House-Passed Defense Bill Would Limit Executive Orders

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By Chris Opfer

May 19 — In a raucous round of voting, House lawmakers yesterday passed a defense authorization bill (H.R. 4909) that would restrict two executive orders related to federal contractor employment.

The House voted 277-147 in favor of the $619 billion military and defense spending authorization measure.

The legislation would exempt defense contractors from an executive order (E.O. 13,673) requiring them to divulge certain labor violations and would at least partly shield religious organizations from an order (E.O. 13, 672) banning sexual orientation and gender identity discrimination.

The moves would limit the impact of two of a slew of executive actions issued by President Barack Obama to ensure that government contractors are model employers.

The bill is already drawing criticism from the White House, whose Office of Management and Budget said earlier this week that the Obama administration “strongly objects” to both provisions.

The House briefly erupted into chaos when a motion to recommit, intended to undo the religious exemption, narrowly failed. Democratic Whip Steny Hoyer (Md.) said a number of Republicans changed their votes under leadership pressure after time expired.

“Not only did they vote against equality and inclusion, but those who switched their votes did not even have the courage to do so openly in the well of the House,” Hoyer said in a statement May 19. “They did so quietly from the back benches, contrary to established practice that requires vote-switching to be done in person at the Clerk’s desk, and House Republican leaders held a two-minute vote open for nearly eight minutes.”

‘Blacklisting' Order in Crosshairs

The legislation would exempt Department of Defense and National Nuclear Security Administration contractors from the Fair Pay and Safe Workplaces executive order, which beefs up disclosure requirements for employers that want to do business with the government.

The order requires businesses seeking government contracts worth more than $500,000 to disclose violations of 14 federal labor and employment laws—and state-law counterparts—for the previous three years (147 DLR AA-1, 7/31/14). It also allows government agencies to deny contracts based on those disclosures.

The administration, which recently sent final rules and guidance implementing the order to OMB, has said it will ensure that businesses with egregious records of worker abuses won't be able to compete for taxpayer money.

But critics say the order will allow agencies to “blacklist” employers from contracting opportunities based on unproven allegations (188 DLR A-16, 9/29/15).

Religious Exemption Questions

The religious exemption provision was added to the bill during a committee markup session. Amendment sponsor Rep. Steve Russell (R-Okla.) said the measure is intended to clarify Obama's executive order banning discrimination by federal contractors based on sexual orientation and gender identity (139 DLR AA-1, 7/21/14).

The order, which updated two executive orders issued by President George W. Bush, retained language allowing religious organizations to take a candidate's religion into account in hiring decisions.

Some faith leaders had asked Obama to go a step further and allow religious employers to make decisions based on sexual orientation and gender identity.

Russell's amendment requires the federal government to extend exemptions “consistent with” those in place for religious groups currently included in Title VII of the Civil Rights Act of 1964. The federal employment discrimination law similarly permits religious-affiliated employers to take a worker's religion into account in making hiring decisions.

Russell said the measure is intended to dispel “confusion” created by the Labor Department's Office of Federal Contract Compliance Programs when it issued a rule implementing the order in 2014 (232 DLR A-1, 12/3/14). “This amendment eliminates the ambiguity within DoD by tying the existing protections that have been well-established for decades,” Russell said.

Extent of Religious Freedom Protection Unclear

A sweeping bill (H.R. 3185, S. 1858) to ban sexual orientation and gender identity discrimination pending in Congress includes the same exemption (141 DLR A-14, 7/23/15).

But that measure also makes clear that employers can't use the Religious Freedom Restoration Act as a shield against discrimination claims.

The RFRA prohibits the government from placing a “substantial burden” on the exercise of religion, unless it is “the least restrictive means” of furthering a “compelling government interest.”

It has been at the center of the debate over whether federal law already does or should ban employers from discriminating against workers based on sexual orientation and gender identity (35 DLR A-6, 2/23/16).

That debate isn't resolved in the defense funding authorization legislation. The motion to recommit—offered by Rep. Sean Maloney (D-N.Y.)—would have clarified that the executive order protecting LGBT workers applies to contracts that use money authorized by the measure.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the bill is available at http://src.bna.com/faM.