A proposed rule under President Trump’s Department of Labor would give certain federal contractors the right to discriminate against people based on religious views.
The proposal caused an uproar after the Labor Department announced it earlier this month, mainly because the implications of the rule would likely disproportionately affect LGBTQ employees. The rule would effectively devalue the policy that bans federal contractors from discriminating based on race, sex, religion, disability or national origin by exempting employers from prosecution if their discrimination is on religious grounds.
Religious organizations are already able to deny certain applicants jobs if they have different faiths, but this rule takes this religious exemption a step further and cross other ideological and identity lines. For example, under the Labor Department’s proposal, a Catholic company could fire an LGBTQ employee or an employee who is pregnant out of wedlock for not following Catholic doctrine.
Patricia Shiu, who oversaw the federal contracting office under President Obama, broke down the proposed rule for Vox. She said its wording is broad enough to create a loophole for employers to discriminate against anyone. Certain contractors could even go as far as to discriminate against women citing beliefs that dictate women should not work outside of the home.
In its proposal, the Labor Department denied that their rule could have such far-reaching consequences, saying employers would not be able to use religion to excuse discrimination against protected groups.
However, gender and sexuality are not explicitly cited as protected categories under the law. There have been recent debates regarding whether or not gender identity and sexuality can fit into the definition of “sex” under Title VII. This year, the Supreme Court agreed to hear three cases regarding discrimination against LGBTQ employees, and the Department of Justice has just filed a brief to the Court, asking them to rule against gender and sexuality as protected categories under Title VII.
Vox pointed out this proposal under Trump is a political move to bolster support from his fundamentalist, Evangelical Christian base.
The wording of the document also states the rule would “clarify that the religious exemption allows religious contractors not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.”
Therefore, even a Christian hospital who contracts with the government could fire an employee if they find out about them not adhering to religious rules outside of the workplace.
Other religious employers have already made similar moves. In July, a former guidance counselor at a Catholic high school in the Archdiocese of Indianapolis filed a lawsuit against the Archdiocese because the school fired her after finding out she was married to a woman.
Also, if this proposal were passed, it would not be the first time religious freedom trumped certain employee rights in the courts.
In 2014, the Burwell v. Hobby Lobby case made it to the Supreme Court, where the justices narrowly determined the arts and crafts chain did not have to follow the Affordable Care Act mandate of offering contraceptive care in its medical benefits to employees, based on the fact that Hobby Lobby is owned by a Christian family.
Rep. Bill Foster (D-IL) took to Twitter to call the proposal “dangerous.”
From the very beginning, @realDonaldTrump's administration has led a campaign of bigotry and intolerance. This rule would greenlight discrimination of #LGBTQ Americans in the workplace. This is dangerous.https://t.co/wtUOXzTUSJ
— Bill Foster (@RepBillFoster) August 15, 2019
However, when a reported asked this week about the risk of the proposal disproportionately affecting LGBTQ workers, Trump said he thinks LGBTQ people are some of his biggest supporters.
“I think I’ve done really very well with that community,” Trump said. “They like the job I’m doing.”
However, a 2017 poll found only 12% of LGBTQ individuals voted for Trump. When asked if they had been treated differently based on their identities in the wake of Trump’s election, 37% answered yes.