Yesterday, the U.S. Department of Labor Office of Federal Contract Compliance Programs in a 159-page Release (full text) adopted amendments defining expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. The agency's rules incorporate Executive Order 11246 which imposes non-discrimination and equal treatment requirements for employees of the contractor or subcontractor. The Executive Order bars discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. However there is an exemption for:
a religious corporation, association, educational institution, 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, educational institution, or society of its activities.
The amendments provide in part:
Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that:
(i) Is organized for a religious purpose;
(ii) Holds itself out to the public as carrying out a religious purpose;
(iii) Engages in activity consistent with, and in furtherance of, that religious purpose; and
(iv)(A) Operates on a not-for-profit basis; or
(B) Presents other strong evidence that its purpose is substantially religious.
(2) Whether an organization’s engagement in activity is consistent with, and in furtherance of, its religious purpose is determined by reference to the organization’s own sincere understanding of its religious tenets....
Reactions to the new rule varied. For example, First Liberty praised the new rule, saying in part:
Religious organizations should never be forced to abandon their religious identity and mission in order to be eligible to partner with the federal government.
On the other hand, Americans United said in part:
The constitutional right to religious freedom promises everyone the right to live their lives secure that the government will treat them equally, no matter what their belief system. The new Department of Labor rule, however, turns this core American value on its head and puts countless peoples’ jobs at risk because they do not share the religious views or meet the religious code of conduct of a government contractor. Like so many others issued by the Trump administration, this rule particularly puts at risk workers who are LGBTQ, women, religious minorities and non-religious people.
