What’s Really Going On Here?
The political/policy issue is that the Biden White House has determined to protect gay, lesbian and transgender rights over both social and religious objections to sexual orientation and gender identity protections. But, it must walk through the social and political minefield very carefully since Democrats as a whole are not on-board with the White House’s position and the President is leading/dragging them with it as we will see below.
Note: The clash of the right to establish and exercise religious beliefs with the rights of gay, lesbian and transgender applicants and employees almost never occurs in OFCCP-land. (In fact, OFCCP has not reported even one such case in any administration.)
Moreover, both the Trump Rule and the Biden rescission and the new OFCCP interpretation of Title VII (OFCCP did both last week) were/are needless because there is no exercise of agency discretion being applied in either Rule. Title VII and Executive Order case law decisions will interpret Title VII law to apply in OFCCP audits and Complaint investigations. Nothing OFCCP said in 2020 in the Trump Final Rule or what OFCCP says now in its 2023 Final Rescission Rule did or can change Title VII law. It is what it is.
So, why did the Trump OFCCP feel the need to issue a needless Final Rule (AFTER President Trump had lost the Presidential Election to Joe Biden), and why did the Biden OFCCP feel the need to now withdraw a needless add-nothing Trump OFCCP Rule?
First, neither the Trump nor the Biden OFCCP Rule originated organically from within OFCCP. (As I say, it has been a non-issue within OFCCP. This is not an issue spawning hundreds of Complaints or hundreds of audit skirmishes every year in need of regulatory guidance). Rather, both the Trump and the Biden White Houses shoved these Rules down OFCCP’s throat—in 2020 and in 2023—and dragged OFCCP into the political and social controversy concerning SO and GI rights.
The Trump White House drafted and caused OFCCP to issue its Final Rule in December 2020 following the 2020 elections to reward the large voting mass of the “religious right.” As I point out below, President Trump felt the religious right churches helped power him to victory in the 2016 election and helped him greatly (even if he now feels not enough) in the November 2020 election. So, the Trump OFCCP Rule was a parting gift to “tie the hands” of the incoming Biden Administration on an issue, as I explain below, that is of key concern to 6 major church groups and that is being discussed with their over 130 Million adult American church members.
Apart from the Biden White House’s innate DNA–which drives it to want to undo everything Trump–two other drivers pushed it to begrudgingly, finally—after the dangerous 2020 elections–to push OFCCP’s long-awaited Rule to Final form.
First, the Trump Rule left an anomaly (a “wrinkle”) obstructing the President’s campaign pledge to work across all fronts of the U.S. government to put gay, lesbian and transgender individuals on an equal footing with other citizens of the U.S., and in the workplace.
Second, time was running out with the EEOC still hobbled by lack of a Democrat majority to pass Title VII policy statements (although a frustrated EEOC Chair periodically engages in a sleight-of-hand to slip new policy out of the EEOC in the guise of “technical assistance” or a “restatement” of existing policy).
So, why is “time running out”? With the enormity of the political setbacks of the 2022 mid-term elections settling into their consciousnesses, senior White House managers three months ago made two quiet decisions:
- that they had to push all social policy initiatives through the federal agencies (since there was no legislative option available any longer), and
- to push the controversial policy initiatives to Final form not only in calendar 2023, but also the earlier the better. (This is why you saw in the (delayed) Fall Semi-Annual Regulatory Agenda (published January 4. 2023) that federal agencies across the Executive Branch for the first time in anyone’s memory suddenly moved FORWARD IN TIME some of their projected publication dates for new Rules).
The “hurry and go” signaling from the Biden White House was designed to avoid impacting next year’s November Presidential and local elections, or at least seeking to minimize the impact. Politicians always hope that the electorate will forget yesterday. (President Trump was a master at “changing the channel” so often and so fast you forgot yesterday before yesterday was even over). Rather, modern politicians hope voters will believe today’s message of hope, safety and prosperity coming at the politician’s hands in the near future.
The first question then is why did it take OFCCP over two years to revoke the Trump OFCCP Rules exalting religious beliefs over gay, lesbian and transgender protections? On his inauguration day, January 20, 2021, President Biden announced his intent to withdraw the Trump OFCCP Rule on Religious exemption from Executive Order 11246. OFCCP could have published in March of 2021 the Rule it published in Final last week but did not…and kept pushing the date of publication back for the last 18 months. Two SO and GI advocacy groups also filed lawsuits against OFCCP, Jenny Yang and USDOL on the first day of the Biden Administration seeking to enjoin (stop) the Trump OFCCP Religious Exemption Final Rule. So, the Trump Final Rule had a lot of interest from the very start of this administration.
So, what was stopping the White House and OFCCP? Let’s reflect on three major facts: