As originally introduced last year by Senator Danielle Conrad, Legislative Bill 485 would make it unlawful for employers of 15 or more employees to make decisions about hiring, firing, and terms and conditions of employment based on an individual’s “sexual orientation.” In addition, it would apply the same prohibitive standard to all contractors and subcontractors of the state and political subdivisions; and it would correspondingly expand the affirmative-action policy that guides state government.
This is about employment superficially, but it is considerably more than that. It is a multi-dimensional public-policy issue of cultural significance. A newly surfaced amendment backed by Senator Conrad makes the issue even weightier.
The employer mandate would be imposed through changes to the Nebraska Fair Employment Practice Act. That set of statutes now makes it unlawful to discriminate in employment on the bases of race, color, religion, sex, disability, marital status or national origin.
LB 485 was one subject of an odd public hearing—conducted simultaneously along with two other, broadly related bills—in front of the Legislature’s Judiciary Committee on March 14, 2013. No amendments were submitted at that time. The committee carried the bill over to 2014.
In seeking to add sexual orientation as a protected classification subject to the state’s coercive authority to act against discrimination, LB 485 does not distinguish between sexual inclination (attraction) and sexual conduct. It encompasses both. This creates a weighty dilemma, both morally and in relation to public policy.
From the perspective of Catholic teaching and the views of many others, sexual conduct outside of marriage of a man and a woman, including same-sex sexual conduct, has no claim to special protection. LB 485 seeks to give it that, as well as legal affirmation. The legislation would eliminate, as a matter of public policy, the rights of a lot of employers to use discretion on the basis of known, morally opposed conduct. While such a law might forbid and punish some unjust discrimination, it also would forbid and punish decisions based upon moral disapproval of sexual conduct outside of marriage of a man and a woman. Other detriments tip the balance.
The legislation’s purported safeguard for religious freedom, which is a convoluted version of Federal Title VII’s exemptions, would cover only a subset of religious employers. This inadequacy threatens the institutional identity and integrity of some religious entities. There is no safeguard, other than the 15-employee threshold, for individual business owners who seek to operate their businesses in accord with religious beliefs and/or moral values.
There are broader public-policy repercussions as well. Some courts in other states have relied on state law prohibiting employment decisions on the basis of sexual orientation as part of a basis for creating a right to same-sex marriage. Make no mistake, such legislation is a prong of an ideologically motivated political strategy.
The public-policy shortcomings of such legislation are further exposed by the lack of empirically sound evidence that employment discrimination on the basis sexual orientation is pervasive or causing either significant or widespread economic disadvantage.
On Feb. 3, Senator Conrad chose LB 485 as her priority for the current session.
A few days later, the Judiciary Committee met in an executive session that had LB 485 on the agenda. Not long before that convening, committee members received a re-write of the bill, a “Strike-the-original-sections” amendment.
The re-write amendment has three changes of considerable substance and significance.
First and foremost, it proposes to add a second, new, separate classification for protection and legal affirmation; namely, “gender identity.”
Setting forth definitions of both “gender identity” and “sexual orientation,” is the second substantive change; and not only for purposes of LB 485 itself, but for purposes of statutory construction universally.
“Gender identity” is proposed to be defined as follows: “the actual or perceived appearance, expression, identity, or behavior of an individual, whether or not that appearance, expression, identity, or behavior is different from the individual’s assigned sex at birth.”
“Sexual orientation,” undefined in the original bill, is now proposed to be defined as “actual or perceived homosexuality, heterosexuality, or bisexuality.”
The third substantive change is proposed inclusion of some confusing wording that is seems intended to exclude religiously sponsored educational entities from the proscription.
Within a day or so after the gender-identity-and-more amendment was revealed, the Judiciary Committee met again in executive session and this time took a vote on a motion to advance the amended version of LB 485 to the full Legislature.
To their credit, Senators Al Davis from Hyannis, Les Seiler from Hastings, Colby Coash from Lincoln and Mark Christensen from Imperial voted “no” and the motion failed. They deserve affirmation for doing so.
For the sake of sound public policy, so that morally controversial conduct is not specially protected, the Nebraska Catholic Conference hopes all four hold to that position in the event another vote is taken.
