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New 'religious exemption' directive could harm LGBTQ workers, critics say

The Department of Labor issued a religious-liberty directive that LGBTQ advocates say constitutes a “license to discriminate” in federal employment.
Department of Labor
U.S. Department of Labor building in Washington on Nov. 2, 2017.Bill Clark / CQ-Roll Call,Inc.

The Department of Labor issued a religious-liberty directive that LGBTQ advocates say constitutes a “license to discriminate” in federal employment.

The directive, issued late last week by the acting director of the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), asserts its purpose is to “incorporate recent developments in the law regarding religion-exercising organizations and individuals.”

The directive lists a number of recent court decisions — including June’s limited Supreme Court ruling in favor of a Christian baker who wouldn’t make a gay wedding cake — that have “addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law.”

The three-page document also refers to two of President Donald Trump’s executive orders on religious freedom — issued in May 2017 and May 2018 — that have “reminded the federal government of its duty to protect religious exercise — and not to impede it.”

The OFCCP is the office responsible for ensuring that those who do business with the federal government comply with nondiscrimination laws and regulations. This new directive instructs all OFCCP staff to consider these new“legal developments” in “all of their relevant activities.”

The directive’s five-point policy advises OFCCP staff to “respect the right of ‘religious people and institutions … to practice their faith without fear of discrimination or retaliation by the Federal Government.’”

In the days following the directive’s release, LGBTQ advocacy organizations have voiced their concerns about the directive. The National Center for Transgender Equality (NCTE), for example, issued a statement calling the directive a “broad license to discriminate with federal funds.”

“No employer should be allowed to use taxpayer dollars to fire someone because of who they are,” Harper Jean Tobin, director of policy at NCTE, told NBC News.

“Religious organizations have ample protections under federal law, but they are not allowed to use federal money to discriminate against people,” Tobin added. “The language of this directive is so broad and so vague, because it is part of a long line of attempts by this administration to sow confusion and encourage any employer to act on their worst prejudices.”

In an emailed statement sent to NBC News, a Labor Department spokesperson said “OFCCP will follow the law” and “remains committed to enforcing compliance with all of the protections” afforded by the department’s existing nondiscrimination measures (E.O. 11246, Section 503 and VEVRAA).

“Collectively, these laws prohibit, federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran,” the spokesperson explained.

Mat Staver, chairman of the conservative Liberty Counsel, which submitted amicus briefs in all the religious-liberty court cases mentioned in the directive, released a statement praising the measure.

“I commend the Trump administration and the Department of Labor for taking a strong stand in this new policy directive to protect the religious freedom of individuals and organizations under federal law and the U.S. Constitution,” Staver stated. “People of faith should not have to set aside their sincerely held religious beliefs to appease others.”

Suzanne B. Goldberg, a professor at Columbia Law School, called the directive “quite concerning” in the context of the Trump administration’s “broader efforts” to cut back on LGBTQ rights.

“The current administration has, both through directives like this and in litigation, taken positions that treat religion as a justification for anti LGBT discrimination,” Goldberg told NBC News.

She said the language of the directive seems to encourage contractors to “seek exemptions from anti-discrimination law.”

“Our nation has adopted anti-discrimination laws that prohibit sexual-orientation and gender-identity discrimination, because these forms of discrimination have and continue to be a serious problem in the U.S.,” Goldberg said.

Further, Goldberg argued that the Supreme Court’s Masterpiece Cakeshop decision involving a Christian baker, which was mentioned in the directive, “does not in any way direct the Federal Government to cut back on anti-discrimination protections for LGBT people.”

“The symbolic impact of supporting religion as a reason for discrimination,” she added, “will cause real-world harms.”