Trump Religious Order Could Affect Workplace Bias Exemptions

By Jay-Anne B. Casuga

An executive order on free speech and religion signed March 4 by President Donald Trump could have implications on religious exemptions to federal workplace anti-discrimination laws, supporters and opponents of the order told Bloomberg BNA.

The order doesn’t expressly affect current federal rules that provide discrimination protections based on sexual orientation and gender identity. But it contains language instructing Attorney General Jeff Sessions to provide guidance to all agencies on “interpreting religious liberty protections in Federal law.”

Guidance on the meaning and application of the federal Religious Freedom Restoration Act in the employment discrimination context “could end up being a very significant consequence of this executive order,” Gregory S. Baylor, senior counsel with Alliance Defending Freedom, a conservative Christian nonprofit organization, told Bloomberg BNA.

Whether a secular, closely held, for-profit corporation can apply RFRA to shield itself from federal anti-discrimination laws is currently being considered by one federal appeals court.

The broad language pertaining to the attorney general is a threat to workplace protections for lesbian, gay, bisexual, transgender employees, Jennifer C. Pizer, senior counsel and law and policy director of Lambda Legal, a civil rights organization, told Bloomberg BNA.

“The gun has been loaded,” Pizer said. “The trigger hasn’t been pulled yet.”

The order also directs the Internal Revenue Service to use its discretion in enforcing a law known as the Johnson Amendment, which prohibits tax-exempt, non-profit organizations such as churches from endorsing or opposing political candidates. It also addresses conscience-based objections to the Affordable Care Act’s mandate that private insurance plans cover recommended preventive services.

LGBT Executive Orders Undisturbed

The order leaves intact executive orders signed by Presidents Bill Clinton and Barack Obama that bar federal agencies and government contractors from discriminating against LGBT employees and applicants.

Trump upheld those executive orders in January, amid speculation that he might rescind them or sign a broader executive order.

Baylor of the ADF said the federal contractor LGBT order is “ambiguous in its protections of religious contractors.”

“We had certainly hoped that the president would address that ambiguity in the new executive order,” Baylor said. “We hope that the president continues to consider these issues.”

The government contractor LGBT order has an exemption that allows 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 added to the order in 2002 by President George W. Bush.

The Labor Department, which enforces the LGBT order, also recognizes the “ministerial exception,” a judicially created doctrine that bars government interference with a religious organization’s employment decisions regarding ministers.

Management-side practitioners had previously speculated that the president might sign an executive order expanding the LGBT order’s exemptions.

For example, an expansion could have shielded religiously affiliated contractors from the LGBT order’s nondiscrimination requirements entirely and not just allowed employment preferences based on religion. Or it could have encompassed contractors that aren’t specifically religious corporations, associations, educational institutions or societies, so long as they met the requirements of RFRA.

A split U.S. Supreme Court in 2014 held that RFRA can exempt secular, closely held, for-profit corporations from federal law if they show that the law substantially burdens the free exercise of their sincerely held religious beliefs and the government fails to show it pursued the least restrictive means to further a compelling interest.

Application of RFRA Exemption

The potential application of RFRA as an exemption to the LGBT order is one of several concerns that civil rights groups have with Trump’s latest executive order, Sarah Warbelow, legal director of the Human Rights Campaign, told Bloomberg BNA.

The Labor Department can investigate government contractors if an employee or applicant submits a complaint alleging sexual orientation or transgender discrimination. The agency attempted to do so in an administrative action against AccuWeather Inc. earlier this year. That case has since been resolved.

But a contractor could attempt to use RFRA to block the Labor Department’s investigation or shield itself from liability, Warbelow said.

RFRA has already been used in that manner in the employment context. A federal appeals court in Ohio is currently considering the issue in a transgender discrimination case brought by the Equal Employment Opportunity Commission.

A judge had dismissed the EEOC’s lawsuit upon finding that the agency’s enforcement of Title VII of the 1964 Civil Rights Act would substantially burden a funeral home’s ability to conduct business based on its owner’s sincerely held religious beliefs.

The EEOC has interpreted Title VII of the 1964 Civil Rights Act’s prohibition against sex discrimination to include sexual orientation and transgender discrimination. But that interpretation remains an open question among federal courts.

Guidance from the attorney general on religious liberty protections wouldn’t be mandatory authority for the EEOC and federal judges, Baylor said.

“Such guidance would only be persuasive authority,” he said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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