US Department of Labor announces proposal to return to long-standing policy, practice on religious exemption

WASHINGTON – The U.S. Department of Labor has announced a proposal to rescind the final rule “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” The final rule has been in effect since Jan. 8, 2021. The Federal Register will publish the proposal on Nov. 9, 2021. Rescinding this rule would have the effect of returning department policy and practice to those that were operative during the presidencies of George W. Bush and Barack Obama.

Enforced by the department’s Office of Federal Contract Compliance Programs, Executive Order 11246 prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The order contains a religious exemption for certain religious corporations, associations, educational institutions and societies with respect to the employment of individuals of a particular religion. The EO 11246 religious exemption is based on the religious exemption in Title VII of the Civil Rights Act of 1964. When analyzing potential discrimination under EO 11246, OFCCP follows the principles of Title VII, which prohibits employers from discriminating against applicants and employees on the basis of race, color, religion, sex (including pregnancy, sexual orientation and gender identity), or national origin.

The final rule that took effect on Jan. 8, 2021 departed from OFCCP’s long-standing policy and practice of applying Title VII principles and case law to interpret the exemption. OFCCP’s proposed rescission would preserve EO 11246’s religious exemption which would still be available to qualifying contractors. The proposed rescission would ensure that the EO 11246 religious exemption is applied consistent with principles and case law interpreting the Title VII religious exemption.

“The Office of Federal Contract Compliance Programs’ proposed rescission would protect against discrimination and safeguard principles of religious freedom. With this proposal, OFCCP would simply return to our policy and practice of considering the facts of each case and applying Title VII principles and case law and other applicable law,” said Office of Federal Contract Compliance Programs Director Jenny R. Yang.

In addition to EO 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These laws, as amended, make it illegal for contractors and subcontractors doing business with the federal government to discriminate in employment because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.

Learn more about OFCCP, or call its toll-free helpline at 800-397-6251.