Labor Department strengthens religious freedom rule

CNA Staff, Dec 8, 2020 / 10:00 am

The Labor Department (DOL) finalized a rule on Monday that allows faith-based government contractors to make employment decisions based on their religious beliefs.

The rule clarifies existing protections for faith-based contractors that date back to the Johnson era. It allows them to hire only people of a certain faith without regard to an anti-discrimination requirement of the government.

Exempt contractors can also make employment decisions based on an employee's "acceptance of or adherence to religious tenets."

The final rule retains most of the proposed rule, with some alterations regarding the scope of the religious exemption, DOL said.

Religion, according to the rule, includes "religious belief" as well as "all aspects of religious observance and practice."

Eligible religious groups are not limited to churches and similar bodies, DOL said, but can be "a corporation, association, educational institution, society, school, college, university, or institution of learning" that is "organized for a religious purpose."

The rule also says that "the contractor must engage in activity consistent with, and in furtherance of, its religious purpose" and is exempt when it "makes it reasonably clear to the public that it has a religious purpose."

The agency says it would not challenge a group's "sincere" claim of religious character, but a "sincere" claim must be more substantial than a group adding "a religious purpose to its documents after it becomes aware of potential discrimination liability or government scrutiny."

Eligible contractors would not necessarily be non-profits, as some religious groups may operate small stores or could be entities such as hospitals, the agency said. However, any for-profit group would need to present "strong evidence" of their religious character, DOL said.

The group First Liberty Institute welcomed the new rule on Monday.

"Religious organizations should never be forced to abandon their religious identity and mission in order to be eligible to partner with the federal government," said Stephanie Taub, Senior Counsel at First Liberty Institute. 

There were more than 109,000 comments on the proposed rule, according to the Office of Federal Contract Compliance Programs.

"When a religious group hires people of the same religion to carry out their mission, it's not 'discrimination,' it's common sense," said Luke Goodrich, senior counsel and vice president of the Becket Fund for Religious Liberty, to CNA when the rule was first proposed in Aug., 2019.

"And when the government refuses to work with religious groups that do the best job of caring for the needy, it's not 'equality,' it's nonsense," he added. 

In May, the agency issued broad new religious freedom protections for federal employees and faith-based grant recipients, including by implementing religious freedom into the daily operations of the agency and establishing "reasonable religious accommodations" for employees and applicants.

Under the guidance, religious groups had to have equal access to federal grants as their secular counterparts.