New Rule May Allow Some Federal Contractors to Not Hire LGBT Workers

Allen Smith, J.D. By Allen Smith, J.D. August 14, 2019
New Rule May Allow Some Federal Contractors to Not Hire LGBT Workers

​The Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule Aug. 14 that would grant religious organizations under contract with the federal government the right to make employment decisions consistent with their religious beliefs. Advocates for lesbian, gay, bisexual and transgender (LGBT) individuals criticized the proposal as an attempt to permit discrimination based on sexual orientation and gender identity. We've gathered articles on the proposed rule and related topics from SHRM Online and other trusted media outlets.

Proposed Rule Seeks to Protect Religious Institutions

Officials from the Department of Labor (DOL) said religious institutions such as Christian colleges had not been seeking government contracts out of fear that they would violate federal requirements. "When we talked to stakeholders, we were informed that many religious organizations were not participating in the procurement process because of concerns that OFCCP would not fairly or correctly enforce the law related to the religious employer exemption," a DOL official said. But American Civil Liberties Union Senior Legislative Counsel Ian Thompson said, "Once again, the Trump administration is shamefully working to license taxpayer-funded discrimination in the name of religion. … We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace."


Health Care Workers Have Right to Refuse Treatments Because of Faith

The proposal follows a U.S. Department of Health and Human Services final rule issued May 2 that granted health care workers the right to refuse to provide certain medical procedures, including abortion, if they have faith-based objections. Transgender individuals feared that the rule would make it easier for providers to refuse transition-related care based on religious beliefs. They also voiced concern that the rule would make it easier for health care providers to refuse routine care based on patients' gender identity.

(SHRM Online)

Department of Justice Is Trying to Persuade EEOC to Reverse Its Stance 

This week, the U.S. Department of Justice was reportedly trying to persuade the Equal Employment Opportunity Commission (EEOC) to reverse its stance on LGBT rights. The EEOC has taken the position that Title VII of the Civil Rights Act of 1964 bars discrimination based on sexual orientation and gender identity while the Justice Department takes the opposite view. The EEOC is unlikely to reverse its position given that two of its three commissioners have come out in favor of the agency's stance. Sharon Gustafson, the EEOC's new general counsel, could bypass the commissioners and sign Justice's brief in three Supreme Court cases that will settle the dispute but court observers doubt she will try to resolve the issues before the high court does.


Cases Before the Court

On Oct. 8, the Supreme Court will hear arguments in two consolidated cases—Bostock v. Clayton County, Ga., and Altitude Express Inc. v. Zarda—that address whether Title VII bans sexual orientation discrimination. It also will hear arguments in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC over whether Title VII prohibits discrimination based on gender identity. In the case involving a transgender plaintiff, a lower court ruled that the employer's termination of an employee who announced she was transitioning to a woman was not protected by the Religious Freedom Restoration Act. The court also determined that Title VII prohibits transgender discrimination based on sex and sex stereotypes.

(SHRM Online)

[SHRM members-only toolkit: Employing Transgender Workers]

Court Sided with Baker Who Refused to Make Cake for Same-Sex Wedding

In the OFCCP's announcement of its proposed rule, it noted that it was relying partly on the Supreme Court's ruling in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission that a baker lawfully refused to make a wedding cake for a same-sex couple because of his sincerely held religious beliefs. But the ruling was extremely narrow and should not be interpreted to mean that sexual-orientation discrimination is acceptable in the workplace, said Lisa McGlynn, an attorney with Fisher Phillips in Tampa, Fla.

(SHRM Online)



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