Editorial | Labor’s Risky New Rule

Last week the Trump administration proposed an expansion of the exemption that allows federal contractors who claim to be acting under principles of religious practice to hire and fire employees based upon their religious beliefs. The proposed regulation has generated significant comment from many who are concerned about the potential for abuse and for the destructive religious discrimination that could follow.

Under existing Labor Department rules, a faith-based nonprofit organization that operates under a federal contract is permitted to base certain hiring decisions on specific, identifiable, religious needs. Thus, as an example, a Jewish social service agency that provides kosher meals to disadvantaged children under a federal contract is permitted to insist on hiring a rabbi to oversee the preparation of the food, in recognition of the need for that kind of personnel to do the job.

Under the proposed new rule, however, the exemption would be much broader, with federal contractors permitted to justify hiring and firing decisions by declaring themselves or their decisions to be “religious.” Critics of the proposed change are concerned that it would open the door to discrimination — both religious and otherwise — since a company claiming protection doesn’t have to be a religious institution, but only needs to claim to be acting “in furtherance of a religious purpose.”

While we recognize the need of some religious institutions that are government contractors to have reasonable latitude in some of their hiring decisions — like the need to have a co-religionist conduct religious functions — we oppose an across-the-board exemption of employers, religious or otherwise, from the laws of discrimination.

Administration officials have said that it was not their intention to create new opportunities for discrimination, and that they were merely trying to provide “the broadest protection of religious exercise” for companies that compete for federal contracts. We take them at their word, even if the proposed new regulations raise questions about it. We therefore encourage the Labor Department to take a second look at their proposal, with an eye toward narrowing the scope of the expanded exemption to make clear the defined and limited purposes for which any such “religiously justified” employment decisions may be made.

While our concerns about the proposed new regulations center on the potential for religious discrimination, we are also concerned about the rule’s potential impact on overall diversity in the faith-based workplace. We are proud that many of our communal organizations like our federations, social service agencies and Jewish Community Centers — some of whom operate under federal contracts — employ a wide variety of people, many of whom are not Jewish. Having a mixture of religions, ethnicities, sexual orientations and cultures enhances mutual understanding and fosters broader communal engagement. That’s a good thing.

We are concerned about further divisions in our already fractured society. New rules that encourage expanded isolation in the faith-based work environment will only make matters worse.