Labor Dept. Wants Religious Freedom Focus in Bias Probes (1)

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By Ben Penn

The Trump administration is expanding the circumstances in which federal contractors can use religious beliefs as a defense against job discrimination charges, a move likely targeting the Obama Labor Department’s ban on bias against gay and transgender workers.

The DOL’s Office of Federal Contractor Compliance Programs issued a new enforcement directive Aug. 10 calling for investigators to factor in recent U.S. Supreme Court rulings and White House executive orders that protect religious freedom. Lawmakers, administrative agencies, and courts have grappled with drawing a line between religious liberty and unlawful discrimination.

The OFCCP enforces anti-discrimination laws for companies that do business with the federal government. It’s the only federal agency that explicitly prohibits workplace sexual orientation and gender identity discrimination under presidential authority.

The directive doesn’t revoke or amend the Obama administration’s 2014 executive order barring government contractors from discriminating against lesbian, gay, bisexual, or transgender employees and applicants. But it does task OFCCP auditors with granting companies—including those with no formal religious affiliation—a religious exemption from LGBT discrimination charges, if certain requirements are met.

Some Republicans and conservative activists have said bans on sexual orientation and gender identity discrimination may violate the Religious Freedom Restoration Act. The law 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.”

“The directives coming out of the Department of Labor today represent the latest move by the Trump-Pence administration to turn the notion of religious liberty into a weapon of discrimination,” Sharon McGowan, chief strategy officer for Lambda Legal, told Bloomberg Law via email. “The notion that the OFCCP needs to re-examine how it is enforcing nondiscrimination mandates against federal contractors is a ‘solution’ in search of a problem.”

The policy changes come after then-OFCCP Director Ondray Harris met with Sen. James Lankford (R-Okla.) and faith-based organizations in January and March.

“In America, people and organizations don’t have to check their faith at the door in order to work with or for the federal government,” Lankford told Bloomberg Law in an email. “I applaud today’s changes from the Department of Labor that ensure that faith-based organizations are welcome partners with the government to serve the American people.”

Rulemaking Ahead, Director Says

Acting OFCCP Director Craig Leen also stated in the directive that these instructions are connected to an upcoming rulemaking that will be added to the agency’s regulatory agenda.

Prior to the release of the directive, the agency recognized an exemption that allows federal contractors that are religious corporations, associations, educational institutions, or societies to favor employees and applicants of a particular religion in employment decisions, such as in hiring. That exemption was issued in 2002 by President George W. Bush.

The OFCCP also adheres to the “ministerial exception,” a judicially created doctrine that bars government interference with a religious organization’s employment decisions regarding ministers.

A separate directive issued Aug. 10 launched a new OFCCP initiative that “seeks to ensure compliance with equal employment opportunity and anti-discrimination regulations in all of its protected groups,” according to a DOL statement.

—With assistance from Jay-Anne Casuga.

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