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Letter to the Senate on Employment Non-Discrimination Act (ENDA) of 2013 (S. 815)

November 06, 2013

Dear Senator:  

On behalf of the more than three million members of the National Education Association and the students they serve, we wish to share our views on selected amendments to the Employment Non-Discrimination Act (ENDA) of 2013 (S. 815) and final passage of the bill to be voted on this week. Votes associated with this bill may be included in the NEA Legislative Report Card for the 113th Congress. 

Specifically, we urge you to:  

  • Vote YES on the underlying bill, a critical step in addressing basic civil rights in the workplace.
  • Vote NO on the Toomey amendment, which would expand religious exemptions and weaken Title VII of the Civil Rights Act of 1964, legislation that has been tested for nearly 50 years. This amendment seeks to broaden a religious exemption that is already broad, which could create a dangerous precedent. Introducing new and untested language in an area with so much existing precedent could lead to increased litigation—for example, what it means for an entity to be “affiliated with a particular religion.”   

Too many educators have been victims of irrational employment discrimination based on sexual orientation or gender identity. Such discrimination not only destroys the lives and careers of innocent and committed education professionals, but also does real harm to the American system of public education and the children that system serves.

Employment discrimination against lesbian, gay, bisexual, and transgender (LGBT) workers violates the core American values of fairness and equality, yet it is currently legal in more than half the states. The compelling reasons for Congress to enact ENDA are illustrated by Milligan-Hitt v. Bd. of Trustees of Sheridan County School District No. 2, a case involving two NEA members who lost their jobs simply because they are gay.  

The school superintendent received a visit from a “concerned parent,” who reported a rumor that the plaintiff and another woman had been seen holding hands while walking into a store. He called the plaintiff’s companion into his office, confronted her with the rumor, and told her he had called the school district where the two had been previously employed and learned they were involved in a long-term intimate relationship. The rumor about their alleged visit to the store was false; the information about their relationship was true.

A few months later, the superintendent implemented a district-wide “reorganization” that resulted in the two women losing their jobs. They were the only employees who were terminated and subsequently sued the school district. The jury found that the superintendent had manipulated the reorganization in order to dismiss them because of their sexual orientation, that the school district had violated their rights to equal protection, and awarded substantial damages.

The U.S. Court of Appeals for the Tenth Circuit reversed the decision, threw out the damages award, and dismissed the case on grounds that the school district could not be held liable because the superintendent had made the termination decision. The court then held that the superintendent could not be held liable because the law is not firmly established that firing gay school employees because of their sexual orientation violates the federal constitution, emphasizing that the U.S. Supreme Court has never made such a ruling.

In a nutshell, this decision and similar cases make it crystal clear that federal law does not currently provide adequate protection for LGBT school employees—they can be fired or discriminated against in other ways solely because of their sexual orientation or gender identity, and have no federal remedy.  

This overt form of employment discrimination sends a terrible message to LGBT students: they are second-class citizens who are not entitled to legal protection from discrimination or harassment by peers. LGBT students often look to LGBT educators for support and guidance. And when schools can lawfully fire those supportive adults, the impact on LGBT students can be devastating. 

NEA has a long-standing commitment to eliminating discrimination in the workplace and all facets of society. We believe that all persons must have equal opportunity for employment, promotion, compensation, and leadership. We urge you to vote YES on the underlying bill and NO on the Toomey the amendment. This legislation adheres to the fundamental American ideal that individuals should be judged in the workplace by their ability to perform the job, not by prejudice and discrimination. 

Sincerely, 

Mary Kusler
Director of Government Relations