Religious Directive: What is a Contractor to Do?

When President Trump took office almost two years ago, one of his first acts was to issue a freeze on new and pending regulations. Since then, OFCCP has released a flurry of directives (sub-regulatory guidance) and guidance related to compliance and enforcement. One such directive is Directive 2018-03, addressing religious liberty and freedom.

For starters, this directive does not impose any new obligations on federal contractors. Religious accommodations, and the language explaining it, has been codified since 1978. What this new directive does, is muddy the waters for federal contractors on balancing EO 11246 obligations.

For some context, President Obama amended EO 11246 to extend protections to the LGBT community by adding “sexual orientation” and “gender identity” to the list of protected categories. Given this addition (and its continuance), federal contractors are left with somewhat of a Catch-22. If an employee claims that he or she will not work with LGBT individuals based on his or her religious beliefs, what is a contractor to do?

The Institute for Workplace Equality had just this question, and sent a letter to OFCCP asking for specific clarification. The letter asks “whether federal contractors now have a greater or different obligation to accommodate those with religious objections than they did prior to the issuance of Directive 2018-03.”

In response, DCI received word via The Institute, that OFCCP is committed to enforcing compliance with all protections under EO 11246, Section 503, and VEVRAA. However, their current stance is to address this issue on a case by case basis in conjunction with the Office of the Solicitor. In other words, the strategy is to leave it up to the lawyers at the Department of Labor.

In addition to The Institute letter, a coalition of organizations penned a letter to Secretary of Labor Acosta, calling for the Directive to be rescinded, and to restrict any further rulemaking. DCI will be checking in on this issue as it develops.

By Rachel Monroe, M.S., Associate Consultant at DCI Consulting Group

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