February 19, 2020

February 19, 2020

Subscribe to Latest Legal News and Analysis

February 18, 2020

Subscribe to Latest Legal News and Analysis

February 17, 2020

Subscribe to Latest Legal News and Analysis

OFCCP Proposes Rule to Clarify Religious Exemption

On August 15, 2019, the Office of Federal Compliance Contract Programs (OFCCP) published proposed a new rule broadening the religious exemption that applies to its equal employment opportunity regulations.  The proposed rule is based on recent Supreme Court opinions addressing religious protections and OFCCP’s stated perception that religious organizations are “reluctant to participate as federal contractors because of uncertainty regarding the scope of the religious exemption contained in section 204(c) of Executive Order 11246.”

The proposed rule states that it should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws.  The proposed rule clarifies that:

  • The exemption applies to “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 on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases”

  • To find a violation of Executive Order 11246, OFCCP must find by “a preponderance of the evidence that a protected characteristic other than religion was a but-for cause of the adverse action”

Religious organizations will continue to be required to comply with OFCCP’s prohibitions on discriminating based on race, color, sex, disability, protected veteran status, and other characteristics as well as the requirement to maintain affirmative action programs.  Contractors covered by the exemption should also note that it may not protect them from liability under Title VII or applicable state or local anti-discrimination laws if those laws do not have similarly broad religious exemptions.

Acting U.S. Secretary of Labor Patrick Pizzella stated in a press release that the proposed rule “helps to ensure the civil rights of religious employers are protected.”  “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.”  OFCCP will accept public comments on the rule for 30 days, until September 16, 2019.  Polsinelli will continue to monitor this issue and provide updates on the new developments.

© Polsinelli PC, Polsinelli LLP in California


About this Author


Samuel Long is an associate in the Employment Disputes, Litigation and Arbitration practice group. Sam represents corporate clients and individuals in a variety of industry sectors in all aspects of labor and employment law, including representation before administrative agencies and litigation in state and federal court. Clients rely on him for valuable legal counsel as they face sensitive workplace issues. He has successfully defended clients against claims of discrimination, retaliation, and wrongful termination under state and federal statutes, including Title VII,...

Jack Blum Polsinelli Employment Attorney

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all aspects of complex employment litigation and has advised and defended employer clients regarding a wide variety of employee claims, including:

• Employment discrimination, harassment, and retaliation
• Wage and hour
• Employment contract disputes
• Independent contractor/employee misclassification audits 
• Tort claims arising out of the employment relationship

Jack also has extensive experience representing parties in litigation arising from employee mobility, including claims involving non-competition, non-solicitation, and confidentiality agreements as well as the misappropriation of trade secrets. Significantly, Jack has experience in both prosecuting and defending these claims and is, therefore, able to offer clients a well-rounded assessment of their options and courses of action. Jack also has experience redressing employee data breaches under the Computer Fraud and Abuse Act.

Jack also has a background in employment counseling, where he has worked closely with in-house counsel, human resources personnel, and business executives to craft personnel policies that meet the client’s business requirements while complying with applicable laws. Jack has particular experience in assisting clients with issues relating to employee/independent contractor classifications, and regularly advises clients regarding the defensibility of classifications, drafts independent contractor agreements to provide the strongest possible arguments in support of the classification, and defends misclassification claims asserted by employees and government agencies. Jack also walks clients through sensitive personnel actions to reduce the potential for litigation or at least best position the client in the event that litigation is inevitable. Jack draws heavily upon this counseling experience in representing clients in litigation.

During law school, Jack served as a legal intern in the U.S. Securities and Exchange Commission’s Office of the Inspector General where he contributed to several high-profile internal investigations, and also interned with the Maryland Attorney General’s Office.