Article by: Christopher Wilkinson and Andrea Jean Johnson
On May 4, 2017, the President signed the Executive Order Promoting Free Speech and Liberty (the "EO"). The EO's stated policy is to "vigorously enforce Federal law's robust protections for religious freedom." An early version of the Executive Order contained provisions that directed the Department of Labor to begin rulemaking which could have expanded the religions exemptions to federal civil rights laws for federal contractors. While this and other expansive provisions were not included in the current EO, further accommodations of religious exercise in the workplace are not off the table.
The current EO attempts to address two issues. First, it takes aim at the 1954 Johnson Amendment, which limits churches' and non-profits' political activities and potentially threatens their tax exempt status. At first blush, the EO's language directing the Treasury Department not to take "adverse action" against "moral or political" speech appears to protect religious organizations who politic from the pulpit. But upon closer inspection, the EO merely states that when determining whether the political speech is opposing or endorsing a candidate, speech of religious organizations must be evaluated using the same standards used for non-religious organizations.
Second, the EO addresses so-called conscience based objections to providing contraceptives under health care plans. The EO states: "The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate." Id. We have previously detailed the Obama era OFCCP sex discrimination regulations and the requirements (and lack thereof) for contraceptive coverage. As the sex discrimination guidelines do not require that employers ensure that their health plans have contraception coverage, the EO will likely not lead to any changes.
Overall, the EO signals the Administration's willingness to engage religious groups and offer policies consistent with their agenda. It remains to be seen how this plays out in the context of LGBT rights for employees of federal contractors. The current White House has stated that it will not roll back Obama's Executive Order providing sexual orientation and gender identity protections for employees of federal contractors. However, the federal contractor EEO law (Executive Order 11246) contains a limited exemption for religious organizations. It remains to be seen whether this Administration will seek an expansion of that exemption to accommodate religious beliefs as they relate to sexual orientation and gender identity.
While the new EO pulls back from a significant expansion of religious exercise in the workplace, employers should ensure that they remain informed and updated as these issues will continue to evolve.
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