Tuesday, December 8, 2020
On December 7, 2020, the Division of Labor’s Workplace of Federal Contract Compliance Packages (“OFCCP”) issued its ultimate rule enhancing the spiritual exemption for federal authorities contractors already contained in its laws (the “Rule”). The Rule, by means of the addition of definitions, provides element to and arguably expands the already present exemption on spiritual entities’ compliance with the anti-discrimination provisions of Government Order 11246. The Rule turns into efficient January 8, 2021.
As a sensible matter, the Rule could have minimal impression on the contractor group. Most authorities contractors don’t fall throughout the scope of the entities lined by the exemption, whilst clarified by the Rule. Additional, spiritual discrimination just isn’t sometimes a focus of OFCCP compliance evaluations. Nevertheless, with the company’s new lodging targeted critiques, which is able to embrace an evaluation of non secular lodging, the Rule could have extra sensible import for these entities lined by the improved exemption. Moreover, to the extent spiritual entities had been discouraged from coming into into federal authorities contracts as a consequence of worry of OFCCP overview of their employment practices containing spiritual elements, the brand new Rule will seemingly cut back any such considerations.
Even for these contractors that fall throughout the exemption, OFCCP makes clear that the exemption doesn’t relieve them of all and even most of OFCCP’s necessities. Because the company notes, “[e]ven for spiritual organizations that function authorities contractors or subcontractors, they too should adjust to all of E.O. 11246’s nondiscrimination necessities besides in some slim respects beneath some cheap circumstances acknowledged by legislation.”
On August 15, 2019, OFCCP issued a discover of proposed rulemaking relating to the scope of the spiritual exemption already contained in its laws. OFCCP’s laws exempted any federal contractor that was a “spiritual company, affiliation, instructional establishment, or society” from complying with the anti-discrimination provisions of the Order “with respect to the employment of people of a selected faith to carry out work related with the carrying on by such company, affiliation, instructional establishment, or society of its actions.” Nevertheless, most of the phrases contained within the exemption had been beforehand undefined. By including definitions, OFCCP contends the brand new Rule clarifies the spiritual exemption and “guarantee[s] that OFCCP respects spiritual employers’ free train rights, protects employees from prohibited discrimination, and defends the values of a pluralistic society.”
Particularly, the Rule provides a definition of “faith” that features not solely spiritual beliefs, but in addition “all features of non secular observance and follow.” Along with the time period “faith,” the Rule supplies new definitions for the phrases “explicit faith;” “spiritual company, affiliation, instructional establishment, or society;” and “honest,” as follows:
Specific faith is outlined by the Rule as “the faith of a selected particular person, company, affiliation, instructional establishment, society, college, faculty, college, or establishment of studying, together with acceptance of or adherence to honest spiritual tenets as understood by the employer as a situation of employment, whether or not or not the actual faith of a person worker or applicant is similar as the actual faith of his or her employer or potential employer.”
Non secular company, affiliation, instructional establishment, or society is outlined by the Rule as “a company, affiliation, instructional establishment, society, college, faculty, college, or establishment of studying that:
(i) Is organized for a spiritual goal;
(ii) Holds itself out to the general public as finishing up a spiritual goal;
(iii) Engages in exercise per, and in furtherance of, that spiritual goal; and
(iv) (A) Operates on a not-for-profit foundation; or (B) Presents different robust proof that its goal is considerably spiritual.”
The Rule additionally supplies an inventory of illustrative examples of entities that meet and don’t meet this definition.
Honest is outlined by the Rule as “honest beneath the legislation utilized by the courts of america when ascertaining the sincerity of a celebration’s spiritual train or perception.”
The Rule is meant to be “construed in favor of a broad safety of non secular train, to the utmost extent permitted by the U.S. Structure and legislation, together with the Non secular Freedom Restoration Act of 1993, as amended, 42 U.S.C. 2000bb et seq.” It’s scheduled to change into efficient on January 8, 2021.
© 2020 Proskauer Rose LLP. Nationwide Legislation Overview, Quantity X, Quantity 343