Notice of Rescission of Directive 2018-03

This Notice of Rescission does not change the laws and/or regulations governing OFCCP’s programs and does not establish any legally enforceable rights or obligations. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Effective Date: March 1, 2023

1. SUBJECT: Notice of Rescission of Directive 2018-03


2. PURPOSE: To rescind Directive 2018-03, Executive Order 11246 § 204(c), religious exemption, issued August 10, 2018.


3. REFERENCES:
   1. Executive Order 11246 § 204(c), religious exemption, Directive 2018-03 (August 10, 2018);
   
   
   2. Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption, Final Rule, 85 FR 79324 (Dec. 9, 2020); and
   
   
   3. Rescission of Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption, 88 FR 12842 (March 1, 2023).


4. AFFECTED POLICY: This notice rescinds DIR 2018-03.


5. BACKGROUND: As amended in 2002, Executive Order 11246 contains a religious exemption in Section 204(c) for religious corporations, associations, educational institutions, and societies with respect to the employment of individuals of a particular religion. In 2003, OFCCP added a rule to its Executive Order 11246 regulations to incorporate this religious exemption. See 41 CFR 60-1.5(a)(5).
   
   On August 10, 2018, OFCCP issued DIR 2018-03, addressing the religious exemption. The directive noted that the agency had not provided formal guidance and stated that the agency anticipated rulemaking on the topic that would be informed further by public comment. In 2020 OFCCP finalized "Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption" (the "2020 religious exemption rule"), effective January 8, 2021. The legal interpretations and policy of DIR 2018-03 were reflected in the 2020 religious exemption rule. OFCCP rescinded the 2020 religious exemption rule in a notice published on March 1, 2023.


6. ROLES AND RESPONSIBILITIES:
   1. Division of Policy and Program Development (DPPD) is responsible for:
      1. providing internal guidance to the field and OFCCP Help Desk; and
      2. communicating public guidance through frequently asked questions on the agency website, stakeholder messages, webinars, or other public outreach materials, as needed.
   2. Regional and District offices are responsible for:
      1. implementing internal guidance provided by DPPD; and
      2. providing compliance assistance and technical assistance consistent with DPPD guidance.


7. POLICY AND PROCEDURES: Effective immediately, OFCCP rescinds DIR 2018-03 consistent with the final rescission of the 2020 religious exemption rule. The rescission of the 2020 religious exemption rule will take effect on March 31, 2023.
   
   As explained in detail in the final rescission of the 2020 religious exemption rule, when the rescission takes effect, OFCCP will return to its practice in place for over 17 years prior to January 8, 2021, the effective date of the 2020 religious exemption rule. In consultation with the Office of the Solicitor, OFCCP will apply Title VII case law to the facts and circumstances of each situation in which the religious exemption is invoked. OFCCP remains committed to protecting religious freedom in accordance with applicable law and will continue to provide any needed compliance assistance on the religious exemption.


8. ATTACHMENTS: None.

/S/
JENNY R. YANG
Director
Office of Federal Contract Compliance Programs

Last updated on March 1, 2023