New Rule Clarifies Religious Liberty Protections for Federal Contractors

The U.S. Department of Labor announced on Wednesday a proposed rule to ensure that conscience and religious freedom for religious organizations who contract with the federal government is given the broadest protection permitted by law.

The Department’s press release cites federal law, Supreme Court decisions, and previous executive orders as the basis for this proposed rule:

The Civil Rights Act of 1964 includes a critical, protective exemption for religious organizations. A similar exemption is included in Executive Order 11246 and OFCCP’s regulations, which govern certain employment practices of federal contractors. Recent Supreme Court decisions – Masterpiece Cakeshop v. Colorado Civil Rights Commission, Trinity Lutheran Church v. Comer, and Burwell v. Hobby Lobby Stores – further address the protections afforded religious organizations and individuals under the Constitution and federal law. Executive Orders 13798, Promoting Free Speech and Religious Liberty, and 13831, Establishment of a White House Faith and Opportunity Initiative, along with U.S. Department of Justice guidance, likewise instruct federal agencies to protect religious exercise and not impede it.

“(Wednesday’s) proposed rule helps to ensure the civil rights of religious employers are protected,” Acting U.S. Secretary of Labor Patrick Pizzella remarked. “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.”  

Office of Federal Contract Compliance Programs Director Craig Leen said, “OFCCP is consistently looking for ways to bring clarity and certainty to federal contractors, and this proposal falls squarely within that effort. The rulemaking process allows the public opportunity to comment on the proposal and impact any potential final rule.”

The proposed rule would clarify that religious organizations may make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government. The proposal also reaffirms employers’ obligations not to discriminate on the basis of race, sex, or other protected bases and does not exempt or excuse a contractor from complying with any other requirements.

Specifically, the proposed rule would do the following:

• The term “religion” would be defined to provide that the term is not limited to religious belief but also includes all aspects of religious observance and practice.
• To define “particular religion” to clarify that the religious exemption allows 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. This would include all aspects of religious belief, observance, and practice as understood by the employer.
• To receive the religious exemption a federal contractor must be organized for a religious purpose, must hold itself out to the public as carrying out a religious purpose, and must exercise religion consistent with, and in furtherance of, a religious purpose.
• The rule defines “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” and the rule also clarifies that “the touchstone for religious exercise is sincerity, and therefore an exercise of religion must only be sincere.”
• The rule also states that the OFCCP can find a violation if it can prove by a preponderance of the evidence that a protected characteristic other than religion was a “but-for cause” of an employee’s termination or another disciplinary measure.

Having worked for a faith-based religious organization who received three different federal grants during my time with the organization I can unequivocally state that this proposed rule is extremely helpful.

I sat through trainings in Washington, D.C. with federal grant managers who told me, point blank, that our Christian organization could not disqualify staff or potential volunteers on the basis of religion and that to do so would be in violation of the parameters of our grant. We understood that the grant could not fund activities that were expressly religious in nature (like worship services, bible studies – our grants funded our mentoring programs for children of prisoners and juvenile offenders), but in order to remain distinct it was necessary that our staff and volunteers be like-minded.

This rule change is needed and kudos to the Trump administration for proposing it.