Department of Labor Guidance Will Hand Government Contractors a License to Discriminate

By Shane Stahl • August 17, 2018 • 10:07 am

The Department of Labor (DOL) has issued new guidance that could make it easier for government contractors to discriminate against LGBTQ Americans. The guidance represents a step backwards from regulations put into place during the Obama administration that aimed to ensure government contractors didn’t discriminate against LGBTQ people.

That 2014 Obama-era executive order  barred federal contractors — including faith based entities — from discriminating against workers on the basis of their sexual orientation or gender identity. The new DOL directive removed those rules, stating in part: “[the directive] supersedes any previous guidance…regarding religious employers and religious exemption.” Shortly after issuance, rules preventing faith-based companies from making religious exemptions disappeared from the department’s website.

Acting Director Craig E. Leen of the Office of Federal Contract Compliance Programs, the directive’s author, cited the recent Masterpiece Cakeshop Supreme Court decision, concerning a bakery that refused service to a same-sex couple, as basis for the new policy,. However, the Masterpiece decision was based on narrow procedural grounds that the state of Colorado’s Civil Rights Commission improperly had shown bias in their initial rulings against the bakery. Notably, the Supreme Court, including the majority opinion written by outgoing Justice Anthony Kennedy, stated that discrimination based on sexual orientation or gender identity cannot be excused based on a business owner’s religious beliefs.

This decision by the Trump administration is only the latest in a series of actions seemingly intended to undermine LGBTQ rights. In February of 2016, Secretary of Education Betsy DeVos rescinded guidance issued during the Obama administration to schools on how best to accommodate transgender youth; later, the department went even further, saying they would not review cases brought by transgender students regarding public accommodations discrimination, stating that they do not interpret Title IX protections as prohibiting discrimination based on sexual orientation or gender identity.

In January of this year, the Department of Health and Human Services announced the creation of a new Division of Conscience and Religious Freedom, intended to protect healthcare workers from performing procedures or treating certain individuals by claiming a violation of religious freedom.

In July, Attorney General Jeff Sessions announced the creation of a Religious Liberty Task Force, charged with overseeing the “License to Discriminate” guidance that his Department of Justice (DOJ) issued last October.

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