DOL Promises to Roll Back Protections for Religious Federal Contractors

By John T. Melcon

Last week, the U.S. Department of Labor (DOL) filed a notice in federal court announcing that it “intends to propose rescission” of a controversial 2020 rule broadening religious exemptions under Executive Order 11246 for certain federal contractors. The notice was filed in response to a lawsuit by several states—Colorado among them—challenging the rule as arbitrary and capricious. When originally promulgated, the DOL said the rule was intended to take into account recent Supreme Court decisions and clarify that religious organizations were not disfavored as federal contractors.

Relying on judicial decisions involving Title VII, the soon-to-be-rescinded rule purported to broaden the scope and meaning of EO 11246’s partial religious exemption. For example, the rule stated that some closely held for-profit contractors might fall within the exemption, such as a “substantially religious” kosher catering company that mainly provides meals to synagogues. Additionally, the rule provided that the religious exemption in EO 11246 “shall be construed in favor of a broad protection of religious exercise.”

Despite the controversy surrounding the 2020 rule—it received over 109,000 public comments when first revealed—its promulgation and imminent rescission are likely to have limited effect. Religious federal contractors are few and far between, and the DOL has said it knows of no litigation in which EO 11246’s religious exemption was ever invoked. If anything, the new administration’s predictable decision to rescind the rule hints at a general distaste for broad religious exemptions, a disposition that could manifest itself in the enforcement of other nondiscrimination laws, such as Title VII (which, like EO 11246, prohibits discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin).