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In a proposed rule that affects LGBTQ workers’ rights, religious employers who have federal contracts will be able to condition employment offers on “religious adherence without sanction by the federal government,” provided they do not discriminate based on other protected bases, under a proposal issued by the Department of Labor’s Office of Federal Contract Compliance Programs on Wednesday.
The proposed rule, which will appear in the federal register Thursday, states also that “it should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws.”
The proposed rule cites three recent U.S. Supreme Court cases that, it states, “have addressed the freedoms and anti-protections that must be afforded religious-exercising organizations and individuals”:
-Last year’s Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which states the government violates the Free Exercise Clause of the First Amendment when its decisions are based on hostility to religion or a religious viewpoint, according to the proposed rule.
-2017’s Trinity Lutheran Church of Columbia Inc. v. Comer, which states the government violates the Free Exercise Clause when it “conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny,” according to the proposal; and
-2014’s Burwell v. Hobby Lobby Stores Inc., which said the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit, closely held corporations, according to the proposal.
“Although these decisions are not specific to the federal government’s regulation of contractors, they have reminded the federal government of its duty to protect religious exercise – and not to impede it” says the proposal.
Comments on the proposal must be received no later than 30 days after its publication in the Federal Register.
Employers will likely have an easier time combating claims of Title VII sexual orientation discrimination in front of a U.S. Supreme Court without Justice Anthony Kennedy, but he took more conservative positions on other key labor and employment issues, meaning the overall environment for employers may not change much, experts say.