On December 7, 2020, the Department of Labor's Office of Federal Contract and Compliance Program (OFCCP) released a finalized rule that allows federal contractors to cite "religious freedom" as their reasoning behind not hiring certain applicants. The rule expands the definition of religious organizations to now include for-profit organizations, which extends to federal contracting companies. Many have commented that this rule is a direct attempt to further dismantle anti-discrimination policies in the workplace.

The OFCCP has the responsibility of enforcing Executive Order 11246, which was signed by President Lyndon B. Johnson in 1965. Throughout the years, the order has been amended to include (rather than preclude) more categories that government contractors are prohibited from discriminating against when hiring. It directs all government contracting agencies to provide specific provisions within the contract of those employed by federal contractors. Those provisions ensure contractors agree to “not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.”

The order acknowledges that religious organizations may prefer to employ “individuals of a particular religion” so that they can maintain their religious identity and integrity.” This new policy expands what can be classified as a religious organization that has this right to claim religious freedom in their hiring decisions. Federal contractors now have an almost limitless claim to use "religious freedom" as a reason for not hiring an applicant.

The OFCCP argues that this rule will “clarify the contours of the 11246 religious exemption and the related obligations of federal contractors and subcontractors.” Now, as it is published, the rule will “correct any misperceptions that religious organizations are disfavored in government contracting” and give “appropriate protections for their autonomy to hire employees who will further their religious missions.”

The Department of Labor’s news release promotes this change in policy as a way to “encourage the full and equal participation of religious organizations as federal contractors.” The U.S. Secretary of Labor, Eugene Scalia, further commends this rule by stating, “Religious organizations should not have to fear that acceptance of a federal contract or subcontract will require them to abandon their religious character or identity.” Other than the protection of religious freedoms of hiring federal contract employers, the Department projects that this rule will “yield unquantifiable net cost savings overall” yet does not go into detail nor cite any examples as to how this will be accomplished.

These protections on discrimination in the workplace affect over four million workers in the United States who are employed by federal contractors. Chairman of the Education and Labor Committee, Robert C. “Bobby” Scott, issued a statement condemning the rule, stating, “By finalizing this rule, the Department abandons its duty to protect workers from discrimination—bizarrely stating that nondiscrimination provisions are not ‘compelling.’” Chairman Scott also urged Congress to pass the “Do No Harm Act” which was introduced in the U.S. House of Representatives in February of 2019. The Act will amend the Religious Freedom Restoration Act of 1993 “to protect civil rights and otherwise prevent meaningful harm to third parties, and for other purposes.”

U.S. Secretary of Labor Scalia was sworn into office in September 2019, shortly after the Department of Labor issued the preliminary notification of the proposed rule to the Federal Register. The proposed rule received 109,726 comments during the 30-day public commenting period. They noted that 90,000 of those comments were generated by “organized comment-writing efforts.”

Shortly after Scalia’s nomination, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), issued a statement condemning the President’s pick. The labor union states Scalia “has spent his entire career representing corporate interests and fighting against the interests of working people.” The AFL-CIO reminded readers that Scalia was blocked from his 2001 nomination under then-President George W. Bush to Solicitor of Labor position due to his views and previous work preventing worker health and safety regulations and his advocacy on behalf of large corporations at the expense of workers’ rights.

The rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” will take effect on January 8, 2021, just days before the Secretary of Labor will leave office along with the Trump administration.

President-elect Joe Biden’s transition team already includes over 15 labor union leaders. But as the team continues to develop priorities for the first 100 days in office, this is yet another obstacle that the exiting Trump administration continues to create for the incoming administration to deal with immediately after the January 2021 inauguration.