Thanks for finding and posting this! I've been on pins http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
1. Does the Final Rule alter the existing religious exemption in EO 11246 in any way?
No. EO 13672 made no changes to the existing religious exemption, which was added to EO 11246 by President Bush in 2002, allowing religiously affiliated contractors (religious corporations, associations, educational institutions, or societies) to favor individuals of a particular religion when making certain employment decisions. The regulation implementing that exemption is located at 41 CFR 60-1.5(a)(5).
That regulation states that the nondiscrimination obligations of Executive Order 11246 “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order."
In addition, the Supreme Court has recognized that the First Amendment to the Constitution requires a “ministerial exception” from employment discrimination laws, which prohibits the Government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy.
2. How can contractors invoke the religious exemption under 41 CFR 60-1.5(a)(5)?
The Executive Order and 41 CFR 60-1.5(a)(5) do not require contractors to obtain pre-approval from OFCCP to take advantage of the religious exemption. In the past, though, some contractors have submitted written requests for exemptions to OFCCP’s Division of Program Operations, explaining why they qualify for the exemption. Contractors can also invoke the exemption in connection with an OFCCP compliance evaluation, or when they enter into a covered contract or subcontract. OFCCP carefully considers each of these requests in coordination with the Solicitor of Labor.