Religious liberty in the workplace

Richard A. Sokerka

The Department of Labor is considering a new rule that would allow federal contractors who identify as religious to hire employees based on faith and religious practice.

The new policy would expand an executive order by President Lyndon Johnson protecting the rights of religious employers with federal government contracts to hire from within their religious group.

That executive order forbids federal contractors from engaging in discriminatory hiring on the basis of “race, color, religion, sex, or national origin.” An exemption for religi­ous­-based employers allowed them legally to hire only people of a certain faith if they so choose, but the executive order did not fully define as to what “religious-based” meant.

The proposed new rule takes steps to better define the term, saying that the “religious exemption covers not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”

The new definition also includes companies that claim to be religious “in response to inquiries from a member of the public or a government entity.”

Additionally, the new rule states that “employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government,” meaning that a federal contractor can make hiring decisions based upon how devoutly an employee practices a certain religious faith.

The Department of Labor cited recent Supreme Court cases, including Masterpiece Cakeshop v Colorado Civil Rights Commis­sion and Hobby Lobby v. Burwell as having underscored constitutional religious freedom protections.

Acting U.S. Secretary of Labor Patrick Pizzella said in a released statement that “As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve [a] clear understanding of their obligations and protections under the law.”

The proposal by the Department of Labor is based on sound religious liberty principles. Religious non-profits are allowed these exemptions to ensure that the employees they hire practice fidelity to the tenets of the organization’s religion.

The public has a month to comment on the proposal. Doing so in a positive manner will serve to extend religious liberty further in the workplace.