Discriminatory Legislation Seeks to Strip Workplace Protections for LGBT Workers

Fog obscures the Capitol dome in Washington, D.C., on December 10, 2012.

Last week, the U.S. House of Representatives Armed Services Committee added an amendment to the National Defense Authorization Act, or NDAA, that would rescind important existing workplace protections for lesbian, gay, bisexual, and transgender, or LGBT, employees of federal contractors. This harmful legislation would gut a 2014 executive order issued by President Barack Obama that added sexual orientation and gender identity to the list of classes protected from discrimination by any company or entity receiving $10,000 or more in federal contracts per year. In total, President Obama’s executive order enhanced workplace protections for 28 million people, or roughly one-fifth of the American workforce.

The discriminatory amendment to the NDAA was added despite a growing national outcry in response to anti-LGBT legislation passed in North Carolina and Mississippi and pending in several other states. For example, after North Carolina passed its discriminatory legislation—H.B. 2—major companies pulled business from the state, putting at risk more than a half billion dollars in economic activity for the state over the next two years. The negative repercussions have been international as well: The United Kingdom recently issued a travel warning to its LGBT citizens traveling to North Carolina and Mississippi.

Significant majorities of Americans from all walks of life, including a majority of Republicans, reject discrimination and support the inclusion of LGBT Americans under the protection of the nation’s employment laws. In light of this reality, the latest attempt at discrimination—this time at the federal level—is likely to receive the same swift criticism and recrimination.

Rep. Steve Russell (R-OK) introduced the NDAA amendment, which was adopted by the committee early last Thursday morning. Two Republicans joined the committee’s Democrats in voting against the amendment.

Similar to anti-LGBT laws passed in Indiana in 2015 and in Mississippi this year, Rep. Russell’s amendment uses the guise of religious liberty to grant a broad exemption that would legalize and codify many forms of discrimination. The federal amendment privileges some forms of taxpayer-funded discrimination by religiously affiliated institutions that contract with the government to provide services to the public at large. The proposed amendment does this by removing explicit sexual orientation and gender identity protections with respect to those religiously affiliated entities and codifying a license to discriminate based on religion in hiring by those same institutions.

The language in Rep. Russell’s proposed amendment is not only vague; its immediate impact is far reaching. While the amendment was attached to legislation authorizing funding for the nation’s military, its scope exceeds that of the overall bill or the House Armed Services Committee’s jurisdiction. The amendment would affect every grant, agreement, contract, subcontract, and purchase order made by every federal agency, including contracts with hospitals, homeless shelters, colleges, schools, domestic violence shelters, and adoption agencies.

If signed into law as part of the NDAA, many federally funded institutions could refuse to hire, or even outright fire, individuals based on sexual orientation and gender identity. Under the Russell amendment, for example, a transgender custodian at a major hospital receiving federal funding could be fired merely due to their gender identity. Similarly, some major institutions could refuse to grant health insurance to the legally married spouse of a gay or lesbian employee.

This discrimination is far from hypothetical. In 2010, Laine Tadlock, an administrator at Benedictine University, a religiously affiliated college in Illinois, was fired from her job after a wedding announcement for her and her wife appeared in the local paper.

Benedictine University has received tens of thousands of dollars in taxpayer funds through federal contracts over the past several years. Currently, the discrimination faced by workers such as Tadlock is barred by President Obama’s executive order. The NDAA amendment would reverse those protections.

In total, billions of dollars of taxpayer funds distributed through federal contracts could subsidize discrimination under the new amendment to the NDAA. For example, Catholic charities have received approximately $1.6 billion in federal funds since 2012, including nearly $20 million in federal contracts during that period.

As alarming as those ramifications are, the negative consequences of the Russell amendment neither begin nor end with the LGBT community. Much like the recently passed H.B. 2 in North Carolina, the Russell amendment seeks to roll back LGBT rights and undermine protections for communities across the country. The amendment would codify a 2007 Bush administration decision that allowed programs that receive federal funds within religiously affiliated institutions to discriminate in employment based on the applicant’s or worker’s religion. Additionally, the amendment’s vague language could allow, for example, the firing of a woman who is pregnant before her wedding or of a man who remarries after being divorced.

Simply put, the Russell amendment is a misguided piece of federal legislation that would codify certain forms of discrimination funded with taxpayer dollars and have far-reaching negative consequences. The amendment represents yet another example of the extreme elements within the U.S. House of Representatives who are willing to play politics with the nation’s national security in order to advance harmful and discriminatory policies. No worker should face discrimination because of who they are or whom they love, particularly when federal taxpayer funding is involved.

Sarah McBride is the Campaigns and Communications Manager for the LGBT Research and Communications Project at the Center for American Progress. Aaron Ridings is the project’s Associate Director.