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Federal Register/Vol. 85, No. 237/Wednesday 79324 Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Rules and Regulations DEPARTMENT OF LABOR participation in this rulemaking, and the Court unanimously upheld this agency has revised certain aspects of expansion of the religious exemption to Office of Federal Contract Compliance this regulation in response to all activities of religious organizations Programs commenters’ concerns. against an Establishment Clause As stated in the NPRM, on July 2, challenge. See Corp. of the Presiding 41 CFR Part 60–1 1964, President Lyndon B. Johnson Bishop of the Church of Jesus Christ of signed the landmark Civil Rights Act of RIN 1250–AA09 Latter-day Saints v. Amos, 483 U.S. 327, 1964. See Public Law 88–352, 78 Stat. 330 (1987).2 Implementing Legal Requirements 241. This legislation prohibited One year after President Johnson Regarding the Equal Opportunity discrimination on various grounds in signed the Civil Rights Act, he signed Clause’s Religious Exemption many of the most important aspects of E.O. 11246, requiring equal employment civic life. Its Title VII extended these opportunity in federal government AGENCY: Office of Federal Contract protections to employment opportunity, contracting. The order mandated that all Compliance Programs, Labor. prohibiting discrimination on the basis government contracts include a ACTION: Final rule. of race, color, religion, sex, or national provision stating that ‘‘[t]he contractor origin. In Title VII, Congress also will not discriminate against any SUMMARY: The U.S. Department of provided a critical accommodation for employee or applicant for employment Labor’s (DOL’s) Office of Federal religious employers. Congress permitted because of race, creed, color, or national Contract Compliance Programs (OFCCP) religious employers to take religion into origin.’’ Exec. Order No. 11246, § 202, publishes this final rule to clarify the account for employees performing 30 FR 12319, 12320 (Sept. 28, 1965). scope and application of the religious religious activities: ‘‘This title shall not Two years later, President Johnson exemption. These clarifications to the apply . to a religious corporation, expressly acknowledged Title VII of the religious exemption will help association, or society with respect to Civil Rights Act when expanding E.O. organizations with federal government the employment of individuals of a 11246 to prohibit, as does Title VII, contracts and subcontracts and federally particular religion to perform work discrimination on the bases of sex and assisted construction contracts and connected with the carrying on by such religion. See Exec. Order No. 11375, § 3, subcontracts better understand their corporation, association, or society of its 32 FR 14303–04 (Oct. 17, 1967). In 1978, obligations. religious activities . .’’ Public Law the responsibilities for enforcing E.O. DATES: Effective Date: These regulations 88–352, 702(a), 78 Stat. 241, 255 11246 were consolidated in DOL. See are effective January 8, 2021. (codified as amended at 42 U.S.C. Exec. Order No. 12086, 43 FR 46501 2000e–1(a)). Congress provided a FOR FURTHER INFORMATION CONTACT: (Oct. 5, 1978). In its implementing Tina similar exemption for religious Williams, Director, Division of Policy regulations, DOL imported Title VII’s educational institutions. See id. exemption for religious educational and Program Development, Office of § 703(e)(2), 78 Stat. at 256 (codified at Federal Contract Compliance Programs, institutions. See 43 FR 49240, 49243 42 U.S.C. 2000e–2(e)(2)). (Oct. 20, 1978) (now codified at 41 CFR 200 Constitution Avenue NW, Room Title VII’s protections for religious C–3325, Washington, DC 20210. 60–1.5(a)(6)); cf. 42 U.S.C. 2000e– organizations were expanded by 2(e)(2). In 2002, President George W. Telephone: (202) 693–0104 (voice) or Congress in 1972 into their current (202) 693–1337 (TTY). Bush amended E.O. 11246 by expressly form. Congress added a broad definition importing Title VII’s exemption for SUPPLEMENTARY INFORMATION: of ‘‘religion’’: ‘‘The term ‘religion’ religious organizations, which likewise includes all aspects of religious I. Executive Summary has since been implemented by DOL’s observance and practice, as well as regulations. See Exec. Order No. 13279, On August 15, 2019, OFCCP issued a belief, unless an employer demonstrates § 4, 67 FR 77143 (Dec. 16, 2002) (adding notice of proposed rulemaking (NPRM) that he is unable to reasonably E.O. 11246 § 202(c)); 68 FR 56392 (Sept. to clarify the scope and application of accommodate to an employee’s or 30, 2003) (codified at 41 CFR 60– Executive Order 11246’s (E.O. 11246) prospective employee’s religious religious exemption consistent with 1.5(a)(5)); cf. 42 U.S.C. 2000e–1(a). observance or practice without undue Because the exemption administered recent legal developments. 84 FR 41677. hardship on the conduct of the by OFCCP springs directly from the During the 30-day public comment employer’s business.’’ Equal Title VII exemption, it should be given period, OFCCP received 109,726 Employment Opportunity Act of 1972, a parallel interpretation, consistent with comments on the proposed rule.1 This Public Law 92–261, 2(7), 86 Stat. 103 the Supreme Court’s repeated counsel total included over 90,000 comments (codified at 42 U.S.C. 2000e(j)). that the decision to borrow statutory generated by organized comment- Congress also added educational text in a new statute is a ‘‘strong writing efforts. Comments came from institutions to the list of those eligible indication that the two statutes should individuals and from a wide variety of for section 702’s exemption. In addition, be interpreted pari passu.’’ Northcross v. organizations, including religious Congress broadened the scope of the Bd. of Educ. of Memphis City Sch., 412 organizations, universities, civil rights section 702 exemption to cover not just and advocacy organizations, contractor religious activities, but all activities of a U.S. 427, 428 (1973) (per curiam). associations, legal organizations, labor religious organization: ‘‘This title [VII] OFCCP thus generally interprets the organizations, and members of shall not apply . to a religious nondiscrimination provisions of E.O. Congress. Comments addressed all corporation, association, educational 11246 consistent with the principles of aspects of the NPRM. OFCCP institution, or society with respect to the Title VII. Because OFCCP regulates appreciates the public’s robust employment of individuals of a federal contractors rather than private particular religion to perform work employers generally, OFCCP must apply 1 Of the 109,726 comments, 35 comments were connected with the carrying on by such Title VII principles in a manner that inadvertently posted on Regulations.gov before corporation, association, educational redactions were made. The posted comments were 2 Justice White wrote the majority opinion for five withdrawn, redacted, and then reposted. When the institution, or society of its activities.’’ justices. Justices O’Connor, Blackmun, and Brennan comments were reposted, the number of comments Id. § 3, 86 Stat. at 104 (codified at 42 (with Justice Marshall joining) wrote opinions on Regulations.gov increased to 109,761. U.S.C. § 2000e–1(a)). The Supreme concurring in the judgment. VerDate Sep<11>2014 17:33 Dec 08, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09DER2.SGM 09DER2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Rules and Regulations 79325 best fit its unique field of regulation, for which she worked). Recent executive professionals association commented including when applying the religious orders have done the same. See Exec. that Congress has repeatedly declined to exemption. Order No. 13831, 83 FR 20 715 (May 8, extend the Title VII exemption to With that said, there has been some 2018); Exec. Order No. 13798, 82 FR 21 government-funded entities. A lesbian, variation among federal courts of 675 (May 9, 2017). Additional decisions gay, bisexual, and transgender (LGBT) appeals in interpreting the scope and from the Supreme Court, issued after the rights advocacy organization application of the Title VII religious NPRM, have likewise extended Title commented that, at the time Title VII exemption, and many of the relevant VII’s protections while affirming the was enacted, Congress could not have Title VII court opinions predate importance of religious freedom. See envisioned that religious organizations Supreme Court decisions and executive Bostock, 140 S. Ct. at 1754 (holding that would qualify for the Title VII orders that shed light on the proper Title VII’s prohibition on discrimination exemption would also seek to contract interpretation. The purpose of this final because of sex prohibits ‘‘fir[ing] an with the federal government, ‘‘let alone rule is to clarify the contours of the E.O. individual merely for being gay or be given a broad right to discriminate 11246 religious exemption and the transgender’’); Little Sisters of the Poor based on religion while accepting related obligations of federal contractors Saints Peter & Paul Home v. federal funding.’’ and subcontractors to ensure that Pennsylvania, 140 S. Ct. 2367, 2379–84 In a related vein, OFCCP also received OFCCP respects religious employers’ (2020) (holding the Departments of comments objecting generally to the free exercise rights, protects workers Labor, Health and Human Services, and provision of a religious exemption for from prohibited discrimination, and the Treasury had authority to federal contractors or specifically to defends the values of a pluralistic promulgate religious and conscience OFCCP’s proposal. Most of these society. See, e.g., Bostock v. Clayton exemptions from the Affordable Care commenters characterized the religious Cnty., 140 S. Ct. 1731, 1754 (2020) Act’s contraceptive mandate); Espinoza exemption as taxpayer- or government- (‘‘[T]he promise of the free exercise of v. Mont. Dep’t of Revenue, 140 S. Ct. funded discrimination that was contrary religion . lies at the heart of our 2246 (2020) (a state ‘‘cannot disqualify to the purpose of E.O.
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