Today, the Office of Federal Contract Compliance Programs (OFCCP) acted to protect workers from discrimination and safeguard principles of religious freedom by rescinding the rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” Published in December 2020 at the end of the Trump administration and effective Jan. 8, 2021, the rule adopted new standards for applying the religious exemption in Executive Order 11246 that were at odds with the weight of legal authority. The 2020 rule also weakened nondiscrimination protections for employees of federal contractors, objectives of Executive Order 11246 to ensure economy and efficiency in federal contracting and to promote equal employment opportunity. With the rescission of the rule, we are returning to a longstanding policy in place for more than 17 years, under the administrations of both George W. Bush and Barack Obama, to determine the applicability of the religious exemption by applying established case law and principles to the facts and circumstances of particular cases.
What is the Executive Order 11246 religious exemption?
Since 2002, Executive Order 11246 has contained a religious exemption, based on the religious exemption in Title VII of the Civil Rights Act of 1964, which permits federal contractors that are qualifying religious organizations to hire individuals of a particular religion. Under Title VII, courts have overwhelmingly held, consistent with the view of the Department of Justice, that those employers are not permitted to make employment decisions that amount to discrimination based on other protected characteristics, such as race or sex.
What was the 2020 rule and why is OFCCP rescinding it?
The 2020 rule purported to clarify the scope and application of the Executive Order 11246 religious exemption. On balance, however, it increased confusion and uncertainty about the religious exemption because it diverged from the approach to the Title VII religious exemption taken by courts, the Equal Employment Opportunity Commission, and the Department of Justice, as well as from OFCCP’s past practice.
In November 2021, OFCCP proposed rescinding the rule. We received 761 unique comments and 4,464 form letter comments. We carefully considered the comments and decided to finalize the rescission.
What does the rescission mean?
OFCCP is rescinding the entire rule to return to the agency’s prior approach of aligning the Executive Order 11246 religious exemption with Title VII case law as applied to the facts and circumstances of each case. The rescission preserves the Executive Order 11246 religious exemption and does not change religious entities’ ability to pursue federal contracts.
We remain committed to protecting workers from discrimination and safeguarding religious freedom in accordance with applicable legal authority. We will continue to provide any needed compliance assistance on the religious exemption, including issuing frequently asked questions and responding to stakeholders’ questions. For more information, visit dol.gov/agencies/ofccp/religious-exemption.
OFCCP is charged with protecting America's workers by ensuring that those who do business with the federal government fulfill the promise of equal opportunity. We enforce three equal employment opportunity authorities: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These authorities make it unlawful for federal contractors and subcontractors to discriminate in employment and require them to proactively remove barriers to equal employment opportunity. Federal contractors are also prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations. For more information, please visit OFCCP’s website.
Jenny R. Yang is the director of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs.