ABA urges withdrawal of proposed rule that would expand religious exemption for federal contractors

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Labor & Employment

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The ABA is urging the U.S. Department of Labor to withdraw a proposed rule that would expand the type of federal contractors eligible for an exemption that allows them to discriminate in employment on the basis of religion.

ABA President Judy Perry Martinez said in a Sept. 16 letter that the proposed rule broadens the definition of religious groups entitled to claim the exemption.

Under the expansion, Martinez said, even for-profit corporations and nominally religious entities could claim the exemption, as long as they can point to a religious purpose that is a public part of their mission and demonstrate that they engage in religious exercise to further that purpose.

The rule also widens the scope of the religious exemption by changing the standard for evaluating whether a claim of employment discrimination is based on religion or on another protected category, Martinez said.

The proposed rule would use a “but-for” standard rather than a “motivating factor” standard to evaluate claims of worker discrimination based on other protected characteristics, Martinez said. The but-for standard makes it more difficult for employees to challenge discrimination on the grounds that religion was used as a pretext for discrimination, Martinez said.

The but-for standard is explained in a summary in the Federal Register. Under this standard, when a contractor claims that it is entitled to a religious exemption because an employment action was based on religion, the office enforcing contractor compliance will find a violation only if it can prove that a protected characteristic other than religion was a but-for cause of the adverse action.

Martinez also expressed concern that the proposed rule may be interpreted to allow a federal contractor to refuse to hire or fire based on sexual orientation when the contractor “cites a sincere religious reason for doing so.” Gay workers are currently protected under anti-discrimination provisions of the rules governing government contractors.

Martinez’s letter was addressed to the acting director of the division of policy and program development for the Labor Department’s Office of Federal Contract Compliance Programs.

A Labor Department press release says the proposed rule “ensures that conscience and religious freedom are given the broadest protection permitted by law.”

Sixteen states have also urged withdrawal of the rule, the San Francisco Chronicle reported.



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