Religious Discrimination Removed from National Defense Bill

In a briefing with reporters on Tuesday, a Congressional aide confirmed that the final version of the National Defense Authorization Act (NDAA) will not contain what has come to be known as the “Russell Amendment.” The Amendment would have required the Federal Government and all of its agencies to allow federally-contracted religious organizations and associations to discriminate against current and potential employees when those employees do not share their employers’ religious beliefs or adhere to the tenets of their employers’ religion. These exemptions already exist in private employment contexts, but the Amendment would have codified the requirement for all federally-contracted programs, which collectively employ approximately 28 million people, or more than 20 percent of the American workforce.

Although this is a positive development for those concerned with the potential consequences of the Amendment, the aide indicated that its removal is directly related to “new paths” that have opened up to address the Amendment’s intended purpose, indicating a related stand-alone bill may be introduced in the near future.  Steve Russell, a member of the U.S. House of Representatives from Oklahoma, attached the contentious amendment to the NDAA in May, and it passed narrowly in a late night House vote. Today, that Amendment seems to have been stripped from the bill’s current version, which will likely come up for a floor vote on Friday.

Opponents of the Amendment claim that, had it passed, it would have been a direct and intentional threat to a 2014 Executive Order signed by President Obama (EO 13672), which prohibits federal contractors and sub-contractors from engaging in employment discrimination on the basis of a worker’s sexual orientation or gender identity.  EO 13672 amended an earlier Executive Order signed by President Lyndon Johnson in 1965—which has been enforced by subsequent Administrations—prohibiting federal contractors from discriminating against their employees on the basis of religion, sex, race, and national origin.

Proponents of the Amendment argued that the measure would simply reinforce the current legal status quo, by incorporating exemptions for religious organizations found within Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), both of which do provide limited nondiscrimination exemptions to religious organizations—but neither of which clearly apply in the context of federal contractors.

As opponents of the Amendment rightly point out, had it passed, the law would have undermined existing federal nondiscrimination protections not only for lesbian, gay, bisexual, transgender and queer (LGBTQ) workers and communities, but also for communities of color, people living with disabilities, immigrant communities, women and gender non-conforming people, people of faith or no faith who hold different views than their employers, and others who would otherwise be protected under Title VII, the ADA, or other nondiscrimination regulations that federal agencies have already promulgated.

For example, under this Amendment, an organization, using federal funds, might refuse to hire a transgender person simply by claiming that their identity and non-conformity to certain sex stereotypes did not meet a tenet of that employer’s religion—namely, that if a person is assigned a particular sex at birth, they must have a particular gender identity or set of gender expressions. While the Supreme Court has ruled clearly that employment discrimination on the basis of sex stereotyping is a violation of Title VII—and the Equal Employment Opportunities Commission and federal courts have confirmed this applies to transgender and gender non-conforming people—the Amendment would have created a broad exemption for all federal contractors that fall under the exemption, without guidance on how existing nondiscrimination protections might be threatened or undermined.

Furthermore, proponents failed to address the unique constitutional concerns that arise under the Establishment Clause when government funds, as opposed to private funds, are used to promote and endorse religion and further discriminatory behavior against third parties. In this case, job applicants or current employees of religious organizations could have been directly harmed.

Although the removal of the Russell Amendment is welcome news to those concerned with its consequences, given the recent election outcome and the current list of proposed Presidential appointments, similar legislative and administrative efforts seem inevitable in the immediate future and over the next several years.