The Trump administration is expanding the circumstances in which federal contractors can use religious beliefs as a defense against job discrimination charges, a move likely targeting the Obama Labor Department’s ban on bias against gay and transgender workers.
The DOL’s Office of Federal Contractor Compliance Programs issued a new enforcement directive Aug. 10 calling for investigators to factor in recent U.S. Supreme Court rulings and White House executive orders that protect religious freedom. Lawmakers, administrative agencies, and courts have grappled with drawing a line between religious liberty and unlawful discrimination.
The OFCCP enforces anti-discrimination laws for companies that do business with the federal government. It’s the only federal agency that explicitly prohibits workplace sexual orientation and gender identity discrimination under presidential authority.
The directive doesn’t revoke or amend the Obama administration’s 2014 executive order barring government contractors from discriminating against lesbian, gay, bisexual, or transgender employees and applicants. But it does task OFCCP auditors with granting companies—including those with no formal religious affiliation—a religious exemption from LGBT discrimination charges, if certain requirements are met.
Some Republicans and conservative activists have said bans on sexual orientation and gender identity discrimination may violate the Religious Freedom Restoration Act. The law prohibits the government from placing a “substantial burden” on the exercise of religion, unless it is “the least restrictive means” of furthering a “compelling government interest.”
“The directives coming out of the Department of Labor today represent the latest move by the Trump-Pence administration to turn the notion of religious liberty into a weapon of discrimination,” Sharon McGowan, chief strategy officer for Lambda Legal, told Bloomberg Law via email. “The notion that the OFCCP needs to re-examine how it is enforcing nondiscrimination mandates against federal contractors is a ‘solution’ in search of a problem.” Read more via Bloomberg
Contractor Rule Could Pit Religious Liberties Against LGBT Rights (Corrected)
The Labor Department plans to prioritize religious liberty protections for federal contractors, but the timeline for explaining what that means for LGBT discrimination investigations is unknown.
A spokesman declined to say when the department will release a new rule allowing contractors to use religious beliefs as a shield against job discrimination charges. That regulation would implement an Office of Federal Contract Compliance Programs directive announced Aug. 10.
The directive is an indication that the OFCCP is making religious liberty a priority under the Trump administration. But it’s still unclear how the federal contractor watchdog will thread the needle between religious rights and protections for gay and transgender workers.
“I am perplexed about how they are going to put this into a rulemaking,” Alissa Horvitz, who represents contractors in OFCCP investigations, told Bloomberg Law. She said her clients “clearly understand that they cannot discriminate based on religion,” but they “tend not to have a lot of religious issues cropping up, certainly on the OFCCP’s front.” Read more via Bloomberg