religious schools to determine if they are `religious enough.' In addition, H.R. 3685 would vest the EEOC with regulatory, enforcement, and investigatory powers. This would require the EEOC to investigate and determine whether institutions are associated with `particular' religions or whether the curriculum of an institution is directed toward the propagation of a `particular' religion. In doing so, the provisions would entangle a Federal agency in complex questions involving religious missions and doctrine and would require promulgation of Federal rules governing this area of inquiry. This intrusive federal inquiry into the religious beliefs of schools arguably violates the constitutional separation of church and state. Religious schools and faith-based institutions should be free to exercise their religious beliefs without government intrusion.

Also, in an effort to qualify for the exemption, religious schools may be forced to alter their curricula in an attempt to focus it on the `propagation of a particular religion.' Forcing schools to choose between adopting a `particular religion' or relinquishing hiring prerogatives would be antithetical to, and in conflict with, the mission of many of these faith-based schools.

Uncertainties associated with the new exemption would result in lengthy and expensive litigation to uphold religious freedoms and the separation of church and state. Litigants would use this loophole to bring suits against the schools, forcing them to hire individuals whose lifestyles might violate the schools' core principles.

In an effort to address the insufficient religious exemption, Republican Members overwhelmingly supported an amendment by Rep. Hoekstra at the full Committee markup that would appropriately expand the exemption to include religious and faith-based schools. More specifically, the amendment would have stricken the requirement to associate with a `particular' religion, and would have provided an exemption for institutions that maintain a faith-based mission. Unfortunately, the Majority refused to address the legitimate concerns regarding the religious exemption, and the amendment failed.

The bill provides vague prohibitions based on `perceived' sexual orientation

H.R. 3685 prohibits--as did its predecessor, H.R. 2015--employers from discriminating against an individual because of an individual's actual or `perceived' sexual orientation. The bill also makes it unlawful to discriminate against an individual based on the actual or `perceived' sexual orientation of a person with whom the individual associates or has associated. Despite its significance to the bill's underlying policy, the term `perceived' is not defined anywhere in H.R. 3685. Its inclusion raises a number of practical and legal concerns that remain unaddressed.

At the Subcommittee hearing on H.R. 2015, one of the witnesses, Mr. Lorber, expressed general concern regarding legal protections based on perception, which would be applicable to perception as applied to both sexual orientation and gender identity. In his own words, Mr. Lorber states:

Section 4(e) is modeled after the ADA, 42 U.S.C. sect. 12112(b)(4) and is understandable when applied to defined characteristics. It is less than clear, however, when applied to non-inherent characteristics which may be self-perceived by the individual but not apparent to the employer. This will seem to create the potential for difficult enforcement and even more potentially difficult litigation since the underlying issue may be ephemeral or not readily apparent to the employer. Again, understanding the law makes compliance with the law an acceptable undertaking. 13

[Footnote]

[Footnote 13: Testimony of Lawrence Z. Lorber, Esq., Proskauer Rose LLP, Committee on Education and Labor, Subcommittee on Health, Education, Labor and Pensions Hearing, `The Employment Non-Discrimination Act of 2007 (H.R. 2015)' (September 5, 2007), at 3.]

The issue raised by Mr. Lorber highlights the fact that a perception of an individual being homosexual or bisexual is a highly subjective determination. An individual may `perceive' themselves to be homosexual, but this may not be apparent to others. Yet, notwithstanding the lack of clarity, this could still provide the basis for a discrimination claim. In the litigation context, determinations would have to be made involving consideration of evidence that is highly subjective, circumstantial, or contradictory. This would make it virtually impossible to make factual determinations with a high degree of certainty and confidence.

The potential impact on employers is profound. Even though employers would have difficulty in identifying non-inherent characteristics of a person, they would still be subjected to claims and potential liability. Even though an employer may not be capable of perceiving a person to be homosexual, if they have fifteen or more employees and are otherwise subject to this bill, they would have to defend themselves in lawsuits by having to prove a negative; that they did not `perceive' the person to be part of a protected class. Difficulty in enforcing this provision will undoubtedly lead to costly litigation. Or, in the alternative, employers--especially small employers with limited resources--may simply choose to settle these cases regardless of the merits, in order to avoid lengthy and costly litigation.

It is worth noting that the term `perceived' does not appear in any other civil rights legislation, including Title VII, which protects race, color, religion, sex, and national origin. As such, there is simply no reason to provide more statutory protection for one protected class over other protected classes. Although the Majority may claim that the ADA protects persons `regarded as' having a disability, that term is different from `perceived' and is applied to protect situations that are different from those to be addressed by this bill. Their analogy to the ADA is off the mark. For example, an employer may more easily be able to identify an apparent condition, for example the fact that a worker suffered a treatable heart attack, and `regard' that employee as being disabled. A person's sexual orientation may not be so readily apparent to an employer, and thus protection against discrimination based on `perceived' sexual orientation is not appropriate.

The Majority denies these valid concerns, by simply stating that the inclusion of this term is necessary to protect the rights of employees, and that employers could use the absence of this term to defend against lawsuits by claiming they did not know the `actual' sexual orientation of the individual. However, this explanation evades and ignores the expansion of statutory rights based on sexual orientation, beyond the current statutory protections for race, color, sex, religion and national origin.

At markup, Rep. Souder offered an amendment to strike the term `perceived' from the bill. This amendment was rejected. Inclusion of the statutory extension of protection on the basis of `perceived' sexual orientation is justification to reject this bill. 14

[Footnote]

[Footnote 14: If protection based on `perceived' gender identity were added to this bill, it would raise similar significant, and perhaps even greater, concerns regarding its application in the workplace. For example, questions regarding employee privacy and reasonable accommodation of transgendered individuals and coworkers would arise. Such an extension of the law, if attempted, is wholly inappropriate and should be rejected.]

Policies conditioning employment on marriage

Under the bill it is unlawful to condition employment, in a state in which a person cannot marry a person of the same sex, either on being married or being eligible to marry. 15

[Footnote] The Majority claims that this provision purports to protect against instances where an employer would use marriage as a pretext for discrimination. On its face, the inclusion of such a provision would suggest that employers routinely engage in such pretext, and that they regularly condition employment with their companies for the sole purpose of engaging in discrimination. Yet, the Committee heard no testimony, nor is there any history of case law, to suggest that employers use such a pretext in order to discriminate on this basis. As such, the provision is unnecessary, in the first instance.

[Footnote 15: H.R. 3685, Section 8(a)(3).]

Beyond the apparent lack of need for the provision, its practical implications are significant. Current law permits employers to adopt policies on the basis of behavior expectations, if such policies are applied equally to all employees. In some work environments--or for some specific jobs--it may be entirely appropriate to condition employment on marital status. Take, for instance, certain groups, such as Boys and Girls Ranch organizations, which provide residential treatment programs designed to help at-risk children and families. If this provision of the bill were enacted, these organizations could be precluded from using married couples for `house parent' positions. In short, the provision could prevent employers from hiring people they believe to be best-suited to the job.

In addition, employers could be precluded from implementing codes of ethics with respect to employees' behavior. One such example would be a policy that discourages any form of extra-marital conduct, both homosexual and heterosexual. Such codes are reasonable and legal under current law. The provision would limit the ability of employers from instituting such policies or others they believe to be in the best interest of their companies and their workers.

Finally, the provision undermines the ability of states to define, preserve and protect the institution of marriage. Only one state, Massachusetts, permits same-sex marriage. The other 49 states currently have chosen to prohibit same-sex marriage. This provision directly challenges and circumvents independent state determinations to define and protect their definitions of marriage. At least one commentator, the American Center for Law and Justice (ACLJ), in an October 1, 2007 memorandum to the Chairman and Ranking Member of the Committee's HELP Subcommittee, highlighted this concern. 16

[Footnote]

[Footnote 16: See, Comments of the ACLJ on the Employment Non-Discrimination Act of 2007, addressed to the Hon. Robert Andrews, Chairman, Hon. John Kline, Ranking Member (October 1, 2007).]

In order to maintain the current legal right of employers to maintain codes of conduct, and to preserve 49 independent state determinations regarding the definition of marriage, Republican Rep. Souder offered an amendment to strike the provision at markup. Unfortunately, this amendment was rejected by the Majority.

Protection from retaliation

The bill makes it unlawful to discriminate or retaliate against an individual because the individual opposed any practice made unlawful by the bill, or participated in a proceeding relating to the bill. However, the bill fails to protect those who may not agree with employer policies relating to this Act, because of sincerely held beliefs regarding sexual orientation. This creates an imbalance with respect to protections from retaliation by excluding certain individuals from those protections.

This is not some theoretical concern, proffered merely to provide yet another reason to oppose this bill. In fact, Members were provided with substantial anecdotal evidence of instances where employees were disciplined, or even terminated, for failing to embrace their employers' policies, irrespective of whether those policies conflicted with the employee's sincerely held religious beliefs.

It is simply unfair to provide legal protections relating to sexual orientation, without also protecting the rights of individuals to be free from retaliation for disagreeing or refusing to consent to employer policies on this issue. Certain people, because of sincerely held beliefs, may have great difficulty consenting to employer rules, policies--such as diversity training programs--related to treatment of sexual orientation in the workplace. It is unfair to leave these employees open to punishment or retaliation, while at the same time providing new protections to another class of workers. Further, freedom of speech and free exercise of religious beliefs may be at issue. The failure to provide protections against retaliation would place a severe, unjustified, and wholly unnecessary burden on an individual.

In an effort to restore this balance of protections, Rep. Souder offered an amendment that would have clearly and unambiguously extended protection against retaliation to employees who, because of burdens on sincerely held beliefs, may choose not to provide consent to employer policies on this issue. Unfortunately, the Souder amendment was rejected by the Committee.

Protection against discrimination based on gender identity

Although absent from the bill under consideration, H.R. 3685, the issue of extending non-discrimination protections based on gender identity is clearly on the agenda for future consideration by the House. In fact, several Members at markup expressed the intent to offer an amendment to this bill to extent such protection prior to or during a House Floor vote on this bill. Accordingly, it is appropriate to raise concerns regarding this issue at this time.

Evidence presented for the record at the September 5, 2007 HELP Subcommittee hearing on H.R. 2015 raised numerous concerns associated with gender identity. The problems associated with providing protection based on `perceived' status are more compounded in the case of gender identity. The question of providing reasonable accommodation for such employees is extremely problematic. Employee privacy issues are significant, Litigation concerns abound.

Simply put, it is premature to consider extending protections based on gender identity, a fact grudgingly acknowledged by the bill's own sponsor. This becomes more apparent in light of the sparse legislative history and consideration of this issue. Any attempt to amend this bill to add protections based on gender identity should be rejected by the House.