Labor & Employment Law Daily OFCCP’s religious exemption final rule shoots for maximum legal protection of religious exercise
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Wednesday, December 9, 2020

OFCCP’s religious exemption final rule shoots for maximum legal protection of religious exercise

By Pamela Wolf, J.D.

The regulation includes a rule of construction aimed to do so under the Constitution and law, including the Religious Freedom Restoration Act, according to the OFCCP.

On December 7, the Office of Federal Contract Compliance Programs (OFCCP) released an advance copy of its final rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” The final rule will encourage the full and equal participation of religious organizations as federal contractors, the OFCCP said in a press release, noting also that religious organizations, many of them small nonprofits, provide such essential services as feeding the hungry, supporting refugees, and educating students.

There may be slight variations (for minor technical or formatting changes) in the “official” version of the final rule when it is published in the Federal Register.

Religious exemption. Under Executive Order 11246, federal contractors generally must abide by nondiscrimination and affirmative action requirements. Yet the order also acknowledges that religious organizations may prefer in employment “individuals of a particular religion,” so that they can maintain their religious identity and integrity, the OFCCP observed. This accommodation is patterned after a nearly identical provision in Title VII.

The final rule provides clearer interpretation of the parameters of the religious exemption by adding definitions of key terms and adding a rule of construction to provide the maximum legal protection of religious exercise permitted by the Constitution and law, including the Religious Freedom Restoration Act.

Proposed rule and request for comments. The OFCCP issued its proposed rule and request for comments on August 15, 2019. During the 30-day public comment period, the OFCCP received 109,726 comments on the proposed rule, including more than 90,000 comments generated by organized comment-writing efforts. Comments came from individuals and from a wide variety of organizations, including religious organizations, universities, civil rights and advocacy organizations, contractor associations, legal organizations, labor organizations, and members of Congress.

The OFCCP has revised certain aspects of the proposed regulation in response to commenters’ concerns.

Changes from the proposed version. The final rule retains the same basic structure as the proposed rule with these changes described by the OFCCP:

  • There have been some modifications to some of the definitions, and one proposed definition, for “exercise of religion,” is not included in the final rule.
  • The final rule adds several illustrative examples within the definition of “religious corporation, association, educational institution, or society” to better illustrate which organizations qualify for the religious exemption.
  • The final rule adds a severability clause.

Anticipated impact. For the small minority of current and potential federal contractors and subcontractors interested in the exemption, the final rule will help them understand its scope and requirements and may encourage a broader pool of organizations to compete for government contracts, which will inure to the government’s benefit according to the OFCCP. For the vast majority of contractors, the OFCCP does not expect the final rule to affect their operations or the agency’s monitoring and enforcement.

“Religious organizations should not have to fear that acceptance of a federal contract or subcontract will require them to abandon their religious character or identity,” said U.S. Secretary of Labor Eugene Scalia. “This rule gives full effect to Executive Order 11246’s protection of religious organizations.”

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