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New Rule Gives Federal Contractors Broad Right to Discriminate

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Religious exemptions are most often used by employers to discriminate against LGBTQ people. (beavera/Adobe Stock)
Religious exemptions are most often used by employers to discriminate against LGBTQ people. (beavera/Adobe Stock)
December 9, 2020

NEW YORK -- The U.S. Department of Labor has issued a new rule that dramatically expands a federal contractor's ability to claim a religious exemption from nondiscrimination and equal-opportunity laws.

The final rule, issued Monday, allows taxpayer-funded contractors and grantees an almost unlimited right to impose religious criteria in hiring, firing, working conditions and denial of health and other benefits.

Sasha Buchert, senior attorney with Lambda Legal, predicted that the rule will create a very difficult work environment for about four million Americans who work for federal contractors.

"Especially the LGBTQ community," she said, "who studies have shown over and over again are always the community that receives the most discrimination when religious exemptions are employed."

Buchert added that employers also could attempt to use the rule to justify discrimination against women, religious and racial minorities.

To create the new rule, Buchert said the administration took an existing rule allowing employees to request accommodations for religious practices such as holidays or head coverings, balanced against any adverse impact on the employer -- then turned that rule on its head.

"But they didn't take the balancing test with it," she said, "so basically, it allows employers to enforce and inflict religious beliefs on their employees, without balancing the harm that's going to be caused to the employee."

She said the rule also greatly expands the number of employers that can be granted religious exemptions.

Buchert contended that the new rule is overly broad, inconsistent with existing law, and was put in place in violation of the Administrative Procedures Act, which governs the rule-making process - all grounds for challenging it in court.

"This is definitely something that they created out of whole cloth to a large degree," she said, "where they just wanted to, on their way out the door, create havoc in the workplace for federal contractors."

Buchert said she is confident the incoming Biden administration will act quickly to overturn the rule.

Andrea Sears, Public News Service - NY