John T. Melcon

On January 8, 2021, the Office of Federal Contract Compliance Programs, which enforces Executive Order 11246, published an opinion letter clarifying workplace religious liberty protections for employees whose religious views might be considered controversial or offensive.

Among other requirements, EO 11246 makes it unlawful for federal contractors and subcontractors to fail to provide reasonable religious accommodations absent a showing of undue hardship. Separate laws, such as Title VII, impose similar obligations on other employers.

According to the opinion letter, EO 11246 imposes on federal contractors a “duty to provide equal employment opportunities to individuals of different religious faiths or no religious faith.” The letter reminds contractors that they should “develop reasonable internal procedures,” and regularly evaluate such processes “to ensure that their obligation” under the executive order “is being fully implemented.” As “best practices,” the OFCCP recommends “implementing a centralized accommodation request system, collaborating with employee resource groups, and providing training for managers and employees.” Contractors presented with “a proposed religious accommodation that would impose an undue hardship” “should work with the applicant or employee to attempt to identify a reasonable accommodation that would not impose such a hardship.”

The OFCCP issued its opinion letter in response to an inquiry that posed six hypothetical scenarios, asking whether each would run afoul of EO 11246. In addressing these scenarios, the OFCCP explained that EO 11246 prohibits adverse action against a worker because the worker embraces religious values that others might find offensive, is a member of a religious group that takes an unpopular stance on matters of public policy, or supports a controversial church-sponsored cause or event. For example, the executive order protects an employee who, during non-working hours, attends “an anti-war rally, the March for Life, or a rally opposing anti-Semitism,” because of the employee’s religion. The OFCCP added that EO 11246 shields workers who, during employer-provided breaks, “respectfully” express religious views that could be considered offensive, e.g., support for “traditional marriage” (unless the workers have been informed such comments are unwelcome).

The OFCCP noted that EO 11246, like Title VII, provides an exemption for religious employers “with respect to the employment of individuals of a particular religion,” and added that the First Amendment and the Religious Freedom Restoration Act would likely limit the application of EO 11246 as to certain employment positions within religious institutions.