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ACLU Bombards Religious Preference Proceeding With Form Letters

Sept. 23, 2019, 10:31 AM

A proposed rule that would allow more federal contractors to use religion to justify hiring, firing, and other employment decisions garnered more than 109,000 comments—a record in the online era for the agency pushing the proposal—with the American Civil Liberties Union accounting for nearly 62,000 of them.

The civil rights group is opposed to what it says is an expansion of religious exemptions that can shield contractors—including those not directly affiliated with a religion—from complying with workplace anti-discrimination laws.

The Family Research Council, a Washington, D.C.-based Christian public-policy ministry that supports the proposal as a way to ensure that religious entities have a fair shot at government contracts, was a distant second with nearly 7,400 comments.

An analysis by Bloomberg Law shows the deluge of views from those organizations and others were calculated campaigns, not a grass-roots outpouring, with the groups penning form letters and urging members to sign their names and send them to the Department of Labor’s Office of Federal Contract Compliance Programs. The analysis also shows several other groups engineered similar form-letter campaigns, but didn’t attach their names to the letters.

More than three-quarters of the letters analyzed shared key language with form letters found online.

Such mass comment campaigns aren’t uncommon in Washington, D.C., rulemaking proposals, and don’t carry as much weight as original letters generated by individual stakeholders, political scientists said. Even accounting for the mass letter-writing campaigns, the analysis shows the proposal has drawn a hard line of support and opposition, grouping together what could be perceived to be unlikely bedfellows.

For example, employer representatives that have generally supported OFCCP policies under the Trump administration are siding with the ACLU and other civil rights groups against the rule, but for different reasons. They say the regulation isn’t necessary because religious exemptions already exist via executive order, congressional statute, or case law. They also say parts of the rule impermissibly go beyond what’s required under current law.

Proposal Focuses on Exemptions

Religious organizations, like churches, schools, and charities, that do contract work for the government would continue to be allowed to show hiring preferences for individuals of their same religion under the proposed rule. The exemption—which doesn’t permit discrimination based on race, sex, or other characteristics protected by law—was created under a 2002 executive order signed by President George W. Bush, and currently exists in the OFCCP’s regulations.

But the proposed rule would extend religious protections to contractors that are “closely held” corporations, which could be anything from a laundromat to a chain of arts and crafts stores. These businesses would be able to escape anti-discrimination enforcement actions based on their religious belief, a provision based on U.S. Supreme court cases interpreting the Religious Freedom Restoration Act.

Religious advocates like the Family Research Council and the Freedom of Conscience Defense Fund welcome what they perceive to be an encouragement for religious entities to become government contractors. The ACLU and Human Rights Campaign, which fights for equality for lesbian, gay, bisexual, and transgender individuals, oppose the measure because they believe it could result in “taxpayer-funded discrimination.”

The OFCCP-focused National Industry Liaison Group also opposes the proposed rule, but on other grounds; it believes the proposal’s reliance on recent Supreme Court decisions is overstated, particularly Burwell v. Hobby Lobby Stores, Inc.

Exemption from discrimination rules is “subject to significant limitations,” according to comments from the group. The American Bar Association agrees, saying the proposal would “improperly expand the existing limited religious exemption” to non-religious employers.

Lawyers and consultants who regularly represent employers audited by the OFCCP have also called this a solution without a problem, including David Cohen of the Institute for Workplace Equality, an employer association focused on federal contractor compliance.

The agency regularly and randomly audits federal contractors for compliance with equal employment opportunity laws, and it usually audits approximately 1% to 2% of 120,000 contractor locations each year. Since fiscal year 2015, the OFCCP has closed only two audits of religious organizations, according to Labor Department enforcement data.

The overall portion of federal contractors that are religious organizations is less than 1%, OFCCP Director Craig Leen said at a House subcommittee oversight hearing of the agency on Sept. 19.

“I am not aware of a single situation where a contractor has raised a religious exemption and OFCCP has challenged” it under the existing regulation, Cohen said. “What is the purpose of this rulemaking?”

Déjà vu—Something Sounds Familiar?

Of the 109,700 comments filed online, about 100,000 were analyzed by Bloomberg Law. Approximately 79% of the letters analyzed shared key language with form letters found online.

For example, the letter disseminated by the ACLU includes very specific phrases such as “I strongly urge the Department of Labor to reject the proposed rule” and “Discrimination has no place in this country. Reject the proposed rule,” that aren’t found in other comments.

The ACLU and the Family Research Council associated their names with 61,949 and 7,382 comments, respectively. Not all organizations ask their supporters to link their name to comments, even if the language submitted by their supporters is identical and distributed through a form letter.

Approximately 9,261 comments were identified to have identical language to a campaign distributed by the Human Rights Campaign, some still including the instructions ‘ADD PERSONAL MESSAGE.’ However, the HRC didn’t link the organization’s name to the comments submitted.

The same is true for the Southwest Conference for the United Church of Christ, which highlights on its website the phrase, “This rule weaponizes religious liberty and tears at the fabric of our common good.”

That phrase was linked to at least 514 filed comments. By this standard, the Congressional Prayer Caucus Foundation’s supporters also penned approximately 308 comments.

Quality, Not Quantity

There isn’t a fool-proof measure of how effective comments are at instigating change on an already-proposed rule, but political scientists agree that quality of the comments, not quantity, matters.

“Influential interest groups hold greater sway than the public in many circumstances,” said Alex Garlick, assistant professor of political science at The College of New Jersey.

That being said, more comments is better than no comments, James Thurber, founder and former director of the Center for Congressional and Presidential Studies at American University, said.

“If they had no comments, then the regulatory agency has more leeway to do what they think is best,” Thurber said. “It’s better to have a whole bunch of them than none, but having a whole bunch of them doesn’t guarantee that you’re going to get what you want.”

Garlick agreed that even with the wide public support to change the rule, the likelihood of the agency taking the notice and comments period into account is low.

“You don’t usually take the Department of Labor’s comment period as a partisan battleground, but it looks like we’re seeing one,” Garlick said.

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Christina Brady in Washington at cbrady@bloomberglaw.com

To contact the editors responsible for this story: John Dunbar at jdunbar@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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