OFCCP Opines on Scope of Legal Protection for Religious Liberty in the Workplace

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The Office of Federal Contract Compliance Programs under the Trump Administration issued an opinion letter in response to a specific employer’s request for clarification on the scope of workplace legal protections for religious liberty. The letter, however, provides guidance to federal contractors generally on this issue – pending further action by the Biden Administration.

While government contractors must not discriminate against applicants and employees on the basis of religion, and must provide reasonable accommodations for religious needs absent an undue hardship, Executive Order 11246 provides an exemption for religious entities with respect to the employment of individuals of a certain religion, In addition, the OFCCP notes that the Religious Freedom Restoration Act may require an exemption or accommodation for a contractor under Executive Order 11246, and further that a judicially recognized “ministerial” exemption may apply for those working at a religious organization under certain circumstances.

The OFCCP also found unlawful discrimination in the following scenarios:

  • An employee/applicant suffers adverse employment action because the employer believes they have religious values that others may find offensive (g., attended a particular religious school, attends a sex-segregated synagogue, wears a hijab)
  • An employee/applicant suffers adverse employment action because they are a member of a religion that has taken public policy positions that others may find offensive (g., supporting/opposing the State of Israel, opposing late-term abortions)
  • An applicant/employee suffers an adverse employment action because, during non-work hours, they attended or otherwise supported a synagogue/church-sponsored cause or event that others may find offensive (g., an anti-war rally, the March for Life, or a rally opposing anti-Semitism)
  • An employee suffers an adverse employment action because, during a company-provided rest break in which coworkers were discussing current events or social issues, the employee stated – in a respectful manner – that they have religious views that others may find offensive (e.g., belief in traditional marriage or, conversely, support an expanded definition of the family) and they were not previously told that such comments were unwelcome
  • An applicant/employee suffers an adverse employment action because, either during an interview or before first reporting for work, the employee informs the employer about a religious requirement that necessitates an accommodation (e.g., the inability to work on the Sabbath or other religious holy days, the need to have a personal microwave for kosher food), without the employer demonstrating an undue hardship
  • An applicant/recently hired employee is let go because he or she requested an accommodation for religious observance, with no opportunity to discuss with the employer the reasons for the needed accommodation or possible solutions (g., needing to leave work early on Friday afternoons in the winter to be home before the Sabbath begins at sundown), without the employer demonstrating an undue hardship