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Biden administration reverses Trump-era rule that expanded religious exemptions for massive federal contracting force

The Labor Department on May 7, 2020. (J. Scott Applewhite/AP)

The Biden administration is rescinding a Trump-era rule that broadened religious exemptions for the massive workforce of federal contractors, an effort to bring anti-discrimination protections more in line with previous decades.

While there’s no record any contractor has tried to use the exemption, advocates on both sides say the push-pull is powerfully important. It comes in an era when some religious conservatives are pushing back against bans on employment discrimination against people on the basis of sexuality and gender identity being put on par with, or above, protections for religious expression and practice.

In its proposal published Tuesday, the U.S. Department of Labor argues that the Trump-era rule “departs” from standard interpretations of civil rights law banning employment discrimination that have been expanded by presidents for the most part since the 1940s. The Labor Department oversees contractor compliance.

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The rule, on which people can comment for another month, calls for wiping out the Trump policy completely and returning to the more narrow exemption.

The pre-Trump narrow exemption for federal contractors dates back to President George W. Bush, who said faith-based contractors could prefer hiring “individuals of a particular religion” — in other words, their own. Contractors make up about 5 million of the 11 million federal workers, according to New York University professor Paul Light, an expert on public service.

The Trump rule exempted more people and had broader language, saying it included for-profit contractors, and any “employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”

Luke Goodrich, with the religious liberty law firm Becket, said the broader language simply clarifies the intention of civil rights law to offer a broad exemption to religious employers. Title 7 defines religion to include “all aspects of religious observance and practice, as well as belief,” and Goodrich said that means the exemption should be read to cover employers’ right to create a workplace that adheres to certain religious standards.

Biden’s proposed rule cited the Labor Department as having no record of any contractor invoking the religious exemption, going back to 2004, when records began. The office that keeps the records is the Office of Federal Contract Compliance Programs. However, attorneys on both sides say they have complaints from people worried about discrimination.

David Berteau, president of the Professional Services Council, a major trade association for government contractors, said no members have complained about needing a religious exemption.

“Our position is that the federal government deserves the best workforce, and any form of discrimination inhibits our ability to have the best workforce.”

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The Trump rule went through the long approval process and just went into effect in January. Labor Department officials under Trump said its goal was “to clarify vague policies and fully include religious organizations in federal contracting,” the federal news site FCW reported in February, quoting former OFCCP director Craig Leen.

Leen said his office was hearing that religious organizations weren’t getting involved with contracting because they thought their religious affiliations would disqualify them, FCW reported.

Goodrich says Becket knows of one religious organization that had a government contract but is pulling out because of concern about the Biden change, and at least five others who have contracts who are worried.

He noted that all firms are barred from discriminating in terms of who they serve, and that aside from religious exemptions, all other firms are barred from discriminating in hiring.

“Our country is obviously divided on matters of religion, but also matters of human sexuality and marriage, and what’s at stake here is: What is the government going to do about that division? Will it pick one side of the debate over marriage and sexuality and crush everyone who disagrees and rule them anathema, ineligible for government funding, or try to find win-win solutions that respect both sides of the debate and encourage the most and the best service for the neediest groups?”

Goodrich said that since 2011, the Supreme Court has heard 18 religious liberty cases, and ruled in favor of the religious groups 17 times, mostly by a wide margin.

Americans United CEO Rachel Laser this week said in a statement that reversing the Trump-era changes was important.

“Our nation promises everyone the freedom to believe as they want, but our laws cannot allow anyone to use their religious beliefs to harm others. No one should be turned away from a government-funded job because they can’t meet a religious test,” she said. “Rescinding this rule is an important step toward restoring religious freedom as a shield and not a license for government contractors to force their employees to live by their beliefs.”

Several organizations sued the Trump administration just as Biden was taking office over the rule, saying women and LGBTQ federal employees under Trump had been discriminated against and the organizations were concerned. The case is on hold until February because the White House said it was pursuing rescinding the rule.

“Ensuring that women and LGBTQ+ individuals’ most basic rights in the workplace are protected was the inspiration for and the foundation of our suit to end this unlawful Trump administration rule. We respect religious freedom, but this rule was instead conceived to undermine the freedom of others,” said Democracy Forward, a law firm that watches government action.