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More Legal Land Mines for Faith-Based Employers

LandmineThere is a new front in the battle for religious liberties: broad, general laws that sweep within them people and organizations of faith, and fail to accommodate their deeply held beliefs, forcing them to choose between their consciences and the heavy hand of the law.

The debate over the failure of Obamacare to exempt religious groups from the provision of abortion services is but one example. In the employment arena, the struggle is particularly fierce, with new politically correct rights being created, and at the same time historic religious liberties being denigrated. I made those two points in my Senate testimony in June in opposition to ENDA, the bill that would force employers to treat "sexual orientation" and "gender identity" as legally protected classes. I made the point again in my written response this week to a post-hearing question posed to me by Senator Al Franken (D-MN).

In truth, the EEOC – the federal agency that oversees enforcement of federal employment discrimination laws – has proven NRB's position convincingly. As for the first point, that agency ruled in April that " transgender" people who intentionally attempt to effect a different gender by surgery, or by cross-dressing, etc., can sue employers for "sex" discrimination if they are not accommodated, despite the lack of any language in the federal discrimination statutes that would justify that result.

Then, as apt proof of the second point, the EEOC filed suit in June against a lighting company in Oklahoma founded by a Christian man who believed that God wanted him to use his business as a ministry. The company's website expressly declares that Christian mission. But when the company discussed matters of faith with someone who interviewed unsuccessfully for a job, the EEOC brought the full force of the U.S. government to bear against the company, asking for a permanent injunction against the lighting business, enjoining it from pursuing its Christian mission, and suing for punitive damages. If the EEOC suit prevails, the damages, attorneys’ fees and costs could cripple the company, or put it out of business. We applaud the Supreme Court's ruling earlier this year in the Hosanna-Tabor case, where the Court held that federal discrimination laws do not apply to pastors, priests, rabbis, or similar religious leaders. Sadly, however, the ruling may not extend to other, lower level staff positions within Christian organizations. Until it does, the field of employment litigation will be an area full of land mines for faith-based employers.

PHOTO ABOVE: Land mine used by Iraqi forces in Southern Kuwait during Desert Storm. Photo courtesy of UN.

By Craig Parshall, Sr. Vice President and General Counsel

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Published: July 26, 2012