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Religious Employers and Religious Exemption

 

The Office of Federal Contract Compliance Programs (OFCCP) offers compliance assistance in many forms. This includes providing answers to frequently asked questions (FAQs) that the agency identifies through interactions with stakeholders in a number of forums, such as compliance evaluations, through the agency's Help Desk, or during compliance assistance events. OFCCP updates its FAQs periodically.

1. What prompted OFCCP to issue new guidance on its religious exemption?

The purpose of Directive 2018‐03, "Executive Order 11246 § 204(c), religious exemption" is to ensure OFCCP guidance is consistent with federal law related to religious freedom and religious accommodation, including recent U.S. Supreme Court precedents and Executive Orders, which OFCCP is obligated to follow. The religious exemption, which is part of Executive Order 11246 and its implementing regulations, permits religious organizations to make employment decisions on the basis of religion. As indicated in the background section of Directive 2018‐03, and as further emphasized in Directive 2018‐04, "Focused reviews of contractor compliance with Executive Order 11246 (EO11246), as amended; Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended; and Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended," OFCCP remains committed to enforcing compliance with all of the protections in EO11246, Section 503, and VEVRAA.

2. Does the new guidance exempt religious organizations from all nondiscrimination requirements?

No. EO11246 and its implementing regulations permit religious organizations to make employment decisions on the basis of religion. They do not permit religious organizations to make employment decisions on bases otherwise protected by law, including race, color, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. As the Supreme Court has stated, the religious exemption, for instance, never permits employment discrimination on the basis of race, even if purportedly justified on religious grounds: "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."1

3. How does the new guidance interact with the ministerial exception?

The new guidance works hand‐in‐hand with the law’s well‐established ministerial exception. Their mutually supporting principles have been reiterated and emphasized in recent Supreme Court decisions. The ministerial exception is narrower in scope than the religious exemption in E.O. 11246, but it affords religious organizations broad protections where it applies. "The exception … ensures that the authority to select and control who will minister to the faithful–a matter strictly ecclesiastical–is the church’s alone."2 Whether an employee qualifies as a minister depends on the circumstances, but it "is not limited to the head of a religious congregation."3

4. How does the Religious Freedom Restoration Act (RFRA) apply to these regulations?

The Religious Freedom Restoration Act (RFRA) applies to all federal laws. If a contractor seeks an exemption to E.O. 11246 pursuant to RFRA, OFCCP will consider that request based on the facts of the particular case. OFCCP will do so in consultation with the Solicitor of Labor and the Department of Justice, as necessary. There is no formal process for invoking RFRA specifically as a basis for an exemption from E.O. 11246. Insofar as the application of any requirement under this part would violate RFRA, such application shall not be required.




1Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2783 (2014).

2Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 194–95 (2012).

3Id.