ABOVE: Donald Trump, photo by Michael Vadon via Flickr.
In an apparent contradiction to President Trump’s promise to keep “intact” an Obama-era executive order against anti-LGBT workplace discrimination, the Department of Labor has signaled it would expand the scope of the religious exemption for federal contractors seeking to deny employment to LGBT workers.
In the proposed rule, the Labor Department proposes regulations to clarify the scope and application of the religious exemption in Executive Order 11246, an 1965 executive order signed by President Johnson which bars federal contractors from discriminating against workers based on race, sex and other characteristics.
But the proposal, set for publication in the Federal Register on Thursday, seems aimed at implementation of Executive Order 13672, which President Obama signed in 2014 as amendment to the Johnson order to extend those protections to LGBT workers.
“While only a subset of contractors and would-be contractors may wish to seek this exemption, the Supreme Court, Congress, and the president have each affirmed the importance of protecting religious liberty for those organizations who wish to exercise it,” the proposal says.
The proposal is the latest in a series of moves from the Trump administration expending LGBT rights in the name of “religious freedom,” such as the institution of religious exemptions in LGBT non-discrimination rules for health care or homeless shelters.
But the Labor Department proposal is unique in one respect: It undermines a White House statement in 2017 affirming Trump supports LGBT people and would keep the LGBT non-discrimination executive order in place.
“The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump,” the statement says.
White House Deputy Press Secretary Judd Deere, however, insisted via email to the Washington Blade the proposed change doesn’t undermine Trump’s promise.
“In no way does today’s announcement by the Department of Labor undermine the president’s promise and commitment to the LGBTQ community,” Deere said. “The proposed rule will continue to responsibly protect religious freedom and members of the LGBTQ community from discrimination.”
The proposed rule is unveiled in the aftermath of Trump’s nomination of corporate attorney Gene Scalia, the son of the late anti-LGBT U.S. Associate Justice Antonia Scalia, as secretary of labor. Scalia has yet to obtain Senate confirmation for the role, although Democrat will likely query him about the proposed rule change during the confirmation process.
Alphonso David, new president of the Human Rights Campaign, said in a statement the proposed rule will “gut existing protections for LGBTQ people, women and religious minorities.”
“This regulation, which directly contradicts Trump’s earlier promise, is a broad and sweeping effort to implement a license to discriminate against people on the basis of their gender identity and sexual orientation,” David said. “Everyone deserves a workplace free from discrimination. The Trump administration needs to withdraw this proposed regulation and stop these attacks on LGBTQ people.”
When President Obama signed the long-sought after executive order in 2014, he adopted practices used in enforcement of Title VII of the Civil Rights Act of 1964, which bars discrimination in employment on the basis of race, color, religion, sex and national origin.
Obama kept in place a Bush-era regulation from an executive order signed by President Lyndon Johnson allowing religious-affiliated organizations to continue to favor co-religionists in hiring for non-clerical positions.
Consistent with the First Amendment, the executive order also allowed religious organizations to discriminate in whatever factor they wished — whether it be LGBT status, race or gender — for the limited purpose of hiring of ministerial positions, such as clergy.
But the proposed rule change seek to take the exemption further. Cited among the proposed changes is clarification the exemption applies to “not just churches but employers that are organized for a religious purpose.”
“It is also intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases,” the proposal says.
Drawing on a memo from former Attorney General Jeff Sessions calling on U.S. agencies to protect religious liberty consistent with the Religious Freedom Restoration Act, the proposal also seeks to “be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws.”
A Labor Department spokesperson said the proposed rule change is limited because regulations “have long permitted religious employers to take applicants’ and employees’ religion into account when making employment decisions.”
“The proposed regulation merely clarifies the regulation’s definition of ‘religion’ and related terms to confirm that ‘religion’ includes not merely belief, but also ‘all aspects of religious observance and practice,’” the spokesperson said. “That core definition is drawn directly from Title VII.”
Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement the proposed rule change threatens transgender people working for federal contractors.
“Religious freedom must be a shield to protect the marginalized, not a sword to attack them,” Keisling said. “There are few values more sacred to the equality of all in this nation than the belief that nobody should be judged by an employer because of who they are or who they love, yet this administration continually seeks to undermine that value.”
Cited as a rationale for the implementation of proposed rule change are recent decisions from the U.S. Supreme Court. Proposing rule changes in light of new court decisions is common practice for departments.
Among them is the Masterpiece Cakeshop ruling in favor of Jack Phillips, which found anti-religious bias in the Colorado Civil Right Commission determining he violated Colorado law by refusing to make a custom-made wedding cake for a same-sex couple.
But the Trump administration had already issued guidance through the Labor Department to ensure its regulations were in compliance within the limited scope of the Masterpiece Cakeshop.
Moreover, the Masterpiece Cakeshop ruling was limited in scope to anti-religious bias in bodies adjudicating civil rights cases; it fall short of finding a First Amendment right for individuals to discriminate.
The Hobby Lobby decisions allowed a for-profit business to decline to provide health coverage with birth control with its employees, but the U.S. government could still enforce civil rights laws, such as laws against discrimination based on race.
Jennifer Pizer, director of law and policy at Lambda Legal, said the Trump administration is “engages in a series of gross distortions and exaggerations” about these court decisions.
According the proposal, “some religious organizations have previously provided feedback to OFCCP that they were reluctant to participate as federal contractors because of uncertainty regarding the scope of the religious exemption.”
It’s unknown which religious-affiliated organizations would seek to contract with the U.S. government and which are seeking to discriminate against LGBT employees. They could include religious-affiliated schools and universities, such as Catholic or Mormon institutions, that have policies against employing LGBT teachers.
Pizer, however, said a for-profit business could be eligible for an religious exemption to discriminate against LGBT people.
“The bottom line is that, although the proposed regulation purports to set out a multi-part test that will determine when an employer can claim to be religious and therefore exempt from the nondiscrimination terms…the administration’s proposed new approach repeatedly concludes that the company gets to decide whether it will be exempt or not,” Pizer said. “In other words, ‘when in doubt, let them flout.’ It’s outrageous.”
A Buzzfeed article quoted a Labor Department spokesperson as saying for-profit companies could be eligible for an exemption. The Blade was able to corroborate that from the Labor Department.
The Labor Department also didn’t respond to a request to comment on how many charges the Office of Federal Contract Compliance has accepted since the implication the Obama-era executive order.
Winnie Stachelberg, vice president of external affairs at the Center for American Progress, said in a statement the Trump administration is “trying to undermine civil rights protections under the guise of freedom of religion.”
“This proposal opens the door to discrimination against federal contractors, who represent a fifth of the nation’s workforce, by weaponizing religion to justify discrimination against LGBTQ people, religious minorities, and other marginalized groups,” Stachelberg said.
The Labor Department announces the proposes change weeks before the U.S. Supreme Court is set to hear oral arguments on Oct. 8 on whether Title VII of the Civil Rights Act of 1964, which bars discrimination in employment on the basis of sex, applies to cases of anti-LGBT discrimination.
On Friday, the U.S. solicitor general is expected to file a brief in the case with respect to transgender discrimination because the U.S. government is a party. Next week, the U.S. solicitor general is expected to file a friend-of-the-court brief in the cases related to lesbian, gay and bisexual discrimination.
Zeke Stokes, chief programs officer for the LGBT media watchdog GLAAD, said in a statement the proposed rule demonstrates which side the Trump administration is on.
“This proposal is part and parcel of an ongoing and coordinated attack by this Administration on LGBTQ people aimed at rolling back our rights under the false guise of religion,” Stokes said. “It’s really nothing more than a permission slip to discriminate.”
The public comment period for the proposed rule will begin tomorrow and close after 30 days. When the comment period is finished, the Labor Department can under no particular deadline make the order final.