The Trump administration proposed a rule change on August 14 that would allow government contractors to discriminate against LGBT employees based on a company’s religious beliefs. The Labor Department proposal was filed on the Federal Register, under the heading “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption” and is one more in a series of discriminatory anti-LGBT moves by the Trump administration.
As the law now stands, federal contractors are barred from discriminating against employees based on their race, sex, religion, disability or national origin. The proposed change to federal rules will make it easier for private employers who contract with the federal government to fire employees for their sexual orientation, gender identity or even their sexual activity outside of their job. The proposed rule for the Office of Federal Contract Compliance Programs will clarify “government contractors, including for-profit corporations, schools and societies, may make employment decisions that align with their religious beliefs.”
This new rule would change former President Barack Obama’s 2014 executive order barring contractors from discriminating on the basis of sexual orientation or gender identity. It could impact nearly a half million employees working on federal contracts.
President Trump has voiced his support of “religious freedom” rulings at the Conservative Political Action Conference every year since running for president.
In a statement, acting Labor Secretary Patrick Pizzella, said, “Today’s proposed rule helps to ensure the civil rights of religious employers are protected. As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.”
A senior Labor Department official who declined to be named informed reporters in a conference call that “Conscience and religious freedom rights have been given second-class treatment for too long.”
They said the new rule “fulfills the president’s promise to promote and protect our fundamental and inalienable rights of conscience and religious liberty, the first freedom protected in the Bill of Rights in the First Amendment itself.”
The Trump administration’s argument is that corporations, companies and even Christian colleges are being shut out of the bidding process for contracts for fear of having their religious beliefs disregarded.
“When we talked to stakeholders, we were informed that many religious organizations were not participating in the procurement process because of concerns that OFCCP would not fairly or correctly enforce the law related to the religious employer exemption,” the Labor Department official said.
In 1965, President Lyndon Johnson signed an executive order prohibiting contractors from discriminating against employees or prospective employees on the basis of race. In 2014, President Obama expanded that to include sexual orientation and gender identity, citing the protections of Title VII and Title IX. The new Trump proposal would vitiate both.
The Supreme Court has ruled in several cases to protect business owners’ rights to refuse service to gay and lesbian customers on religious grounds as of late, notably the 2018 Masterpiece Cakeshop case in which a gay male couple sued a Colorado baker for refusing to make their wedding cake citing his religious beliefs. The SCOTUS also ruled in 2018 that a Washington state florist could appeal her case against a gay couple, long-time customers. When the couple asked for flowers for their wedding, she denied their request, saying it would violate her religious beliefs.
The case that opened the door to codifying religious freedom laws was the 2014 SCOTUS ruling for Hobby Lobby stores. This broad decision allowed Hobby Lobby to opt out of providing birth control for employees despite Affordable Care Act provisos based on religious objections. The ruling also protected Hobby Lobby against discrimination suits by gay and transgender employees predicated on the same religions grounds.
American Civil Liberties Union Senior Legislative Counsel Ian Thompson said in a statement, “Once again, the Trump administration is shamefully working to license taxpayer-funded discrimination in the name of religion. We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace.”n