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DOL Opinion Letter Tackles Clash Between Religious Values, Bias

Jan. 11, 2021, 4:57 PM

An employer that fires a worker for attending a church-sponsored event during non-work hours would be in violation of laws intended to bar discrimination on the basis of religion, the Labor Department said in a new opinion letter.

The DOL’s Office of Federal Contract Compliance Programs responded to six scenarios involving religious workers in the opinion letter, which said it was issued in response to an organization’s “strong interest in ensuring that Jewish Americans are free to practice their faith in the workplace.”

The letter, signed by OFCCP Director Craig Leen and dated Jan. 8, analyzed how each scenario would or likely would violate OFCCP regulations that address religious discrimination. It was published just over a month after the agency broadened the defenses religious federal contractors can raise when hit with a discrimination claim.

The final rule was controversial among civil rights groups, especially those advocating on behalf of lesbian, gay, bisexual, and transgender workers, who believed it could weaponize religious liberty. Some organizations working to further religious freedom, however, welcomed the clarity they said the rule provides.

“In the area of religion, a contractor should evaluate its processes to make sure it is not failing to provide religious accommodations when legally required to do so,” Leen wrote. “If a proposed religious accommodation would impose an undue hardship, the contractor should work with the applicant or employee to attempt to identify a reasonable accommodation that would not impose such a hardship.”

Employers can use agency opinion letters as a liability shield in some scenarios.

Particular Scenarios

In the letter, the DOL’s contractor watchdog addressed hypothetical scenarios involving workers whose religious values may be offensive to others, such as attending “an Orthodox synagogue with sexsegregated seating.”

Leen also responded in the letter to a situation involving a worker who belongs to a religion which has taken potentially offensive public policy positions, such as opposing the state of Israel.

The letter said that if a religious employee is fired for telling co-workers on a break that he or she has views that others might find offensive, the employer’s action could violate religious anti-bias laws.

“Generally speaking, unless the employee has been told such comments are unwelcome, an employee’s respectful expression of religious views in off-duty conversation are not objectively hostile, nor do they constitute harassment,” Leen wrote. “We assume that this is the case in this scenario, as it appears to be.”

The letter didn’t further describe the organization that requested it. When responding to the scenarios, Leen said it’s assumed that the contractor in question has agreed to the anti-discrimination laws that the agency enforces, and “is not entitled to a religious exemption.”

Employers that hold federal contracts must grant requests for accommodation made by religious workers, unless the accommodation would impose an undue hardship on the business, Leen noted. The agency enforces Executive Order 11,246, an anti-discrimination statute which mirrors Title VII of the 1964 Civil Rights Act.

What constitutes an “undue hardship” in the context of an accommodation under Title VII could be revisited by the U.S. Supreme Court, potentially making it more difficult for employers to reject religious accommodations.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

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