The Labor Department on Wednesday proposed a rule it said would clarify religious protections for federal contractors, but critics say it will open the door to discrimination. It sparked an immediate outcry from the American Civil Liberties Union.
The proposed rule by Labor’s Office of Federal Contract Compliance Programs would ensure that “religious organizations may make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.” It also “reaffirms employers’ obligations not to discriminate,” according to the Labor Department. The proposed change is based on a 2010 opinion for the U.S. Court of Appeals for the Ninth Circuit, written by the Labor solicitor’s father, who sits on the court.
Acting Labor Secretary Patrick Pizzella said in a press release, “As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.”
But the American Civil Liberties Union in a tweet said the proposal is “taxpayer-funded discrmination in the name of religion.” It claims Labor would let government contractors with certain religious views fire LGBTQ, pregnant or unmarried employees. President Obama signed an executive order in April 2015 expressly prohibiting discrimination against LGBT contract workers, but it’s not clear how the proposed rule would affect that order.
The department said there was some confusion among the federal courts about the scope and application of the religious exemption under Title VII and Executive Order 11246, signed by President Lyndon B. Johnson in 1965 to establish non-discriminatory practices for government contractors. As a result, some religious organizations “were reluctant to participate as federal contractors.”
The proposed rule would clarify that the executive order covers churches and employers from organizations that have a religious purpose. It will also, “make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases.”
Ian Thompson, senior legislative counsel for the American Civil Liberties Union, said, “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. We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace.”
Adam Pulver, an attorney at Public Citizen Litigation Group and former attorney at the Office of the Solicitor of Labor at the Labor Department, said on Twitter the proposal will waste department staff member’s time to “address a non-existent problem and appease the base.” Pulver pointed out that the proposed rule is based on an opinion by the father of Labor Solicitor Kate O’Scannlain, Judge Diarmuid O’Scannlain, in Spencer v. World Vision, Inc. (2010). (The case was brought before three judges and had no majority opinion.)
Under Judge O’Scannlain’s test, an organization is exempt if it: “1) Is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious,” according to Brigham Young University’s law review.
The Labor Department’s proposed rule notes that it would adapt a version of Judge O’Scannlain’s concurring opinion “because it offers simpler administration for OFCCP and clearer notice to contractors.”
The proposal is open for public comments until Sept. 16.