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BJC issues public comment opposing proposed hiring discrimination rule

by | Sep 20, 2019

A proposed Labor Department rule that would allow federal contractors to discriminate in hiring for government-funded positions “is a harmful and unnecessary expansion of the existing religious exemption,” according to BJC General Counsel Holly Hollman and Associate General Counsel Jennifer Hawks in a public comment submitted in opposition earlier this week.

As I posted when the rule change was announced last month, the proposal enlarges the religious exemption from federal nondiscrimination laws that otherwise bind contractors by expanding the definition of “religious corporations” that are eligible for the exemption. As the public comment from BJC attorneys explains, the new rule opens the door to religious discrimination by for-profit contractors using taxpayer funds. An employer contracting with the federal government under this proposal could refuse to hire employees of a certain faith for a federally-funded position if such a hiring would conflict with their religious beliefs.

It also threatens to allow other forms of discrimination in the context of government-funded jobs. Here is an excerpt from the public comment issued by BJC:

While religious exemptions, such as exemptions from prohibitions on religious discrimination, have long played a part in our country’s protections for religious liberty, they are not justified in the context of government-funded jobs to provide government-funded services that must be provided without regard to religion.

The Labor Department makes the unconvincing claim that the rule is necessary to comply with recent Supreme Court opinions. The Labor Department also asserts that the rule extends religious freedom protections. But, allowing religious discrimination with government funding does more harm than good to the cause of religious liberty. Taxpayers should not be forced to subsidize religious hiring decisions.

BJC also joined a letter as part of the Coalition Against Religious Discrimination opposing the proposed rule.  “Government-funded employers,” the letter says, “should not be allowed to impose a religious test on their applicants or employees.” Among the thousands of comments filed, the American Bar Association comments are also noteworthy.

For more information, See my previous post on this proposed rule change.