Religious entities given clarity in federal procurement.
The Office of Federal Contract Compliance Programs issued its Final Rule on “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” The agency’s Notice of Proposed Rulemaking on this topic generated heated controversy and more than 109,726 comments.
Notwithstanding the strong interest in the OFCCP’s rulemaking, the impact will be limited to religious organizations that choose to contract with the federal government. The OFCCP notes that “[t]he vast majority of contractors and their employees, as well as OFCCP’s enforcement program, will be unaffected by this rule.”
Executive Order 11246 prohibits discrimination on the basis of religion and was amended by President George W. Bush to exempt religious organizations in the same fashion as they are exempted from Title VII. The OFCCP’s regulations implement this exemption and currently provide that the non-discrimination requirements
shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements. . . .
41 C.F.R. § 60-1.5(a)(5).
The existing regulations also provide a similar exemption for institutions of higher education that are “owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such . . . institution of learning is directed toward the propagation of a particular religion.” 41 C.F.R. § 60.1.5(a)(6).
The Final Rule clarifies the scope of the religious exemption under Executive Order 11246 and “ensure[s] that OFCCP respects religious employers’ free exercise rights, protects workers from prohibited discrimination, and defends the values of a pluralistic society.” Although religious organizations may make employment decisions based on an employee’s "particular religion," the OFCCP states that “[r]eligious organizations can never make employment decisions on the basis of other protected characteristics unrelated to religious considerations” and that “the religious exemption never permits employment discrimination on the basis of race, even if purportedly justified on religious grounds.”
To qualify for the religious exemption, the entity must
- be organized for a religious purpose,
- hold itself out to the public as carrying out a religious purpose,
- engage in activity consistent with, and in furtherance of, that religious purpose, and
- either operate on a not-for-profit basis or present other strong evidence that its purpose is substantially religious.
The new regulations provide definitions for purposes of determining when the exemption applies.
Religion is defined as “all aspects of religious observance and practice, as well as belief.”
Particular religion is defined as “the religion of a particular individual, corporation, association, educational institution, society, school, college, university, or institution of learning, including acceptance of or adherence to sincere religious tenets as understood by the employer as a condition of employment, whether or not the particular religion of an individual employee or applicant is the same as the particular religion of his or her employer or prospective employer.”
Sincere is defined as “sincere under the law applied by the courts of the United States when ascertaining the sincerity of a party’s religious exercise or belief.”
Another component of the new regulation mandates that the exemption be construed broadly in favor of protecting religious exercise to the maximum extent permitted by law.
The OFCCP has posted Frequently Asked Questions on the Final Rule, which will take effect on January 8.
Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations. With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals. Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes. Subscribe to both to stay current on these important topics!
- March 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- July 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- December 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017