On August 10, 2018, Craig Leen, Acting Director of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), issued a new directive, 2018-03, instructing staff to take into account in their affirmative action and equal employment opportunity enforcement activities recent Supreme Court opinions and Trump administration executive orders addressing the freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law.
Executive Order 11246 requires federal contractors to take affirmative steps to ensure equal opportunity in employment for all people without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. The requirements of the executive order are implemented and enforced by the OFCCP.
As noted in the directive, certain requirements under the executive order do 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 to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” The executive order also provides that “[s]uch contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”1
Executive orders issued in 2017 and 2018 have further expressed the Trump administration’s understanding of entities’ free expression of religion.2 In addition, recent Supreme Court decisions have interpreted expansively the rights of U.S. organizations to express religion under the United States Constitution and federal law. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court held that the government unlawfully restricted a cake shop owner’s right to the free exercise of religion when it did not give “neutral and respectful” consideration of the owner’s religious objections to designing a wedding cake for a same-sex couple. In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court determined that the Missouri State government violated a parochial school’s religious rights by denying it a grant for playground resurfacing while providing grants to similarly situated non-religious schools. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that closely held for-profit corporations are also afforded the constitutional right to religious freedom.
Directive 2018-03’s Instructions to OFCCP Staff
In light of these developments in federal law and policy statements in recent executive orders, OFCCP’s Directive 2018-03 instructs staff to bear in mind the following when undertaking their enforcement activities, including when providing compliance assistance, processing complaints, and enforcing Executive Order 11246.
Practical Implications for Contractors
Directive 2018-03 provides some indication of the OFCCP’s interpretation of recent case law addressing the expression of religious freedom under the U.S. Constitution and federal law. However, it may have limited practical significance for federal contractors.
Most federal contractors are not closely held for-profit corporations whose actions are driven by a strongly held religious belief, as would be required for application of the Hobby Lobby doctrine. For such contractors and subcontractors, this directive should have little to no meaningful impact.
Likewise, federal contractors seeking to express religious belief or affiliation can expect limited practical effect from the directive, even though it supersedes previous guidance from the agency that was inconsistent with these recent legal developments.
As a result, contractors should act upon Directive 2018-03’s mandates with caution. Specifically, contractors whose employment practices are guided, in part, by religious belief should:
1 E.O. 11246 § 204(c); see also 41 C.F.R. § 60-1.5(a)(5).
2 See, e.g., E.O. 13831 § 1 (“The executive branch wants faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for grants, contracts, programs, and other Federal funding opportunities.”); E.O. § 13798 § 1 (“It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.”).