Senator Tammy Baldwin's office issued the following:
9.18.19
Senate HELP Committee Democrats urge Trump-Pence administration to withdraw rule allowing for federal contractors and subcontractors to discriminate on ideological grounds
WASHINGTON, D.C. – U.S. Senator Tammy Baldwin, a member of the Senate Committee on Health, Education, Labor and Pension (HELP), sent a letter
to Acting Secretary Pizzella urging the Department of Labor to withdraw
a proposed rule that would allow federal contractors and subcontractors
to justify discrimination against women, LGBTQ people and members of
certain religious groups on ideological grounds.
The letter was led by Senator Patty Murray
(D-WA), Ranking Member of the HELP Committee, and was signed by members
of the Senate HELP Committee including Senators Elizabeth Warren (D-MA),
Tim Kaine (D-VA) and Bernie Sanders (I-VT),
“This proposed rule could allow
taxpayer-funded employment discrimination against LGBTQ people, women,
and members of certain religious groups. The government cannot use
religious exemptions as a pretext to permit discrimination against or
harm others, and we demand the Department immediately withdraw this
proposed rule and cease any action that could subject workers and job
applicants to discrimination and harassment,” wrote the Senators.
The letter is available below and here.
Dear Acting Secretary Pizzella:
We write to oppose the Department of Labor’s
(the Department) Office of Federal Contract Compliance Programs (OFCCP)
proposed regulation, “Implementing Legal Requirements
Regarding the Equal Opportunity Clause’s
Religious Exemption,” which was published in the Federal Register on
August 15, 2019. The proposed rule seeks to limit the scope of Executive
Order (EO) 11246 – an executive order prohibiting federal contractors
and subcontractors from discriminating “against any employee or
applicant for employment because of race, color, religion, sex, or
national origin” – by dramatically expanding the religious exemption
from EO 11246’s requirements. This proposed rule could allow
taxpayer-funded employment discrimination against LGBTQ people, women,
and members of certain religious groups. The government cannot use
religious exemptions as a pretext to permit discrimination against or
harm others, and we demand the Department immediately withdraw this
proposed rule and cease any action that could subject workers and job
applicants to discrimination and harassment.
1. The Proposed Rule Could Negatively Impact Federal Contract Workers Who Are LGBTQ, Women, and Members of Certain Religious Groups
The proposed rule could undermine critical
protections for women, individuals from certain religious groups, and
LGBTQ employees working for federal contractors. The proposed rule could
be particularly destructive given that meaningful employment and safe
working conditions have a significant impact on the quality of a
worker’s life. We strongly oppose any steps that encourage or fail to
prevent discrimination and harassment in hiring and during the job,
which are already significant barriers that often keep workers from
finding meaningful employment.
This proposed rule will exacerbate ongoing forms
of discrimination and harassment against the LGBTQ community. In a 2017
nationally representative survey reporting harassment and violence in
the LGBTQ community, 20 percent of LGBTQ individuals said they were
personally discriminated against when applying for jobs. In the same
survey, nearly 60 percent of LGBTQ people agreed with the statement,
“LGBTQ people where I live have fewer employment opportunities.” In a
March 2018 report on LGBTQ poverty and economic justice, between 15
percent and 43 percent of LGBTQ workers reported having experienced
discrimination on the job. In the 2015 U.S. Transgender Survey, 30
percent of survey respondents who had a job the previous year reported
being fired, were denied a promotion, or experienced some form of
mistreatment. Nearly one-quarter of survey respondents reported other
forms of mistreatment based on their gender identity or expression,
including having private information about their gender identity shared
or being told by their employer to present as the wrong gender to keep
their job. Seventy-seven percent of respondents hid their gender or quit
their jobs to avoid mistreatment in their workplace. Other transgender
workers commented on how their coworkers felt they had the right to
disrespect them because the employers set the tone. And for LGBTQ
workers living in a jurisdiction without explicit statutory protections,
the changes from the proposed rule will be even more harmful.
The proposed rule will make it easier for
employers to discriminate against women and pregnant workers. Women
already face significant discrimination in the workplace, and this rule
would only further embolden discrimination. Women report substantially
higher rates of sexual harassment in the workplace than men. In a 2017
survey, 27 percent of women reported being victims of sexual harassment
in the workplace, compared with only 10 percent of men. A 2018 survey
found 38 percent of women reported sexual harassment at their workplace,
compared with 13 percent of men. Women file the majority of workplace
harassment and sexual harassment charges with the Equal Employment
Opportunity Commission (EEOC).
Additionally, women face discrimination in the
workplace based on their reproductive health decisions. For example,
pregnancy discrimination cases filed with the EEOC have risen
substantially over recent decades. A 2014 survey estimated that nearly a
quarter million women are denied requests for accommodations related to
pregnancy each year. Some employers have threatened to fire their
employees for using contraception, and some have fired their workers for
being unmarried and pregnant or for having an abortion. Expanding
religious exemptions would only erode existing protections for women and
embolden employers to discriminate against and harass women and
pregnant workers.
The rule will also embolden discrimination based
on gender-based stereotypes. Employers have refused to hire women based
on a religious belief that women, or mothers, should not work outside
of the home. Women workers also have been discriminated against in terms
of pay and benefits and working conditions because of religious beliefs
about the appropriate role of women in society. For example, a
religious school denied women health insurance by providing it only to
the “head of household,” defined to be married men and single persons,
based on its belief that a woman cannot be the “head of household.”
The proposed rule could also allow federal
contractors to further discriminate against someone if they do not share
the same religious beliefs of the employer. Expanding the religious
exemption could allow employers to refuse to interview anyone—no matter
their qualifications—if they do not regularly attend religious services
in the faith belonging to the employer. This could create a situation
where religious employers are discriminating against their workers who
practice their faith differently—a fundamental right guaranteed by the
Constitution.
Yet, instead of recognizing these challenges and
preventing or addressing them, the Department is instead proposing to
expand opportunities for federal contractors to discriminate against or
harass workers while using federal dollars to do so. By allowing federal
contractors to use their religious beliefs to justify discrimination
against LGBTQ people, women, and workers from various religions, the
Department is exacerbating the challenges many individuals already face
in being hired for and retaining employment.
2. The
Proposed Rule Could Apply the Religious Exemption to Any Entity
Generally Holding Itself Out to the Public As Carrying Out a Religious
Mission
The proposed rule seeks to inappropriately
expand the types of organizations and employers that can qualify for a
religious exemption. In determining what constitutes a religious
organization, the proposal adopts the test proposed by a concurring
judge—not the opinion of the full Ninth Circuit panel—in Spencer v. World Vision, Inc., but then broadens it even further and eliminates key limits. The rule’s proposed modified version of the Ninth Circuit’s World Vision test
selectively adopts certain elements of the test and then abandons other
elements in order to drastically expand the type of organizations that
can qualify for a religious exemption.
Cherry-picking and modifying a court test to
expand what constitutes a religious organization fundamentally
mischaracterizes and obscures applicable law. In World Vision,
former employees brought an action against World Vision, a Christian
humanitarian organization, alleging the employees were terminated on the
basis of their religious beliefs. In the per curiam opinion of World Vision,
the Ninth Circuit held the test of whether an entity is eligible for an
exemption will determine whether the entity “is organized for a
religious purpose, is engaged primarily in carrying out that religious
purpose, holds itself out to the public as an entity for carrying out
that religious purpose, and does not engage primarily or substantially
in the exchange of goods or services for money beyond nominal amounts.”
The proposed rule drops the requirement from the test in the World Vision per curiam decision
that an entity be “engaged primarily in carrying out” the religious
purpose for which it was organized. Then it replaces this prong with a
portion of the test from the concurring opinion that the entity
“[engage] in activity consistent with, and in furtherance of, those
religious purposes.” This prong is further diluted with the adoption of
an extremely broad definition of the term “engage in religious
exercise.”
The proposed rule also drops the requirement from the World Vision per curiam decision
that an entity “not engage primarily or substantially in the exchange
of goods or services for money beyond nominal amounts.” Instead, the
proposed rule explicitly permits for-profit organizations to qualify for
the exemption. Even the concurring opinion, which the proposed rule
relies upon heavily, states that “looking at how an institution charges
offers an objective test for sorting out which institutions are designed
to exchange goods or services for money” and that “this objective
measure relates closely to the purpose of the exemption.” If money is
available as an incentive for the employer, then it is strong evidence
that the exercise of religion is not the objective of the entity.
Excluding this part of the test would allow for-profit corporations to
be deemed religious organizations entitled to religious exemptions for
employment purposes. This clearly contradicts the plain language
articulated in World Vision and constitutes an expansion of religious exemptions beyond what the Ninth Circuit addressed.
3. The
Proposed Rule Misinterprets Supreme Court Decisions on Religious
Exercise and Privileges the Interests of Religious Federal Contractors
Over Members of Protected Classes
The proposed rule falsely claims that the Supreme Court decisions in Trinity Lutheran Church of Columbia, Inc. v. Comer, Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, and Burwell v. Hobby Lobby Stores, Inc.
require a much broader religious exemption from equal employment
protections than what is contemplated by the text of the Executive
Order. These cases were narrowly decided and are distinguishable from
circumstances surrounding religious exemptions and federally-funded
contractors and subcontractors. The proposed rule could allow OFCCP to
expand the holdings of these cases in a way that could substantially
broaden the scope of religious exemptions for federal contractors.
The Court has long held federally-funded
employers cannot use religion to discriminate. Each of the cases cited
in the proposed rule are consistent with that approach. In Trinity Lutheran,
there was no question as to whether the entity was a church, nor did
the Court address on what basis a church—or any government funded entity
for that matter—can discriminate against its employees. In Masterpiece Cakeshop, the
Court held that “while those religious and philosophical objections are
protected, it is a general rule that such objections do not allow
business owners and other actors in the economy and in society to deny
protected persons equal access to goods and services under a neutral and
generally applicable public accommodations law.” Hobby Lobby was
related to whether the government could require a closely held,
for-profit employer to cover birth control in a health insurance plan
for purposes of the Religious Freedom Restoration Act; the Court was
interpreting the word “person”—not any of the words being defined in the
proposed rule—and expressly recognized that its decision provided “no
shield,” even for for-profit entities and corporations, to discriminate
“cloaked as religious practice.”
Broadly referring to religious freedom and exemption principles from Trinity Lutheran, Masterpiece, and Hobby Lobby,
this proposed rule could adopt an unreasonably expansive view of
religious exemptions. These cases do not allow the federal government to
permit federal contractors to apply a religious litmus test on its
employees, and they do not justify a religious exemption that denies
employees equal access to taxpayer-funded jobs. Yet the proposed rule
could allow—for example—contractors to assert the exemption to deny
employment or health benefits on the basis of sexual orientation, deny
employment to transgender employees, and refuse employment to anyone who
did not regularly attend religious services or participate in the
“right” religion. The proposed rule misconstrues the narrow reasoning
outlined in Trinity Lutheran, Masterpiece, and Hobby Lobby, all of which is completely inapplicable to the permissible scope of the exemption.
4. The Proposed Rule Could Allow Entities to Condition Employment on Discriminatory Criteria
The proposed rule could allow contractors and
subcontractors to condition employment and job benefits on an employee’s
adherence to certain religious tenets. Under section 204(c) of EO
11246, the contractor agreement does “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 . . . . “Prior
statements of OFCCP and the EEOC have adhered to the dominant
interpretation that this exemption is narrow in scope and permits
religious organizations in employment to limit or prefer individuals of
the faith only when making hiring decisions. Yet, this proposed rule
expands that position by allowing an employer to discriminate against
employees on other bases beyond religion. Permitting employers to
justify sex discrimination based on their religious tenets, for example,
is inconsistent with the text, legal precedent, and history of the
exemption.
The proposed rule adopts an extremely broad
definition of “exercise of religion” and provides no guardrails for the
manner in which employers can require their employees to adhere to
certain principles. While the Department claims that its proposal does
not permit discrimination “on other grounds” than religion, the text of
the proposed rule directs that employers’ ability to impose religious
criteria be interpreted as broadly as possible, and does not limit this
principle to criteria that are not themselves based on race, color,
national origin, or sex (including sexual orientation and gender
identity). Additionally, the proposed rule does not require consistency
in the application of policy based upon religious tenets. For example,
an entity could give benefits to the spouse of an employee who has been
previously divorced but deny benefits to a same-sex spouse. Another
entity opposed to body modification could ignore tenets regarding
tattoos but fire a transgender worker for seeking health care. The
proposed rule could create situations where employers can apply
religious tenets in a discriminatory manner.
Taxpayer-funded discrimination is wrong, and
wastes taxpayer funds. Implementing the proposed rule could jeopardize
the existing protections under EO 11246 for a number of protected
classes, including LGBTQ people, women, and various religious groups.
This proposed rule could allow religious organizations to avoid EO
11246’s antidiscrimination provisions by asserting that complying with
those provisions violates the entity’s religious beliefs.
We strongly urge you to withdraw the proposed
rule and instead carry out the Department’s role of ensuring workers can
function free from discrimination and harassment.
