Workers’ Advocates Sue Over 11th-Hour Trump Admin Rule Giving Federal Contractors Expanded Ability to Discriminate

Portland, O.R. — On January 21, Oregon Tradeswomen, Inc., Pride at Work, and the American Federation of Teachers (AFT) challenged a Trump administration rule that dramatically expands the ability of federal contractors and subcontractors to cite religious objections to justify employment decisions that discriminate against women and members of the LGBTQ+ community, among others.

Trump’s Department of Labor (DOL) and Office of Federal Contract Compliance Programs (OFCCP) — the office charged with preventing discrimination by federal contractors — violated the Administrative Procedure Act with its ‘Religious Exemption Rule’ on December 9, 2020. The plaintiffs in this lawsuit are represented by Democracy Forward, the National Women’s Law Center (NWLC), and Albies & Stark, LLC.

The wide-ranging, harmful rule reinterprets and vastly expands the limited reach of the existing religious exemption, which had previously allowed religious organizations with federal contracts to give preference to co-religionist applicants when making hiring decisions. The Trump-era change now expressly allows federal contractors and subcontractors to make employment decisions that discriminate on the basis of sex, sexual orientation, and gender identity, by claiming, for example, to be doing so based on the contractor’s sincerely held religious tenets regarding marriage. The ‘Religious Exemption Rule’ went into effect on January 8, 2021.

A coalition of fifteen states, led by New York, also challenged the rule in the U.S. District Court for the Southern District of New York.

“As an organization whose values are rooted in ensuring equal opportunity and equity for all workers in the construction industry, Oregon Tradeswomen had no choice but to challenge this sweeping, harmful rule, which allows for discrimination and hate to be cloaked under ‘religion,’ but in fact, threatens the careers and livelihoods – in fact, the very economic security – of women and LGBTQ+ jobseekers and trades workers,” said Kelly Kupcak, Executive Director of Oregon Tradeswomen. “It is up to us to collectively fight for justice.”

“The Trump administration just had to take one last parting shot at LGBTQ working people in its final days,” said Pride at Work Executive Director Jerame Davis. “This rule illegally expands the religious exemption and gives employers who receive federal contract dollars a license to discriminate. As an organization born in the labor movement, it’s in our DNA to stand up and fight back. And that’s exactly what we’re doing with this lawsuit.”

“This rule is a disgusting poison pill that the Trump administration cynically issued as the clock on its term ticked down,” said AFT President Randi Weingarten. “It will permit institutions and employers to illegally discriminate against LGBTQ people, women, religious minorities, and nonreligious people, when we should be striving for inclusion and justice for all. Thankfully, we now have a new administration strongly committed to workplace rights — and we can’t allow the harmful agenda of the former president to linger.”

“This dangerous rule will be seen by many employers who receive taxpayer dollars as a green light to discriminate against working people in the name of religion—and that puts a bulls-eye on the back of LGBTQ people, women, religious minorities, and the nonreligious, all of whom are simply trying to do their jobs and earn a living,” said NWLC Vice President for Education and Workplace Justice Emily Martin. “The Trump administration twisted federal provisions that were meant to protect workers from religious discrimination to use as a weapon against others. It’s now a new day, and we are fighting to restore robust civil rights protections that all workers deserve.”

“On its way out the door, the Trump administration cemented its legacy as an enabler of discrimination with a rule that expressly authorizes federal contractors to discriminate on the basis of sex, sexual orientation, or gender identity by citing religious objections,” said Democracy Forward Senior Counsel Karianne Jones. “We’re proud to continue our fight in court against the Trump-era’s unlawful and harmful policies and to protect women and LGBTQ+ individuals’ most basic rights in the workplace.”

The Trump administration upended nearly 80 years of standing federal policy prohibiting employment discrimination by federal contractors and subcontractors. Its unlawful rule dramatically expands what was a limited religious exemption allowing religious schools and organizations to favor individuals of a particular religion in employment decisions. The new rule:

  • Adopts a highly deferential test for determining whether a federal contractor or subcontractor is a religious organization that can claim the exemption — including allowing for-profit companies to qualify and largely deferring to a contractor’s own claims that it is religious;
  • Adopts broad definitions of “religion” and “particular religion” to make clear that the exemption is no longer limited to “denominational preferences,” i.e., preferences for people who are of the same religion as the organization;
  • Allows religious organizations to make employment decisions that would otherwise involve unlawful discrimination on the basis of sex, sexual orientation, or gender identity, by citing religious objections;
  • Allows religious organizations to claim the religious exemption for all employment decisions (instead of only in the hiring process), regardless of whether those decisions further the organization’s religious purpose.

The unlawful new policy gives federal contractors claiming the religious exemption sanction to, for example:

  • Fire a woman for getting pregnant while she is unmarried;
  • Refuse to hire someone in a same-sex marriage;
  • Fire an employee for disclosing that she is transgender;
  • Refuse to provide health insurance to women because they are not believed to be heads of household.

Employment discrimination against women and LGBTQ+ individuals remains a ubiquitous problem. More than four in ten lesbian, gay, and bisexual individuals — and more than nine in ten transgender individuals — have experienced some form of employment discrimination because of their sexual orientation or gender identity. And four in ten working women report having faced workplace discrimination because of their gender. Women are also paid substantially less than their male peers. The Trump administration rule not only fails to prevent this type of discrimination: it sanctions it, allowing contractors to use taxpayer dollars to discriminate.

The lawsuit was filed on January 21 in the U.S. District Court for the District of Oregon. Read the complaint in full here.