Public Comment: Religious Exemptions Among Federal Contractors

By Adam P. Romero and Jocelyn Samuels

The issue: Executive Order 11246 prohibits federal contractors from discriminating in employment on the basis of sexual orientation, gender identity, and other bases. It contains a narrow exemption that permits religious organizations to prefer individuals of the same religion. In August 2019, the Office of Federal Contract Compliance Programs (OFCCP) in the US Department of Labor published a proposed rule that would vastly expand the religious exemption in ways that could harm LGBT and other workers.

The impact on LGBT people: Executive Order 11246 protects LGBT people across the country who work for federal contractors. These protections are especially important to the 4.1 million LGBT workers living in states without express statutory protections against sexual orientation and gender identity discrimination. An estimated 900,000 LGBT people work for a federal contractor in those states.

Comment summary: Scholars argue that the proposed rule should not be finalized because it impermissibly expands religious exemptions. In addition, it fails to take into account the harm the rule would impose on LGBT and other workers, and it deprived the public of a meaningful opportunity to evaluate and respond to the proposed rule. The comment by OFCCP’s former director and deputy director, a former deputy Secretary of Labor, and law professors from around the country.

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