BrianAJackson / iStock.com

Labor Department Works to Rescind ‘Problematic’ Contractor Rule

The Trump-era rule clarified religious protections for federal contractors, which many critics argued would allow for discrimination.

The Labor Department announced on Monday it’s working to rescind a rule issued under the Trump administration that clarified religious protections for federal contractors, which many critics argued would allow for discrimination.

The rule was first announced in August 2019 and then finalized and took effect during the presidential transition. The Labor Department’s Office of Federal Contract Compliance Programs under President Trump said the rule will provide a “clearer interpretation” of the exceptions of Title VII and the 1965 executive order that established non-discriminatory practices for federal contractors, but noted that “religious organizations may prefer in employment ‘individuals of a particular religion.’” The rule was met with criticism from Lambda Legal, the oldest and largest legal organization that protects the rights of LGBTQ individuals and all those with HIV; and American Atheists, among others, as well as was challenged in two lawsuits

This is a “problematic” rule, Jenny Yang, director of the Labor Department’s Office of Federal Contract Compliance Programs, said in a blog post on Monday. “Since the religious exemption has been in place, [the contract compliance office] has no record of any federal contractor having invoked this exemption in any [office] compliance evaluation or complaint investigation.”

The new proposal “would preserve the exemption for religious employers under executive order 11246,” which President Lyndon B. Johnson issued in 1965 to prohibit discrimination in hiring and employment by federal contractors, Yang continued. The Office of Federal Contract Compliance Programs “would simply return to the policy in place under both the Bush and Obama administrations of analyzing a contractor’s exemption claim, if one ever arose, on a case-by-case basis consistent with Title VII precedent and other applicable law.” This “would increase clarity and consistency in application of the religious exemption.”

The proposal to return to the old policy questions the legality and merits of what the Trump administration issued. 

During a December 2020 press conference, a senior Labor official tried to quell concerns, stressing that the Trump rule did not allow for discrimination, exempt religious organizations from undergoing the contracting office’s compliance reviews or favor religious organizations over non-religious ones. The Trump rule created its own religious employer test, which was based on an opinion by the father of then-Labor Solicitor Kate O’Scannlain, Judge Diarmuid O’Scannlain, in Spencer v. World Vision Inc. (2010), which was brought before three judges and had no majority opinion. 

“This not only places the rule in tension with the president’s intent in expressly incorporating the Title VII religious exemption into executive order 11246 in 2003, but also undermines the government’s long-standing policy of requiring that federal contractors provide equal employment opportunity, subject to a religious exemption for contractors with primarily religious purpose and character,” said the proposed rule from the Biden administration. 

The Office of Management and Budget finished its review of the Office of Federal Contract Compliance Program’s proposal to rescind the rule on October 26. The proposal will be formally published in the Federal Register on Tuesday. Public comments are due by December 9. 

“We definitely support the [Biden administration] measure,” Alison Gill, vice president for legal and policy at American Atheists, told Government Executive. “The Title VII exemptions are something that have been in place for decades and are well understood by contractors and other companies. The Trump administration’s rule just caused unnecessary confusion and allowed for discrimination.” 

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.