Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘federal contractor’

Proposed anti-LGBTQ Labor Department rule would let federal contractors discriminate

Thursday, August 15th, 2019

The Labor Department proposed a new rule Wednesday that would allow broad religious exemptions for businesses with federal contracts, which could undermine the rights of LGBTQ people and other marginalized groups. This could apply to hundreds of thousands of contractors and subcontractors.

It applies to a number of organizations, such as schools, societies, and corporations. The rule says, “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.”

“The problem isn’t so much that [contractors] will necessarily hold sincerely religious beliefs, but they will use this as an excuse for their homophobia and their transphobia,” said Victoria Rodriguez-Roldan, senior policy counsel for the National LGBTQ Task Force. “At the Task Force, we are concerned and many people of faith and faith-based communities that are progressive may see this as a problem.”

Several LGBTQ organizations and organizations focused on the separation of church and state attended meetings with Office of Federal Contract Compliance Programs (OFCCP) officials this summer in anticipation of the rule. The National LGBTQ Task Force, Americans United for Separation of Church and State, National Women’s Law Center, National Center for Transgender Equality, and the Human Rights Campaign held meetings with officials from May to July about the proposed rule.

Rodriguez-Roldan said that she met with the director of the OFCCP, Craig E. Been, and that he “kept insisting” that, under OFCCP regulations, gender identity and sexual orientation were still protected.

“I did say we are aware but we don’t want any exceptions to them based on religion,” she said.

An August 2018 directive mentioned several U.S. Supreme Court cases to justify its guidance to OFCCP officials, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Communication,Trinity Lutheran Church of Columbia, Inc. v. Comer, and Burwell v. Hobby Lobby Stores, Inc. and recent executive orders.

In the Masterpiece Cakeshop case, in which shop owner Jack Phillips refused to make a wedding cake for a gay couple, the court narrowly ruled in 2018 that the Colorado Civil Rights Communication did not employ religious neutrality when it found that the bakery discriminated against the couple. It reversed the CCRC’s decision. In the case involving Trinity Lutheran Church, the court held in 2017 that when a state program denied a grant to a religious school and provided grants to non-religious groups, it violated freedom of religion. The court ruled in Burwell v. Hobby Lobby Stores, Inc. that closely held for-profit corporations are legal persons under the Religious Freedom Restoration Act.

In 2017, President Donald Trump released an executive order on Promoting Free Speech and Religious Liberty that would “guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America.” In 2018, the president established a White House Faith and Opportunity Initiative. LGBTQ rights groups said they were concerned these orders would weaponize religious freedom rights to discriminate against LGBTQ people.

In 2014, President Barack Obama signed an executive order that amended two executive orders by addressing LGBTQ anti-discrimination protections for federal employees. Trump said he would not rescind it. However, a Justice Department brief argued against protections for queer workers.

In a statement following news of the rule, m the National Center for Transgender Equality said the regulation is “another attempt to allow contractors to circumvent a 2014 executive order prohibiting discrimination on the basis of sexual orientation or gender identity by any federal contractor. In 2017, President Trump weakened this rule by eliminating reporting standards for contractors.”

“This administration has clearly shown a propensity to use religious liberty to give a license to discriminate,” said Frank J. Bewkes, policy analyst for the LGBT Research and Communications Project at the Center for American Progress. (ThinkProgress is an editorially independent newsroom housed within the Center for American Progress Action Fund.)

In an interview before the proposed rule dropped, Bewkes said he does not see how the cases mentioned in the directive would justify this rule. Shannon Minter, legal director for the National Center for Lesbian Rights, told INTO last year that the directive was “contrary to established law” and said that, in the past, the department has made it clear religious contractors can prefer members of their religion but can’t discriminate because of their religion.

“By eliminating that important qualification, the new directive is confusing at best and at worst sends a dangerous and false message that such discrimination is now permitted,” he said.

Protections for workers or prospective workers for federal contractors and subcontractors are important for the protection of LGBTQ workers’ rights when there is only a patchwork of employment protections on the state level. Senate Republicans refuse to consider the Equality Act, which would clarify and expand LGBTQ protections on the national level in employment, housing, and other areas. According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing.

The Williams Institute at the UCLA School of Law, using Gallup data, estimates that 4.5% of American adults are LGBTQ. Among millennials, 8.2% identified as LGBTQ. Federal contractors are responsible for employing about one-fifth of the country’s workforce.

Bewkes said the rule could affect an even larger number of people.

“This is a huge number of people this is affecting who are LGBTQ workers. And once you consider religious exemptions, sometimes people use it for other things. What if you’re in an [interracial marriage] and your employer disagrees with that on religious grounds?” Bewkes said. “Is that something that is going to be a problem? We’ve seen in South Carolina with adoptions and religious exemptions that people are not necessarily turned away because of their sexual orientation and identity. They’re being turned away because their specific religion is not the religion of the agency.”

Bewkes added that this is really an expansion of exemptions that already apply to The Civil Rights Act of 1964.

“They are asking for an expansion of that … They’re asking for [an exemption] for anyone who is religiously affiliated in any way, and that opens up a whole Hobby Lobby issue and would be very concerning. The larger the exemption the more undermined any nondiscrimination protection becomes, because it’s enforceable against fewer people. It’s just simple numbers. What they’re asking for would be overly broad.”

This article was originally published at Think Progress on August 14, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

Can federal workers blatantly discriminate against LGBTQ people? Jeff Sessions isn’t sure.

Wednesday, October 18th, 2017

During Wednesday’s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justice’s new “religious freedom” guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.

“Could a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?” Durbin asked.

There was a long pause. “That’s something I never thought would arise, but I would have to give you a written answer to that, if you don’t mind.” Sessions responded.

Durbin countered, “I’d like to have that,” then launched right into another hypothetical. “Could a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”

“Likewise, but I would say to you — are you citing Title VII for this? Or the guidance? I’m not sure that’s covered by it, but I’ll look.”

It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of the original co-sponsors of the First Amendment Defense Act (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADA’s language.

 In response to that bill’s introduction, the ACLU and LGBTQ advocacy groups pushed back, saying that it would be used to prop up discrimination. The ACLU, in particular, outlined FADA’s “parade of horribles” in a 2015 blog post, including the following two:
  • [It would] permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
  • [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.

Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after they’d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.

After Sessions’ dodged Durbin’s hypotheticals, the senator asked the attorney general to comment about the fact that “people are discriminating in the name of their own personal religious liberty.”

Sessions responded:

Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck — and I think we have. Those issues were discussed as we wrestled with this policy.

It’s unclear with whom Sessions discussed those issues. The Department of Justice apparently held “listening sessions”, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom — an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of “religious freedom” — bragged that it had participated in them.

Given Sessions said in an interview last week that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, it’s not hard to imagine how he might respond to Durbin’s hypotheticals, if pressed.

This article was originally published at ThinkProgress on October 18, 2017. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org.

Your Rights Job Survival The Issues Features Resources About This Blog