Director, Division of Policy and Program Development
Office of Federal Contract Compliance Programs
Comments on Regulatory Information Number (RIN) 1250-AA09: Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption
Dear Ms. Williams,
The National Employment Lawyers Association (NELA) supports the above-referenced OFCCP proposal (“proposed recission”) to rescind implementing legal requirements regarding the equal opportunity clause’s religious exemption. This is an important step towards restoring religious freedom and ending workplace discrimination in the name of religion.
NELA has an important interest in OFCCP’s proposal. NELA is the largest professional membership organization in the country. Founded in 1985, NELA advances worker rights and serves lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who work on behalf of those who have been treated illegally in the workplace. NELA members represent thousands of workers from around the country in discrimination cases. This gives NELA important and insightful perspective on how religious exemptions granted to employers play out on the ground, and the immense harms to workers when these employer exemptions are expanded.
Religious freedom is a fundamental American value. It guarantees us the right to believe—or not—as we see fit. But it cannot be used to harm or discriminate against others. The Trump-era rule (“current rule”) betrayed American workers by allowing a wider range of federal contractor employers to use religion as a reason to discriminate against workers and applicants. It made it harder for American workers to challenge unlawful discrimination. The current rule jeopardized EO 11246’s existing, important workplace protections against discrimination, which apply to more than one-fifth of the country’s workforce.
I. The proposed recission properly applies the EO 11246 religious exemption and promotes equity, clarity, and fairness.
Definition of “Religious Corporation.” The current Rule impermissibly alters the definition of “religious corporation association, education, institution or society,” unsupported by any applicable law. It misapplies the EO’s religious exemption, strayed from Title VII case law, and created an entirely new religious employer test. It improperly retreated from the EO’s prohibition on using the religious exemption to discriminate against other protected classes.
To correct this, the NPRM brings the definition into alignment with Title VII jurisprudence and clarifies the narrow nature of the EO religious exemption, creating clear rules for employers, workers, advocates, and the courts.
A contractor that qualifies as a religious corporation, association, or an educational institution or society is eligible for the EO 11246 religious exemption. Long-standing OFCCP policy and practice calls for interpreting the religious exemption in EO 11246 in the same manner as Title VII case law interpreting the religious exemption in section 702(a). The final rule acknowledged that the 11246 religious exemption “springs directly from the Title VII exemption” and it “should be given a parallel interpretation.”
Deviating from this clear and well-established standard, the current rule created an entirely new test for the term “religious corporation, association, educational institution or society.” It impermissibly and unlawfully expanded the reach of the employer religious exemption. Even employers that only nominally claim to serve a religious purpose would qualify for the religious exemption. Unprecedentedly, even for-profit corporations could now use the religious exemption. The consequences: a great many workers lost nondiscrimination protections.
Broad vs. Narrow Construction. Additionally, the current rule added a rule of construction requiring a “broad interpretation” “to the maximum extent permitted” by law. This impermissibly contradicts Title VII’s exemption for religious employers, which is meant to be applied narrowly. Under the proposed recission, contractors will, once again, have to follow just one religious employer test under Title VII and EO 11246. Returning to the more narrow and correct interpretation of the exemption promotes equity and fairness, and equal opportunity for all.
Under Title VII, courts have held that an employer qualifies as a “religious corporation, association, educational institution or society” if it is “primarily religious.” Although different circuits apply different factors to determine whether an entity is “primarily religious,” the test is generally understood “to determine whether the ‘general picture’ of [an] institution is primarily religious or secular.” As explained by the U.S. Equal Employment Opportunity Commission, “The exception applies only to those institutions whose ‘purpose and character are primarily religious.’”
That definition is used in Title VII in the context of protecting workers from religious discrimination, whereas here, it is being used in the context of employers. The current Rule impermissibly modified and recontextualized the Title VII definition, to make the definition more expansive, to include a great many more employers.
The current Rule’s definition also included for-profit employers. In response to public comments, the final iteration of the current rule added the nonprofit factor to the test, but then fully undermined the requirement by making the prong optional. The current Rule states that the entity must “operate on a not-for-profit basis; or present other strong evidence that its purpose is substantially religious.” In short, there is still no requirement that a contractor be a nonprofit organization in order to qualify as a “religious corporation.”
NELA advocates for recission of the current Rule, to bring the exemption back into harmony with Title VII jurisprudence and maintain the narrow application of this exemption.
II. Rescinding the current rule reduces harms to workers
The broad nature of the current Rule puts workers in protected classes at risk of losing their livelihoods if they do not fall in line with the self-proclaimed religious rules of their employer. This impacts millions of American workers. As of 2017, there were 4.1 million workers employed by government contractors. With the recent passage of the Build Back Better Act, that number will only increase. Under the broad definitions of the current rule, a huge percentage of those workers could be at risk of discrimination under the guise of religion.
A 2021 study found that 30% of LGBT workers reported being fired or not hired because of their sexual orientation or gender identity (nearly 50% for transgender workers). And over half of those who had experience such discrimination reported that their employer or co-workers did or said something to indicate that the unfair treatment was motivated by religious beliefs. For LGBTQ workers living in a state without explicit statutory protections, the current Rule is even more devastating.
According to a 2017 survey 42% of working women in the United States report having faced workplace discrimination because of their gender. Women working full-time, year-round, typically are paid about 83 cents for every dollar that men are paid. For women of color, the pay gap is wider, with Black women working full-time, year-round making about 64 cents, Native American women 60 cents, and Latina women 57 cents, for every dollar paid to white, non-Hispanic men. Although federal law currently prohibits discrimination based on sex– including sex stereotypes, gender identity, sexual orientation, and pregnancy and related medical conditions–the current rule emboldened federal contractors to cite religious beliefs to justify discrimination. It attempts to turn the clock back on decades of settled non-discrimination law, and threatens women’s ability to obtain and maintain employment. For example, the expanded religious exemption would allow federal contractors to assert the right to fire, or refuse to hire, a woman who uses birth control or who is pregnant and unmarried.
Women workers have been subjected to a range of discrimination based on sex, justified by claims of religious beliefs. While these cases do not necessarily involve application of the current Rule, they are an important barometer for how courts in some jurisdictions are finding ways to support an employer claiming exemption on religious grounds, to the detriment of workers who seek judicial protection for the rights guaranteed by federal anti-discrimination laws.
- A for-profit Finance Education company (a recipient of state and federal funding) fired a worker only a week after she emailed Human Resources to notify them she was pregnant and wanted information on FMLA and ADA paperwork. The company terminated her because she and her partner were not married and this violated this for-profit company’s, “Righteous Living” core value, which the Company acknowledged was based on its interpretation of “normative,” “Judeo-Christian values.”. Nonetheless, the Court dismissed her claim of religious discrimination because it believed she was required to allege that her religion required her to have sex outside of wedlock. The court failed to recognize that the employer was improperly imposing its religious values on its workers.
- Women workers have been fired for their decisions about whether and how to start a family, including becoming pregnant outside of marriage or becoming pregnant while in LGBTQ relationship, using in vitro fertilization to start a family, or having an abortion.
- An agency receiving state funding terminated one of its social workers when the employer found a photo of the social worker and her partner at an AIDS fundraiser. The employer contended the worker’s status as a lesbian violated its “Core Values.” This same employer refused to hire members of the LBGTQ community under the same “Core Values.” The court denied civil rights law protection to the social worker, holding that held that the employer could terminate her because she did not “comply with the employer’s religion.” In essence, because the LGTBQ worker did not live a closeted life, she was terminated. The Sixth Circuit Court of Appeals ultimately upheld dismissal of her claims because she did not allege that her sexual orientation was premised on her religious beliefs. 
- Just a few weeks ago, a Texas District Court concluded that a group of businesses, including a wellness center, a pharmacy, and a Vitamin store could refuse to employ LGBTQ individuals could refuse to recognize same-sex marriages, could refuse worker benefits to a worker’s same sex partner, and could enforce sex-specific dress-and-grooming code. In examining Title VII’s exemption, the District Court determined that the RFRA shielded the employer from EEOC action under Title VII, and that the policies regarding sexual conduct, dress codes and restrooms did not violate Title VII as a matter of law. However, the court did conclude that the private employer’s policies that prohibited bi-sexual conduct and policies forbidding genital modification surgery and hormone treatments for gender dysmorphia violated Title VII. 
If the current Rule is left in place, workers in federal contract employers could see a return to precedents of more than thirty years ago blocking women from equal employment opportunity based on sex and parental status. For example:
- A religious school failed to renew a pregnant worker’s contract because of a belief that mothers should stay at home with young children.
- A religious school denied women health insurance by providing it only to the “head of household,” defined to be married men and single persons, based on its belief that a woman cannot be the “head of household.”
- Some individuals hold religious beliefs dictating that women should not be alone with men to whom they are not married, which could unlawfully impede women’s advancement and access to mentorship, training opportunities and senior leadership positions in the workplace.
Nonreligious people and religious minorities frequently encounter workplace discrimination because of their beliefs. A 2019 survey found that more than one in five (21.7%) participants had negative experiences in employment because of their nonreligious beliefs, and those living in very religious communities experienced significantly more discrimination. Exemptions like this have already caused harm. For example:
- In 2016, an atheist worker was terminated from his position as an HVAC technician because he covered up the company’s religious mission statement on the back of his badge and requested that his co-workers not push religion on him.
- A private employer attempted to impose adherence to a program embodied in a “Declaration of Virtues of Empowerment” on its workers. The declaration contained spiritual and religious imagery and iconography, and workers were required to attend workshops, prayers and meetings premised on the programming. Workers terminated due to their rejection of the employer’s religious beliefs or their own belief system that was different from the employer.
In the name of religious freedom, the current Rule increased the likelihood that workers will face religious discrimination. It emphasized the religious freedom of organizations that would discriminate rather than those who are being discriminated against. Giving religious exemptions to a broad range of employers without concern for the impact on workers ultimately undermines the principle of religious freedom. Workers harmed by these kinds of discrimination are often people of faith themselves and are living their lives in accord with their deeply held beliefs. For example, the majority of LGBTQ Americans are people of faith. Using exemptions to protect religious exercise is only sustainable if the public has confidence that the exemptions are necessary to protect religious exercise and are not part of a scheme to broadly deny rights to other groups. In narrowing the religious exemption, the current NRPM will protect the religious freedom of workers while protecting members of protected classes from facing discrimination at the hands of employers who would act unlawfully under the guise of religion.
NELA strongly supports the OFCCP proposal to rescind implementing legal requirements regarding the equal opportunity clause’s religious exemption. This is an important step towards restoring religious freedom and ending workplace discrimination in the name of religion.
Thank you for your consideration of these comments and please do not hesitate to reach out to Laura Flegel (email@example.com) if you had additional questions.
Laura M. Flegel
National Employment Lawyers Association
Director of Legislative & Public Policy
 Office of Federal Contract Compliance Programs (OFCCP), History of Executive Order 11246, available at https://bit.ly/3IeVoQM (last visited Dec. 1, 2021).
 85 Fed. Reg. at 79,324.
 Spencer v. World Vision, 633 F.3d 729, 729 (9th Cir. 2011) (O’Scannlain, J., concurring); Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); see also Garcia v. Salvation Army, 918 F.3d 997, 1003 (9th Cir. 2019) (“In applying the [religious organization exemption], we determine whether an institution’s ‘purpose and character are primarily religious’ by weighing ‘[a]ll significant religious and secular characteristics.’” (quoting EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988)) (second alteration in original)); LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 226 (3d Cir. 2007) (applying similar “primarily religious” standard); Killinger v. Samford Univ., 113 F.3d 196, 198‑99 (11th Cir. 1997) (looking at specific facts to determine whether university was “religious” or “secular”).
 EEOC, Questions and Answers: Religious Discrimination in the Workplace, 29 C.F.R. 1605 (July 22, 2008), available at https://bit.ly/3ocadvs.
 Williams Institute, LGBT People’s Experiences of Workplace Discrimination and Harassment (Sept. 2021), https://bit.ly/3lpwjJn.
 Kim Parker & Cary Funk, Pew Res. Ctr., Gender Discrimination Comes in Many Forms for Today’s Working Women (Dec. 14, 2017), https://pewrsr.ch/3Ec5lMr.
 Nat’l Women’s Law Ctr., The Wage Gap: The Who, How, Why, and What to Do 1 (Sept. 2021), available at https://bit.ly/3opYolP; Jasmine Tucker, Nat’l Women’s Law Ctr., Native American Women Need Action That Closes the Wage Gap 1 (Sept. 2021), available at https://bit.ly/3de1gvv; Income, Poverty & Health Insurance Coverage in the United States: 2017 (Sep. 12, 2018), available at https://bit.ly/3FZGLPn.
 O’Connor v. Lampo Gro., LLC, 2021 U.S. Dist. LEXIS 188304 (M.D. Tenn. Sept. 29, 2021).
 See, e.g., Herx v. Diocese of Ft. Wayne-South Bend Inc., 48 F. Supp. 3d 1168 (N.D. Ind. 2014); Ganzy v. Allen Christian Sch., 995 F. Supp. 340, 345 (E.D.N.Y 1998) (an unmarried teacher at a religious school was fired because, as explained by the school, her pregnancy was “clear evidence that she had engaged in coitus while unmarried”). See also Dana Liebelson and Molly Redden, A Montana School Just Fired a Teacher for Getting Pregnant. That Actually Happens All the Time, Mother Jones, Feb. 10, 2014, available at https://bit.ly/3o4IOM6; Ducharme v. Crescent City Déjà Vu, L.L.C., No. 2:2018cv04484 (E.D. La. 2019) (woman fired at her job for having an abortion; court held that federal and state anti-discrimination laws prohibit employers from firing workers for having an abortion).
 Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722 (6th Cir. 2009).
 Bear Creek Bible Church v. EEOC, Civil Action No. 4:18-cv-00824-O, 2021 U.S. Dist. LEXIS 210139 (N.D. Tex. Oct. 31, 2021)
 Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 623 (1986).
 E.E.O.C. v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986).
 See Joanna L. Grossman, Vice President Pence’s “never dine alone with a woman” rule isn’t honorable. It’s probably illegal, Vox, Dec. 4, 2017, available at https://bit.ly/31gcRHw; Gillian Tan & Katia Porzecanski, Wall Street Rule for the #MeToo Era: Avoid Women at All Cost, Bloomberg, Dec. 3, 2018, available at https://bloom.bg/3d2PP9Z; Ben Kesslen, North Carolina Police Officer Fired for Following the ‘Billy Graham Rule,’ Lawsuit Says, NBC News, Aug. 23, 2019, available at https://nbcnews.to/3rDbxtN.
 See Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007) (“protected class” element inapplicable for reverse religious discrimination claims); Reed v. Great Lakes Companies, Inc., 330 F.3d 931, 934 (7th Cir. 2003) (“[A]n atheist. . . cannot be fired because his employer dislikes atheists. If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.”); Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1038 (10th Cir. 1993) (“Where discrimination is not targeted against a particular religion, but against those who do not share a particular religious belief, the use of the protected class factor is inappropriate”); International Association of Machinists & Aerospace Workers v. Boeing Co., 833 F.2d 165, 169 (9th Cir. 1987) (Title VII protects persons who are not members of organized religious groups); Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 142 & n.3 (5th Cir. 1975) (atheists entitled to Title VII protection and made out a prima facie case at summary judgment where compulsory attendance policy at meetings opened with prayer was reason for resignation)
 Somjen Frazer, A. El-Shafei, & Alison Gill, Reality Check: Being Nonreligious in America, American Atheists (2020), available at www.secularsurvey.org.
 Matghis v. Christian Heathing & Air Conditioning, Inc., 158 F. Supp. 3d 317, 320-321 (E.D. Pa. 2016).
 Equal Opportunity Empl. Comm’n. v, United Health Programs of Am, Inc., 213 F. Supp. 3d 377 (E.D. N.Y. 2016).
 Pew Research Center, America’s Changing Religious Landscape, Religious Composition by Sexual Orientation, May 12, 2015, available at https://pewrsr.ch/3pdqwHJ.