By Richard T. Foltin
A proposed rule issued by the Office of Federal Contractor Compliance Programs (OFCCP) of the U.S. Department of Labor, slated soon to be issued in its final form, has been billed by the administration as an enhancement of religious freedom. But, in fact, the rule would diminish protections of employees’ religious freedom and civil rights.
On Sept. 24, 1965, building on actions taken by previous chief executives, President Lyndon B. Johnson signed Executive Order (EO) 11246, which established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. As subsequently amended, the order prohibits discrimination by federal contractors based on race, color, religion, sex, sexual orientation, gender identity or national origin. OFCCP is the agency responsible for assuring that federal contractors comply with these non-discrimination obligations.
In December 2002, President George W. Bush amended EO 11246 to allow an exemption for contracting religious organizations that permits them to discriminate “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.” This latter language closely tracks the religious exemption provision of Title VII of the Civil Rights Act of 1964 (the section of the Civil Rights Act dealing with employment discrimination). And, following the fashion in which Title VII has been applied, the exemption does not excuse contractors from complying with the other requirements of EO 11246, even on the basis of religious belief.
Adoption of the Bush amendment was not without controversy. Rather, it raised concerns over whether or not faith-based organizations that are awarded government contracts should be allowed to engage in religious discrimination, notwithstanding that these organizations would otherwise have the benefit of Title VII’s religious exemption. In contrast, proponents of the amendment maintained that the need to protect the autonomy of religious organizations with Title VII religious exemptions isn’t diminished simply because those organizations are government contractors.
At first glance, debate over the Bush amendment parallels debate over whether or not faith-based organizations that receive government grants to provide social services should have the benefit of religious exemptions from anti-employment discrimination provisions covering those grants. That parallel between federal contractors and grantees is complicated, however, by two key differences between government contracts and government grants, each of which alters the calculation in a different direction. On the one hand, the contractual relationship is more likely to be ongoing and intertwined with government in contrast to what may be a one-off grant, leading to the conclusion that it is more problematic to provide religious contractors with religious exemptions. On the other hand, the provisions of EO 11246 have more sweeping implications for religious contractors in that the executive order’s antidiscrimination provisions apply to the entire organization, not just, as is the case with many grants, the project for which funding is provided.
Whatever the merits of the underlying Bush amendment, the proposed rule constitutes a broad and ill-advised expansion — in the name of protecting religious freedom “to the maximum extent permitted” — of the fashion in which the Bush amendment has been applied:
In sum, OFCCP’s proposed rule’s harmful and unnecessary expansion of the existing religious exemption for employers endangers the religious freedom and civil rights of employees across the nation. Hopefully, OFCCP will take heed of the many comments urging that it reject the proposal.
 The following points draw on comments filed by the American Bar Association (ABA), opposing adoption of the proposed rule. The ABA was one of thousands of organizations and individuals to weigh in, pro and con. The author played a role in drafting the ABA’s comments.