Civil rights advocates are enraged by a proposal released by the Department of Labor today to allow federal contractors to discriminate against LGBTQ people and others who offend the contractors' religious beliefs.
This is an "outrageous action taken by the Trump-Pence administration to undermine the rights of American workers," Sarah Warbelow, legal director for the Human Rights Campaign, said on a conference call with reporters.
The action is a notice of proposed rulemaking by the DOL's Office of Federal Contract Compliance Programs. A DOL press release says a proposed rule on compliance is "intended to clarify the civil rights protections afforded to religious organizations that contract with the federal government" and assure that "conscience and religious freedom are given the broadest protection permitted by law." But civil rights groups say it weaponizes religious freedom and encourages discrimination.
Basically, any employer, even a for-profit corporation, could claim that sincerely held religious beliefs allow it to deny employment to certain people, including LGBTQ people, single parents, members of other faiths, and more, representatives of several organizations said on the conference call.
The rule, which is subject to a 30-day public comment period before the DOL finalizes it, would affect how presidential executive orders banning discrimination by federal contractors are enforced. Presidents going back to Franklin D. Roosevelt have issued executive orders on the matter, and Barack Obama in 2014 ordered that contractors cannot discriminate on the basis of sexual orientation or gender identity, adding these to characteristics such as race, religion, and sex already covered by previous orders. One-quarter of American workers are employed by companies that hold federal contracts.
The George W. Bush administration had approved an exemption for faith-based contractors, such as, say, Catholic nonprofit organizations, allowing them to favor members of their faith in employment. The Obama order maintained that. But the new proposed rule goes much further, allowing virtually any contractor to claim that religious beliefs allow discrimination against employees who do not follow all of those beliefs, according to the civil rights groups.
The proposal would expand the Bush exemption "by leaps and bounds," Rachel Laser, president and CEO of Americans United for the Separation of Church and State, said on the conference call. She explained, "Any company could take taxpayer dollars and fire a religious minority" or anyone else to whom it objected. And companies would be taken at their word on whether they're religious in nature, she said: "If they say they're religious, they are."
Today's news follows on other Labor Department actions. The department issued a memo in August of last year instructing those who enforce antidiscrimination law to take companies' religious beliefs into account, advising 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." The proposed rule, which will be published in the Federal Register Thursday, would expand upon and codify the memo, activists said.
In both the memo and the proposed rule, the DOL refers to recent Supreme Court decisions involving businesses run by religious conservatives, such as Masterpiece Cakeshop, whose owner refused to make a wedding cake for a same-sex couple, and Hobby Lobby, which objected to the portion of the Affordable Care Act mandating contraceptive coverage in employee health plans.
"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," the proposed rule states.
But the Labor Department is "cherry-picking" those rulings, which did not establish a broad right to discriminate, the activists said. While business owners have every right to observe their religion in their private lives, when they are engaging in commerce, they should not discriminate, said Steve Freeman, vice president of civil rights for the Anti-Defamation League. "The proposal itself is anti-religious, particularly religious minorities. ... We are seeing religious freedom weaponized," he said.
"This regulation is not what religious liberty is about," added Louise Melling, deputy legal director for the American Civil Liberties Union and director of its Center for Liberty.
"Religious freedom laws must be a shield to protect the marginalized, not a sword to attack them," said Harper Jean Tobin, director of policy at the National Center for Transgender Equality. "Nobody should be judged by an employer because of who they are or who they love."
The move also once again shows that the administration of Donald Trump and Mike Pence "is the most anti-LGBTQ administration in modern history," Warbelow said.
"At the end of the day, it is those two who are responsible," added Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress.
Among the administration's other anti-LGBTQ actions, Tobin said, the Department of Justice is preparing a brief in an upcoming Supreme Court case arguing that a funeral home operator in Michigan had the right to fire an employee because she is transgender. Tobin said she has also learned that the Justice Department has demanded that the Equal Employment Opportunity Commission quit defending trans people who've lost their jobs. The EEOC is a semiautonomous federal agency tasked with investigating discrimination.
These come on top of actions involving discrimination in health care. One is a rule, now final, allowing health care workers to opt out of procedures to which they have religious or moral objections, no matter how marginal their involvement in the procedure might be. The administration is also working on a rule aimed at undermining the Affordable Care Act's prohibition on discrimination against trans people.
"This administration straight-up believes the LGBTQ community should not have rights," Stachelberg said.
The organizations vowed to fight the new proposal in any way possible, holding option the option of lawsuits if it becomes final. They also encouraged members of the public to submit comments.
Several prominent politicians have spoken out about the rule.
House Speaker Nancy Pelosi released the following statement:
"The Administration's license to discriminate is cruel, blatantly bigoted and downright dangerous. This hateful rule would greenlight open discrimination against tens of millions of Americans in the workplace, using taxpayer dollars to throw into jeopardy their safety, financial security and well-being.
"From Day One, this Administration has tried to inflict a campaign of intolerance against the American people. Its unceasing attacks on the civil rights and human dignity of the LGBTQ community and on other vulnerable populations profoundly dishonor our values as a nation and undermine the freedoms of all Americans.
"The Democratic House stands with the LGBTQ community in denouncing this offensive attack, and will continue to fight relentlessly until Senator McConnell has passed the Equality Act and sent this life-saving legislation to the President's desk.
"Bigotry has no place in our nation."
Sen. Bernie Sanders, who is once again seeking the Democratic presidential nomination, sent this tweet, contrasting the move with an earlier tweet by Trump: