Following on the heels of its final rule clarifying the religious exemption found at Section 204(3) of Executive Order (EO) 11246 and codified at 41 C.F.R. 60-1.5(a)(5) (the Exemption), OFCCP this week issued an Opinion Letter addressing the scope of the Exemption. Specifically, the Opinion Letter provides insights on

“six possible religious discrimination scenarios.”

As a reminder, federal contractors are prohibited from discriminating based on religion and national origin and must provide appropriate religious accommodations, absent undue hardship. 41 C.F.R. 60-50.2. However, these regulations are subject to limits:

1. The Exemption excludes any contractor or subcontractor that is a religious corporation, association, educational institution, or society regarding the employment of individuals of a particular religion;
2. The Religious Freedom Restoration Act may require an exemption or accommodation for a contractor under EO 11246; and,
3. The First Amendment ministerial exception bars employment discrimination suits on behalf of employees who work at religious institutions in positions deemed to be “ministerial”.

According to the Opinion Letter, an organization sought guidance from the Agency regarding the six scenarios due to its concern “that employees in the technology, education, public, and other sectors may face discrimination at work based on faith-related activities and beliefs.” The letter, cited, as an example the following fact pattern:

• An employee suffers an adverse employment action because, during a company-provided rest break in which coworkers were discussing current events or social issues, the employee stated that he or she has religious views that others may find offensive (g., he or she believes in traditional marriage or, conversely, supports an expanded definition of the family).

OFCCP responded with the following answer (scenario 4):

“Generally speaking, unless the employee has been told such comments are unwelcome, an employee’s respectful expression of religious views in off-duty conversation are not objectively hostile, nor do they constitute harassment. We assume that this is the case in this scenario, as it appears to be. If so, then the adverse employment action here, based as it is on the employee’s religious belief, would be a violation of 41 C.F.R. § 60-50.2.

OFCCP Director Craig Leen’s Opinion Letter also points out that OFCCP’s Federal Contract Compliance Manual provides additional guidance in the Religious Accommodation section (2J01).

While the Exemption seems clear, there are many complicated nuances, potential conflict with LGBTQ+ protections and perhaps grounds for legal challenge. As always, we will continue to monitor this area and provide any insights and updates as they develop.