Opinion

DOL Issues New Guidelines to Stop Discrimination Against Religious Federal Contractors

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Posted: Aug 26, 2018 12:01 AM
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DOL Issues New Guidelines to Stop Discrimination Against Religious Federal Contractors

Thanks to the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs, the federal government clarified that it is free to work with whichever organization is best able to achieve the government’s goals, providing optimal services to those in need.

The guidelines, recently issued by the DOL, explain that under current law the federal government may not discriminate against religious contractors or subcontractors. Instead, all contractors, religious and non-religious, must be permitted to compete for federal contracts on an equal playing field.

A wide variety of charitable work across the country is done through government contracts with various organizations, including religious non-profits. For instance, Catholic Charities USA contracts with the government to provide disaster relief services. Lutheran organizations contract to help immigrants and refugees. Muslim and Jewish organizations often partner with the government to provide faith-based and chaplain services. 

Since 2002, religious contractors have been protected by Section 204(c) of Executive Order 11246, which provides that a religious organization can maintain hiring practices faithful to its beliefs when it contracts with the federal government.  But, certain guidelines issued by the Obama administration called into doubt whether religious organizations would have to abandon their internal religious character if they wished to continue to compete for federal contracts.

The new guidelines, building upon President Trump’s Executive Order on Religious Liberty, emphasize that the religious exemptions issued in 2002 will be interpreted broadly, allowing religious organizations to “participate fully in civic life.”

The guidelines also draw from recent decisions by the U.S. Supreme Court like Trinity Lutheran Church of Columbia, Inc. v. Comer in which the court explains that the “government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny.”

Some groups still seek to narrow the exemption and bar qualified religious charities from contracting with the federal government based upon hostility toward their religious beliefs or internal hiring practices on contentious issues such as abortion and sexuality.  Yet, the DOL’s broad interpretation is consistent not only with President Trump’s Executive Orders and the Supreme Court’s decision in Trinity Lutheran, and this administration’s conception of federal employment discrimination law as a whole, but also with the Constitution’s promise of Free Exercise.

The language of the Executive Order mirrors the religious employer exemption found in Title VII of the Civil Rights Act of 1964. According to Attorney General Session’s Memorandum on Religious Liberty, Title VII’s statutory protection provides that a religious organization may choose to employ only those individuals “whose beliefs and conduct are consistent with the organizations’ religious precepts.” This principle allows Catholic schools, for example, to hire only people who agree to abide by Catholic standards of conduct - ensuring that Catholic schools remain Catholic.

Being allowed to retain faith-based hiring practices is essential to the continued existence of religious organizations in this country. As I explained in an article for theTexas Review of Law and Politics, having faith-based employment standards is what allows Jewish, Muslim, Buddhist, Sikh, and Christian organizations to work together in a community of shared values. Without Title VII’s statutory protection, religious non-profits across the country would be forced to abandon their religious character under threat of litigation and crushing penalties.

And these religious values are often what drive faith-based organizations to devote their time and talents to helping others in their communities in the first place. Religious contractors should be allowed to serve on equal terms as everyone else.

Without clear guidance to protect religious organizations from discrimination, the government loses valuable opportunities to help people in need.  Thanks to the president and his Department of Labor, we are one step closer to connecting people with the services they need.