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Labor Department to Contractors: Feel Free to Discriminate

Craig Leen

A new Department of Labor memo encourages discrimination by federal contractors against LGBTQ people and others who offend a contractor’s religious beliefs.

The memo, issued Friday, is aimed at undermining President Barack Obama’s 2014 executive order stipulating that companies and nonprofits doing business with the federal government avoid discrimination against employees on the basis of sexual orientation and gender identity.

Signed by Craig E. Leen, acting director of the DOL’s Office of Federal Contract Compliance Programs, the memo instructs personnel in the office to take into account the recent Masterpiece Cakeshop ruling when enforcing the executive order. In the ruling, the Supreme Court found in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple. The court said the Colorado Civil Rights Commission had shown insufficient respect for the baker’s religion in finding that he violated the state’s antidiscrimination law — but also affirmed the importance of protecting the rights of LGBTQ people.

The DOL directive emphasizes the need to protect an employer’s religious beliefs rather than LGBTQ rights, however. Quoting the Masterpiece Cakeshop ruling and other recent court decisions, such as that in the Hobby Lobby case regarding contraceptive coverage, it advises compliance program staff that they "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices" and must "proceed in a manner neutral toward and tolerant of ... religious beliefs" and not "condition the availability of [opportunities] upon a recipient's willingness to surrender his [or her] religiously impelled status." It also says that religious exemptions apply to closely held for-profit companies as well as nonprofit organizations.

The directive makes an erroneous reading of the Masterpiece Cakeshop ruling, according to the National Center for Transgender Equality. Justice Anthony Kennedy, writing for the court majority, made clear that the ruling was a narrow one, applying specifically to the circumstances surrounding the baker and the civil rights commission, and did not set out to create a broad license to discriminate.

Also, NCTE pointed out, the DOL has removed nondiscrimination language from the frequently asked questions section of its website. “Previously, the site made clear religious organizations receiving federal contracts may prefer members of their religion, but no exemption would be granted for discrimination against an employee ‘on the basis of race, color, sex, sexual orientation, gender identity, or national origin.’ That language has now been deleted,” notes an NCTE press release.

“This is an attempt to encourage businesses to take taxpayer dollars and then fire people for being transgender,” said Harper Jean Tobin, NCTE director of policy, in the press release. “Religious organizations have ample protections under federal law, but they are not allowed to use federal money to discriminate against people. The language of this directive is so broad and so vague because it is part of a long line of attempts by this administration to sow confusion and encourage any employer to act on their worst prejudices. No employer should be allowed to use taxpayer dollars to fire someone because of who they are.”

Sharon McGowan, legal director for Lambda Legal, agreed that the Masterpiece Cakeshop ruling did not make any points that required the DOL to issue the memo, but her group is “not surprised to see this administration seize on the decision as a way to justify its ongoing assault on the civil rights of the LGBT community,” as she told the Washington Blade.

“Apparently, this administration believes — correctly — that rescinding the [executive order] outright would cause a huge public and politically damaging outcry,” she added. “So instead, they are trying to accomplish the same end through different means.” The Trump administration had already lifted a requirement that contractors prove they are in compliance with the executive order.

“We hope that nondiscrimination has become part of the standard operating procedures for the overwhelming majority of federal contractors, and they will continue to recognize that a workplace open to all is not only the right thing to do, but also makes smart business sense,” McGowan continued. “But in the same way that the Masterpiece Cakeshop decision has emboldened anti-LGBT forces to paint themselves as the victims of LGBT equality, these directives from OFCCP send an encouraging signal to those individual employees within these larger entities who want to insist on a license to discriminate.”

The Democratic National Committee also denounced the new directive as yet another example of attacks on LGBTQ people by an administration led by Donald Trump and Mike Pence. “The Trump-Pence war against the LGBTQ community never fails to find a way to discriminate against LGBTQ people in every facet of life,” said a statement issued by DNC chair Tom Perez, a former secretary of Labor. “They have attacked their health care; they have attacked their right to serve their country; and now, once again, they have attacked their employment opportunity. Our government is supposed to protect the rights of every American. Instead, this administration has used taxpayer-funded federal agencies to enforce their agenda of discrimination and bigotry.”

Unsurprisingly, anti-LGBTQ groups praised the new memo. “I commend the Trump administration and the Department of Labor for taking a strong stand in this new policy directive to protect the religious freedom of individuals and organizations under federal law and the U.S. Constitution,” said Mat Staver, founder and chairman of the right-wing legal group Liberty Counsel, in a press release. “People of faith should not have to set aside their sincerely held religious beliefs to appease others.”

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