When we hire people, the only consideration should be how well they can do the job. Race, gender, sexual orientation, or religion shouldn’t be a concern. Title VII of the Civil Rights Act protects people against discrimination on the basis of “race, color, religion, sex and national origin.” Later acts protected people over 40 from discrimination (ADEA), Pregnancy (Pregnancy Discrimination Act), and people with disabilities (ADA).
When Congress passed these laws and the president signed them, sexual orientation wasn’t on the forefront of the public mind. That, obviously, has changed and today, it’s front and center in our world. The courts have given a mishmash of decisions that vary on the issue of gender identity and sexual orientation in employment.
Some courts have come back and said that even though sexual orientation and gender identity was not listed in Title VII, clearly it falls under “sex” discrimination. Some courts have come back and said, nope; it’s not covered. The Supreme Court has agreed to hear a group of conflicting cases.
But making non-discrimination policy or not, ultimately falls to Congress. This shouldn’t be left to the Supreme Court, whose job is to interpret the law, not create it. I agree with Second Circuit Court Judge Gerard E. Lynch’s dissent in one of these cases. He wrote:
Speaking solely as a citizen I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.
I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.
The Equality Act is the current proposal to fix this. The Act mandates that a person should no more be fired for being gay than you should be fired for being female. This makes tremendous sense. Everyone deserves to be judged on their knowledge, skills, and abilities. (And while the Equality Act would impact far more than just employment, I’m only going to look at the employment aspect of it.)
But, the Equality Act has some serious problems that will probably result in a quiet death in the Senate, only to be resurrected if Democrats gain control of the Senate and the Presidency. Why?
It’s not that most people aren’t in favor of equal rights; they are. Support for LGBTQ rights has steadily increased over time, and there doesn’t seem to be signs of that support waning. That doesn’t mean that discrimination isn’t real and problematic. 10 percent of LGBTQ employees have left a job because they felt the environment wasn’t supportive and 80 percent of Transgender employees reported either harassment or taking steps to prevent that harassment.
But, the Equality Act removes protections for people who have deeply held religious beliefs that conflict with homosexual behavior. Remember, Title VII also held religion as a protected class, and this will come into conflict.
The Equality Act would force you to “bake that cake.” Or press you into performing a medical procedure that you think is immoral or inappropriate for the patient. And that’s a problem.
The Masterpiece Cakeshop case is particularly apt. Under the Equality Act, there’s no question but that the owner (important) would have to make a cake for a gay wedding, sex-change celebration, or anything related to someone’s sexual orientation or gender identity.
However, if Masterpiece Cakeshop had an employee whose religious beliefs prevented him from designing and creating such a cake, the business would have to make a reasonable accommodation. If it were possible for someone else to design the cake, the owner (or manager) would have to let your objecting employee not take over that assignment. If there were no other employees capable of creating such a cake, then the employee would have to make the cake or lose his job. The exception for the employee would be the same as today.
But, even if there are 47 bakeries in the town that would be happy to bake such a cake, the Equality Act would force any owner to do whatever a client demanded, as long as it was related to sexual orientation or gender identity.
We should have more discretion when we take on the financial risks of opening our own businesses, not less. When a cake designer says that his right to free speech are violated when he is forced to create a cake that represents something he cannot morally support, we should listen.
It’s easy to say, “but he should have baked the cake! It’s just a cake!”
It is just a cake, but one created by a person with his or her own conscience. And as someone whose cakes look like Pinterest fails more often than not, it’s hard to wrap my head around why some do object to making the cake. But, I’m also a small business owner. If someone comes to me and says, “I’d like you to write an article taking position X,” I should be free to say no. No one questions that now, but under the Equality Act, could that person come back and sue me for discrimination? Because I offer a service (writing articles) would I be compelled, under US law, to write an article that advocates activities that violate my own moral code?
It’s a very real threat and undermines the freedom of religion. There needs to be a balance. While we can recognize the need for fairness and equality within the workplace, that also needs to include not shoving religion in a corner. A pluralistic society means that we need to respect others beliefs, even if they do not align with our own.
Should small business be compelled to sacrifice their own consciences, especially when those rights would be protected if they were employed by someone else? Should religions be free to label whatever behavior they wish as sins and hire and fire accordingly?
Secular businesses, of course, should be required to practice non-discrimination when they hire, fire, and promote, but don’t forget to protect the rights of everyone—including the religious.