An amendment introduced and pending on a controversial legislative bill in the current session of the Unicameral is a phony ploy that mocks the process and the integrity of the institution. Its manipulative purpose can hardly be anything other than to cause the public, the media and legislators who aren’t paying careful attention to think the amendment does something it doesn’t do.
The legislative bill is LB 586. It pertains to the Nebraska Fair Employment Practices Act (NFEPA). That law was first enacted in 1965, as part of the state’s response to the federal Civil Rights Act of 1964. It hasn’t been changed much since then.
NFEPA, which applies to all Nebraska employers of at least 15 employees, forbids employment discrimination based on race, color, religion, sex, disability, marital status or national origin. (Soon, it will include pregnancy, by virtue of recent passage of LB 627.)
LB 586 proposes to add both “sexual orientation” and “gender identity,” as defined in the bill, to that list of protected classifications. It also proposes to apply the same prohibition to all employers, regardless of the number of employees, who are contractors or subcontractors of the state or any political subdivision. And it makes a few other, narrower policy changes as well.
As analyzed by long-time Omaha trial attorney Martin Cannon and others, NFEPA currently allows limited exceptions to its requirements. One exception provides that religion, sex, disability, marital status and national origin are permissible considerations for employment decisions when they are bona fide occupational qualifications reasonably necessary to the normal operation of the business. For fundamental, sound and deeply rooted reasons, race and color understandably do not qualify as BFOQs. (By the terms of LB 586, sexual orientation and gender identity also would not qualify; treating them as equivalent to race and color.)
Another exception has been part of the law since 1965; decades before adding either sexual orientation or gender identity was even contemplated. It too stemmed from and mirrored federal law. Codified as section 48-1103 of the state statutes, it reads as follows:
“The Nebraska Fair Employment Practices Act shall not apply to: “(1) A religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association or society of its religious activities;….” (Emphasis added, for good reason)
By its terms, the exception applies only when the qualifying entity makes an employment decision based on a person’s particular religion, and then only with regard to religious activities in the employment. It seems abundantly clear that this exception would not protect any religious entity from a claim that it discriminated on the basis of any classification other than religion.
A firm, if not irrefutable, conclusion can be made that the religious exception of section 48-1103 would not apply to the new prohibition that LB 586 seeks to impose. Given its parameters, it seems abundantly clear that the limited exception in the current law would not allow religious entities to make employment decisions they deem necessary due to their religious convictions about sexual conduct or lifestyle. (Employers that are not organized as religious entities clearly would be subject to the new prohibition.)
If the sponsor of LB 586, Senator Adam Morfeld of Lincoln, honestly and genuinely intended that his proposed ban on employment decisions based on sexual orientation and gender identity would not apply to religious entities, which he seems to want the public and the other legislators to think he intends, then he would be proposing to modify section 48-1103 to make that clear, or doing so with a free-standing provision.
But that is not what he is proposing; which returns us to the bogus committee amendment and the manner in which it is being used to manipulate the process on LB 586.
If section 48-1103 is not undergoing actual modification, then there is no legitimate reason to add it to LB 586, nor should it be added. Yet Sen. Morfeld and four other members of the Judiciary Committee sent the bill forward to the full Legislature with a recommendation that section 48-1103 be added to the bill in an all-but-unchanged form, other than one tiny, irrelevant modification; namely, the statute has a second paragraph that is fully unrelated to the religious-entity exemption; in that unrelated paragraph, the Morfeld group’s amendment changes “any” to “an” as a modifier of “individual,” for no necessary or related context. It’s as far from being substantive as an amendment can get.
An amendment that actually doesn’t amend shouldn’t exist; by its nature, an amendment has to change something. But on LB 586, a tiny, unrelated, non-substantive change was disingenuously created just so the pertinent, unchanged part could be carried into the bill, in order to make it appear that the bill has an exception for religious entities that would apply to the newly proposed classifications of sexual orientation and gender identity.
It’s bogus; a ruse, a manipulative ploy. What’s more, it’s surprising and troubling that the Legislature’s bill drafting office didn’t refuse to be complicit in it.
The hope here is that this ploy will backfire. It will if senators consider it carefully.
LB 586 offers legitimate policy issues. They shouldn’t be manipulated.
