April 16, 2021

Volume XI, Number 106

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OFCCP Issues Opinion Letter Explaining Application of Executive Order 11246 Religious Exemption

Following on the heels of its final rule clarifying the religious exemption found at Section 204(3) of Executive Order (EO) 11246 and codified at 41 C.F.R. 60-1.5(a)(5) (the Exemption), OFCCP this week issued an Opinion Letter addressing the scope of the Exemption.   Specifically, the Opinion Letter provides insights on

“six possible religious discrimination scenarios.”

As a reminder, federal contractors are prohibited from discriminating based on religion and national origin and must provide appropriate religious accommodations, absent undue hardship.  41 C.F.R. 60-50.2.  However, these regulations are subject to limits:

  1. The Exemption excludes any contractor or subcontractor that is a religious corporation, association, educational institution, or society regarding the employment of individuals of a particular religion;

  2. The Religious Freedom Restoration Act may require an exemption or accommodation for a contractor under EO 11246; and,

  3. The First Amendment ministerial exception bars employment discrimination suits on behalf of employees who work at religious institutions in positions deemed to be “ministerial”.

According to the Opinion Letter, an organization sought guidance from the Agency regarding the six scenarios due to its concern “that employees in the technology, education, public, and other sectors may face discrimination at work based on faith-related activities and beliefs.”  The letter, cited, as an example the following fact pattern:

  • An employee suffers an adverse employment action because, during a company-provided rest break in which coworkers were discussing current events or social issues, the employee stated that he or she has religious views that others may find offensive (g., he or she believes in traditional marriage or, conversely, supports an expanded definition of the family).

OFCCP responded with the following answer (scenario 4):

Generally speaking, unless the employee has been told such comments are unwelcome, an employee’s respectful expression of religious views in off-duty conversation are not objectively hostile, nor do they constitute harassment. We assume that this is the case in this scenario, as it appears to be. If so, then the adverse employment action here, based as it is on the employee’s religious belief, would be a violation of 41 C.F.R. § 60-50.2.

OFCCP Director Craig Leen’s Opinion Letter also points out that OFCCP’s Federal Contract Compliance Manual provides additional guidance in the Religious Accommodation section (2J01).

While the Exemption seems clear, there are many complicated nuances, potential conflict with LGBTQ+ protections and perhaps grounds for legal challenge. 

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Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 12
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About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney
Principal

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

303-225-2382
F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...

303-225-2381
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