Donald Trump’s Department of Labor issued a final rule yesterday allowing federal contractors increased rights to discriminate against racial minorities, women, and LGBTQ people if they claim that their business’s religious beliefs would be violated by following anti-discrimination laws.
The new rule creates “a near-limitless license to discriminate,” according to Slate‘s Mark Joseph Stern. The new rule effectively takes job protections away from four million American workers.
The Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor has been working on this rule change since at least 2018, and in 2019 released an official proposal for a rule that would make it easier for for-profit businesses to claim that anti-discrimination rules violate their religious beliefs.
President Lyndon Johnson signed the first executive order that created the protections for employees of federal contractors and protections on the basis of sexual orientation and gender identity were later added to it. President George W. Bush then created a religious exemption to the executive order that allowed religious nonprofits to claim a religious exemption.
Trump’s expansion allows for-profit businesses to also claim a religious exemption. In order to qualify, a business will have to show “evidence of a religious purpose on its website, publications, advertisements, letterhead, or other public-facing materials” or affirm “a religious purpose in response to inquiries from a member of the public or a government entity.”
Effectively, any business that wants to discriminate will simply need to say that its religious beliefs require it to discriminate in order to get out of a lawsuit or avoid losing a federal contract.
Moreover, Bush’s religious exemption focused on allowing religious nonprofits to favor hiring people of the same religion, like a Catholic charity preferring to hire Catholics to non-Catholics.
Trump’s religious exemption allows businesses to discriminate against someone of the same religion but who doesn’t share the exact same religious beliefs as the business does. For example, a Catholic business could fire a Catholic worker who takes birth control if the business claims that its version of Catholicism is anti-birth control, and the federal government couldn’t take away the business’s contract or the funds that come with it.
Title VII of the Civil Rights Act of 1964 still applies to businesses with more than 15 employees, but the executive order used to give small businesses a reason to follow federal anti-discrimination rules if they wanted to maintain a federal contract and more avenues with which to seek redress if they were the victim of discrimination.
In the final rule released yesterday, the OFCCP cites Supreme Court cases like Burwell v. Hobby Lobby and Masterpiece Cakeshop v. Colorado Civil Rights Commission, both of which were about for-profit businesses claiming that their religious beliefs were being violated by being forced to follow the law.
“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,” Trump’s Secretary of Labor Eugene Scalia said in a statement.
The rule change also requires employees of federal contractors who believe they were illegally discriminated against to file a complaint with the Equal Employment Opportunity Commission (EEOC). Previously, employees could try to pursue a claim with either EEOC or the OFCCP.
“This, in essence, closes a possible avenue for enforcement,” American Atheists’ Alison Gill told The Advocate.
“It is hard to overstate the harm that the Office of Federal Contract Compliance Programs is visiting on LGBTQ people, women, religious minorities, and others with the sledgehammer it is taking to federal nondiscrimination protections,” said Jennifer Pizer of Lambda Legal in a statement.
“This new rule uses religion to create an essentially limitless exemption allowing taxpayer-funded contractors to impose their religious beliefs on their employees without regard to the resulting harms, such as unfair job terms, invasive proselytizing and other harassment that make job settings unbearable for workers targeted on religious grounds.”