The federal government has yet to answer the key question posed by President Obama’s July, 2014, Executive Order banning LGBT job discrimination by federal contractors. The ban applies to religious organizations that get federal contracts, but those organizations remain free to consider religion when they make their hiring and firing decisions. When do their legal religion-based staffing decisions violate the new nondiscrimination requirements? The regulations stemming from the Executive Order come into effect for new and changed contracts on April 8, 2015, but they do not answer the question. Additional information from the Office of Federal Contract Compliance Programs (OFCCP) has yet to provide an answer.

The federal government can clear up the mystery for religious organizations who have been, or that are considering becoming, a federal contractor, subcontractor, or vendor, by answering this question:

Q. Many religious employers, pursuant to their freedom to consider religion when making staffing decisions, maintain both a statement of religious belief and a moral conduct code. The statement and the code show how the employer understands the religion with which the entity identifies and it sets out what the employer considers to be faithful adherence to that religion. The creed and code are means of assessing employees’ commitments and sincerity. The statement and the code may identify man-woman marriage as the employer’s understanding of what the religion prescribes and then identify the limitation of sexual relations to such marriages as an essential element of what the employer considers to be acceptable employee conduct. Such an employer, when assessing potential employees and current employees against a requirement of limiting sexual relations to man-woman marriage, regards itself to be exercising its freedom to consider religion when selecting and evaluating employees. If it declines to hire a person who is part of a cohabiting heterosexual couple, or does not hire an applicant who announces that she just got married to woman, the religious employer is exercising its protected religious staffing freedom. Will the OFCCP instead claim that the employer has violated the Sexual Orientation Gender Identity nondiscrimination requirements?