09 Jul 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.