On August 16, 2019, OFCCP proposed a new rule clarifying civil rights protections for religious organizations that are federal contractors or subcontractors. This proposed rule would apply to the religious exemption that appears in the current affirmative action regulations under Executive Order 11246.  Executive Order 11246 requires federal contractors and subcontractors to prevent discrimination based on religion. However, there is an exemption that allows religious organizations with federal contracts or subcontracts to employ individuals who identify with a particular religion. Religious organizations with federal contracts or subcontracts are still required to prevent discrimination on the other bases included in Executive Order 11246.

OFCCP’s proposed rule would amend the current Executive Order 11246 regulations as follows:

• A new definition for “Religious corporation, association, education institution, or society” would be added to 41 CFR 60-1.3 that defines the types of persons and institutions where the religious exemption might apply;
• Definitions for the terms “exercise of religion,” “particular religion,” “religion,” and “sincere” would be added to 41 CFR 60-1.3;
• A statement that the federal affirmative action regulations “shall be construed in favor of a broad protection of religious exercise” would be added as 41 60 CFR 60-1.5.

The federal contractor community has been encouraged to provide formal comments on OFCCP’s proposed rule. Comments must be received by September 16, 2019 in order to be considered. The proposed rule and explanatory materials regarding the proposed changes can be found on our website or in the Federal Register.