2019 September 16
originally posted on facebook

Something you can do right now: Public comments are being solicited on a proposed federal rule that would remove many existing restrictions on government contractors from discriminating on the basis of religion/gender/orientation/etc. The public comment period ends today!

You can learn more about the proposed rule from the Opening Arguments podcast (skip to 37:50, the segment is about 18 minutes long)

Opening Arguments

The proposal itself and the form to submit a comment on it can be found here:

https://www.federalregister.gov/documents/2019/08/15/2019-17472/implementing-legal-requirements-regarding-the-equal-opportunity-clauses-religious-exemption

Here is my own comment, which you are welcome to crib from, and hopefully serves the dual purpose of explaining (within my limited understanding) what the proposed rule is and its effects:

The proposed rule purports to “clarify” the interpretation of the EO by adding definitions and a rule of construction. However, these additions do not clarify but greatly alter the meaning of the EO by grossly expanding the religious exemption to apply to almost any discrimination performed by almost any organization that self-avows some connection to some religion.

The definitions added to 60-1.3 are inconsistent with the plain meaning of the terms they claim to define, and therefore clearly alter the intentions of the existing EO. Most notably “Religious corporation, association, educational institution, or society” is defined in such an expansive way that any organization that self-avows a connection to religion would qualify, and the text of the executive summary suggests that the government would be impotent to challenge any such self-avowal. The removal of the common expectation that such an organization is non-profit (or has only nominal financial transactions) weakens the regulation further.

No attempt is made in the executive summary to justify the addition of 60-1.5(e), perhaps because no justification is possible. The executive summary explains that the EO’s religious exemption has long been interpreted to only apply to discrimination in favor of coreligionists. This is a simple and understandable interpretation that required no clarification. 60-1.5(e) instead specifies that the exemption is “broad” to the “maximum extent permitted by the… law”. This is a plain alteration of the existing EO that, unlike the established interpretation, would be impossible for organizations to know the bounds of and anticipate if their actions are permissible. This runs contrary to the stated objective of the alterations to simplify the interpretation.

The effect of these alterations to the EO are to permit government contractors to broadly discriminate and to render the government incapable of regulating this discrimination.

I propose, as an alternative to the OFCCP’s proposal, to remove the religious exemption. This is a smaller alteration than the OFCCP’s proposal, better accomplishes the stated goals of bringing clarity to the EO, and has the effect of empowering the government to more strongly regulate government contractors which discriminate. Government contractors act as an extension of the federal government itself and should be subject to the same standards.

While no single government contract by itself constitutes the government establishment of religion, the overwhelming tendency of religious government contractors to be Christian (to the near exclusion of other religions), together with permitting these organizations to use government funds to preferentially hire coreligionists, amounts to the overall effect of a government establishment of religion in violation of the first amendment. The DoL should publish data on the religion of religious contractors, and their use of government funds to hire coreligionists. My proposal would end this violation of the first amendment.

I oppose the OFCCP’s proposal.

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