A forthcoming law is set to roll back protections for LGBTQ people employed by federal contractors -- because "religious freedom."
Marilyn Drew Necci | October 19, 2018
Trump’s at it again. Over the past two years, we’ve watched the candidate who swore he would “fight for … the LGBT community” turn into a president seemingly fixated on making it harder for LGBTQ people to get and keep jobs. It’s all under the guise of that good ol’ all-purpose slogan, “religious freedom,” as always meaning the freedom to treat LGBTQ people like second-class citizens.
As a community, we are still struggling to get legal protection from being fired for who we are, or who we have relationships with. Those protections are far from assured in a huge swath of the country, including our home state of Virginia. But we at least could trust that companies who did business with the federal government were prevented from firing us because we’re gay, or trans… right?
Not if Trump gets his way. Sources familiar with the inner workings of Trump’s Labor Department told Buzzfeed News this week that the presidential administration is planning to expand an existing but extremely narrow loophole in Obama-era protections for LGBTQ workers employed by federal contractors. These reports seem to be confirmed by a notification currently posted on the Office Of Information and Regulatory Affairs’ website, which reads, “OFCCP [The Office of Federal Contract Compliance Programs, a division of the Department of Labor] plans to update its regulations to comply with current law regarding protections for religion-exercising organizations.”
OK… but what does that mean specifically? According to Ian Thompson, a legislative representative for the ACLU, it means the government is going to give federal contractors greater freedom to exercise their “religious liberty” where LGBTQ employees and potential employees are concerned. “A formal regulation could serve to further entrench the position that engaging in taxpayer-funded discrimination against LGBTQ people can be permissible as long as it is framed as ‘religious liberty,’” Thompson told Buzzfeed News.
Sarah Warbelow, legal director for Human Rights Campaign, fears it will go even farther than that, telling Buzzfeed News it may allow discrimination against not only LGBTQ people, but women in general, as well as people holding different faiths than that of the contractor. “We just should not be going down the path of permitting discrimination with government funds, and there’s no reason to open up this can of worms,” Warbelow said to BuzzFeed News.
According to Warbelow and Thompson, both of whom spoke with OFCCP’s acting director, Craig Leen, earlier this month, this new policy will build on a directive issued by the OFCCP earlier this year. That directive, DIR 2018-03, did not change any aspect of current law, but gave guidance to regulatory officials that pushed them to allow as much exercise of “religious freedom” as possible.
According to the directive, OFCCP staff “cannot ‘condition the availability of [opportunities] upon a recipient’s willingness to surrender his [or her] religiously impelled status’,” “must permit ‘faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for . . . [Federal] contracts’,” and “must respect the right of ‘religious people and institutions . . . to practice their faith without fear of discrimination or retaliation by the Federal Government’.” Further, the directive states, “[A] federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with [the Religious Freedom Restoration Act].”
Basically, they took the Obama-era law as far as they could take it in the direction of “religious freedom is more important than the rights of LGBTQ people,” and now they’re going to rewrite the law to take it farther in that direction. Oh joy.
The previous narrow loophole in the policy, added to a policy originally created by President Lyndon Johnson in a 1965 executive order, was passed by George W. Bush. It allowed religious organizations, such as Catholic charities, to hire only Catholic workers. The Labor Department has been clear that it feels some Trump executive orders and recent Supreme Court decisions change the legalities around their regulations, and that this change will bring OFCCP policy into line with those legal changes (thus the bit about “complying with current law” in the public notification mentioned above). But it has not been specific about whether new regulations will still only pertain to contractors that are religious organizations, or whether it will expand to for-profit businesses.
The Labor Department told Buzzfeed News that a draft of the updated law will be released sometime in December. I guess we’ll find out how bad it is then. Happy holidays!