Labor & Employment Law Daily OFCCP proposes regs clarifying the scope of the religious exemption
Friday, August 16, 2019

OFCCP proposes regs clarifying the scope of the religious exemption

By Pamela Wolf, J.D.

The proposed rule, which would clarify for federal contractors the scope of the religious exemption, “ensures that conscience and religious freedom are given the broadest protection permitted by law.”

The DOL’s Office of Federal Contract Compliance Programs (OFCCP) has released a proposed rule which “ensures that conscience and religious freedom are given the broadest protection permitted by law,” as the agency put it in a press release. The proposal, which is designed to clarify the civil rights protections afforded to religious organizations that contract with the federal government, is scheduled for publication in the Federal Register on August 15.

The proposed regulations at 41 CFR 60-1 would clarify the scope and application of the religious exemption contained in Section 204(c) of Executive Order 11246, as amended, to help organizations with federal government contracts and subcontracts and federally assisted construction contracts and subcontracts better understand their Executive Order 11246 obligations.

Response to uncertainty. The OFCCP said that some religious organizations have previously provided feedback indicating they were reluctant to participate as federal contractors because of uncertainty about the scope of the religious exemption contained in Section 204(c) and codified in the OFCCP’s regulations. The proposed rule is intended to provide clarity about the scope and application of the religious exemption consistent with certain legal developments by proposing definitions of key terms in 41 CFR 60-1.3 and a rule of construction in 41 CFR 60-1.5.

Recent developments. Among other things, the proposed rule takes into account recent Supreme Court decisions, particularly Masterpiece Cakeshop v. Colorado Civil Rights Commission, Trinity Lutheran Church v. Comer, and Burwell v. Hobby Lobby Stores. The OFCCP also noted that Executive Order 13798, Promoting Free Speech and Religious Liberty, and Executive Order 13831, Establishment of a White House Faith and Opportunity Initiative, along with Department of Justice guidance, instruct federal agencies to protect religious exercise and not impede it.

Covered “religious purpose” employers. Among other changes, the proposed rule would clarify that the Executive Order 11246 religious exemption covers not just churches, but also employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.

Employment conditioned on religious tenets. The proposed rule would also clarify that those 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. Here, many would argue, the proposed rule would provide license to discriminate against LGBTQ individuals, especially since the Trump Administration has refused to clarify that Title VII protects sexual orientation and gender identity discrimination and has withdrawn Obama-era guidance that extended those protections.

Broad protection. Moreover, consistent with the administration policy to enforce federal law’s robust protections for religious freedom, the proposed rule “states that it should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws,” the proposed rulemaking notice notes.

Definitions. The proposed rule would provide definitions for these five terms: Exercise of religion; Particular religion; Religion; Religious corporation, association, educational institution, or society; and Sincere.

“Religion” defined. The proposed rule would define “religion” as not limited to religious belief, but also to include all aspects of religious observance and practice, which the OFCCP said is “identical to the primary definition of ‘religion’ in Title VII.” The proposed definition would omit the second part of the Title VII definition, however, which refers to an employer’s accommodation of an employee’s religious observance or practice, because it would be redundant with the OFCCP’s existing regulations.

“Particular religion.” Building on the proposed definition of “religion,” the OFCCP would define “particular religion” to clarify that the religious exemption permits religious contractors “not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor,” the proposed rule states.

“As understood by the employer.” This definition flows directly from the proposed broad definition of “religion” to include all aspects of religious belief, observance, and practice as understood by the employer. The OFCCP also cited Title VII case law holding that “the permission to employ persons ‘of a particular religion’ includes permission to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.”

Comments. Comments must be received on or before 30 days after the proposed rule’s publication in the Federal Register. Instructions for submitting comments are detailed in the OFCCP’s notice.

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