OFCCP’s Religious Exemption Under Executive Order 11246

Tuesday, December 8, 2020

As anticipated, on December 7, 2020, OFCCP printed on its Web site a prolonged last rule clarifying the spiritual exemption discovered at Part 204(3) of Government Order (EO) 11246 and codified at 41 C.F.R. 60-1.5(a)(5) (the Exemption).

The aim of this last rule is to make clear the contours of the E.O. 11246 spiritual exemption and the associated obligations of federal contractors and subcontractors to make sure that OFCCP respects spiritual employers’ free train rights, protects employees from prohibited discrimination, and defends the values of a pluralistic society. That is the ultimate model of OFCCP’s proposed rule printed in August 2019.

Importantly, the rule particularly acknowledges that

[t]he rule doesn’t have an effect on the overwhelming majority of federal contractors and subcontractors, which aren’t spiritual, and OFCCP stays absolutely dedicated to implementing all E.O. 11246 nondiscrimination necessities, together with these defending staff from discrimination on the bases of sexual orientation and gender identification. Even 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 slender respects underneath some cheap circumstances acknowledged by legislation.

The ultimate rule is a fruits of a multi-year effort by OFCCP to reconcile the Exemption with Supreme Court docket instances, together with these cited within the last rule:

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (holding the federal government violates the Free Train Clause of the First Modification when its choices are primarily based on hostility to faith or a spiritual viewpoint);
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (holding the federal government violates the Free Train Clause of the First Modification when it decides to exclude an entity from a typically accessible public profit due to its spiritual character, until that call withstands the strictest scrutiny);
Burwell v. Interest Foyer Shops, , 573 U.S. 682, 719 (2014) (holding the Spiritual Freedom Restoration Act applies to federal regulation of the actions of for-profit intently held companies);
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 196 (2012) (holding the ministerial exception, grounded within the Institution and Free Train clauses of the First Modification, bars an employment-discrimination go well with introduced on behalf of a minister in opposition to the spiritual faculty for which she labored);
Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020) (“[T]he promise of the free train of faith . . . lies on the coronary heart of our pluralistic society.”);
Little Sisters of the Poor Saints Peter & Paul Dwelling v. Pennsylvania, 140 S. Ct. 2367, 2379–84 (2020) (holding the Departments of Labor, Well being and Human Providers, and the Treasury had authority to promulgate spiritual and conscience exemptions from the Inexpensive Care Act’s contraceptive mandate);
Espinoza v. Mont. Dep’t of Income, 140 S. Ct. 2246 (2020) (a state “can not disqualify some personal faculties [from a subsidy program] solely as a result of they’re spiritual” with out violating the Free Train clause); and,
Our Girl of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2069 (2020) (holding the ministerial exception applies “[w]hen a faculty with a spiritual mission entrusts a instructor with the accountability of training and forming college students within the religion”).

None of those instances particularly addressed the Exemption relevant to federal contractors, and a few tackle the ministerial exception that isn’t a part of the EO 11246 Exemption. Furthermore, the 2020 instances have been determined after OFCCP issued its preliminary proposed rule in August 2019. Nonetheless, OFCCP discovered a reconciliation of those instances and the Exemption to be crucial to guard spiritual organizations that could be reluctant to do enterprise with the federal authorities. OFCCP particularly acknowledged that the rule

is meant to right any misperception that spiritual organizations are disfavored in authorities contracting by setting forth applicable protections for his or her autonomy to rent staff who will additional their spiritual missions, thereby offering readability which will broaden the eligible pool of federal contractors and subcontractors.

The first clarifications of the Exemption are by way of new terminology definitions, together with defining “specific faith” and “spiritual company, affiliation, instructional establishment, or society,” “train of faith” and “honest.” The ultimate rule additionally offers a number of examples of software of the exemption.

Lastly, the Exemption is amended to dictate that it “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 Spiritual Freedom Restoration Act of 1993, as amended, 42 U.S.C. 2000bb et seq.”

The Exemption, albeit having a major potential influence in particular person situations, is theoretically slender in software from OFCCP’s perspective. EEOC has weighed in on the subject individually and issued its personal steering. As famous in OFCCP’s dialogue of the numerous feedback it acquired in response to the proposed rule, many teams opposed the proposed rule arguing, for instance, that an growth of the Exemption is however “a pretext to allow discrimination in opposition to or hurt others.” Given this, the publication of the ultimate rule might immediate formal challenges.

It stays to be seen, after all, how OFCCP underneath a brand new presidential administration will interpret and implement the ultimate rule. We are going to preserve you up to date on any developments alongside this, or another, entrance.