Thursday, May 10, 2007

More on the ENDA Religious Exemption

In an earlier post, I observed that the religious exemption in the recently introduced Employment Nondiscrimination Act (H.R. 2015) was narrower than the more categorical exemption that was in versions of the legislation introduced in previous Congresses.

Instead of categorically exempting religious employers, the new version of ENDA has a more complex, three-part exemption. Although I concede the following characterization is an oversimplification, it is fair to say that the first part exempts houses of worship and the second part exempts from liability other religious employers with respect to their employment of ministers. [The religious exemption is section 6 of the bill. If you're looking at the GPO's PDF, it starts on page 10.]

The third part is, at least to this reader, a little more difficult to understand. It states in part as follows:

Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant.

One might plausibly ask what the phrase "similar positions" means. Similar to what? One conceivable reading is that the positions in question must be similar to those identified in the second part of the three-part exemption, i.e., ministers. If that is what is intended, however, then it is unclear what the third part of the exemption adds, since the second part of the exemption already exempts ministers who don't work in churches.

Perhaps the sentence refers to the scenario in which a religious employer asks employees in jobs that are similar to one another to conform to a religious tenet, e.g., refrain from homosexual conduct. In other words, the sentence is referring to the scenario in which the employer is drawing employees for a particular type of job from among those who share a particular religious commitment. If this is what is intended, then the third part of the exemption does add something to the first two parts. More on what exactly it might add . . . later.