What’s Really Going On Here Described In The Blog

logo for the Office of Federal Contract Compliance Programs (OFCCP)This action to order the publication in Final form of OFCCP’s highly controversial Religious Exemption Rule was either one of the most courageous political acts I have seen a President take in recent years or was one of the most politically reckless. It seems unlikely that this Final Rule, which seems small in comparison to all the challenges currently afoot in the world and coming from this petite and obscure federal agency well-known to only federal government contractors, could play an important role in the 2024 Presidential Election, let alone dim the chances of President Biden to be re-elected. However, that is what is on the line with this merely symbolic Rule which changes nothing at the end of the day. Yet, OFCCP’s Rule pits President Biden against six of the major and influential churches in the United States as I discuss in the blog, below.

Note: As hundreds of commenters on the proposed Biden OFCCP Rule wrote, and as OFCCP agreed in its Final Rule (discussed below), the Trump OFCCP Rule was entirely unnecessary. The Trump OFCCP Rule attempted to merely restate Title VII law which originates with the federal courts and which interpretations are the exclusive province of the federal Courts. The Trump OFCCP Rule did not and could not alter Title VII law. It was a waste of time. Likewise, rescinding a useless Rule is an equally useless exercise. So, much wheel spinning has occurred here to make a symbolic statement, but nonetheless at a great political cost to Democrats.

Here is What Happened

OFCCP published in the Federal Register its Final Rule to rescind the Trump Administration’s December 8, 2020, Final Rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” The Trump-era rule has been in effect since January 8, 2021. The new Final Rule – “Rescission of Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption Rule” – will be legally effective on March 31, 2023. OFCCP also issued a new directive to rescind the Trump Administration’s August 2018 Directive (2018-03) on the religious exemption and also created a landing webpage regarding the rescission with links to the relevant documents and an FAQ.

After the Rule, the most important OFCCP writing was OFCCP Director Jenny Yang’s blog and the FAQ (since they both reveal what is really going on), discussed below. Director Yang’s blog and the FAQ set out the OFCCP’s interpretation of the result of its new Final Rule and describe how the OFCCP understands the religious exemption to Title VII to be 180 degrees opposite of the interpretation the Trump OFCCP (and EEOC) gave to it. So, while the new OFCCP Rule merely rescinds the Trump Final Rule, and there is no replacement Rule, OFCCP Director Yang has simultaneously orally announced a change in policy position to now cause claims of sexual orientation and gender identity discrimination to trump claims by federal contractors that Title VII’s religious exemption allows the discrimination and makes it lawful. But there is more, as we discuss below, since Title VII is not the only statute involved in this legal maze.

What Did the Trump-Era Rule Do?

OFCCP’s regulations at 41 CFR 60-1.5(a)(5) has for over two decades included a limited exemption for religious organizations allowing them to discriminate based on their religious beliefs. OFCCP modeled its Rule on the religious exemption contained in Title VII of the Civil Rights Act of 1964.

The OFCCP 2020 rule made no changes to the text of the religious exemption at 41 CFR 60-1.5(a)(5). Rather, the 2020 Trump Final Rule only defined the terms “particular religion;” “religion;” “religious corporation, association, educational institution, or society;” and “sincere” (codified at 41 CFR 60-1.3). Most importantly, the 2020 Rule also established a rule of construction for all of subpart A of 41 CFR part 60-1, specifying that the subpart must be construed in favor of the broadest protection of religious exercise “permitted by the U.S. Constitution and law” (codified at 41 CFR 60-1.5(e)).

While that language at first blush seems fairly innocuous, it put a “thumb on the scale” in favor of weighing religious beliefs more heavily than other rights also protected under the Executive Order and Title VII. This rule of construction in fact ignited the fear of the gay, lesbian and transgender communities that their protections under Executive Order 11246, and pursuant to Title VII by implication, were going to be trumped (no pun intended) by the Executive Order 11246’s and Title VII’s simultaneous protections of religious beliefs.

How many of you reading this blog have reflected upon the fact that Executive Order 11246 and Title VII are both a “House Divided” because they both simultaneously protect rights which are inherently antagonistic to one another? Which one prevails in a conflict? Is the drafting of Title VII inherently flawed because it seeks to protect two antagonistic rights (religious beliefs and sexual orientation and/or gender identity)?  How does an OFCCP Director decide which one of its Protected Classes to enforce against the other, since she has a sworn duty to enforce the Executive Order and all who it protects. What a conundrum. Sophie’s choice?

For example, assume a small bakery is a federal contractor and its husband-and-wife owner are devout members of a religion that does not recognize or approve of same-gender relationships. As a result, assume the bakers refuse to hire an Applicant to the bakery because of his/her sexual orientation. When the rejected applicant files a Complaint with OFCCP, how should OFCCP resolve the conflict within the Executive Order which protects the religious beliefs of the federal contractor, but also simultaneously protects the right of the gay or lesbian applicant not to be discriminated against because of his/her sexual orientation?

The Trump “rule of construction” would have thrown the win to the bakers. Once the new OFCCP Final Rule becomes legally effective and takes OFCCP’s “thumb off the scale” on the side of the bakers’ Executive Order 11246 religious protections, OFCCP Director Jenny Yang’s blog statements and the FAQ (not OFCCP’s Final Rule and not OFCCP’s Directive) then throws the win to the rejected gay or lesbian applicant, as we will see below.

Why Did the Biden OFCCP Rescind the Rule?

The Biden Administration believes that the 2020 Trump Administration Rule “increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents.” The current administration also thinks the Trump-era Rule applied an “inappropriately categorical approach” to the analysis of Religious Freedom Restoration Act (“RFRA”) claims.

Note: Three different sets of law protect religious beliefs in America:

  • Executive Order 11246 (and its implementing Rules), and Title VII
  • The Religious Freedom Restoration Act (more about it below), and
  • The First Amendment to the United States Constitution (which only attaches to the actions of the federal government and the states (and their lesser components like counties, parishes, cities, towns and villages, etc., by whatever names)

By the way, Constitutional protections override and defeat contrary federal statutes. So, the Constitutional protection for valid religious beliefs will ALWAYS defeat a contrary federal or state statute. (This is fundamental Constitutional law that traces its history back to the Constitutional Convention of 1787 and as documented in Federalist No. 78).

The import of this observation is that OFCCP must address all three religious protections when resolving the conflict between the various protections Executive Order 11246 affords for religious beliefs of a federal contractor on the one hand, and sexual orientation/gender identity on the other hand.

Note: OFCCP’s new Directive, hyperlinked above, instructs OFCCP that the USDOL Office of the Solicitor will resolve all religious exemption claims arising under Executive Order 11246 by reference to Title VII. OFCCP does not really mean that, though, since as its Final Rule and Director Jenny Yang’s blog both concede, OFCCP must also address the RFRA. And, of course, nothing OFCCP has written yet addresses the First Amendment issue because that issue would lead OFCCP down a rabbit-hole it does not want to enter.

By the way, a rule of construction the federal courts have always applied tries to avoid unnecessary interpretations of the Constitution (since it has such wide application). Accordingly, the federal courts will first try to decide a matter before the court by reference to the federal agency’s organic statute authorizing its enforcement powers (Executive Order 11246 in this instance). If the Court should conclude that sexual orientation trumps the religious right the federal contractor claimed under Executive Order 11246, the Court would then take up and address the federal contractor’s claim under the RFRA. Then, and only then, if the Court were to find the sexual orientation claims also prevailed over the contractor’s RFRA claims, would the court then take up the federal contractor’s First Amendment claims. And, indeed, that is what OFCCP must do, too to avoid violating a federal contractor’s statutory and constitutional rights.

So, at the end of the day, all this regulatory writhing and rescission and blogging has gotten OFCCP nowhere new. The federal Courts are going to interpret Executive Order 11246 (OFCCP has not proposed to offer interpretive guidance), Title VII and the First Amendment. (Jenny Yang has informally announced that sexual orientation and/or gender identity claims will trump federal contractor religious discrimination claims.) By the way, Director Yang and the other federal civil rights agencies have now joined civil rights advocates in the belief that claims seeking religious beliefs protected by statute (i.e., Executive Order 11246 and/or Title VII) CANNOT trump other statutory claims protected in the same statute. In other words, SO and GI always win against statutory-based religious discrimination belief protection claims.

Note: This “House Divided” problem is very legally problematic. The law does not have a good answer for an OFCCP Director or for EEOC Commissioners as to how they should or must proceed when they are thrown into such a conflict when attempting to enforce a statute the Congress has delegated to the Executive Branch to prosecute. Since the federal officers making the policy and investigating the claims have a sworn public duty to both Protected Groups the Congress has identified in its statute (in this case Title VII and Executive Order 11246, by implication), it seems to me that the agencies involved have two choices:

  • they may ask Congress to amend the statute to clarify its intent (since it is that intent the agencies are enforcing).
  • alternatively, the agencies need to recuse themselves from prosecuting the matter since they have a conflict of interest to one Protected Group or the other.

It seems to me that the agencies cannot adjudicate the Title VII issue (they should pass on that issue), absent the needed clarification from Congress, but may and should then proceed to the RFRA analysis and if necessary to the Constitutional analysis.

And, the First Amendment right is always going to trump the Executive Order 11246, Title VII, or state law’s right to sexual orientation and/or gender identity non-discrimination because there is no countervailing constitutional right to sexual orientation and or gender identity nondiscrimination. This is the very substantial legal conundrum for SO and GI advocates to solve to win.

Note: An amendment to the U.S. Constitution is a hard road to hoe, as supporters of the Equal Rights Act (ERA) Amendment can testify (especially following last week’s D.C. Circuit Court of Appeals decision ruling that the ratification votes of two states which occurred AFTER the Congress’ 1979 ratification deadline did not count towards ratification of the Amendment…meaning the ERA failed to secure the needed number of states to ratify it and it has failed. Dead again, after 100 years of trying).

OFCCP Solves the “Collision of Rights” Conundrum in Favor of Gay, Lesbian and Transsexual Individuals

“The rescission ensures a return to the department’s prior policy and practice in place during the presidencies of George W. Bush and Barack Obama – of interpreting and applying the religious exemption in Executive Order (EO) 11246 [at Section 204(c)] consistent with Title VII principles and case law” as applied to the facts and circumstances of each contractor when it invokes the exemption, OFCCP stated in a press release. The rescinded Rule’s standards for applying the religious exemption in [EO] 11246 “were at odds with the weight of legal authority,” OFCCP Director Jenny R. Yang also separately asserted in a blog discussing the agency’s decision.

But here is the key language announcing OFCCP’s going forward policy which it expresses as merely a continuation of prior policy interrupted by the Trump OFCCP Rule:

“The 2020 rule also weakened nondiscrimination protections for employees of federal contractors,” according to Director Yang. “[T]he rescission reestablishes OFCCP’s long-established view, consistent with the views of [the Justice Department and the Equal Employment Opportunity Commission] as well as the courts, that the exemption does not permit a qualifying employer to discriminate on the basis of race, color, sex, sexual orientation, gender identity, or national origin, even if such discrimination is religiously motivated,” the agency explained in its FAQ.

Note: The views of the Justice Department and the EEOC as to this collision of rights are new with this Administration.

“[T]he weight of Title VII case law reflects that qualifying religious employers generally may make decisions about whether to employ individuals based on acceptance of and adherence to religious tenets, but only as long as those decisions do not violate the other nondiscrimination provisions of Title VII, apart from the prohibition on religious discrimination,” OFCCP stated in the preamble of the Federal Register notice.

The upshot is that OFCCP will automatically give the win to gay, lesbian and transgender claimants UNDER EXECUTIVE ORDER 11246 in a collision of rights context, but will now consider any RFRA claims raised by contractors on a case-by-case basis.

What’s Really Going On Here?

The political/policy issue is that the Biden White House has determined to protect gay, lesbian and transgender rights over both social and religious objections to sexual orientation and gender identity protections. But, it must walk through the social and political minefield very carefully since Democrats as a whole are not on-board with the White House’s position and the President is leading/dragging them with it as we will see below.

Note: The clash of the right to establish and exercise religious beliefs with the rights of gay, lesbian and transgender applicants and employees almost never occurs in OFCCP-land. (In fact, OFCCP has not reported even one such case in any administration.)

Moreover, both the Trump Rule and the Biden rescission and the new OFCCP interpretation of Title VII (OFCCP did both last week) were/are needless because there is no exercise of agency discretion being applied in either Rule. Title VII and Executive Order case law decisions will interpret Title VII law to apply in OFCCP audits and Complaint investigations. Nothing OFCCP said in 2020 in the Trump Final Rule or what OFCCP says now in its 2023 Final Rescission Rule did or can change Title VII law. It is what it is.

So, why did the Trump OFCCP feel the need to issue a needless Final Rule (AFTER President Trump had lost the Presidential Election to Joe Biden), and why did the Biden OFCCP feel the need to now withdraw a needless add-nothing Trump OFCCP Rule?

First, neither the Trump nor the Biden OFCCP Rule originated organically from within OFCCP. (As I say, it has been a non-issue within OFCCP. This is not an issue spawning hundreds of Complaints or hundreds of audit skirmishes every year in need of regulatory guidance). Rather, both the Trump and the Biden White Houses shoved these Rules down OFCCP’s throat—in 2020 and in 2023—and dragged OFCCP into the political and social controversy concerning SO and GI rights.

The Trump White House drafted and caused OFCCP to issue its Final Rule in December 2020 following the 2020 elections to reward the large voting mass of the “religious right.” As I point out below, President Trump felt the religious right churches helped power him to victory in the 2016 election and helped him greatly (even if he now feels not enough) in the November 2020 election. So, the Trump OFCCP Rule was a parting gift to “tie the hands” of the incoming Biden Administration on an issue, as I explain below, that is of key concern to 6 major church groups and that is being discussed with their over 130 Million adult American church members.

Apart from the Biden White House’s innate DNA–which drives it to want to undo everything Trump–two other drivers pushed it to begrudgingly, finally—after the dangerous 2020 elections–to push OFCCP’s long-awaited Rule to Final form.

First, the Trump Rule left an anomaly (a “wrinkle”) obstructing the President’s campaign pledge to work across all fronts of the U.S. government to put gay, lesbian and transgender individuals on an equal footing with other citizens of the U.S., and in the workplace.

Second, time was running out with the EEOC still hobbled by lack of a Democrat majority to pass Title VII policy statements (although a frustrated EEOC Chair periodically engages in a sleight-of-hand to slip new policy out of the EEOC in the guise of “technical assistance” or a “restatement” of existing policy).

So, why is “time running out”? With the enormity of the political setbacks of the 2022 mid-term elections settling into their consciousnesses, senior White House managers three months ago made two quiet decisions:

  • that they had to push all social policy initiatives through the federal agencies (since there was no legislative option available any longer), and
  • to push the controversial policy initiatives to Final form not only in calendar 2023, but also the earlier the better. (This is why you saw in the (delayed) Fall Semi-Annual Regulatory Agenda (published January 4. 2023) that federal agencies across the Executive Branch for the first time in anyone’s memory suddenly moved FORWARD IN TIME some of their projected publication dates for new Rules).

The “hurry and go” signaling from the Biden White House was designed to avoid impacting next year’s November Presidential and local elections, or at least seeking to minimize the impact. Politicians always hope that the electorate will forget yesterday. (President Trump was a master at “changing the channel” so often and so fast you forgot yesterday before yesterday was even over). Rather, modern politicians hope voters will believe today’s message of hope, safety and prosperity coming at the politician’s hands in the near future.

The first question then is why did it take OFCCP over two years to revoke the Trump OFCCP Rules exalting religious beliefs over gay, lesbian and transgender protections? On his inauguration day, January 20, 2021, President Biden announced his intent to withdraw the Trump OFCCP Rule on Religious exemption from Executive Order 11246. OFCCP could have published in March of 2021 the Rule it published in Final last week but did not…and kept pushing the date of publication back for the last 18 months. Two SO and GI advocacy groups also filed lawsuits against OFCCP, Jenny Yang and USDOL on the first day of the Biden Administration seeking to enjoin (stop) the Trump OFCCP Religious Exemption Final Rule. So, the Trump Final Rule had a lot of interest from the very start of this administration.

So, what was stopping the White House and OFCCP?  Let’s reflect on three major facts:

1.) SO AND GI RIGHTS OPPOSITION DOES NOT BREAK ALONG POLITICAL PARTY LINES: ENDA (the Employment Non-Discrimination Act) (and the more recent and more narrow “Equality Act” (to amend (only) Title VII to add discrimination prohibitions because of sexual orientation and gender identity) has been the primary legislative bill over the decades in the United States Congress (under various names and with varying terms) for fifty years to statutorily recognize gay, lesbian and transgender rights. Each and every year for the past 50 years reform legislation has failed to pass the Congress.

You must understand that this is not a Republican vs Democrat political issue. Legislation to amend Title VII to add specific protections for SO and GI also failed in each of the four years when Democrats had a rare “trifecta”… controlling all three federal lawmaking bodies: (a) the White House, (b) the U.S. Senate, and (c) the U.S. House of Representatives [Clinton: 1993 & 1994 (103rd Congress); Obama: 2009 & 2010 (111th Congress) when Democrats also had a very rare “super-majority” (58 Democrats + 2 Independents who caucused with the Democrats, and only 40 Republicans giving Democrats the added power (60-40) to stop any filibuster). The years 2009 & 2010, in particular, were the years the Democrats could have “run the table” with new legislation, which they otherwise did…but did not pass ENDA.

Punchline: There are many Democrats who do not support gay, lesbian and transgender rights. This is not strictly a Democrat/Republican issue. It is a divisive political and social issue (although one that is considered trite and passe by nearly the entirety of the Human Resource and OFCCP compliance communities, nationwide who wonder what all the fuss is about).

2.) While the religious landscape has changed dramatically in the last 10 years as to both same-sex marriage and (especially) the admission of transgender individuals into the church in question, six major churches (with over about 130 Million adult followers) still adamantly oppose same-sex marriage and most condemn homosexuality. Most (but not all) of those religions also prohibit the admittance of transgender individuals into the church/temple/synod at-issue (and three religions are split on the issue leaving it to the local congregation/temple/synod to resolve the issue for its parishioners).

Here are the six religions in opposition to SO and (in some cases) GI rights and the three which are split/splitting on the issue:

  1. American Baptist Churches USA (1.3 Million members)
  2. Buddhism (1.2 Million members in U.S.) (split beliefs) While uniformly recognizing transgender rights, this religion is split on sexual orientation rights, but with most Buddhist temples and monasteries reportedly accepting of same-sex marriage and transgender members);
  3. Catholicism (70 million+ in the U.S.);
  4. Church of Jesus Christ of Latter-day Saints (Mormonism) (6 Million+ in the U.S.)
  5. Hinduism (split beliefs) (2.5 Million followers in the U.S.)
  6. Islam (3-4 Million in the U.S. and the fastest growing religion in the U.S.) (Iran and Saudi Arabia criminalize homosexuality, as do 65 other countries, Shockingly, 13 countries reportedly have the death penalty for persons convicted of homosexual behavior)
  7. Lutheran Church-Missouri Synod (almost 2 Million members in the U.S.) (no on same-sex marriage but open to transgender rights)
  8. National Association of Evangelicals (40 denominations spread across 45,000 churches with 20% of the 209+ Million adults in the U.S. estimated to be members (i.e., over 40 Million adult members)
  9. Southern Baptist Convention (13+ Million Members, but this is a double count with the National Association of Evangelicals which includes the SBC within its evangelical denominations)
  10. United Methodist Church (split beliefs) (Over 12 Million “traditional” Methodists.) About six Million UMC church goers are reportedly currently in the process of separating from the Methodist Church over the issues whether to embrace or reject same-sex marriage and/or accept transsexual individuals into the Church. This is an ongoing migration at this very time.

Punchline: There is A LOT of political headwind from established religions opposing same-sex marriage and the introduction of transgender individuals into the major established churches (except for the Protestant denominations bolting from the pack and one-by-one changing religious dogma 180 degrees in recent years). But, as you read this, major factions of major churches are nonetheless breaking into different churches over same-sex marriage and the transgender non-discrimination issues. President Trump repeatedly, pointedly and openly embraced and courted the “religious right” that he felt helped power him into the White House in the 2016 Presidential election. While not every Church Member follows every belief of his or her Church, of course, the political danger to President Biden and Democrats generally is that church members hear from the pulpit periodically about Church positions on SO and GI rights.

Note: Because recent polls show about 68 percent of voting age Americans support same-sex marriage while about 32% oppose it, and about 64% of Americans favor transgender rights in the workplace, the policy issue seems to lie with Church leaders. They continue to hold close and dear both scripture and religious dogma which describe marriage as a sacred union between “men and women” and often therefore also condemn homosexuality.

Religious organizations will undoubtedly sue OFCCP to seek to enjoin (stop) its Final Rule from going into legal effect. There are undoubtedly lawyers in Texas at this very moment looking over the judicial profiles of federal judges in the Northern District of Texas and the Eastern District of Texas. There is nobody sitting on the those benches they won’t like on these legal issues. At the same time, OFCCP will also take (has probably already taken) yet another major “political hit” on Capitol Hill. Don’t look for OFCCP’s budget to get healthy anytime soon.

The political question for the Biden White House at this stage of the election cycle is whether it has gotten far enough away from the “political bomb blast” it ordered up. Did this White House push OFCCP’s Rule out in Final form soon enough for voters of religious conscious in the 6-9 major churches to either forget it and/or get over it by the 2024 Presidential election next Fall 2024? Will the OFCCP Rule NOT hurt President Biden’s re-election chances and/or the chances of Democrats throughout the nation, or is the political damage done?

Federal contractors will now have a front-row seat as Republicans take these issues into the political “fight-ring” and start pounding on the President and local Democrats knowing that they have tens of millions of people following this fight hoping for a knock-out. Democrats in opposition to SO and GI rights will sit silently hoping nobody asks them to take a position on the public record in opposition to President Biden.

Historians will reflect in coming years that President Biden either bravely or recklessly tried to lead Democrats to try to turn the final corner on LGBTQ rights in America during his watch. The Biden White House was obviously worried enough about the political fallout from this OFCCP Rule that it held it until AFTER the Mid-Terms elections…knowing they would be difficult enough as it was for Democrats. This seemingly simple little OFCCP Rule will have some effect on the 2024 elections: what we do not know now is how much? But, there is no one in the White House thinking that ordering the OFCCP Rule forward won Democrats votes they did not already have. The question now is how much they will lose in 19 months in the November 2024 election.

3.) The Religious Freedom Restoration Act was passed by Democrats, led by then Representative Chuck Schumer (D-NY) who introduced the Bill by himself in 1993. This was five years before he won election to the U.S. Senate (1998) and almost two decades before he became (first) the Senate Minority Leader of the Democrats from 2017-2020 (the Trump years) and before becoming the Majority Leader in 2021 when the Senate went 50-50 with Joe Biden (a Democrat) in the White House giving Democrats the Senate Majority Leader role.

A young, smiling and proud Rep. Chuck Schumer can be seen standing in this photo shoulder-to-shoulder with then VP Al Gore behind a seated Bill Clinton as the President signed the RFRA into law in a ceremony on the White House front lawn.

President Clinton signed RFRA on the heels of two federal court decisions in different parts of the country allowing infringements to occur to religious rights of Native American tribal members (having a road plowed through a tribe’s ancestral burial grounds and the termination of employment of a Native American employee who consumed peyote as part of a formal tribal religious ceremony).

The statute then lived an uneventful life until 2014. It was in that year that enterprising Hobby Lobby lawyers used RFRA to advantage before the SCOTUS in the case of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). The Court relied on RFRA to allow Hobby Lobby to avoid providing health plans to employees (otherwise required by regulations the U.S. Department of Health and Human Services issued pursuant to the 2010 Patient Protection and Affordable Care Act) furnishing, among other things, coverage for 20 FDA-approved conceptive methods, including four that may have had the effect of preventing a fertilized egg from developing.

Here is how the SCOTUS summarized RFRA’s requirements in the Hobby Lobby case decision:

“Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.“

Punchline: We are a country founded by religious refugees and a country still heavily invested in numerous and various religious beliefs. There is, as a result, substantial Democrat and Republican bi-partisan political support, and judicial support, for the free establishment and exercise of religious beliefs in the United States. This is a tough and long-haul battle for advocates of SO and GI rights.

Note: RFRA passed the U.S. House of Representatives in 1993 UNANIMOUSLY, and 97-3 in the U.S. Senate. Not bad for a then 5-term Congressman Schumer from tiny Brooklyn! Also, did you know since 1956 “In God We Trust” has been the official motto of the United States and appears on the face of every U.S. penny (and has appeared on U.S. coins and bills of various denominations sporadically for over 150 years)? Have you ever noticed, though, that every paper currency of the U.S. has the motto “In God We Trust” inscribed on the back side? Pull out your wallet and look at the backsides of your ones, fives, tens and twenties. (Sadly, I do not have any 100-dollar bills to check!) The motto is there because the Congress in 1955 passed a unanimous Joint-Resolution of the Congress to make it so on all currency (means paper money). Three states also print the “In God We Trust” motto on their automobile license plates.

How We Got Here

We previously reported that, on July 6, 2022, OFCCP submitted its Final Rule (RIN: 1250-AA09) to the White House Office of Management and Budget (“OMB”). As with the Spring 2022 Regulatory Agenda, the Fall Agenda (published January 4. 2023) listed November 2022 as the anticipated date for OFCCP’s Final Rule. Thus, the agency’s publication of the Final Rule was two to three months behind its last projected schedule.

OFCCP published a notice of the proposed rescission in the Federal Register on November 9, 2021, and the public comment period closed on December 9, 2021. We discussed the Proposed Rule at length in June 2021: “Here it Comes: OFCCP Plans to Modify Its PDN And Religious Exemption Rules” and November 2021: “OFCCP Published its Draft Proposal to Rescind the Trump OFCCP Religious Exemption Rule, and Not Replace It.

Both the notice and Director Yang’s blog state that OFCCP received 761 unique comments and 4,464 form letter comments on its proposal to rescind the 2020 rule. (The comments are available here.) The White House Office of Management and Budget website shows it completed its review of the Final Rule on January 24, 2023.

House EWC Committee Chair Denounced the Move

“Under the Biden administration, faith-based contractors are losing invaluable protections which safeguarded their ability to compete for federal government contracts freely and fairly,” asserted House Education and the Workforce Committee (EWC) Chairwoman Virginia Foxx (R-NC) in a statement. “The Trump rule provided contractors with long-awaited clarity about their rights and obligations when competing for federal contracts,” Foxx claimed.

In contrast, EWC Committee Ranking Member Bobby Scott (D-VA) supported the move. “The Trump administration’s rule gave religious contractors receiving taxpayer dollars the power to hire and fire employees for discriminatory reasons under the guise of religious freedom, Scott said in a press release.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

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John C. Fox
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