Most states have a co-religionist hiring exemption for organizations with religious purposes, akin to section 702 of Title VII. A few have narrower co-religionist exemptions, limited to jobs with religious duties of some kind. From my reading of Utah law when this story arose last week (I have not re-checked), the answer from Rose Saxe of ACLU re: breadth of Utah exemption is correct.
Sent from my iPhone > On Mar 12, 2015, at 12:06 PM, Nelson Tebbe <nelson.te...@brooklaw.edu> wrote: > > > > Here’s are possible answers to my own questions. According to this, SB296 > does not change Utah law, under which religiously-affiliated nonprofits were > already exempt: > > The ACLU was one of the most vocal opponents of ENDA’s religious exemption, > but it has endorsed Utah’s bill, despite the fact it has an identical > exemption. Rose Saxe, Senior Staff Attorney for the ACLU’s LGBT & AIDS > Project, explained to ThinkProgress that what looks like hypocrisy for the > civil rights organization actually isn’t because of Utah’s unique > circumstances. > “One of our core principles is that there shouldn’t be a different standard > for anti-LGBT discrimination when it comes to religious exemptions,” Saxe > confirmed. But “Utah already has an incredibly broad religious exemption,” > she explained. “Religious organizations are just exempt from the definition > of ‘employer’ for allforms of protected discrimination. So nobody can sue > them for race discrimination, for age discrimination, for sex discrimination. > They’re just not an ‘employer’ for purposes of the employment law in Utah. It > is one of the broadest exemptions, if not the broadest, in the country.” > So whereas a religious exemption for sexual orientation and gender identity > discrimination in federal law would treat those classes differently than > other groups, such an exemption in Utah would actually treat LGBT people > exactly the same as other protected classes. And while that exemption might > not be ideal, Saxe pointed out that “when you’re adding LGBT protections, > it’s not necessarily the time to walk back an existing exemption.” Passing > this law would only be a step up for LGBT people, protecting as many as > 37,000 LGBT workers across the state, according to the Williams Institute. > > Here’s the source. I’d love to know whether this analysis is right. > > Nelson > >> On Mar 12, 2015, at 11:52 AM, Nelson Tebbe <nelson.te...@brooklaw.edu> wrote: >> >> >> Hello all: >> >> I’m trying to get my arms around the Utah legislation that passed last >> night. I have two questions about the exemption from the definition of >> “employer” in SB 296. (I have been following the list serv discussion, but I >> may have missed discussion of this matter. I apologize if I have.) >> >> Here is the bill’s language exempting certain employers from the state’s >> employment discrimination provisions. This language appears to exempt all >> religiously-affiliated nonprofits, including universities, hospitals, social >> service organizations, and the like (but please correct me if I’m wrong >> about that): >> >> 92 (ii) "Employer" does not include: >> 93 (A) a religious organization [or association], a religious >> corporation sole, a religious >> 94 association, a religious society, a religious educational >> institution, or a religious leader, when >> 95 that individual is acting in the capacity of a religious leader; >> 96 [(B) a religious corporation sole; or] >> 97 [(C)] (B) any corporation or association constituting an >> affiliate, a wholly owned >> 98 subsidiary, or an agency of any religious organization [or >> association or religious corporation >> 99 sole.], religious corporation sole, religious association, or >> religious society; or >> 100 (C) the Boy Scouts of America or its councils, chapters, or >> subsidiaries. >> >> My first question is whether this is unprecedented either in Utah or >> elsewhere. Does Utah law as it stands also exempt large nonprofit employers, >> as long as they are religiously affiliated? My impression is that employment >> discrimination laws generally do cover large nonprofits. >> >> Second, this amendment seems to cover not just the LGBT nondiscrimination >> provisions, but all protection against employment discrimination in the >> state, including on the basis of race, gender, and religion. Am I reading it >> right? >> >> Nelson > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
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