Latest Update December 9, 2021

Workers' Advocates Submit Comments on Biden Admin Proposal to Rescind Rule Expanding Fed Contractors' Ability to Discriminate

On behalf of the AFT, Oregon Tradeswoman, and Pride At Work, we submitted comments on the Biden admin's proposed rule that would rescind the rule that dramatically expanded the ability of federal contractors and subcontractors to cite religious objections to justify employment decisions that discriminate against workers.

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Trump’s Department of Labor and its Office of Federal Contract Compliance Programs (OFCCP) unlawfully issued a rule that vastly expands the ability of federal contractors and subcontractors to cite religious objections in employment decisions. This “Religious Exemption Rule” — issued by the very office charged with preventing discrimination by federal contractors — expressly allows the contracting company to make employment decisions for discriminatory reasons, so long as it can tie the decision to religious belief.

The rule took what was previously a limited exemption for religious schools or organizations to hire individuals of a shared faith and unlawfully broadened it to:

  • Adopt a highly deferential test for determining whether a federal contractor or subcontractor is a religious organization that can claim the exemption — including allowing for-profit companies to qualify and largely deferring to a contractor’s own claims that it is religious;
  • Adopts broad definitions of “religion” and “particular religion” to make clear that the exemption is no longer limited to “denominational preferences,” i.e., preferences for people who are of the same religion as the organization, but now includes “religious tenets” — such as what kind of behavior the company believes is religiously permissible;
  • Allows religious organizations to make employment decisions that would otherwise involve unlawful discrimination on the basis of sex, sexual orientation, or gender identity, by citing religious objections;
  • Allows religious organizations to claim the religious exemption for all employment decisions (instead of only in the hiring process), regardless of whether those decisions further the organization’s religious purpose.

By allowing federal contractors to make discriminatory employment decisions based on religious objections, historically marginalized individuals could experience an increase in workplace discrimination. The Trump administration rule not only fails to prevent this type of discrimination: it sanctions it, essentially enabling contractors to use taxpayer dollars to discriminate.

For example, the unlawful new policy gives federal contractors that claim the religious exemption to:

  • Fire a woman for getting pregnant while she is unmarried;
  • Refuse to hire someone in a same-sex marriage;
  • Fire a transgender employee in the process of transition;
  • Refuse to provide health insurance to women because they are not believed to be heads of household.

More than four in ten lesbian, gay, and bisexual individuals — and more than nine in ten transgender individuals — have experienced some form of employment discrimination because of their sexual orientation or gender identity. Four in ten working women report having faced workplace discrimination because of their gender. And women, still, are paid substantially less than their male peers.

We filed suit to challenge the “Religious Exemption Rule” on behalf of Oregon TradeswomenPride at Work, and the American Federation of Teachers. The Trump-era Department of Labor and OFCCP violated the Administrative Procedure Act and injured the plaintiffs. The lawsuit was filed on January 21 in the U.S. District Court for the District of Oregon.

A coalition of fifteen states, led by New York, also challenged the rule in the U.S. District Court for the Southern District of New York.

February 11, 2021

Workers’ Advocates Applaud Biden Admin for Announcing Intent to Reconsider Trump-Era Rule

The Biden administration told a federal court that it “intends to propose rescission of the rule at issue.” In stating its intent to rescind the rule, the Biden administration also requested a 90-day stay of the litigation.

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November 8, 2021

Workers' Advocates Applaud Biden Admin for Announcing Proposal to Rescind Trump-Era Rule Giving Federal Contractors Expanded Ability to Discriminate

Today the Dept of Labor announced a proposal that would rescind a Trump administration rule that dramatically expanded the ability of federal contractors and subcontractors to cite religious objections to justify employment decisions that discriminate against workers.

Karianne Jones

Senior Counsel

Litigating cases on issues involving, among other things, gender justice, civil rights, and workplace justice.

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Robin Thurston

Deputy Legal Director

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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