Monday, December 7, 2021: USDOL Announced A Coming Controversial OFCCP Final Rule Recognizing Expanded Religious Defenses, Even While Only Mirroring the Recent Case Law Which Established Them
On Monday December 7, 2020, OFCCP issued a Press Release announcing that it would soon publish its Final Rule updating OFCCP’s Rules re religious discrimination titled: “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” OFCCP reported that it intended the Final Rule to acknowledge case law decisions permitting religious-exercising organizations and “closely held” corporations to apply religious belief defenses to claims of alleged unlawful discrimination in employment.
Two days later, on Wednesday December 9th, 2020, OFCCP published its Final Rule in the Federal Register.
Background
OFCCP had originally published a Notice of Proposed Rulemaking on August 15, 2019. OFCCP then received over 109,000 comments from the public, although over 50,000 of those comments were in the form of a pre-printed digital post card the ACLU distributed to all of its chapter affiliates with a request that ACLU members submit the postcard in opposition to the Proposed Rule. The Final Rule acknowledged the growing tensions between social justice advocates and religious groups, each pressing their respective rights. This competition of rights, colliding in the workplace and in society at large, has now become highly controversial and politicized. We call these court cases “collision of rights” cases.
The controversy is quite simply whether the SCOTUS will eventually find “the exercise of” sincerely held religious beliefs which do not recognize homosexuality or transgender transformations will trump statutory rights protecting homosexuality and transgender transformations. OFCCP did not take a position on this issue, but intimated in language and in examples that OFCCP will place its priority on the free exercise of religion. However, for the most part, OFCCP merely teed-up the issue and identified recent federal case decisions priming this issue for resolution in coming years. Civil rights groups fault OFCCP for not championing the rights of the LGTBQ community uncritically over the free exercise of religion. The civil rights community is also disturbed that OFCCP even seeks to acknowledge and publicize the recent federal case decisions which have EXPANDED free exercise rights even at a time the Courts have also found novel theories to protect gay, lesbian and transgender people under Title VII of the 1964 Civil Rights Act.
This collision of competing rights has now worked its way to the forefront of social and political debate. We explore that collision of these two major rights in a companion blog to this story. Click on the image below to find discussion of the legislative enactments and case decisions supporting the views of each side to this burgeoning conflict between two basic rights.