Wednesday, March 1, 2023: In a Courageous Political Act of Folly, The Biden White House Ordered OFCCP to Publish Its Final Rule Rescinding Trump’s Religious Exemption
What’s Really Going On Here Described In The Blog
This action to order the publication in Final form of OFCCP’s highly controversial Religious Exemption Rule was either one of the most courageous political acts I have seen a President take in recent years or was one of the most politically reckless. It seems unlikely that this Final Rule, which seems small in comparison to all the challenges currently afoot in the world and coming from this petite and obscure federal agency well-known to only federal government contractors, could play an important role in the 2024 Presidential Election, let alone dim the chances of President Biden to be re-elected. However, that is what is on the line with this merely symbolic Rule which changes nothing at the end of the day. Yet, OFCCP’s Rule pits President Biden against six of the major and influential churches in the United States as I discuss in the blog, below.
Note: As hundreds of commenters on the proposed Biden OFCCP Rule wrote, and as OFCCP agreed in its Final Rule (discussed below), the Trump OFCCP Rule was entirely unnecessary. The Trump OFCCP Rule attempted to merely restate Title VII law which originates with the federal courts and which interpretations are the exclusive province of the federal Courts. The Trump OFCCP Rule did not and could not alter Title VII law. It was a waste of time. Likewise, rescinding a useless Rule is an equally useless exercise. So, much wheel spinning has occurred here to make a symbolic statement, but nonetheless at a great political cost to Democrats.
Here is What Happened
OFCCP published in the Federal Register its Final Rule to rescind the Trump Administration’s December 8, 2020, Final Rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” The Trump-era rule has been in effect since January 8, 2021. The new Final Rule – “Rescission of Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption Rule” – will be legally effective on March 31, 2023. OFCCP also issued a new directive to rescind the Trump Administration’s August 2018 Directive (2018-03) on the religious exemption and also created a landing webpage regarding the rescission with links to the relevant documents and an FAQ.
After the Rule, the most important OFCCP writing was OFCCP Director Jenny Yang’s blog and the FAQ (since they both reveal what is really going on), discussed below. Director Yang’s blog and the FAQ set out the OFCCP’s interpretation of the result of its new Final Rule and describe how the OFCCP understands the religious exemption to Title VII to be 180 degrees opposite of the interpretation the Trump OFCCP (and EEOC) gave to it. So, while the new OFCCP Rule merely rescinds the Trump Final Rule, and there is no replacement Rule, OFCCP Director Yang has simultaneously orally announced a change in policy position to now cause claims of sexual orientation and gender identity discrimination to trump claims by federal contractors that Title VII’s religious exemption allows the discrimination and makes it lawful. But there is more, as we discuss below, since Title VII is not the only statute involved in this legal maze.
What Did the Trump-Era Rule Do?
OFCCP’s regulations at 41 CFR 60-1.5(a)(5) has for over two decades included a limited exemption for religious organizations allowing them to discriminate based on their religious beliefs. OFCCP modeled its Rule on the religious exemption contained in Title VII of the Civil Rights Act of 1964.
The OFCCP 2020 rule made no changes to the text of the religious exemption at 41 CFR 60-1.5(a)(5). Rather, the 2020 Trump Final Rule only defined the terms “particular religion;” “religion;” “religious corporation, association, educational institution, or society;” and “sincere” (codified at 41 CFR 60-1.3). Most importantly, the 2020 Rule also established a rule of construction for all of subpart A of 41 CFR part 60-1, specifying that the subpart must be construed in favor of the broadest protection of religious exercise “permitted by the U.S. Constitution and law” (codified at 41 CFR 60-1.5(e)).
While that language at first blush seems fairly innocuous, it put a “thumb on the scale” in favor of weighing religious beliefs more heavily than other rights also protected under the Executive Order and Title VII. This rule of construction in fact ignited the fear of the gay, lesbian and transgender communities that their protections under Executive Order 11246, and pursuant to Title VII by implication, were going to be trumped (no pun intended) by the Executive Order 11246’s and Title VII’s simultaneous protections of religious beliefs.
How many of you reading this blog have reflected upon the fact that Executive Order 11246 and Title VII are both a “House Divided” because they both simultaneously protect rights which are inherently antagonistic to one another? Which one prevails in a conflict? Is the drafting of Title VII inherently flawed because it seeks to protect two antagonistic rights (religious beliefs and sexual orientation and/or gender identity)? How does an OFCCP Director decide which one of its Protected Classes to enforce against the other, since she has a sworn duty to enforce the Executive Order and all who it protects. What a conundrum. Sophie’s choice?
For example, assume a small bakery is a federal contractor and its husband-and-wife owner are devout members of a religion that does not recognize or approve of same-gender relationships. As a result, assume the bakers refuse to hire an Applicant to the bakery because of his/her sexual orientation. When the rejected applicant files a Complaint with OFCCP, how should OFCCP resolve the conflict within the Executive Order which protects the religious beliefs of the federal contractor, but also simultaneously protects the right of the gay or lesbian applicant not to be discriminated against because of his/her sexual orientation?
The Trump “rule of construction” would have thrown the win to the bakers. Once the new OFCCP Final Rule becomes legally effective and takes OFCCP’s “thumb off the scale” on the side of the bakers’ Executive Order 11246 religious protections, OFCCP Director Jenny Yang’s blog statements and the FAQ (not OFCCP’s Final Rule and not OFCCP’s Directive) then throws the win to the rejected gay or lesbian applicant, as we will see below.
Why Did the Biden OFCCP Rescind the Rule?
The Biden Administration believes that the 2020 Trump Administration Rule “increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents.” The current administration also thinks the Trump-era Rule applied an “inappropriately categorical approach” to the analysis of Religious Freedom Restoration Act (“RFRA”) claims.
Note: Three different sets of law protect religious beliefs in America:
- Executive Order 11246 (and its implementing Rules), and Title VII
- The Religious Freedom Restoration Act (more about it below), and
- The First Amendment to the United States Constitution (which only attaches to the actions of the federal government and the states (and their lesser components like counties, parishes, cities, towns and villages, etc., by whatever names)
By the way, Constitutional protections override and defeat contrary federal statutes. So, the Constitutional protection for valid religious beliefs will ALWAYS defeat a contrary federal or state statute. (This is fundamental Constitutional law that traces its history back to the Constitutional Convention of 1787 and as documented in Federalist No. 78).
The import of this observation is that OFCCP must address all three religious protections when resolving the conflict between the various protections Executive Order 11246 affords for religious beliefs of a federal contractor on the one hand, and sexual orientation/gender identity on the other hand.
Note: OFCCP’s new Directive, hyperlinked above, instructs OFCCP that the USDOL Office of the Solicitor will resolve all religious exemption claims arising under Executive Order 11246 by reference to Title VII. OFCCP does not really mean that, though, since as its Final Rule and Director Jenny Yang’s blog both concede, OFCCP must also address the RFRA. And, of course, nothing OFCCP has written yet addresses the First Amendment issue because that issue would lead OFCCP down a rabbit-hole it does not want to enter.
By the way, a rule of construction the federal courts have always applied tries to avoid unnecessary interpretations of the Constitution (since it has such wide application). Accordingly, the federal courts will first try to decide a matter before the court by reference to the federal agency’s organic statute authorizing its enforcement powers (Executive Order 11246 in this instance). If the Court should conclude that sexual orientation trumps the religious right the federal contractor claimed under Executive Order 11246, the Court would then take up and address the federal contractor’s claim under the RFRA. Then, and only then, if the Court were to find the sexual orientation claims also prevailed over the contractor’s RFRA claims, would the court then take up the federal contractor’s First Amendment claims. And, indeed, that is what OFCCP must do, too to avoid violating a federal contractor’s statutory and constitutional rights.
So, at the end of the day, all this regulatory writhing and rescission and blogging has gotten OFCCP nowhere new. The federal Courts are going to interpret Executive Order 11246 (OFCCP has not proposed to offer interpretive guidance), Title VII and the First Amendment. (Jenny Yang has informally announced that sexual orientation and/or gender identity claims will trump federal contractor religious discrimination claims.) By the way, Director Yang and the other federal civil rights agencies have now joined civil rights advocates in the belief that claims seeking religious beliefs protected by statute (i.e., Executive Order 11246 and/or Title VII) CANNOT trump other statutory claims protected in the same statute. In other words, SO and GI always win against statutory-based religious discrimination belief protection claims.
Note: This “House Divided” problem is very legally problematic. The law does not have a good answer for an OFCCP Director or for EEOC Commissioners as to how they should or must proceed when they are thrown into such a conflict when attempting to enforce a statute the Congress has delegated to the Executive Branch to prosecute. Since the federal officers making the policy and investigating the claims have a sworn public duty to both Protected Groups the Congress has identified in its statute (in this case Title VII and Executive Order 11246, by implication), it seems to me that the agencies involved have two choices:
- they may ask Congress to amend the statute to clarify its intent (since it is that intent the agencies are enforcing).
- alternatively, the agencies need to recuse themselves from prosecuting the matter since they have a conflict of interest to one Protected Group or the other.
It seems to me that the agencies cannot adjudicate the Title VII issue (they should pass on that issue), absent the needed clarification from Congress, but may and should then proceed to the RFRA analysis and if necessary to the Constitutional analysis.
And, the First Amendment right is always going to trump the Executive Order 11246, Title VII, or state law’s right to sexual orientation and/or gender identity non-discrimination because there is no countervailing constitutional right to sexual orientation and or gender identity nondiscrimination. This is the very substantial legal conundrum for SO and GI advocates to solve to win.
Note: An amendment to the U.S. Constitution is a hard road to hoe, as supporters of the Equal Rights Act (ERA) Amendment can testify (especially following last week’s D.C. Circuit Court of Appeals decision ruling that the ratification votes of two states which occurred AFTER the Congress’ 1979 ratification deadline did not count towards ratification of the Amendment…meaning the ERA failed to secure the needed number of states to ratify it and it has failed. Dead again, after 100 years of trying).
OFCCP Solves the “Collision of Rights” Conundrum in Favor of Gay, Lesbian and Transsexual Individuals
“The rescission ensures a return to the department’s prior policy and practice in place during the presidencies of George W. Bush and Barack Obama – of interpreting and applying the religious exemption in Executive Order (EO) 11246 [at Section 204(c)] consistent with Title VII principles and case law” as applied to the facts and circumstances of each contractor when it invokes the exemption, OFCCP stated in a press release. The rescinded Rule’s standards for applying the religious exemption in [EO] 11246 “were at odds with the weight of legal authority,” OFCCP Director Jenny R. Yang also separately asserted in a blog discussing the agency’s decision.
But here is the key language announcing OFCCP’s going forward policy which it expresses as merely a continuation of prior policy interrupted by the Trump OFCCP Rule:
“The 2020 rule also weakened nondiscrimination protections for employees of federal contractors,” according to Director Yang. “[T]he rescission reestablishes OFCCP’s long-established view, consistent with the views of [the Justice Department and the Equal Employment Opportunity Commission] as well as the courts, that the exemption does not permit a qualifying employer to discriminate on the basis of race, color, sex, sexual orientation, gender identity, or national origin, even if such discrimination is religiously motivated,” the agency explained in its FAQ.
Note: The views of the Justice Department and the EEOC as to this collision of rights are new with this Administration.
“[T]he weight of Title VII case law reflects that qualifying religious employers generally may make decisions about whether to employ individuals based on acceptance of and adherence to religious tenets, but only as long as those decisions do not violate the other nondiscrimination provisions of Title VII, apart from the prohibition on religious discrimination,” OFCCP stated in the preamble of the Federal Register notice.
The upshot is that OFCCP will automatically give the win to gay, lesbian and transgender claimants UNDER EXECUTIVE ORDER 11246 in a collision of rights context, but will now consider any RFRA claims raised by contractors on a case-by-case basis.
What’s Really Going On Here?