The Trump administration caused an uproar Wednesday for proposing a policy that would give certain federal contractors the right to discriminate against people who don’t share their employer’s religious views.
“Unconscionable,” “shameless,” and “dangerous” were just a few of the reactions from lawmakers and civil rights advocates over the religious-exemption rule that seemed, in particular, to target LGBTQ employees. Patricia Shiu, who oversaw the federal contracting office under President Barack Obama, described it to Vox as shocking.
The proposed rule from the Department of Labor dramatically transforms the government’s decades-old policy that bars federal contractors from discriminating against employees based on their race, sex, religion, disability, or national origin. It would instead weaken these protections by expanding the policy’s one exemption: the religious exemption.
Religious organizations — such as a Catholic legal aid group, for example — are already allowed to reject certain job candidates of different faiths. The new rule would go far, far beyond that, letting Catholic-affiliated businesses fire an LGBTQ employee because their views on same-sex marriage conflict with Catholic teachings. Or fire a pregnant woman who is unmarried.
The new rule would gut anti-discrimination protections in a “major and transformational way,” Shiu, who is now an advisor for the Berkeley Center on Comparative Equality & Anti-Discrimination Law, told Vox. “It’s so startling.”
While the rule seems to target LGBTQ individuals, as most religious exemption policies do, it’s so broad that it creates a loophole for employers to discriminate against anyone, Shiu said. She points out that big contractors could ask for a religious exemption so they don’t have to hire women, by saying that their religion dictates that women cannot work outside the home.
The Labor Department has played down this possibility, saying in its proposal that employers can’t use religion as an excuse to discriminate against protected groups. Right now, LGBTQ workers aren’t explicitly protected by federal anti-discrimination law, but even if they were, it would be awfully hard for an employee to prove that a company is using the exemption as a cover to discriminate.
The proposed change is, above all, a political move. By targeting the LGBTQ community, President Donald Trump is showing his support for the fundamentalist evangelical Christians who make up his base of support. These groups, which oppose same-sex marriage, have been fighting for years to weaken protections for LGBTQ Americans.
More than 42,000 US businesses hold federal contracts, and all of them agree to follow certain rules to keep their lucrative deals with the government. In 1965, President Lyndon Johnson signed Executive Order 11246, which prohibited contractors from discriminating against people on the basis of race — similar to protections Congress gave to individuals as part of the Civil Rights Act. At the time, many federal contractors would not hire black employees, so the goal was to make sure that taxpayer-funded contracts only go to businesses with integrated workforces.
Later on, the executive order would expand protections to employees based on other protected characteristics, such as a person’s sex, religion, national origin, or disability. In 2014, Obama’s labor department expanded it further to include sexual orientation and gender identity. The religious exemption was meant to be super narrow. Past administrations have interpreted it to apply only to nonprofit organizations, such as churches or social service groups, and these groups could only turn away employees who don’t belong to their faith.
Trump’s executive order interprets that exemption far more broadly to include a much larger group of employers, such as for-profit companies that have a religious affiliation (St. Jude’s Hospital, Goodwill, and Georgetown University, for example).
The new rule also explicitly creates a broader definition of the word “religion.” Instead of viewing religion as a particular organized religion, the government would now include “all aspects of religious belief, observance, and practice as understood by the employer.” That language is very vague.
But here is the most concerning line in the 46-page document: The rule would “clarify that the religious exemption allows religious contractors not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.”
In other words, not only could a religious hospital that contracts with the government refuse to hire someone who is Muslim or Jewish, they could also refuse to hire someone in a same-sex marriage or fire someone who had sex before marriage.
Some religious groups have been trying to weaken anti-discrimination laws at every level.
The US Pastors Council and Texas Values, two nonprofit evangelical groups, filed multiple lawsuits in county and federal court in October, claiming that Christian businesses and churches have a constitutional right to fire — or not hire — LGBTQ workers.
One lawsuit challenged the federal Civil Rights Act, which makes it illegal for employers to discriminate against job candidates and workers based on their religion, sex, gender, or race. Two other lawsuits sought to strike down part of an Austin, Texas, city ordinance that prohibits employers from discriminating against similar groups, and explicitly includes protections based on “sexual orientation” and “gender identity.”
In one of the lawsuits against the city of Austin, lawyers for Texas Values said the organization will not comply with the law. “Texas Values will not hire or retain practicing homosexuals or transgendered people as employees, because their lifestyles are contrary to the biblical, Judeo–Christian understandings of sexuality and gender that Texas Values seeks to promote,” they wrote in the complaint.
The federal lawsuit was dismissed in March; the county case is still pending.
The lawsuits marked a new front in the evangelical battle against the LGBTQ civil rights movement. Both right-wing Texas groups were also outspoken in the fight against the spread of so-called “bathroom bills,” which allow transgender individuals to use public restrooms designated for their identified gender.
In one of the Texas cases, the US Pastors Council argued Christian employers are allowed to discriminate against LGBTQ workers based on protections in the Religious Freedom Restoration Act.
The federal law, enacted in 1993, sets a high standard for government legislators when writing laws that might burden a person’s right to exercise their religion. The act states that such a law must further a “compelling government interest” and must be tailored to minimize the burden on individual religious practices.
The law has generally been used to analyze other laws that might infringe on an individual’s religious freedom. But in a controversial 2014 ruling, the US Supreme Court extended the protection to Christian-owned corporations. In that case, Burwell v. Hobby Lobby, the arts and crafts store chain challenged the Affordable Care Act’s contraceptive mandate, which required businesses to offer health insurance plans that covered the cost of birth control.
David Green, the evangelical owner of Hobby Lobby, objected to the mandate on the grounds that he was religiously opposed to paying for employees’ use of a form of contraception known as the “morning-after pill.” He considered this type of contraception similar to abortion.
The Supreme Court narrowly ruled in his favor, in a 5-4 decision. Justice Samuel Alito, in writing the majority opinion, said that the federal government had a compelling goal in crafting Obamacare’s contraceptive mandate: giving women free access to family planning services. But Alito argued that the government could achieve that goal without infringing on a business owner’s religious views. The government, for example, could pay for the contraception, or provide an exemption to businesses whose owners object to contraception on religious grounds.
The ruling was the first time the Supreme Court had extended the act’s individual religious freedom protection to a for-profit company.
That’s why the case raised so much alarm among LGBTQ advocates, who viewed it as potentially opening the door for businesses to discriminate against gay and transgender employees on the grounds that an employer is exercising religious beliefs.
However, in response to these concerns, Alito made clear that the court’s decision did not mean businesses could do such a thing. “This decision concerns only the contraceptive mandate and should not be understood to … provide a shield for employers who might cloak illegal discrimination as a religious practice,” Alito wrote in the majority opinion.
That same view was reiterated in the court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Colorado cake shop owner refused to make a wedding cake for a same-sex couple, based on the owner’s religious objection to same-sex marriage.
Though the court ruled in favor of the business owner, the majority said it did so because the Colorado government showed clear anti-religious bias when handling the case. Justice Anthony Kennedy, who wrote the majority opinion, made clear that religious beliefs do not justify discrimination against LGBTQ individuals.
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.
The problem with these rulings and with the latest labor department rule is that it will be almost impossible for marginalized workers to prove illegal discrimination: Employers could simply justify their actions by pointing to their religious beliefs.
Shiu, who led the federal contracting office from 2009 to 2016, said the new rule is completely unnecessary. She said no federal contractors ever asked for a religious exemption to justify firing someone (or to refuse hiring someone) when she was the director.
“It’s a terrible solution in search of a problem,” she told Vox.