Last Monday, the President signed an historic executive order that does two things: It protects most federal employees – who are already protected from discrimination on the basis of sexual orientation – from discrimination based on gender identity, as well. And it prohibits most federal contractors from discriminating on the basis of sexual orientation or gender identity.
In the weeks preceding the President's signing, many groups and individuals urged him to include in the contracting order an exemption that would have allowed certain federal contractors to invoke religious tenets as a justification for discrimination against gay, lesbian, bisexual and transgender employees. The President did not do so.
In the wake of the President's order, the Cornerstone blog, run by Georgetown's Berkley Center for Religion, Peace & World Affairs, convened a blog debate on the legal questions raised by the order (and the absence of a new religious exemption).
Here's my contribution, which was published earlier today:
Since 1998, it has been the policy of the U.S.
government to prohibit discrimination in civilian federal employment on the basis of sexual orientation, just as it prohibits discrimination on the basis of race,
color, religion, sex, national origin, handicap and age for such federal
jobs. Sometimes, of course, the
federal government does not perform federal functions itself, but instead
contracts out that work. It therefore
makes perfect sense that, in making its highly selective contracting decisions,
the federal government would not want to choose bidders that discriminate among
their employees in a way that the federal government itself could not do.
Accordingly, in 1965 President
Johnson signed Executive Order 11246, which Presidents have regularly amended
since then to prohibit most federal
contractors from discriminating in employment decisions on certain grounds that are off-limits to the federal government itself: race,
color, religion, sex, national origin—and now, pursuant to President Obama’s amendment
of the Order last week, sexual orientation and gender identity, as well.
As President
Obama’s order explains, the purposes of E.O. 11246 are twofold: not only (i) “to provide for a uniform policy for the Federal Government to
prohibit discrimination,” but also (ii) “to promote economy and efficiency in
Federal Government procurement.”
After all, work on a federal contract is liable to be less effective if
the contractor arbitrarily excludes from its work force an entire category of
qualified and talented employees simply on the basis of a characteristic that
has nothing whatsoever to do with their ability to do the work. As the President said in his
announcement, “equality in the workplace is
not only the right thing to do, it turns out to be good business. . .
. It’s also about attracting and
retaining the best talent.”
It was therefore somewhat disconcerting
that many groups and individuals urged the President to include in the Order an
unprecedented exemption that would have allowed certain federal contractors to
discriminate against gay, lesbian, bisexual and transgender individuals. Think about what that would mean in
practice. Say, for instance, that
a federal agency is considering bids for a highly coveted, competitive contract
for highway construction or provision of social services, and one of the
bidders has a policy of excluding gays and lesbians from its workforce, or of
denying spousal benefits for some of its employees based upon their sexual
orientation. It would be quite
alarming and counterproductive—most would say unfair, and even offensive—for the
agency to award the contract to that bidder, knowing that qualified individuals
would thereby be precluded from working on the federal project because of their
sexual orientation.
And so it makes all the sense in
the world that the President formally precluded such a result once and for all,
and rejected the calls for a religious exemption.
Professor Carl Esbeck argues
on Conerstone that, even after the new order goes into effect, certain
contractors will be legally entitled to engage in such discrimination. Not surprisingly, however, the law does
not afford anyone the right to use federal contracting dollars to discriminate
in such a way. Nor is it a close
question.
For starters, Title VII of the
1964 Civil Rights Act might already prohibit such discrimination by employers
with 15 or more employees, whether they receive federal contracts or not. The Equal Employment Opportunity
Commission has recently
concluded that discrimination against lesbian, gay, bisexual and
transgender individuals is discrimination on the basis of sex, which Title VII
prohibits. And just a few months
ago, one federal judge concurred
(see pp. 20-21). It remains to be
seen whether appellate courts will affirm the EEOC’s sex discrimination argument;
but if they do, then such discrimination will be off-limits to most employers,
regardless of the E.O., and regardless of whether Congress enacts the
Employment Non-Discrimination Act.
Even if Title VII doesn’t more
broadly prohibit such discrimination, however, President Obama’s order ensures
that LGBT discrimination is now off limits for federal contractors. In support of his argument that some
contractors can nevertheless engage in such discrimination, Professor Esbeck
principally relies upon a Title VII exemption that already appears in E.O.
11246. Section 702(a) of the Civil
Rights Act provides that Title VII “shall not apply to a religious corporation, association, educational institution, or
society with respect to the employment of individuals of a particular religion.”
Section 204(c) of E.O. 11246
(which was not affected by President Obama’s recent amendment) incorporates that
same “coreligionist” exemption for government contractors.
The purpose of
this exemption is to afford certain religious entities limited relief from the
basic rule that employers cannot discriminate among employees on the basis of religion. It does not
give them the freedom to discriminate against
any particular religion (a “We will not hire Muslims” policy, for example,
remains off limits), but it does allow them to prefer coreligionists, i.e.,
“individuals of a particular religion.”
A Catholic church, for example, may prefer Catholics for employment
positions. The Section 702
exemption thereby reflects what Justice Brennan called
a “solicitude” for “a means by
which a religious community defines itself” in cases where the organization determines that its activities “are in furtherance of an
organization’s religious mission, and that only those committed to that mission
should conduct them.” (For purposes of this post I’ll assume that the
exemption is constitutional as applied to employment under federal contracts, although
it raises
serious constitutional questions as applied in at least some contractual
contexts.)
In order even to
qualify as a “religious corporation, association, educational institution, or
society” eligible for this exemption, an entity must be “primarily religious,”
which requires at
a minimum that the entity be (i) a nonprofit organization that (ii) is organized
for a religious purpose, (iii) is engaged primarily in carrying out that
religious purpose, (iv) holds itself out to the public as an entity for
carrying out that religious purpose, and (v) does not engage primarily or substantially
in the exchange of goods or services for money beyond nominal amounts. Perhaps some federal grant recipients might satisfy these criteria, but it is
unlikely many potential contractors would do so.
More importantly,
even if some bidders for federal contracts could satisfy that demanding threshold
test, the exemption would not
authorize them to discriminate against LGBT employees.
As Professor Esbeck notes, some
courts have held that the exemption allows a qualifying religious entity not
only to favor employees who belong to a particular church or denomination, but
also to insist that employees adhere to particular religious tenets. It remains to be seen whether any potential
contractors would have the audacity to argue that an employee is not “of” the
employer’s “particular religion” just because that employee is gay, or is transgender,
or has slept with or married someone of the same sex. There is no case law addressing that statutory
question. But that unresolved
question hardly matters, because even if we assume that discrimination against
that employee would otherwise
constitute a preference for employees “of a particular religion,” Rose
Saxe is correct that the coreligionist exemption would not offer any
support to the employer in such a case:
The case law firmly establishes that employers cannot invoke that
exemption to engage in a form of discrimination that is otherwise proscribed by Title VII or E.O. 11246 (i.e., apart from the
ban on religious discrimination).
For
example, if the entity’s religion teaches that women shouldn’t work outside the
home (or that men should receive higher wages) because men are the proper heads
of households, that
would not entitle the employer to
discriminate against female employees. If the entity’s religion prohibits adherents from suing
their employers for discrimination, that
would not be a valid reason for retaliating against an employee who files such
a suit. And even if an
employer’s religion prohibits interracial marriage, the employer would not have
any right to fire a black employee for marrying a white spouse. (This doctrine--including the case law and legislative history--is described in greater
detail at pages 30-32 of this 2000 opinion of
the Office of Legal Counsel. I
am not aware of any post-2000 cases—and Professor Esbeck does not cite any—that
have called into question this well-established understanding of Title VII.)
Likewise,
now that Executive Order 11246 (and perhaps Title VII itself) prohibits
contractors from discriminating on the basis of sexual orientation and gender
identity, the coreligionist exemption will not justify discrimination against LGBT
employees, even as applied to a qualifying organization that opposes homosexuality
on religious grounds.
Professor
Esbeck also suggests that some employers could be entitled to an exemption from
the new prohibition pursuant to the Religious Freedom Restoration Act, which applies
to all federal law. The RFRA
argument, however, is even weaker than the coreligionist exemption argument.
For one thing, a person seeking a RFRA exemption must demonstrate that the law imposes a substantial burden on her exercise of religion. Placing a condition on receipt of an important government benefit—such as subsistence-level unemployment compensation—can in some cases impose “substantial pressure” on an individual to violate his religious beliefs, and where it does so the condition might significantly burden the person’s religious exercise. On the other hand, the Supreme Court held in Locke v. Davey (2004) that requiring a student to attend a different, second undergraduate institution for his theology studies as a condition of receiving an important state scholarship for study at his primary place of education imposed only a “relatively minor burden” on his religious exercise, despite the obvious incentive such a condition would create for the student to foreswear his theology studies. If the Court was right in Davey, it’s hard to see how a contractor could demonstrate a substantial burden in a RFRA challenge to E.O. 11246: Unlike general entitlement benefits—but like the scholarships at issue in Davey—federal contracts are awarded very selectively. Moreover, it would be a very rare case in which a federal contractor could claim that its religion required it to discriminate against LGBT employees. These factors explain why there are (as far as I’m aware) no reported cases in which a plaintiff has shown that a condition on government contracts of the sort at issue here imposed a “significant burden” on its religious exercise.
In support of his argument that there could be a “substantial burden” here, Professor Esbeck cites the 2007 OLC “World Vision” opinion. That opinion merely concluded, however, that it would be within the “legal discretion” of a component of the Department of Justice to find a RFRA substantial burden with respect to a condition on a grant that OLC (dubiously) characterized as so “broadly available” as to be “arguably more analogous to a general entitlement than to a discretionary grant whose availability is limited and speculative.” OLC did not consider the question in the context of highly competitive contracts, the award of which is “limited and speculative”—indeed, even with respect to an allegedly “broadly available” grant, OLC did not conclude that the nondiscrimination condition at issue there would in fact impose a substantial burden on an applicant’s religious exercise. Moreover, even on its own terms, the analysis of the World Vision opinion is questionable, to say the least, as Chip Lupu and Bob Tuttle explain at pages 33-37 of this report; nor has it been “defended” by President Obama, contrary to what Professor Esbeck writes.
In any case, in the unlikely event a bidder for
a federal contract demonstrated a substantial burden under RFRA, the government
should be able to easily defeat the claim by demonstrating that denial of an
exemption would advance compelling governmental interests—namely, ensuring that
federal dollars for the performance of federal functions are expended in a way
that does not undermine equal
opportunity for all qualified persons, (see Bob Jones
University), and “promot[ing] economy and
efficiency in Federal Government procurement.”
For these reasons, I think it’s
safe to say that President Obama’s action has guaranteed that the law will no longer
afford any federal contractors the right to use federal contracting dollars to
discriminate against lesbian, gay, bisexual and transgender employees.