On Monday, the Trump administration finalized a sweeping new regulation that allows federal contractors to discriminate against racial and religious minorities, women, and especially LGBTQ people in the name of protecting “religious liberty.” It effectively abolishes critical workplace protections for these contractors that have been in place for decades, reframing religious freedom as a near-limitless license to discriminate. Monday’s move will force the Biden administration to waste countless hours and resources reversing this radical rewrite of federal law.
The rules restricting discrimination by federal contractors springs from Executive Order 11246, which President Lyndon Johnson signed in 1965. Johnson’s order barred discrimination on the basis of race, color, religion, or national origin. Presidents later added sex, sexual orientation, and gender identity to the list of protected traits. Today, there are about 4 million employees of federal contractors who benefit from these protections. The Department of Labor enforces presidential prohibitions against discrimination in these workplaces.
But the current Labor Secretary, Eugene Scalia, is no fan of these rules—or, it seems, of any workplace protections. Scalia, son of the late Justice Antonin Scalia, previously worked as a corporate attorney who specialized in crushing employees’ rights. He has spent his tenure at the Labor Department dismantling federal regulations that safeguard workers’ rights, health, and safety. Scalia’s deregulatory agenda has been especially catastrophic during the pandemic; under his guidance, the agency refused to protect workers from COVID-19, permitting fatal outbreaks through its own shocking negligence.
In the long run, Scalia may be best remembered for abandoning his duty to shield vulnerable employees from infection and death—the many people who died of COVID-19 after he declined to enforce basic workplace safety rules in the midst of a pandemic are gone forever. Scalia’s new discrimination rule, by contrast, will have a short shelf life: There is no doubt that the Biden administration will repeal it, though the process may take months, even years. It is worth assessing Scalia’s rule, both because it will likely take effect for now and because it reflects a disturbing vision of “religious freedom” that is ascendant in the federal judiciary.
The DOL’s new regulation has three major components, none of which is grounded in the law. First, it broadens the definition of a “religious” contractor to encompass for-profit corporations, expanding the number of employers with a right to discriminate. Second, it allows these contractors to discriminate on the basis of an employer’s subject interpretation of “religious tenets.” Third, the rule makes it much more difficult for the Department of Labor to prove that a contractor discriminated unlawfully. Taken together, Scalia’s alterations would essentially eliminate executive protections for millions of employees in the U.S.
Scalia framed his rule as a mere “interpretation” of current law, seizing upon a previous exemption added by President George W. Bush. The past modification allowed a subset of religious contractors to favor employees of a “particular religion.” Bush’s exemption was designed to let faith groups hire co-religionists; for instance, it would let a Jewish charity hire a Jewish director, even though turning away non-Jewish applicants would otherwise constitute illegal discrimination. The courts have interpreted this provision to cover non-profit organizations and institutions with a dedicated religious mission.
Under Scalia’s rule, this narrow exemption will become a black hole that sucks up all claims of discrimination. It manufactures a new test by plucking language out of different statutes and court decisions to encompass pretty much any contractor seeking to escape a lawsuit. This test merely asks if a contractor views and conveys itself as religious, with heavy deference for an employer’s own sense of its “religious purpose.” It covers for-profit corporations so long as they swear they are motivated by religion. Scalia has given these companies free rein to discriminate on the basis of religion.
The rule also expands the scope of permissible religious discrimination. Bush’s exemption merely covered an employer’s preference for employees of a particular religion. A Baptist college, for example, could hire Baptist professors. Scalia’s rule alters the definition of “religion” to include “acceptance of or adherence to religious tenets as understood by the employer.” So, a Baptist college could not just favor Baptist employees, but demand that its employees adhere to its interpretation of specific Baptist teachings. If an employee practiced her faith differently from her boss, she could be fired. This exemption includes not just religious exercise but every facet of life: An employee who takes birth control, gets a divorce, or obtains an abortion could be fired for violating her boss’s religious “tenets.” A gay employee could be fired for marrying his partner. A transgender employee could be fired for transitioning. Any personal decision that contradicts “religious tenets as understood by the employer” would serve as grounds for termination.
Scalia cements this rule by jacking up the Labor Department’s burden of proof when charging a contractor with discrimination. Previously, the agency used a “motivating factor” standard: An employee could prove illegal discrimination by demonstrating that a protected trait was one factor in their firing. Scalia’s new rule requires a “but-for” standard, which means an employee cannot prevail unless they prove that a protected trait was the factor in their firing. This revision carves out a massive loophole: A contractor could fire a white employee for marrying a Black person, then argue the termination was rooted in a “religious tenet” against interracial marriage. Racism, sexism, anti-LGBTQ animus—it can all be legalized under the guise of religious freedom. So long as a contractor’s discrimination is rooted in some religious principle, it won’t violate this perverse regulation.
This rule does not overturn the Supreme Court’s recent decision in Bostock v. Clayton County, which prohibited LGBTQ workplace discrimination under a different law—Title VII of the Civil Rights Act. But Jennifer C. Pizer, senior counsel at Lambda Legal, pointed out that Title VII only covers employers with 15 or more employees. Many small employers that are not covered by the law still comply with executive non-discrimination rules to procure or maintain federal contracts. Pizer also told me that executive orders Scalia undid had given companies “a powerful disincentive to discriminate” if they hoped to receive government contracts. “It is a free choice whether to pursue a federal contract or grant,” she said, and some companies will agree not to discriminate in order to remain eligible.