Final rule announced for LGBT workplace executive order

  • metta

    Posts: 54080

    Dec 03, 2014 7:40 PM GMT
    Final rule announced for LGBT workplace executive order

    - See more at:

    "The Labor Department published Frequently Asked Questions for the final rule, which can be found here ( The final rule itself is set to be online at 4:30 pm, according to the Labor Department."
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    Dec 04, 2014 4:10 AM GMT

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    Religious Entities

    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.
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    Dec 06, 2014 4:28 AM GMT

    Rulemaking Process

    1. Why is the Department implementing Executive Order 13672 with a final rule without prior notice and comment?

    This approach is consistent with agency precedent under other Administrations including in earlier changes to these exact same regulations. For instance, OFCCP proceeded to a final rule without first giving public notice and taking comment when Executive Order 11246 was amended in 2002, when President Bush signed EO 13279 to add a religious exemption to EO 11246.

    President Obama’s Executive Order was very clear about the steps the Department of Labor was required to take, and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rules without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority, and does not have any discretion in doing so.


    Gay rights advocate: Republicans on the 'wrong side of history'

    Kline and subcommittee Chairman Tim Walberg (R-Mich.) wrote to the Labor Department earlier this week complaining that the agency did not open the rules up for public comment.

    The Labor Department sent the rule to the White House’s Office of Management and Budget for approval on Oct. 20.

    The lawmakers did not air any specific grievances with the rules, but asked the agency to withdraw them until they go through a formal public comment period.

    “Public comment is essential to all rulemakings,” Kline and Walberg wrote.

    “At no point was a draft rule made available to the public for comment prior to the final rule being sent to OMB,” they added. "Such a notice-and-comment period would have provided the public an opportunity to alert (the Labor Department) to problems that may arise implementing the executive order.”