On November 9, 2021, the Workplace of Federal Contract Compliance Packages (OFCCP) printed a proposed rule rescinding its December 2020 Closing Rule broadening the non secular exemption from Executive Order 11246’s nondiscrimination necessities for federal contractors, which went into impact on January 8, 2021. The rescission of the Trump-era non secular exemption regulation was not surprising, as OFCCP previously announced its intention to rescind the rule in February 2021. The proposed rule will reinstate the pre-2020 language of OFCCP’s non secular exemption regulation.
The present OFCCP non secular exemption laws, enacted in the waning days of the Trump administration, widen the availability of the non secular exemption to federal contractors, particularly those that function on a for-profit foundation, and likewise broadly construe the safety supplied to spiritual contractors. The present laws additionally embrace a rule of building requiring OFCCP to implement contractor non-discrimination obligations in a way that gives the broadest safety of non secular exercise. In the new proposed rule, OFCCP proposes eliminating the Trump-era laws of their entirety and as a substitute aligning OFCCP’s non secular exemption with the current physique of case legislation construing Title VII’s non secular exemption.
The return to OFCCP’s pre-Trump non secular exemption based mostly on Title VII precedents will definitely cut back the availability of the non secular exemption to federal contractors as a protection in opposition to discrimination claims asserted by OFCCP. That stated, the sensible influence of the change will seemingly be minimal, as federal contractor employers who might need been protected by the broader non secular exemption would nonetheless be topic to the Title VII commonplace in any associated personal litigation introduced by the staff alleged to have been discriminated in opposition to. The DOL will settle for public feedback on the proposed rule for 30 days, till December 9, 2021.