Critics Claim Proposal Could Lead to More Discrimination in Hiring

A religious exemption to a rule that bans federal contractors from considering race, religion, sex or national origin when hiring people may be significantly expanded.

The Labor Department has just proposed expanding that exemption beyond churches and religious schools to a broader category of entities. The exemption was written in 1965 to ensure that churches and religious schools could decline to hire members outside of their faith.

Under the new proposal, companies and organizations that are less clearly defined as religious can qualify for the exemption, including companies 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 proposal claims to be rooted in a new understanding — driven by recent Supreme Court decisions such as Burwell V. Hobby Lobby — of which companies can be classified as religious. Under the terms of the proposal, companies need not be primarily religion-oriented, but need only declare itself so in response to an inquiry from a member of the public or government entity.

Observers have criticized the new proposal for being overly broad and somewhat nebulous. Instead of a church seeking an exemption to hire someone of another faith, or someone whose lifestyle conflicts with its religious tenets, the new proposal would seemingly allow conventional companies to exclude LGBTQ people, women, minorities or other protected classes based on the personal religious views of ownership.

Acting U.S. Secretary of Labor Patrick Pizzella characterized the proposal as a defense of the civil rights of religious employers. He also said the proposal would provide clearer guidance for those employers, many of whom may have been hesitant to pursue federal contracts under the more narrow exemption. In a statement, Pizzella said:

“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.”

While this proposal would apply only to companies seeking federal contracts, that is a status that applies to companies employing roughly one quarter of all U.S. workers. Observers also point out that the move could be indicative of a larger trend toward strengthening religious exemptions in hiring.

The proposed exemption change must now undergo a 30-day public comment period.

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