Friday, January 13, 2023: USDOL & 8 Other Agencies Proposed a Controversial Joint Rule on Partnerships with Faith-Based and Neighborhood Organizations
Proposed Rule would exalt LGBTQ rights under Title VII over Title VII claims of religious protection
Title VII’s interplay with First Amendment and statutory religious protections not addressed
Nine federal agencies, including the U.S. Department of Labor (DOL), published a joint Notice of Proposed Rulemaking (NPRM) to “amend their regulations to clarify protections for beneficiaries and potential beneficiaries receiving federally funded social services and the rights and obligations of organizations providing such services.” The proposed rule on Partnerships with Faith-Based and Neighborhood Organizations is designed to “promote maximum participation by beneficiaries and providers in the Agencies’ covered programs and activities and ensure consistency in the implementation of those programs and activities.”
Comments on the proposal are due by Tuesday, March 14, 2023, and can be submitted here.
How We Got Here
The agencies that published the NPRM in the Federal Register are the DOL, the Justice Department, the Education Department, the Homeland Security Department, the Agriculture Department, the Agency for International Development, the Housing and Urban Development Department, the Veterans Affairs Department, and the Health and Human Services (HHS) Department. The NPRM is based on President Biden’s Executive Order (E.O.) 14015 of February 14, 2021: “Establishment of the White House Office of Faith-Based and Neighborhood Partnerships.” More information on the White House Office of Faith-Based and Neighborhood Partnerships is available here.
President Biden’s E.O. 14015 revoked President Trump’s E.O. 13831 of May 3, 2018. On December 17, 2020 during the waning days of the Trump Administration, the affected agencies had issued a Final Rule to enforce Trump’s E.O. 13831 (the “2020 Rule.”) While President Biden had rescinded the Trump Executive Order, the nine federal agencies affected by the Trump Executive Order are now addressing the Trump 2020 Rule they had earlier issued to implement the Trump Executive Order.
Protections for Beneficiaries
According to an HHS press release on the proposal, the proposed Rule “will protect beneficiaries by taking steps such as:
- Requiring federal grantees that administer social service programs within the United States to notify beneficiaries of their right to be free from discrimination on the basis of religion.
- Making clear that all covered social service programs―both those supported by vouchers and by grants―may not discriminate against beneficiaries on the basis of their religion.
- Encouraging governmental agencies that fund domestic programs to help beneficiaries identify alternative federally funded service providers in their area, including providers that are more compatible with their beliefs, when beneficiaries request such alternatives.”
Gauntlet thrown down; battle lines set: Title VII’s sex discrimination protections to trump its religious protections
A statute divided against itself
Section D of the proposal discusses Title VII. In the Trump Administration’s 2020 Rule, the applicable agencies added text indicating that the Title VII religious exemption allows hiring of persons on the basis of their “acceptance of or adherence to religious tenets of the organization.”
As to this point, the agencies state in the NPRM:
“The Title VII religious exemption generally allows qualifying religious organizations to hire only people of a particular religion in the absence of any inconsistent statutes, but as numerous courts have held, the Title VII religious exemption does not permit such organizations to discriminate against workers on the basis of another protected classification, even when an employer takes such action for sincere reasons related to its religious tenets (such as those that might amount to discrimination on the basis of employees’ sex). The 2020 Rule added text that could mistakenly suggest that Title VII permits religious organizations that qualify for the Title VII religious exemption to insist upon tenets-based employment conditions that would otherwise violate Title VII or the particular underlying funding statute in question. Those Agencies that added the text on religious tenets in the 2020 Rule therefore propose to remove that language because it is unnecessary and potentially misleading.”
“Title VII itself, the case law interpreting the statute, and the terms of program-specific statutes provide the controlling standards for when and to what extent Title VII’s religious exemption should apply. Constitutional doctrines might also be implicated in some cases. For example, antidiscrimination laws, including Title VII, are subject to constitutional limitations as applied to certain decisions by some religious organizations concerning their “ministerial” employees. [fn10] And the Agencies must be careful not to unduly interrogate the plausibility of the religious justification in assessing whether a religious tenets claim is a pretext for some other, impermissible form of employment discrimination. In addition, as the Supreme Court recently recognized, “how these doctrines protecting religious liberty interact with Title VII are questions for future cases.” [citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020)].” [other citations omitted].