New Federal Contractors’ Rule Creates “Essentially Limitless” Exemption for Discrimination

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December 7, 2020

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) today announced a final rule that dramatically expands the ability of federal contractors to claim religious exemptions from federal nondiscrimination and equal employment opportunity laws and regulations. Lambda Legal Director of Law and Policy Jennifer Pizer, issued the following statement:

“It is hard to overstate the harm that the Office of Federal Contract Compliance Programs is visiting on LGBTQ people, women, religious minorities, and others with the sledgehammer it is taking to federal nondiscrimination protections. For nearly 80 years, it has been a core American principle that seeking and receiving federal tax dollars to do work for the American people means promising not to discriminate against one’s own workers with those funds.  This new rule uses religion to create an essentially limitless exemption allowing taxpayer-funded contractors to impose their religious beliefs on their employees without regard to the resulting harms, such as unfair job terms, invasive proselytizing and other harassment that make job settings unbearable for workers targeted on religious grounds.

“The Department of Labor has crafted a grotesquely overbroad exemption that will be used by many federal contractors as a totally improper, catch-all defense to discrimination complaints. The rule allows contractors, including large for-profit companies, to use the special treatment designed for religious organizations if they merely ‘affirm [] a religious purpose in response to inquiries from a member of the public or a government entity.’ This adds yet another gaping hole to the Swiss cheese the Trump administration has been systematically making of our country’s essential civil rights protections.”

Lambda Legal Senior Attorney Sasha Buchert added:

“There are almost 4 million employees who work for federal contractors, including another 1.6 million who work for federal grantees impacted by this rule. Already, from one-third to one-half of the 8.1 million LGBTQ employees nationwide report facing discrimination on the job. This rule effectively allows almost any federal contractor to claim a right to fire a person, deny health benefits or take other forms of discriminatory action for marrying a same-sex partner or coming out as transgender, or who the employer or would-be employer discovers is transgender, for living in accordance with their gender identity. The harm to those who already face pervasive discrimination is incalculable.”