As of April 8, 2015, new and modified federal contracts, subcontracts, and vendor agreements are subject to a new ban on sexual-orientation and gender-identity job discrimination. The federal government has not yet clarified how the new ban intersects with the right of religious contractors, under federal contracting rules, to consider religion when hiring and firing (the religious staffing exemption). The new rules apply specifically to federal contracting, and not to federal grants.

The new prohibitions stem from President Obama’s July 21, 2014, LGBT Executive Order for federal contracting, which preserved the existing exemption permitting religious organizations to consider religion in hiring but did not exempt religious organizations from the new nondiscrimination requirements. Many religious organizations had sought an organizational exemption to prevent illicit second-guessing of religious employment decisions by the government-the possible occasions when a religious employer would assert that a job candidate does not meet its religion-based qualifications but the candidate would claim that the rejection was simple illegal discrimination based on sexual orientation.

Despite various requests for clarification, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has not provided sufficient information or explanations. As of April 8, it did post new FAQs on “Religious Employers and Religious Exemption,” but these essentially only restate the different rules and principles involved.

The FAQs, for example, affirm the right of religious contractors and subcontractors to “prefer to employ only members of a particular religion” but are prohibited from discriminating based on sexual orientation and gender identity. Another FAQ says that OFCCP “will follow EEOC and courts’ interpretations of Title VII when determining which organizations can claim the exemption and how it applies,” and then lists a non-inclusive set of criteria that can be used to determine whether a particular organization will be considered to be a religious employer. An FAQ says that a religious employer need not be pre-cleared in order to utilize the religious hiring exemption. And an FAQ notes that “the First Amendment requires a ‘ministerial exemption’ from employment discrimination laws,” allowing a religious organization to freely “make employment decisions about its ‘ministers,’ a category that includes, but is not limited to, clergy.”

These are enhanced FAQs, providing some additional detail, but not sufficiently answering key questions. IRFA and others have requested answers to three precise questions–see below.

In the meantime, religious organizations involved with federal contracting, or considering such, can look to several resources not noted by OFCCP:

Carl Esbeck, “Differences: Real and Rhetorical,” RFP Cornerstone blog, July 22, 2014, discussing the intersection of the religious staffing right with the new nondiscrimination requirements and noting pertinent cases and legal principles.

Department of Justice, Office of Legal Counsel memo, “Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act,” June 29, 2007. The memo shows how RFRA applies in the case of a nondiscrimination requirement attached to a federal grant, but the same principles apply in the case of federal contracts and subcontracts.

U.S. Supreme Court case affirming the “ministerial exception,” Hosanna-Tabor v. EEOC (2012).

Questions seeking clarification:

1. 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 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 this protected religious staffing freedom. Will the OFCCP instead claim that the employer has violated the SOGI nondiscrimination requirements?

2. The federal government contracts for various religious services, including youth ministry workers to provide spiritual services on military bases. When it comes to ministerial employees, a religious contractor may decide who to hire to provide these religious services without regard to the SOGI nondiscrimination requirements-the ministerial exception. A religious contractor is otherwise subject to the new requirements unless exempt under sec. 204(c). For example, assume a religious denomination with a doctrine restricting sexual activity to man-woman marriage. How will a ministry worker recruitment agency of this denomination maintain the confidence of the denomination and be able to recruit ministers from the denomination when it must disregard the denominational doctrine about sexual relations when advertising for, hiring, and managing its own staff, even though it is free to use the denominational conviction about sexual relations when selecting and managing the ministerial workers?

3. Chaplains and other religious service workers under contract with the federal government require the use of specialized religious items to perform their duties: communion sets, printed scriptures, religious clothing, and more. To be acceptable, some or all of these may need to be manufactured in a religiously controlled way by a religious organization known to be committed to and to follow the requirements of the respective religion. These religious items are provided by specialized vendors. Those vendors are now subject to the SOGI nondiscrimination requirements, which may require the vendors to abandon employment standards and practices that are required by their respective religions if the vendors are to be theologically qualified to produce the needed religious items (most or all of their employees cannot be classified as “ministerial”). How will the federal government accommodate the need of these vendors to remain faithful to their theological standards, even if these conflict with the SOGI nondiscrimination requirements?