Tina Williams
Director, Division of Policy and Program Development
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Room C-3325
200 Constitution Ave NW
Washington, DC 20210
Re: Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption (RIN 1250-AA09)
Dear Miss Williams:
The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers, and assesses policies with respect to how well they further those goals.
EPI supports the Department of Labor’s proposal to rescind the Trump administration’s rule on the scope and application of the religious exemption contained in section 204(c) of Executive Order (EO) 11246. This Trump rule betrays American workers by allowing a wider range of federally funded employers to use religion to discriminate against workers and applicants and making it harder to challenge the discrimination. It jeopardizes EO 11246’s existing, important workplace protections against discrimination that cover more than one-fifth of the country’s workforce.1 We commend the Department of Labor for taking this crucial step towards restoring religious freedom, ending discrimination in the name of religion, and ensuring meaningful protections for millions of federal workers.
Background
The Office of Federal Contract Compliance Programs (OFCCP) exists to “protect workers, promote diversity and enforce the law.”2 The Office ensures that federal contractors comply with Executive Order 11246, which prohibits them from discriminating in employment on the basis of “race, color, religion, sex, sexual orientation, gender identity, or national origin.”3
EO 11246 contains a George W. Bush-era religious exemption that allows religious organizations to prefer members of its religion in employment, but prohibits religious organizations from discriminating in employment on the basis of race, color, sex, sexual orientation, gender identity, or national origin.4 OFCCP’s long standing practice had been to interpret the religious exemption in EO 11246 in the same manner as the religious exemption in section 702(a) of Title VII (42 USC 2000e-1(a)).5
The Trump administration rule crippled the protections under the EO 11246
In 2020, the Trump administration amended the regulation that implements EO 11246. It added definitions for “particular religion”; “religion”; “religious corporation, association, educational institution, or society”; and “sincere.” It also added a rule of construction calling for a “broad interpretation” of the exemption6, increasing the likelihood for employees to be subject to discrimination.
Additionally, the rule vastly expanded who can use the religious exemption. It “permits a contractor whose purpose and/or character is not primarily religious to qualify for” the exemption.7 And, in an unprecedented move, the rule even allowed for-profit corporations to use the religious exemption. This vastly expanded the scope of the religious exemption for federal contractors, subjecting countless workers to discrimination in the name of religion. While the rule did not eliminate any of the protections under EO 11246, it made clear that the OFCCP will not enforce these protections sufficiently. As such, LGBTQ people, women, religious minorities, and the nonreligious are at the most risk of facing employment discrimination.
The Trump administration rule puts different classes of workers at risk of discrimination
The Trump rule put LGBTQ people, women, religious minorities, and the nonreligious at the most risk of facing employment discrimination. Religious exemptions, like the one in this rule, undermine the promise of civil rights protections and erode the security these protections should provide marginalized groups.
This rule has been especially harmful for LGBTQ workers. A recent 2021 study found that 30 percent of LGBT employees report being fired or not hired because of their sexual orientation or gender identity. Transgender employees face even more difficult situations, with nearly 50 percent reporting similar discrimination based on their identity. And over half of those who had experience such discrimination reported that their employer or co-workers did or said something to indicate that the unfair treatment was motivated by religious beliefs.8 For LGBTQ workers living in a state without explicit statutory protections, the Trump rule could be even more devastating.
For women workers, the Trump rule also has devastating implications. According to a 2017 survey, 42 percent of working women in the United States report having faced workplace discrimination because of their gender.9 Although federal law currently prohibits discrimination based on sex— including sex stereotypes, gender identity, sexual orientation, and pregnancy and related medical conditions—the Trump rule emboldens federal contractors to cite religious beliefs in order to justify discrimination, turning the clock back on decades of non-discrimination law and threatening women’s ability to obtain and maintain employment. Women workers have been fired for their decisions about whether and how to start a family, including becoming pregnant outside of marriage or becoming pregnant while in LGBTQ relationship, using in vitro fertilization to start a family, or having an abortion.10
Another at-risk group is religious minorities and the nonreligious workers. Nonreligious people frequently encounter discrimination in the workplace because of their beliefs. A 2019 survey found that nearly 22 percent of participants had negative experiences in employment because of their nonreligious beliefs, and those living in very religious communities experienced significantly more discrimination.11 The existing exemption in EO 11246 already allows certain government-funded contractors to discriminate in hiring on the basis of religion. The Trump rule made that troubling exemption even broader and expanded it to more contractors.
In the name of religious freedom, the Trump rule increased the likelihood that employees will face religious discrimination. It emphasized the religious freedom of organizations that would discriminate rather than those who are being discriminated against, shifting the OFCCP’s focus away from protecting workers. Further, giving religious exemptions without concern for the impact on others undermines the principle of religious freedom and violates the First Amendment’s Establishment Clause. While religious freedom is a core tenet of the Constitution, it also explicitly prohibits this type of government action that burdens or harms third parties.
Further, the Constitution bars the government from directly funding or providing aid to private institutions that engage in discrimination. Therefore, if an organization has the opportunity to receive federal funding through a government contract, it should not be allowed to discriminate against qualified job applicants and employees because they cannot meet a religious litmus test.
The Biden administration must rescind the Trump rule
The Trump administration misapplied the EO 11246’s religious exemption by straying from Title VII case law and creating an entirely new religious employer test. It improperly retreated from the EO 11246’s prohibition on using the religious exemption to discriminate against other protected classes as well as misapplied the Religious Freedom Restoration Act (RFRA).
Under the current proposal, the Department will return to OFCCP’s prior approach of following Title VII case law, which will create clarity for contractors and employees. It will also return the religious exemption to the more narrow and correct interpretation promoting equity, fairness, and equal opportunity for all. This will also ensure that qualified and talented employees are not arbitrarily excluded from the workforce.
Largely, rescinding the Trump regulation promotes clarity; equity, fairness, and equal employment opportunity for all protected classes; and procurement efficiency and certainty.
Conclusion
Religious freedom is a fundamental American value. It guarantees us the right to believe—or not—as we see fit, but it cannot be used to harm or discriminate against others. The Trump rule betrayed American workers by misapplying the law to allow a wider range of federal contractors to use religion to discriminate against workers and applicants and making it harder to challenge the discrimination. It jeopardizes EO 11246’s existing, important workplace protections against discrimination that cover more than one-fifth of the country’s workforce. President George W. Bush was wrong to add this religious exemption to EO 11246 in 2002 and the Trump administration should not have expanded it. In doing so, it mischaracterized federal case law to turn provisions designed to protect workers from religious discrimination into exemptions that allow federally funded employers to use religion to discriminate against workers. If an organization gets government funding through a government contract, it should not be allowed to discriminate against qualified job applicants and employees because they cannot meet the contractor’s religious litmus test. We urge the Department to rescind this flawed rulemaking and ensure meaningful workplace protections for millions of federal workers.
Sincerely,
Adewale Maye
Policy and Research Analyst
Program on Race, Ethnicity, and the Economy
Economic Policy Institute
Endnotes
1. Office of Federal Contract Compliance Programs (OFCCP), “History of Executive Order 11246”(web page), accessed on December1, 2021.
2. Office of Federal Contract Compliance Programs (OFCCP), “About Us” (web page), accessed on December 8, 2021.
3. Exec. Order No. 11,246, 30 Federal Register at 12319.
4. Exec. Order No. 11,246, § 204(c), as amended by Exec. Order No. 13,279.
5. 86 FederalRegister at. 62115.
6. 85 Federal Register at 79324.
7. 86 Federal Register at 62117.
8. Brad Sears et al., LGBT People’s Experiences of Workplace Discrimination and Harassment, Williams Institute at UCLA School of Law, September 2021.
9. Kim Parker and Cary Funk, Gender Discrimination Comes in Many Forms for Today’s Working Women, Pew Research Center, December 2017.
10. See, e.g., Herx v. Diocese of Ft. Wayne-South Bend Inc., 48 F. Supp. 3d 1168 (N.D. Ind. 2014); Ganzy v. Allen Christian Sch., 995 F. Supp. 340, 345 (E.D.N.Y 1998) (an unmarried teacher at a religious school was fired because, as explained by the school, her pregnancy was “clear evidence that she had engaged in coitus while unmarried”). See also Dana Liebelson and Molly Redden, “time, “Mother Jones, Feb. 10, 2014; Ducharme v. Crescent City Déjà Vu, L.L.C., No. 2:2018cv04484 (E.D. La. 2019) (woman fired at her job for having an abortion; court held that federal and state anti-discrimination laws prohibit employers from firing employees for having an abortion).
11. Somjen Frazer, A. El-Shafei, and Alison Gill, Reality Check: Being Nonreligious in America, American Atheists, May 2020.
