Department of Labor Rescinds Religious Exemption Rule Used To Discriminate

Civil Rights Policy Brief #202 | By: Rodney A. Maggay | March 7, 2023

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U.S. President Joe Biden departs the White House after speaking with the media in Washington, U.S., February 24, 2023.

Photo taken from:  Reuters / Evelyn Hockstein

Policy Summary

In 2019, the Trump Administration proposed a Department of Labor (DOL) rule that expanded the interpretation of the Religious Freedom Restoration Act of 1993 as applied to employees of federal contractors. This rule is popularly known as the “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” When the agency rule was finally enacted on January 8, 2021 the rule permitted federal contractors to not hire or fire employees if there was a conflict with the federal contractor’s religious beliefs. A federal contractor could now openly discriminate against an employee based on his sexual orientation, gender identity or different religious belief and point to his own religion or belief as justification for his action against the employee.

On February 28, 2023, DOL announced that the Trump Administration – era rule will be rescinded. The rule was published in the Federal Register on March 1, 2023. With the rescission of the rule, the previous policy of the department regarding the interpretation and implementation of the religious exemption rule will fall back to the prior application of Executive Order 11246 in effect under the presidencies of George W. Bush and Barack Obama. Under that executive order, federal contractors are barred from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. 

The original religious exemption that allows religious corporations, associations and societies will remain (e.g. allowing certain religious schools to hire teachers with similar religious beliefs). Except now the exemption is no longer so broad as to allow any group to claim the ability to discriminate on the basis of their religious beliefs without thoroughly scrutinizing their claim of a religious belief exemption. Now, each claim invoking the religious exemption will be reviewed on a case – by – case basis to determine if the claim of exemption is valid. LEARN MORE 1, LEARN MORE 2

Policy Analysis

The rescission of the Department of Labor rule proposed and implemented during the Trump Administration reflects the ongoing struggle in how to handle discrimination based on religious beliefs cases. Until a legal framework is implemented it seems likely that the pendulum will swing back and forth – at one moment favoring those who are arguing for religious liberty and then swinging back the other way to favor those whose civil rights and liberties are being infringed in the name of religious beliefs.

What was unique about the rescission of the Trump Administration era rule was that it did not add, delete or modify any language found in Executive Order 11246. That executive order, since 2003, has been interpreted to permit a limited religious exemption which is modeled on Title VII of the Civil Rights Act of 1964. Those who wished to invoke the exemption to engage in a discriminatory action were reviewed on a case – by – case basis in accordance with cases and statutes interpreting Title VII. In practice, the Executive Order provided that federal contractors receiving federal taxpayer funds could not discriminate on the basis of race, color or religion and other protected categories. This was the prevailing practice under the Bush and Obama Administrations.

However, when the Trump Administration era recission rule was introduced it expanded the scope of the original  rule to such an extent that it caused an uproar when it was finalized. The agency received more than 5,000 comments to rescind the agency rule. Comments from Members of Congress, labor unions, and civil liberties organizations focused on Trump’s removal of non – discrimination protections as a major reason why they wanted President Biden to support rescission of the agency rule. Groups argued that when the Trump  rule was introduced it allowed just about anyone to use their religious beliefs as a justification to keep out employees based on their sexual orientation or gender identity even though the federal contractors were receiving federal dollars. 

And on a larger scale, if the rule continued it would allow just about any federal contractor to opt out of any federal rules they disagree with and simply claim “religious beliefs” without any legitimate scrutiny of their claims. Instead of giving potential federal contractors a home – made excuse to discriminate as they please with no limitations or restrictions, the groups wanted a return to the previous practice. If a contractor claimed a “religious exemption” to discriminate then their claim would be measured on prior case law to determine if their claim has any merit based on prior law. 

Luckily, the DOL agreed and decided to rescind the Trump era rule and return to the prior practice. This action represents a win for those who do not believe that another person’s religion should allow those people to discriminate or deprive another of their civil rights on the basis of their religious beliefs. But it also demonstrates that the fight will be ongoing against those who would try to use their religion to justify discriminating or depriving others of basic rights guaranteed to them. LEARN MORELEARN MORE

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

Engagement Resources​

Click or tap on resource URL to visit links where available 

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Freedom From Religion Foundation – press release from non – profit group applauding rescission of agency rule regarding discrimination protections for federal contractor employees.

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Americans United For The Separation of Church and State – press release from non – profit group celebrating rescission of agency rule regarding discrimination protections for federal contractor employees.

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