Washington Wednesday: Proposed labor rules

MEGAN BASHAM, HOST: It’s Wednesday the 21st of August, 2019. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Megan Basham.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Washington Wednesday. 

Last week the Trump administration proposed a new rule that would broaden protections for religious organizations contracting with the federal government. 

Here now to break that down for us is Labor Department official Craig Leen. He’s the director of the office of federal contract compliance programs. 

Director Leen, thank you for coming on the program today.

LEEN: Hello! It’s good to be here with you today. 

REICHARD: Before we get to the new rule, I’d like to start with a bit of the history on this issue. What was the government policy up until 2014, and how did it change at that point? 

LEEN: Well, the concern that OFCCP saw—and it’s reflected in the notice of proposed rule making [NPRM]—is that on our public website and also just generally, the way that we interpreted the religious exemption that currently exists was more narrow than what Title VII would allow and what the existing case law would allow. 

Basically it said that a religious organization could favor in employment people based on their religion. But by religion it meant their nominal religion. So a Catholic organization would favor in employment Catholic individuals. A Jewish organization could favor in employment Jewish individuals. 

But what it didn’t address was that religion—based on existing case law in Title VII—also refers to belief and conduct. And that religion is more comprehensive and broader than simply the nominal religion of the employee. 

So, my goal as OFCCP director was to put together an NPRM for public comment, which was similar, by the way, to the directive I issued a year ago, that basically brings OFCCP practice and procedure to be consistent—makes it consistent with applicable law. That is our goal. 

And of course we are open to public comment on this and we welcome comments—positive or negative—because we would like to make sure that we get it right.

REICHARD: In the Labor Department’s press release, it cited three recent Supreme Court cases that we’ve covered here on this program: The 2014 Hobby Lobby case, Trinity Lutheran in 2017, and the Masterpiece Cakeshop case from last year. 

How did these legal precedents shape this proposed rule? 

LEEN: Well, those three legal precedents are mentioned directly in the NPRM and they’re also mentioned in the directive I issued last year on the religious employer exemption. 

And the reason why we cite them is because we believe it shows where the Supreme Court is going on this issue. And those cases basically establish that a religious organization cannot be restricted from being able to participate in procurement based on their religious character. They shouldn’t have to sacrifice it to be a federal contractor. 

Likewise, I mean, those cases were in different areas, but they all stood for that principle that you couldn’t condition a public benefit or a public right or a public ability to be a contractor—which is the context we’re talking about here—based on giving up part of their religious character. 

And there was also a couple executive orders issued by the president. And in addition to that, a memorandum from the attorney general. All of which indicated that procurement could not be conditioned on a religious organization sacrificing part of its religious character. 

So, putting that all together, I issued a directive last year which instructed OFCCP staff to act consistently with those Supreme court precedents and those principles. And then this year we have proposed this notice of proposed rule-making to encode that in the OFCCP regulations. And that’s what we’re seeking comment on now. 

REICHARD: Now, the mainstream media is reporting this as the administration giving contractors a license to discriminate against LGBT people. How do you respond to that? 

LEEN: That is not the intent of this regulation at all. In fact, if you read the NPRM it says expressly that this does not allow discrimination on any of the other protected bases in the executive order. It’s a religious exemption. Which means that a religious organization can make decisions that favor people in employment based on religion. 

Because, remember, there’s 10 protections that are in the executive order. And those 10 protections—all are enforced by OFCCP. That includes in the areas of gender identity and sexual orientation. Those are expressed in the executive order. 

The one protection that this exemption applies to is religion.

But it does not allow discrimination on any of the other grounds that OFCCP protects. That includes sexual orientation and gender identity. I want to be very clear about that. 

REICHARD: What was the impetus for the rule in the first place?

LEEN: Well, one concern that OFCCP saw based on communications with stakeholders, generally. And we talk to our stakeholders all the time and part of that group of stakeholders is religious employers. 

And one concern that we heard was that the current approach of OFCCP related to the religious exemption was confusing to them. They didn’t understand the scope of the exemption and they wanted OFCCP to provide clarity in a regulatory way that would essentially be clear as to where the exemption applies and where it doesn’t. 

That’s why when you look at the NPRM it has definitions in there. It has a rule of construction which basically says that the proposed rule would be construed as broadly as possible under the Constitution and the Religious Freedom Restoration Act. That lets religious contractors know that OFCCP would protect their religious liberty and freedom and that they would not be required to sacrifice a portion of their religious character to be a federal contractor. 

My understanding is that there are not a lot of federal contractors that are religious organizations. And this may lead to more religious organizations being federal contractors. That’s a good thing. It’s patriotic to be a federal contractor. It’s good for the country to have more companies competing for federal contracts. 

So this is something that is important. We want all parts of American life and American society—all aspects of it—to feel that they can contribute to the American economy and the American dream and that there are not barriers that are unlawful to their participation. 

REICHARD: OK, and finally, for those unfamiliar with the federal rule-making process: What happens next? 

LEEN: We have a 30-day comment period for this proposed rule. That comment period is currently running and we’ve received many comments already. If they would like to comment, we welcome those comments and we will take them into account. Please go to regulations.gov and you’ll be able to see there how to make a comment.

REICHARD: Craig Leen is director of the office of federal contract compliance programs at the U.S. Department of Labor. Craig, thank you for your time today. 

LEEN: My pleasure. 

REICHARD: For a little more perspective, I called up Luke Goodrich. He’s vice president and senior counsel at the religious liberty law firm Becket, and he’s on the line now. 

Luke, good morning! 

GOODRICH: Good morning, thanks for having me!

REICHARD: Well, you’re welcome. We just heard Craig Leen with the Labor Department. Give me your take on this new rule.

GOODRICH: These new rules are great—mainly because for the types of problems that the government is trying to address through contracts, we need all hands on deck when it comes to caring for the poor, caring for the sick, educating. We need the best possible organizations doing the most needed work—and often those are religious organizations.

REICHARD: Does this underscore the importance of recent Supreme Court decisions? I’m thinking Trinity Lutheran, Masterpiece Cakeshop, Hobby Lobby.

GOODRICH: Yes. It shows that powerful precedent in the U.S. Supreme Court can have a knock on effects far down the line—including in federal regulations. 

And when Becket took the Hobby Lobby case to the U.S. Supreme Court, there was a big question: can you be a business owner and still run your business in accordance with your religious beliefs? And the Supreme Court ruled in our favor on that. 

And now the federal government is following suit and saying when you become a federal contractor, you don’t have to check your religious beliefs at the door. 

REICHARD: What do you think is the overall message here?  What’s going on in the culture that we’re even having these questions?  

GOODRICH: The big question at stake is what does it mean to discriminate. And there’s a cultural current right now trying to label just about everything discrimination. But when you look at federal law, for a long time federal law has protected the rights of religious groups to work with people that agree with their core religious beliefs. 

And it’s not just some sort of exception to federal law. The basic idea is that it is simply not discriminating. When a Christian organization says we want to work with fellow Christians, that’s not discrimination. That’s common sense. Just like when a Democratic politician wants to hire people who are Democrats to be on his staff. That’s not discrimination. That’s just what you need to do to carry out your mission. And the same is true for religious groups.

REICHARD: Luke Goodrich is senior counsel for the religious liberty law firm Becket. Luke, thank you for your time today.

GOODRICH: My pleasure. Thanks for having me.

(Photo/Andrew Harrer, Bloomberg)

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