Law Trump administration proposes rule allowing federal contractors to fire based on race, sex, religion

[Lord Coke]

Because of course.

The worst part is that this move, which would allow contractors who fire workers to raise the defense of religious liberty, isn't primarily religious bigotry. Primarily, it's just another giveaway to corporations and blow to worker rights.

The Department of Labor proposed a rule Wednesday allowing “religion-exercising organizations” with federal contracts to raise religious exemptions if accused of bias in their hiring practices.

The Labor Department said the proposal, which is set to officially be published in the Federal Register on Thursday, is intended to help companies “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”

The Labor Department's Office of Federal Contract Compliance Programs (OFCCP), which regulates federal anti-discrimination requirements for businesses and other organizations that work with the government, said the rule applies to both religious companies as well as “closely held” groups acting in accordance with their owners’ religious beliefs and is based on past laws and court rulings detailing protections for certain groups.

“Today’s proposed rule helps to ensure the civil rights of religious employers are protected,” acting Labor Secretary Patrick Pizzella said in a statement. “As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.”

The proposal will be open for public comments until Sept. 16.

Advocacy groups have long warned that such protections intend to provide cover for groups with discriminatory hiring practices.

“The Department of Labor just proposed a rule that aims to let government contractors fire workers who are LGBTQ, or who are pregnant and unmarried, based on the employers’ religious views,” the American Civil Liberties Union (ACLU) tweeted after the proposal was announced. “This is taxpayer-funded discrimination in the name of religion. Period.”

“This rule seeks to undermine our civil rights protections and encourages discrimination in the workplace — and we will work to stop it,” the group added.



https://thehill.com/homenews/admini...abor-grants-businesses-with-federal-contracts

​

Importantly, this doesn't only apply to expressly religious organization, but rather any that purports to have a religious purpose, even if it's not central to their charter:

The 46-page draft rule from the Labor Department would apply to a range of so-called religious organizations — including corporations, schools, and societies — provided that they claim a “religious purpose.”

But the Trump administration makes clear in the draft rule that a corporation needn’t focus entirely on religion to qualify, saying, “The contractor must be organized for a religious purpose, meaning that it was conceived with a self-identified religious purpose. This need not be the contractor’s only purpose.”

“A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used,” says the rule, which grants companies many opportunities to claim that faith or morals guide their purpose.

Labor Department spokesperson Megan Sweeney confirmed to BuzzFeed News on Wednesday that the rule could protect for-profit corporations with federal contracts if they discriminate, given they make a religious claim.

https://www.buzzfeednews.com/articl...st-proposal-would-let-businesses-discriminate

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Perhaps most concerning of all, this presents another fulcrum for the Trump Justice Department to try to force the EEOC to take their anti-worker stances in an attempt to weaponize the worker protection organization against workers like the EPA has been weaponized against the environment:

The Equal Employment Opportunity Commission and the Justice Department are split on the issue. The DOJ has recently tried to pull the worker civil rights agencyinto line with its opinion.

The EEOC enforces federal anti-discrimination laws against a wide range of employers and federal contractors. The OFCCP specifically focuses on an executive order banning discrimination by contractors. Unlike Title VII, the order explicitly outlaws workplace bias based on sexual orientation or gender identity.

“OFCCP is consistently looking for ways to bring clarity and certainty to federal contractors, and this proposal falls squarely within that effort,” OFCCP Director Craig Leen said in an Aug. 14 statement. “The rulemaking process allows the public opportunity to comment on the proposal and impact any potential final rule.”

https://news.bloomberglaw.com/daily...says-religious-contractors-free-from-bias-law​

I don't see where this allows for firing someone based on race which the thread title purports it does.

 

[Trotsky]

I don't see where this allows for firing someone based on race which the thread title purports it does.

It's an exemption that can be raised to justify any protected characteristic-based employment decision. Obviously, religion and sexual identity are the two that could most easily be abused using references to mainstream religions, but discriminating based on race or ethnicity can certainly be grounded in religion, particularly if it's one like Judaism or Hinduism that isn't very multi-ethnic.

 

[Javelina]

what was the underlying case that brought this change?

 

[panamaican]

I don't see where this allows for firing someone based on race which the thread title purports it does.

I can make the argument. There are people who believe that the Bible sees black people as a problem - the Curse of Ham. It's the same argument the slavers made to justify owning people while claiming to be Christians. It wasn't a sin because the Bible said that those dark skinned people were already cursed.

It's a very short step for an organization to claim the Curse of Ham as part of their religious beliefs as a defense for racial discrimination in the hiring space. They're not discriminating because that person is black. They're removing people who they think God has cursed. The argument has literally hundreds of years of prior history to it.

They could broadly apply it to people of Middle Eastern descent by simply claiming how their religious beliefs and the religious beliefs of the Middle Eastern individual don't align.

Applying it against Asians takes a little more leg work but, given time, I could probably cobble together a defensible argument.

 

[D3thr0n3d K1ng]

"In later news Trump proposed bringing back Jim crow laws"

 

[Madmick]

https://www.dol.gov/newsroom/releases/ofccp/ofccp20190814

In keeping with that rich history, the proposed rule would clarify that religious organizations may make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government. The proposal also reaffirms employers’ obligations not to discriminate on the basis of race, sex, or other protected bases and does not exempt or excuse a contractor from complying with any other requirements....

OFCCP is a civil rights agency in the U.S. Department of Labor. It enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Collectively, these laws prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. Additionally, contractors must act affirmatively to ensure equal employment opportunity in their employment processes, and they must not discriminate against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.

Here is the proposed law change. Skip to "Supplementary Information" at the bottom of p.2 of this PDF:
https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-17472.pdf

The core argument lies in this paragraphs:

Title VII’s protections for religious organizations were expanded by Congress in 1972. Congress added a broad definition of “religion”: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business”...

Because the exemption administered by OFCCP springs directly from the Title VII exemption, it should be given a parallel interpretation, consistent with the Supreme Court’s repeated counsel that the decision to borrow statutory text in a new statute is a “strong indication that the two statutes should be interpreted pari passu.” Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428 (1973) (per curiam). OFCCP generally interprets the nondiscrimination provisions of Executive Order 11246 consistent with the principles of Title VII. There has been some variation among federal circuit courts in interpreting the scope and application of the Title VII religious exemption. And many of the relevant court opinions predate the recent Supreme Court decisions and executive orders discussed below. In this proposed rule, OFCCP has sought to follow the principles articulated by these recent decisions and orders, and has interpreted the circuit-level case law in light of them. OFCCP draws on Title VII case law regarding religious employers because of its persuasiveness on issues in common with federal contractor issues arising under Executive Order 11246...

This proposal is intended to provide clarity regarding the scope and application of the religious exemption consistent with the legal developments discussed above by proposing definitions of key terms in 41 CFR 60-1.3 and a rule of construction in 41 CFR 60-1.5. Among other changes, this proposal is intended to make clear that the Executive Order 11246 religious exemption covers not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose. It is also intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases. In addition, consistent with the administration policy to enforce federal law’s robust protections for religious freedom, the proposed rule states that it should be construed to provide the broadest protection of religious exercise permitted by 7 the Constitution and other laws.

The primary executive order referenced:
https://en.wikipedia.org/wiki/Executive_Order_11246

In summary, it doesn't permit discrimination against protected groups, but it does protect religious employers from lawsuits that allege discrimination merely because they exercise preference in selecting employees who share their religion, and lead a lifestyle consistent with those religious beliefs.

 

[SaiWa]

I run a religious non profit educational center. Lets say I decide to hire a receptionist at some point in the future. What would be so bad about me wanting that person to be following the same spiritual path as what is taught at the educational center? If I don't have the right to do this then potentially I could end up having to hire someone who is hostile towards what we are doing right?

Or lets say we decide to have Childcare for the kids of parents who attend out seminars, classes etc. What is wrong with me wanting that person to be following the same path as what we are teaching?

could a receptionist perform those duties with the same level of performance without needing to follow your spiritual path? is your childcare only for families who have to believe in your faith?

if your childcare establishment is for any and all families then a receptionist can perform those duties without having to believe in your faith...

 

[Lord Coke]

I can make the argument. There are people who believe that the Bible sees black people as a problem - the Curse of Ham. It's the same argument the slavers made to justify owning people while claiming to be Christians. It wasn't a sin because the Bible said that those dark skinned people were already cursed.

It's a very short step for an organization to claim the Curse of Ham as part of their religious beliefs as a defense for racial discrimination in the hiring space. They're not discriminating because that person is black. They're removing people who they think God has cursed. The argument has literally hundreds of years of prior history to it.

They could broadly apply it to people of Middle Eastern descent by simply claiming how their religious beliefs and the religious beliefs of the Middle Eastern individual don't align.

Applying it against Asians takes a little more leg work but, given time, I could probably cobble together a defensible argument.

This is beyond the scope of your argument but a rule that contradicts a legislative statute by definition violates the Administrative Procedure Act because it is a ultra vires act. So if this rule were interpreted that way, it would be struck as violative of the APA because federal law prohibits racial discrimination in the manner at issue here.

 

[Lord Coke]

It's an exemption that can be raised to justify any protected characteristic-based employment decision. Obviously, religion and sexual identity are the two that could most easily be abused using references to mainstream religions, but discriminating based on race or ethnicity can certainly be grounded in religion, particularly if it's one like Judaism or Hinduism that isn't very multi-ethnic.

See my response to Pan. I will concede though that this administration has been open to making rules that are ultra vires so there is that.

 

[franklinstower]

could a receptionist perform those duties with the same level of performance without needing to follow your spiritual path? is your childcare only for families who have to believe in your faith?

if your childcare establishment is for any and all families then a receptionist can perform those duties without having to believe in your faith...

@Trotsky has already posted that there is a specific exemption for those kinds of positions for organizations like mine. Neither job could be performed equally by someone who did not walk the same path as both positions would be specifically to help others and others kids understand that path and/or see if it would be a fit for them.

Its called the bona fide occupations qualifications act.

 

[SaiWa]

@Trotsky has already posted that there is a specific exemption for those kinds of positions for organizations like mine. Neither job could be performed equally by someone who did not walk the same path as both positions would be specifically to help others and others kids understand that path and/or see if it would be a fit for them.

Its called the bona fide occupations qualifications act.

so what faith-based qualifications would one need to be a receptionist?

 

[franklinstower]

so what faith-based qualifications would one need to be a receptionist?

I think in this case it would be particularly needed for the person to be walking the path we are actually. People would be calling with questions about the place, what we do, what we teach, and and most especially the type of meditation we practice and the levels of it that we emphasize. This is not something that can be easily explained even by someone that is walking the same path let alone by someone who is not.


I have to admit though that I have never questioned these kinds of laws until I put it into my own personal context. It does bother me that anyone could step in an force me to hire someone I did not want to hire. Even if these qualification were not necessary I would still want the person I hired as receptionist to be on the same path because she/he would in some ways become the face of the place, would be interacting with me, my assistants and visitors in group conversation and it would be awkward including someone who maybe doesn't even understand or believe in what we are doing in the conversation.

I would not feel that way about an accountant or housecleaning or laborers coming in to clean etc etc though.

 

[MicroBrew]

Good. If a man or woman starts a business, they should have the right to hire and fire whom they please. Let the market determine such things.

For example, if a black barbershop only wants to hire black people, that should be his right. If a Mexican gentleman opens a restaurant that caters to only Mexicans, leave them be. God bless them. No one should be forced at gunpoint to fulfill some government quota based off of the fairy tale of "diversity". Simply put, a mans business is his property and he should have the say on how he handles it.

I am fine with that , as long as the business does not / did not benefit from public funds.

 

[SaiWa]

I think in this case it would be particularly needed for the person to be walking the path we are actually. People would be calling with questions about the place, what we do, what we teach, and and most especially the type of meditation we practice and the levels of it that we emphasize. This is not something that can be easily explained even by someone that is walking the same path let alone by someone who is not.


I have to admit though that I have never questioned these kinds of laws until I put it into my own personal context. It does bother me that anyone could step in an force me to hire someone I did not want to hire. Even if these qualification were not necessary I would still want the person I hired as receptionist to be on the same path because she/he would in some ways become the face of the place, would be interacting with me, my assistants and visitors in group conversation and it would be awkward including someone who maybe doesn't even understand or believe in what we are doing in the conversation.

I would not feel that way about an accountant or housecleaning or laborers coming in to clean etc etc though.

Meh.

Going to disagree with this particular example. There are jobs where one's faith would definitely be needed but a receptionist?... no... I do not think so. A receptionist does not have to believe in your product to explain or do her duties. one can be an enthusiastic receptionist about his/her job without believing in it. Obviously it is preferable to find someone who also shares your belief in your product/faith but again it's not remotely close to be necessary for this job. You'd rather have a capable receptionist but isn't a believer than someone who's a believer who's terrible at the job. The job is receptionist first then whatever you prefer afterwards...

 

[franklinstower]

Meh.

Going to disagree with this particular example. There are jobs where one's faith would definitely be needed but a receptionist?... no... I do not think so. A receptionist does not have to believe in your product to explain or do her duties. one can be an enthusiastic receptionist about his/her job without believing in it. Obviously it is preferable to find someone who also shares your belief in your product/faith but again it's not remotely close to be necessary for this job. You'd rather have a capable receptionist but isn't a believer than someone who's a believer who's terrible at the job. The job is receptionist first then whatever you prefer afterwards...

Our receptionist would be required to answer technical questions about the levels of meditation we emphasize and the type practiced. These are pretty involved subjects. He or she would also need to be able to speak of the differences and similarities between our approach and other types. He/she would also need to be able to speak in a general way to the way in which meditation interacts and works with psychological and emotional healing.

They would definitely have to have first hand experience with the practice and a general knowledge base of the subject and its comparisons with other approaches.

Point is there is already a specific exemption just for organizations like mine.

 

[panamaican]

This is beyond the scope of your argument but a rule that contradicts a legislative statute by definition violates the Administrative Procedure Act because it is a ultra vires act. So if this rule were interpreted that way, it would be struck as violative of the APA because federal law prohibits racial discrimination in the manner at issue here.

They'd probably lose a disparate impact case but it wouldn't get there until an untold number of people were discriminated against.

That's the real problem with this proposed rule. It's going to give the discriminators a cover to continue acting until they finally cross some undisclosed line and piss off the wrong person. It's far better to make the prohibition the rule and make them establish the religious justification on a case by case basis.

 

[SaiWa]

Our receptionist would be required to answer technical questions about the levels of meditation we emphasize and the type practiced. These are pretty involved subjects. He or she would also need to be able to speak of the differences and similarities between our approach and other types. He/she would also need to be able to speak in a general way to the way in which meditation interacts and works with psychological and emotional healing.

They would definitely have to have first hand experience with the practice and a general knowledge base of the subject and its comparisons with other approaches.

Point is there is already a specific exemption just for organizations like mine.

Nothing you said are skills that cannot be taught to an unbeliever.

 

[franklinstower]

Nothing you said are skills that cannot be taught to an unbeliever.

Yes they are. Meditative states are subjective experiences. No one could be expected to accurately describe them or identify them for a person who has experience but no formal training in the classifications. It is tricky even for someone well versed in the practice.

I'm sorry but you just dont know what you are talking about and I suspect it's just hard for you to believe there is anything within the spiritual realm that a person who is actually practicing can do or see that you cant within that realm.


It would take some kind of longer term training where that person learned to do all of this . Six months minimum and they still would not be equipped as someone actually doing it.

 

[Strychnine]

I can make the argument. There are people who believe that the Bible sees black people as a problem - the Curse of Ham. It's the same argument the slavers made to justify owning people while claiming to be Christians. It wasn't a sin because the Bible said that those dark skinned people were already cursed.

It's a very short step for an organization to claim the Curse of Ham as part of their religious beliefs as a defense for racial discrimination in the hiring space. They're not discriminating because that person is black. They're removing people who they think God has cursed. The argument has literally hundreds of years of prior history to it.

They could broadly apply it to people of Middle Eastern descent by simply claiming how their religious beliefs and the religious beliefs of the Middle Eastern individual don't align.

Applying it against Asians takes a little more leg work but, given time, I could probably cobble together a defensible argument.

To piggyback on that using a Bible reference (for an opposing viewpoint). I'm not trying to start any stuff, I just feel like people should see this...

"We learn in Numbers that “Miriam and Aaron spoke against Moses because of the Cushite woman whom he had married, for he had married a Cushite woman” (Num. 12:1). A Cushite is from Cush, a region south of Ethiopia, where the people are known for their black skin. We know this because of Jeremiah 13:23: “Can the Ethiopian [the same Hebrew word translated “Cushite” in Numbers 12:1] change his skin or the leopard his spots? Then also you can do good who are accustomed to do evil.” Attention is drawn to the difference of the skin of the Cushite people.

The most explicit statement relates to the marriage: “Miriam and Aaron spoke against Moses because of the Cushite woman whom he had married, for he had married a Cushite woman.” Then God strikes Miriam with leprosy. Why? Consider this possibility. In God’s anger at Miriam, Moses’ sister, God says in effect, “You like being light-skinned Miriam? I’ll make you light-skinned.” So we read, “When the cloud removed from over the tent, behold, Miriam was leprous, like snow” (Num. 12:10)

God says not a critical word against Moses for marrying a black Cushite woman. But when Miriam criticizes God’s chosen leader for this marriage God strikes her skin with white leprosy"


https://www.9marks.org/article/did-moses-marry-black-woman/

When some people (and I'm NOT talking about you at all @panamaican ) use the Bible to justify their racism, they NEVER seem to touch on the above passages.

Sorry for the long-ish post.

 

[WarDosAnjos]

"In later news Trump proposed bringing back Jim crow laws"

His supporters would probably like that. @KeepingItReal (KeepinItRacist) was literally given dubs a couple months ago for making a thread defendng Jim Crowe laws.