In August, the Department of Labor (DOL) proposed an administrative rule that would amend federal contracting regulations to clarify the right of religious employers to use religious criteria in making employment decisions. The rule is intended to ensure that such organizations need not abandon their faith-based employment practices in order to compete for federal contracts.

Before it becomes final, DOL’s proposed rule must go through what is known as notice-and-comment rulemaking, a process required for all federal agencies in which the public is allowed to comment on the proposed version of a new administrative rule. This process can significantly influence the final rule because agencies are required to respond substantively to the comments. Nearly 110,000 comments were submitted on DOL’s proposed religious staffing rule before the comment period closed on September 16.

RFI supports DOL’s proposed rule and submitted the following comments to the agency:

The Religious Freedom Institute (RFI) is committed to achieving broad acceptance of religious liberty as a fundamental human right, the cornerstone of a successful society, and a source of national and international security.

In mid-August, the Trump administration announced its drafting of regulatory changes pertaining to civil rights protections for religious organizations. These protections were cast into doubt after the Obama administration, in 2014, added to federal contracting regulations a prohibition on employment discrimination on the bases of sexual orientation and gender identity. As an organization that is committed to the promotion of religious freedom for all, RFI commends the Trump administration on this proposed rule.

The proposed rule would protect the freedom of religious organizations that contract or subcontract with the federal government to decline job applicants who violate their religiously-based conduct standards. While the proposed rule concerns only federal contracting, if accepted, it provides a model framework for protecting religious staffing when other forms of federal funding are involved.

RFI agrees with the proposed rule that, to be considered a religious organization entitled to the religious exemption, an organization must show that it is religious, but it need not be controlled by or connected with a house of worship or denomination or be staffed or governed only by people of a single denomination or religion. RFI agrees that, to be accepted as legitimate, a religious employer must be sincere in making religious staffing decisions and not use religion as a pretext for invidious discrimination.

Further, RFI clarifies our position that the term sex as used in the 1964 Civil Rights Act means only biological sex.

Thank you for the careful work in this [proposed rule] to clarify the religious exemption and thereby safeguard the important freedom for religious employers to consider religion in their employment decisions.