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Trump Labor Agency Says Religious Contractors Free From Bias Law (1)

Aug. 14, 2019, 12:46 PMUpdated: Aug. 14, 2019, 6:20 PM

Federal contractors will get a clearer picture of religious defenses to workplace discrimination claims under a proposed rule the Labor Department announced today, senior DOL officials told Bloomberg Law.

The proposal would cement current exemptions that “religion-exercising organizations” can use to shield themselves from bias claims for hiring decisions and other actions motivated by religious belief. That includes religious entities as well as “closely held” companies acting in accordance with an owner’s religious beliefs, two senior DOL officials told Bloomberg Law before the rule’s release.

The Labor Department’s Office of Federal Contract Compliance Programs, which polices federal anti-discrimination requirements for businesses and other organizations that work with the government, unveiled the proposal Aug.14. It will be published in the Aug. 15 Federal Register, according to an official DOL statement.

“The proposed rule is intended to clarify the longstanding civil rights protections afforded to religious organizations that contract with the federal government,” one official said. The proposal would ensure the “religious protections are given the same federal recognition as all other civil rights.”

Advocates Split

Advocates for lesbian, gay, bisexual, and transgender individuals previously spoke out against the OFCCP’s stance on religious defenses for contractors after the agency published an August 2018 directive focused on religious freedom. Opponents of that directive said it potentially weaponizes religious freedom, while religious advocates welcomed the clarification.

“Once again, the Trump administration is shamefully working to license taxpayer-funded discrimination in the name of religion. Nearly one-quarter of the employees in the U.S. work for an employer that has a contract with the federal government,” Ian Thompson, American Civil Liberties Union senior legislative counsel, said in an official statement on the proposal. “We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace.”

The agency conducts regular audits of federal contractors, but it’s closed only two audits of religious organizations since fiscal year 2015, according to Labor Department enforcement data. However, the proposed rule comes as LGBT bias complaints submitted to the OFCCP have tripled in recent years.

Victoria Rodríguez-Roldán, senior policy counsel at the National LGBTQ Task Force, met with the agency to discuss the proposal in July. The actions are an “excuse to allow bigotry and discrimination against the LGBTQ community,” she said. The National Women’s Law Center, Americans United for Separation of Church and State, American Atheists, the Human Rights Campaign, and other groups also met with the agency.

“This administration does not value religious freedom, so much as it values homophobia and transphobia,” Rodríguez-Roldán said in an email. “We will keep fighting these efforts to roll back non-discrimination protections through all available means.”

The proposal was welcomed by the Christian policy organization Focus on the Family, which said previous OFCCP guidance didn’t inspire confidence in religious freedoms, and that it was necessary for the Labor Department to clarify any potential misunderstandings.

“It will also give potential contractors the confidence they need going forward that doing business with the government won’t result in requirements to compromise their religious identities or hiring practices,” Focus on the Family judicial analyst Bruce Hausknecht said in an email.

The Christian Legal Society and the United Synagogue of Conservative Judaism didn’t respond to requests for a comment on the proposal.

The new proposal accounts for recent court cases addressing religious defenses, an agency official said. That includes the U.S. Supreme Court’s 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which requires government agencies to neutrally analyze employers’ religious defenses before proceeding with discrimination findings.

“The proposal also reaffirms employers’ obligations not to discriminate on the basis of race, sex, or other protected bases and does not exempt or excuse a contractor from complying with any other requirements,” a DOL statement said.

Trump Administration Debate

Workplace protections for LGBT employees have been hotly debated under the Trump administration. The Justice Department shortly after President Donald Trump entered the White House said a federal ban on sex discrimination doesn’t include sexual orientation and gender identity bias, overturning the department’s position during the Obama administration. The U.S. Supreme Court will hear three cases in October to determine whether Title VII of the 1964 Civil Rights Act bars discrimination based on sexual orientation or gender identity.

The Equal Employment Opportunity Commission and the Justice Department are split on the issue. The DOJ has recently tried to pull the worker civil rights agency into line with its opinion.

The EEOC enforces federal anti-discrimination laws against a wide range of employers and federal contractors. The OFCCP specifically focuses on an executive order banning discrimination by contractors. Unlike Title VII, the order explicitly outlaws workplace bias based on sexual orientation or gender identity.

“OFCCP is consistently looking for ways to bring clarity and certainty to federal contractors, and this proposal falls squarely within that effort,” OFCCP Director Craig Leen said in an Aug. 14 statement. “The rulemaking process allows the public opportunity to comment on the proposal and impact any potential final rule.”

The proposed rule has been pending review by the White House’s Office of Information and Regulatory Affairs since April, after it was published in the Labor Department’s regulatory agenda in October 2018. The proposal will be open for public comments until Sept. 16.

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com