Commentary

Here’s why we’re suing the federal government. This is what solidarity looks like.

The pride flag flies outside the US Supreme Court
The pride flag flies outside the US Supreme CourtPhoto: Scott Drake

On their way out the door, the Trump administration couldn’t help but take one last swipe at LGBTQ working people. Upending nearly 80 years’ worth of existing federal policy, Trump’s Department of Labor implemented a rule that makes it easier for federal contractors to discriminate by claiming a religious exemption to nondiscrimination protections.

This change to the rules is not only illegal but runs counter to the mission of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), the office charged with enforcing these rules. So last week, we (and some of our friends) sued to vacate the rule.

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This new rule would permit, among other things, federal contractors that claim a religious exemption to fire someone in a same-sex marriage or refuse to hire a woman who is unmarried. And the rule broadens the scope of what constitutes a religious exemption by adopting sweeping definitions of religion and taking a very deferential approach to determining if a federal contractor can claim the exemption.

Pride at Work, American Federation of Teachers (AFT), and Oregon Tradeswomen, along with an expert legal team from Democracy Forward and National Women’s Law Center, filed suit in US District Court for the District of Oregon against OFCCP within days of the rule going into effect on January 8, 2021.

The potential damage of this rule is hard to overstate. We know that employment discrimination is still a serious problem for LGBTQ people and women. More than four out of ten lesbian, gay, or bisexual people and nine out of ten transgender people have experienced some form of employment discrimination due to their sexual orientation or gender identity.

A 2013 Pew Research Center study found that 52% of those who say homosexuality should be discouraged cited moral or religious opposition as the basis for that belief. This new rule will make it easier than ever for a federal contractor to claim a religious exemption to critical nondiscrimination protections. This is not a good policy.

Previously, the ability to claim an exemption was appropriately balanced against the other rights at stake. The new rule changes all of that. But the new rule goes further by expanding the scope of the exemption itself.

Under the new rule, a contractor can consider the private personal behavior of employees in making employment decisions. And while the exemption previously only applied to hiring, the new rule would allow contractors to base any and all employment decisions and practices on an employee’s adherence to the contractor’s religious precepts.

Pride at Work, AFT, and Oregon Tradeswomen are all part of America’s labor movement. It’s in our DNA to come together, rise up, and fight back. And that’s exactly what we’re doing with this lawsuit. This is what solidarity looks like.

Jerame Davis is a longtime LGBTQ and labor activist in Washington, DC. He is the executive director of Pride at Work, the nation’s largest organization that represents LGBTQ working people.