8 Federal Agencies Clarify When Title VI Bars Discrimination Related to Religion

The White House announced yesterday that eight federal agencies have "clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities."  The agency actions are seen as part of President Biden’s National Strategy to Counter Antisemitism.  Title VI of the 1964 Civil Rights Act covers discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. It does not explicitly bar religious discrimination.  The agency Fact Sheets publicized by the White House each focuses on the kind of discrimination against persons of a particular religion that could come within the scope of Title VI. Here are the agencies' interpretations:

Department of Agriculture Fact Sheet; Department of Health and Human Services Fact Sheet; Department of Homeland Security Fact Sheet; Department of Housing and Urban Development Fact Sheet and Memorandum; Department of Interior Fact Sheet; Department of Labor Fact Sheet; Department of Treasury Fact Sheet; Department of Transportation Fact Sheet.

Labor Department Says Restaurant Used Alleged Priest to Obtain Confessions From Employees

 A June 12 press release from the Department of Labor which announced a wage-and-hour consent judgment (full text) in Su v. Garibaldi, (ED CA, 5/8/2023), described testimony during the litigation that revealed an unusual use of religious pretext. The press release relates, in part:

... [A]n employee of Che Garibaldi Inc., operator of Taqueria Garibaldi, testified that the restaurant offered employees a person identified as a priest to hear confessions during work hours. The employee told the court the priest urged workers to “get the sins out,” and asked employees if they had stolen from the employer, been late for work, had done anything to harm their employer, or if they had bad intentions toward their employer.

[Thanks to Jeff Pasek for the lead.] 

Department of Labor Rescinds Trump Administration Rule Broadening Religious Exemptions from Non-Discrimination Rules

The Department of Labor published in today's Federal Register a release (full text) rescinding a Trump Administration rule that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. According to DOL:

 [T]he 2020 rule increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents..... 

Commenters who supported rescission overwhelmingly agreed that the 2020 preamble raised a serious risk that the rule would be implemented to permit contractors to discriminate against individuals based on protected classes other than a preference for persons of a particular religion.....

OFCCP emphasizes that, absent strong evidence of insincerity, OFCCP would accept a religious organization’s own assertions regarding doctrinal questions. However, OFCCP believes it is important to clarify that it is not appropriate to construe the Executive Order 11246 religious exemption to permit a qualifying religious organization to discriminate against employees on the basis of any protected characteristics other than religion.

Bloomberg Law reports on the rule change, (See prior related posting.)

Labor Department Proposes Rescinding Trump Era's Broad Religious Employer Exemption Rule

The Department of Labor yesterday released a proposal (full text) to rescind a Trump Administration rule (see prior posting) that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. Yesterday's Release says in part:

OFCCP believes that the 2020 rule creates a lack of clarity regarding the scope and application of the exemption because ... it misstates the law in key respects. In addition, as a threshold matter, OFCCP has reevaluated the need for the rule. For the 17 years prior to 2020, OFCCP implemented the Executive Order 11246 religious exemption without seeking to codify its scope and application in specific regulatory language....

[T]he 2020 rule creates its own religious employer test, independent of Title VII case law interpreting the identical term. The test adopted in the 2020 rule permits a contractor whose purpose and/or character is not primarily religious to qualify for the Executive Order 11246 religious exemption....

In addition, the 2020 rule retreats from the general principle that qualifying religious employers are prohibited from taking employment actions that amount to discrimination on the basis of protected characteristics other than religion, even if the decisions are made for sincerely held religious reasons....

FCW reports on the proposed rule rescission.

DOL Says That Ministerial Exception Allows Non-Compliance With FLSA For Religious Teachers

The U.S. Department of Labor has released a January 8, 2021, Wage and Hour Opinion Letter (full text) concluding that the "ministerial exception" doctrine can create an exemption to the Fair Labor Standards Act's requirements. The letter concludes that a private religious day care and pre-school may pay its teachers on a salary basis that would not otherwise conform to the wage-and-hour requirements of the Fair Labor Standards Act if the teachers qualify as "ministers" for purposes of the ministerial exception. [Thanks to Heather Kimmel for the lead.]

Department of Labor Broadly Defines Religious Exemption From Anti-Discrimination Rules for Federal Contractors

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.

Labor Department Issues New Guidance On Religious Liberty Protections

The U.S. Department of Labor announced last week (May 15) that it has issued a directive and a guidance to advance religious liberty protections. the directive, among other things, instructs DOL to:

Ensure religious organizations are given the opportunity to compete equally with non-religious organizations for Federal financial assistance at the Federal and State levels.

The Guidance (full text) implements Executive Order 13798 in connection with federal grants administered by DOL. The Guidance says in part:

Religious organizations that receive DOL financial assistance retain their programmatic independence from Federal, State, and local governments and may continue to carry out their missions and maintain their religious character. This autonomy includes, among other things, the right to use the organizations’ facilities to provide DOL-supported social services without removing or altering religious art, icons, scriptures or other religious symbols, and the right to govern themselves and to select board members on a religious basis. Faith-based organizations, like all organizations receiving DOL financial assistance, must not use direct DOL financial assistance to support any explicitly religious activities... [including] for example, worship, religious instruction, and proselytization....

If an organization conducts explicitly religious activities using non-DOL funds and also offers social service programs using direct DOL support, then that organization must offer the explicitly religious activities at a time or in a place that is separate from the programs receiving direct DOL support....