POLITICS
Trump Finalizing Religious Exemptions for Contractors
In watering down LGBTQ protections, president throws even more red meat to his base
BY MATT TRACY
With just over one
month until Joe
Biden becomes president,
lame duck
President Donald Trump is fi nalizing
a rule expanding religious exemptions
from regulations forbidding
discrimination by businesses
and other organizations contracting
with the federal government.
The rule, fi rst proposed in August
of last year by the Department
of Labor’s Offi ce of Federal
Contract Compliance Programs
(OFCCP), gives federal contractors
broader exemptions to use religion
as a shield in ways that many say
could negatively impact LGBTQ
individuals and others, including
people of color, religious minorities,
and women. The rule is slated
to go into effect on January 8,
just 12 days before Trump will be
forced to leave the White House —
voluntarily or otherwise.
The rule will broaden the pool
of employers eligible to claim religious
exemptions, including
for-profi t groups, and it opens up
more avenues through which contractors
can justify discrimination
with vague explanations.
Dating back to the original rule
proposal last year, the current
administration offered its own interpretation
of former President
Lyndon Johnson’s Executive Order
11246, which stipulated that
private sector federal contractors
must provide equal opportunity for
employment on the basis of race,
color, religion, sex, or national
origin. The Trump team last year
characterized the intent of Johnson’s
order as “to make clear that
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.”
Trump’s proposal also insisted
that Johnson’s order provided religious
exemptions to “not just
churches but employers that are
organized for a religious purpose,
Labor secretary, Eugene Scalia, the son of the late right-wing Supreme Court Justice Antonin Scalia,
is leading the Trump administration’s push to broaden religious carve-outs from nondiscrimination
requirements placed on government contractors before President-Elect Joe Biden takes offi ce.
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.”
Former President Barack
Obama, in 2014, issued Executive
Order 13672 amending Johnson’s
order to include sexual orientation
and gender identity protections in
federal contracting. Obama also
added sexual orientation and gender
identity as protected classes
within the federal workplace by
amending a similar nondiscrimination
order by President Richard
Nixon. At the time Obama acted,
LGBTQ advocates praised him for
making simple amendments to the
previous executive orders rather
than imposing any new religious
exemptions.
The latest rule comes just
months after the Bostock v. Clayton
County Supreme Court ruling
concluding that sexual orientation
and gender identity are protected
classes in employment under Title
VII of the 1964 Civil Rights Act.
That ruling is anticipated to have a
broader impact on LGBTQ protections
beyond employment as courts
examine the scope of nondiscrimination
protections in other areas,
such as housing, public accommodations,
access to credit, and in
public schools and universities.
However, Bostock is more relevant
REUTERS/ LEAH MILLIS
to an individual’s right to
sue and claim discrimination compared
to executive orders relating
to the government’s enforcement of
non-discrimination rules for contractors,
leaving it unclear exactly
how Trump’s fi nalized rule will
play out.
The fi nal rule is notably being
fi nalized at a time when the Department
of Labor is led by the son
of the late far-right Supreme Court
Justice Antonin Scalia, Labor Secretary
Eugene Scalia.
“Religious organizations should
not have to fear that acceptance of
a federal contract or subcontract
will require them to abandon their
religious character or identity,”
Scalia said in a written statement.
“This rule gives full effect to Executive
Order 11246’s protection of
religious organizations.”
The administration’s rule repeatedly
cites older court cases
and executive orders to justify its
provisions, such as the portion
of Johnson’s executive order that
states religious organizations are
allowed to prefer in employment
“individuals of a particular religion.”
“The religious exemption allows
religious contractors not only to
prefer in employment individuals
who share their religion, but also
to condition employment on acceptance
of or adherence to religious
tenets as understood by the employing
contractor,” the administration’s
fi nal rule notes, taking
the Johnson administration construction
in a more expansive direction.
In another example, the administration
looked back to Spencer
v. World Vision, Inc., a federal
court case from 2010 that gave the
Christian group World Vision the
ability to hire based on religious
beliefs. In that case, Ninth Circuit
Court of Appeals Judge Diarmuid
O’Scannlain outlined a threequestion
test to determine an organization’s
eligibility for religious
exemptions under Title VII.
Now the administration is adding
a fourth requirement to the
World Vision test, stipulating that
a contractor working with the government
“either operates on a notfor
profi t basis; or presents other
strong evidence that it possesses
a substantial religious purpose,”
paving the way for for-profi t groups
to become eligible.
“OFCCP acknowledges that in
certain rare circumstances, an
organization might not satisfy the
non-profi t prong of the World Vision
test yet still presents strong
evidence that it possesses a substantial
religious purpose,” the
fi nalized rule states. “Thus the
regulatory text includes an alternative
means of satisfying the
fourth prong: when an organization
does not operate on a not-forprofi
t basis, it must present ‘other
strong evidence that it possesses a
substantial religious purpose.’”
Relatedly, the administration
further clarifi ed the defi nition of
religious groups, stating, “To qualify
as religious a corporation, association,
educational institution,
society, school, college, university,
or institution of learning may, or
may not: have a mosque, church,
synagogue, temple, or other house
of worship; or be supported by, be
affi liated with, identify with, or be
composed of individuals sharing,
any single religion, sect, denomination,
or other religious tradition.”
➤ EXEMPTIONS, continued on p.9
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