Workplace discrimination protections stalled

Debate stalled May 14 on a bill that would protect employees from discrimination based on sexual orientation and gender identity.

Introduced by Lincoln Sen. Adam Morfeld, LB586 would prohibit employers, employment agencies and labor unions from discriminating against individuals based on their sexual orientation or gender identity. The bill would apply to employers with 15 or more employees, employers with state contracts, the state of Nebraska, governmental agencies and political subdivisions.

Currently, the Nebraska Fair Employment Practice Act prohibits workplace discrimination based on race, color, religion, sex, disability, marital status and national origin.

Morfeld said workplace discrimination threatens Nebraska’s economic development by causing highly qualified lesbian, gay, bisexual and transgender (LGBT) employees to move to states where equal protection exists. Workers should be judged on their performance, not their lifestyles, he said.

“Nobody should be fired for how their creator made them or for whom they love,” Morfeld said.

Morfeld said that a technical amendment introduced by the Judiciary Committee was designed only to emphasize that religious entities in Nebraska have been exempt from the state’s Fair Employment Practice Act since 1965. According to the statute, the act cannot apply to a religious corporation, association or society with respect to the employment of individuals of a particular religion.

Lincoln Sen. Kathy Campbell introduced an amendment to the committee amendment that would exempt from the act the hiring or termination of individuals whose duties are ministerial. Those duties include teaching theological doctrine, religious governance, supervision of a religious order, supervision of persons teaching theological doctrine and supervision of or participation in religious ritual or worship by any religious corporation, association or society.

Another provision of the Campbell amendment would mandate that the act not be interpreted to infringe upon the freedom of expressive association or the free exercise of religion protected by the First Amendment of the U.S. Constitution.

Under the amendment, an employee would be permitted to express his or her religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression were in direct conflict with the essential business-related interests of the employer. The amendment would not apply to speech directed at customers, clients, or patients of any covered entity.

Campbell said the amendment was intended to add clarity to the current religious exemption by providing more specific definitions regarding religious teaching and expression.

Malcolm Sen. Ken Haar supported the bill and the amendment, saying policies that make Nebraska inclusive are the key to creating a thriving business environment.

“We need talented people in Nebraska,” Haar said. “If we are so narrow-minded as to exclude some of the best and brightest, we’re going to stay right where we are.”

Sen. Joni Craighead of Omaha opposed the bill and amendment. She said there are many groups that experience discrimination at the same level as the LGBT community, but the Legislature cannot address them all. In addition, she said, since Omaha adopted a similar workplace protection policy in 2012, only 10 people have filed complaints.

“We are creating a bill for a problem that isn’t there,” Craighead said.

Senators failed to adopt the Campbell amendment on a 20-12 vote.

Lincoln Sen. Matt Hansen offered a motion to reconsider the vote on the Campbell amendment.

Sen. Ernie Chambers of Omaha, who supported the bill, opposed the reconsideration motion, saying religious organizations should not be exempt from the nondiscrimination policy.

“This is a bill that prohibits discrimination—yet it allows discrimination,” Chambers said.

Bellevue Sen. Sue Crawford supported the motion, saying the amendment represented a carefully crafted balance that protects both parochial schools and religious expression in a workplace. Stating one’s beliefs should not be considered harassment, she said.

“I don’t believe religious values encourage discrimination,” Crawford said.

Omaha Sen. Beau McCoy called the definitions provided in the Campbell amendment too vague to interpret accurately.

“If anything, this amendment makes this legislation worse than the original bill and committee amendment,” McCoy said in opposition to the reconsideration motion.

Acknowledging that additional work needs to be done on the bill, Morfeld said he would work with interested parties on the religious exemptions and would bring a compromise next session.

Senators moved on to other bills on the agenda without taking further votes on LB586.