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OFCCP Proposes New Rule to “Ensure Religious Employers are Protected”

As previewed in the Spring regulatory agenda, the Office of Federal Compliance Contract Programs (OFCCP) has proposed a new rule to clarify aspects of a religious exemption available to federal contractors. In the proposed rule, the agency said it intends to address concerns from religious organizations that ambiguity in the exemption left them reluctant to participate in federal contracts.

The proposed rule was published August 15 in the Federal Register. OFCCP will accept public comments on the rule for 30 days, until September 16, 2019.

The rule would clarify the religious exemption in Executive Order 11246, which includes anti-discrimination obligations for federal contractors. The exemption allows religious organizations to prefer individuals of a particular religion, while still requiring adherence to other anti-discrimination provisions. The rule comes one year after OFCCP issued a Directive reminding its staff to tread lightly when dealing with religious contractors and “proceed in a manner neutral toward and tolerant of . . . religious beliefs.”

As proposed, the rule would clarify that:

  • The 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.”

  • Religious employers can condition employment upon acceptance of, or adherence to, a religious tenet, provided that they do not discriminate based on other protected bases.

  • Define terms such as “Religion,” “Particular Religion,” and religion “As understood by the employer.”

The rule does not explicitly mention sexual orientation or LGBTQ protections. However, it does cite Masterpiece Cakeshop, the recent U.S. Supreme Court decision involving a business owner’s decision to deny service to gay customers based on the owner’s religious beliefs.  In a news release, OFCCP said it considered that case while drafting the rule, in addition to other Supreme Court cases, statutes, and executive orders.

Today’s proposed rule helps to ensure the civil rights of religious employers are protected,

said Patrick Pizzella, acting U.S. Secretary of Labor.

“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.”

The proposed rule also comes at the same time it has been reported by Bloomberg Law that the Department of Justice and EEOC are seemingly taking differing positions on LGBTQ rights before the Supreme Court.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 228


About this Author

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

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...

Elizabeth Hernandez, Labor and employment lawyer, Jackson Lewis

Elizabeth Hernandez is an Associate in the Denver, Colorado, office of Jackson Lewis P.C. She represents management in all areas of employment law, focusing on equal employment opportunity and affirmative action compliance, and statistical analyses of potential discrimination in employment practices. She assists clients in developing sensible affirmative action plans and complying with regulations enforced by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). She also defends clients during OFCCP investigations and audits. Ms. Hernandez is a member of the firm's Pay Equity Resource Group and assists clients in conducting pay equity analyses.

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...