When the U.S. Senate passed the Employment Non-Discrimination Act 64 to 32 on Nov. 7, it was widely applauded by a number of advocacy groups, including those inside and outside the Jewish community.
“It is legislation whose time has come,” said Eric Fusfield, director of legislative affairs at B’nai B’rith International. “Attitudes have shifted.”
The act, ENDA for short, would protect against workplace discrimination on the basis of sexual orientation or gender identity. Federal law currently protects against discrimination on the basis of race, sex, religion, national origin, age and disability, but not sexual orientation or gender identity. ENDA has been introduced in almost every congress since 1994.
“LGBT rights are at the forefront of the civil rights agenda, and the Jewish community needs to be one of the leaders in that struggle,” Fusfield said. “We have suffered discrimination ourselves, and we need to defend others.”
Although ENDA included a provision that exempted religious organizations, some say it didn’t go far enough to ensure the protection of those groups.
“The religious exemption that is in [ENDA] is vague and not specific as to what kinds of entities it would cover and what kind of religious entities it wouldn’t cover,” said Rabbi Abba Cohen, vice president of federal affairs and Washington director at Agudath Israel of America, a haredi organization.
He said different courts have interpreted similar protections differently, giving the example that even after Boy Scouts of America were legally allowed to bar homosexuals from joining the organization, they were still barred from using some parks.
Cohen’s concern is over what constitutes a religiously affiliated group, noting there are a variety of organizations that are not houses of worship, but still Jewish-affiliated.
“How affiliated do you have to be?” he asked. “That could be a judgment call and different courts have to come different conclusions.”
Agudath Israel was joined by a coalition of other groups, including evangelical Christians, and he said the coalition plans to lobby for stronger religious exemption provisions on the U.S. House side.
But Fusfield and others are doubtful the bill will fare as well on the House side. House Speaker John Boehner said he would oppose the bill.
“We know it’s going to be an uphill climb and, certainly, we don’t expect a vote this year, and in 2014, we’ll see,” Fusfield said. “We understand the majority in the house is not receptive to this bill so we’re going to have to keep pushing for it. But we’re not going to stop.”
U.S. Sen. Ben Cardin (D-Maryland) urged his colleagues in the House to approve ENDA so it can be signed into law.
“We should leave no doubt that Congress is united against discrimination in any form,” he said. “Passage of ENDA will reinforce U.S. leadership around the world and help support the LGBT community in places like Russia, Africa and some countries in Europe that have taken discriminatory actions to marginalize lesbians, gays, and those who, because of their sexual orientation or gender identity, have been discriminated against.”
According to the Center for American Progress, 85 percent of Fortune 500 companies have sexual orientation nondiscrimination policies and 49 percent have gender identity nondiscrimination policies. Maryland is one of 21 states that prohibit employment discrimination on the basis of sexual orientation. Several municipalities, including Baltimore County, Baltimore City, Montgomery County and Howard County prohibit employment discrimination based on gender identity.
“If we are going to be able to adequately compete globally, we need to empower all of the people of this country,” Cardin said in his statement. “We can’t leave anyone behind.”
Marc Shapiro is a reporter for Washington Jewish Week’s sister publication, the Baltimore Jewish Times.