Following a thread of Supreme Court decisions that protected business owners’ rights to discriminate on the basis of gender and sexual orientation, on August 15th, 2019 the Office of Federal Contract Compliance Programs (OFCCP) — a branch of the U.S. Department of Labor — published a proposed rule that aims to expand the number of federal contractors eligible for religious exemption, and the period for public comment ends in just a few days on September 16th, 2019.
This proposed rule will clarify that government contractors may make employment decisions that align with their religious beliefs, weakening nondiscrimination protections available under 1965 executive order (EO) 13672. While the rule does state that contractors may not discriminate on the basis of sex, race, or other protected identities, the proposal has prompted criticism that it would ultimately permit government contractors to discriminate against LGBTQ+ employees under the guise of religious freedom.
The Trump administration’s proposed rule broadly defines federal contractors that would qualify for religious exemption as any contractors “that are organized for a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.” This would allow virtually any organization to claim religious affiliation.
In October, the Supreme Court will hear arguments about whether discrimination of LGBTQ+ employees violates Title VII of the Civil Rights Act, which does not specifically mention sexual orientation or the nuances of gender-identity.
Critics of the rule argue that it is government-funded discrimination disguised as religious freedom. “Once again, the Trump administration is shamefully working to license taxpayer-funded discrimination in the name of religion…We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace,” American Civil Liberties Union Senior Legislative Counsel Ian Thompson said in a written statement.
According to the Center for American Progress, since 1965, EO 11246 has protected federally contracted and subcontracted employees from discrimination on the basis of sex, race, color, religion, and national origin. Years later in 2014, President Barack Obama amended EO 11246 to include protections from discrimination on the basis of sexual orientation and gender-identity by issuing EO 13672, therefore extending unprecedented employment protections to members of the LGBTQ+ community.
These protections outlined in the amended EO 11246 cover approximately one-fifth of all U.S. civilian employees, according to the OFCCP.
Sources: Politico 8/14/19; CAP 9/3/19; DOL