The Department of Labor announced Wednesday that it is considering a new rule that would allow federal contractors who identify as religious to hire employees based on faith and religious practice.
The new policy would expand a Johnson-era executive order protecting the rights of religious employers with federal government contracts to hire from within their religious group.
The new proposal was announced Aug. 14. The Department of Labor said the new policy “clarifies the scope and applications of the religious exemption contained in section 204(c) of Executive Order 11246.”
Executive Order 11246 forbids federal contractors from engaging in discriminatory hiring on the basis “race, color, religion, sex, or national origin.” An exemption for religious-based employers allowed them legally to hire only people of a certain faith if they so choose, but the executive order did not fully define as to what “religious-based” meant.
The proposed new rule takes steps to better define the term, saying that the “religious exemption covers not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”
The new definition also includes companies that claim to be religious “in response to inquiries from a member of the public or a government entity.”
Additionally, the new rule states that “employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government,” meaning that a federal contractor can make hiring decisions based upon how devoutly an employee practices a certain religious faith.
All companies are still barred from discriminating on other grounds.
The Department of Labor cited recent Supreme Court cases, including Masterpiece Cakeshop v Colorado Civil Rights Commission and Hobby Lobby v. Burwell as having underscored constitutional religious freedom protections.
Acting U.S. Secretary of Labor Patrick Pizzella said in a released statement that “As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve [a] clear understanding of their obligations and protections under the law.”
About a quarter of workers in the United States are employed by a company that is contracted with the federal government.
LGBT-rights activist groups like the Human Rights Campaign, who called the change a “license to discriminate,” came out strongly against the policy shift.
Louise Melling, acting deputy legal director of the American Civil Liberties Union told a press call that the rule was “just the most recent in an ever-lengthening list of actions by this administration to authorize discrimination in name of religion.”
The White House responded to the criticism in a statement Wednesday, saying “In no way does today’s announcement by the Department of Labor undermine the President’s promise and commitment to the LGBTQ community.”
“The proposed rule will continue to responsibly protect religious freedom and members of the LGBTQ community from discrimination,” the statement said.
While some activist groups have criticized the new rule as a license for widespread discrimination, Luke Goodrich, senior counsel and vice president of the Becket Fund for Religious Liberty, told CNA that he believes the policy is a far from controversial.
"When a religious group hires people of the same religion to carry out their mission, it's not 'discrimination,' it's common sense,” Goodrich told CNA.
“And when the government refuses to work with religious groups that do the best job of caring for the needy, it's not 'equality,' it's nonsense,” he added.
The new rule is open for comment in the Federal Register until September 16.