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Labor Dept. proposes expanding 'religious exemption' in hiring

Critics say the proposal would let companies with a “self-identified religious purpose” discriminate based on race, ethnicity, gender and sexual orientation.

The Trump administration Wednesday unveiled a proposed rule that would greatly expand the exemption that allows religious entities to ignore anti-discrimination laws by broadening the definition to include federal contractors that declare themselves to be religious.

The Department of Labor said the rule is proposed in order to provide “the broadest protection of religious exercise” for companies that compete for federal contracts.

LGBTQ advocates decried the proposed rule and said that it would permit companies to decline to hire lesbian, gay, bisexual, transgender and queer people, in addition to individuals who do not practice their religion.

“This proposal is part and parcel of an ongoing and coordinated attack by this administration on LGBTQ people aimed at rolling back our rights under the false guise of religion. It's really nothing more than a permission slip to discriminate,” said Zeke Stokes, chief programs officer for GLAAD, the LGBTQ advocacy group.

“Given the conservative religious affiliations of many large institutional employers that seek federal contracts, we know the most vulnerable workers will be LGBTQ people, as well as Muslims, Jews and other religious minorities,” Jennifer C. Pizer, Lambda Legal’s director of law and policy, said. “For more than half a century, the federal purse has been a transformative driver of equal workplace opportunity in this country. And once again, appallingly, this administration is betraying our nation’s core commitment to liberty and justice for all — in service of an extreme, discriminatory religious agenda.”

The American Civil Liberties Union noted in a statement that “nearly one-quarter of the employees in the U.S. work for an employer that has a contract with the federal government.”

The proposal says it is intended to “clarify the scope and applications of the religious exemption contained in section 204(c) of Executive Order 11246,” which banned federal contractors from discriminating in employment decisions on the basis of “race, color, religion, sex, or national origin” when it was signed by President Lyndon Johnson in 1965.

The proposal argues that a variety of Supreme Court decisions, like Hobby Lobby, have expanded the legal understanding of which companies count as religious. That religious exemption as written in 1965 was designed to ensure that churches could decline to hire people outside their faith, and religious schools could choose to hire members of their own faith, for example, without running afoul of the ban on private employment discrimination.

“Although these decisions are not specific to the federal government’s regulation of contractors, they have reminded the federal government of its duty to protect religious exercise — and not to impede it,” the proposal says.

The proposal claims that religious companies “previously provided feedback to OFCCP that they were reluctant to participate as federal contractors because of uncertainty regarding the scope of the religious exemption.”

The proposal is expansively written and makes clear that the “religious 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,” and also makes clear that “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.”

And, crucially, the proposed rule relies on an array of legal opinions to construct a new, national legal test of whether a company is “religious.” The company need not be primarily religion-oriented. It need only to declare itself to be, for instance, religious “in response to inquiries from a member of the public or a government entity.”

Companies that refuse to hire LGBTQ people, or women, or any other protected class may do so if they say their religion prohibits them from hiring those who disagree with their faith. The proposal makes clear that it’s expanding the right of religious companies to not just “prefer” to hire those who share their religious beliefs, but “to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.” If a construction company says it only hires Christians, this rule would allow that company to compete for a federal contract to renovate a government building, for instance.

The proposed rule now undergoes a 30-day public comment period.

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