I’ve written numerous times before about the Trump administration’s efforts to allow discrimination against LGBTQ people and others in adoption and foster care and in health care. Now, they’re trying to allow similar discrimination in employment by an even wider range of companies.
The Labor Department published a proposed new rule yesterday in order to “clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.” That order, issued by President Lyndon Johnson in 1965, prohibited employment discrimination by federal contractors on the basis of race, color, religion, sex, or national origin. There was an exemption built into the law for religious institutions, however, basically to allow them to hire people of the same faith (e.g., to teach Sunday school) without violating the law.
The new rule, however, interprets Executive Order 11246 to mean that a wide range of employers may claim a religious exemption to nondiscrimination laws. It states that the “religious exemption covers not just churches but 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.” Additionally, the rule “should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws.” (We’ll ignore, for the moment, that the rule is using “churches” as a synonym for all religious institutions, completely ignoring those that are called, say, synagogues, temples, or mosques.)
For proof of a company’s “religious purpose,” the proposed rule says the following:
- First, the contractor must be organized for a religious purpose, meaning that it was conceived with a self-identified religious purpose….
- Second, the contractor must hold itself out to the public as carrying out a religious purpose…. A contractor can satisfy this requirement in a variety of ways, including by evidence of a religious purpose on its website, publications, advertisements, letterhead, or other public-facing materials, or by affirming a religious purpose in response to inquiries from a member of the public or a government entity….
- Third, the contractor must exercise religion consistent with, and in furtherance of, a religious purpose.
That doesn’t sound too hard, does it? The rule would impact more than just LGBTQ people, but there’s clear anti-LGBTQ bias lurking here. The proposed rule notes that “recent Supreme Court decisions have addressed the freedoms and antidiscrimination protections that must be afforded religion-exercising organizations and individuals under the U.S. Constitution and federal law”—and they cite the Masterpiece Cakeshop case, in which a Colorado baker refused to bake a wedding cake for a same-sex couple. The case was a tepid victory for the baker, won because of technical details about how the case was handled, but stopped short of any wider pronouncement on religious exemptions. The Trump administration, urged on by religious conservatives, wanted more—hence this new rule.
Jennifer C. Pizer, Director of Law and Policy at Lambda Legal, issued the following statement about the proposed rule: “Given the conservative religious affiliations of many large institutional employers that seek federal contracts, we know the most vulnerable workers will be LGBTQ people, as well as Muslims, Jews and other religious minorities. For more than half a century, the federal purse has been a transformative driver of equal workplace opportunity in this country. And once again, appallingly, this administration is betraying our nation’s core commitment to liberty and justice for all—in service of an extreme, discriminatory religious agenda.”
Ian Thompson, senior legislative counsel for the American Civil Liberties Union, added in a separate statement: “Once again, the Trump administration is shamefully working to license taxpayer-funded discrimination in the name of religion. Nearly one-quarter of the employees in the U.S. work for an employer that has a contract with the federal government. We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace.”
As with all proposed federal rules, this one is open for public comment before finalization. You have until September 16, 2019.
