The chairman of a House panel with jurisdiction over civil rights issues called on the Labor Department to “reevaluate and alter” proposed policies and rules that “allow for discrimination against LGBTQ+ people,” following the landmark U.S. Supreme Court decision that confirmed federal workplace protections extend to those workers.
The proposed rules that should be reviewed in light of the high court’s June decision in Bostock v. Clayton County include the agency’s plan to codify certain religious exemptions from anti-discrimination obligations, Jamie Raskin (D-Md.), chairman of the House Oversight and Reform Subcommittee on Civil Rights and Civil Liberties, said in a letter to Labor Secretary Eugene Scalia.
Raskin also urged Scalia to reconsider a rule that would exempt religious organizations that participate in DOL programs from providing a notice of non-discrimination, among other actions that he said “significantly undercut the civil rights and liberties of LGBTQ+ people.”
His letter, dated Wednesday, requested a written plan by Sept. 2 that “describes the steps that the Department will take to reevaluate and alter these discriminatory policies in light of the Supreme Court’s ruling in Bostock.”
The high court ruled 6-3 in favor of LGBT workers, with Justice Neil Gorsuch—a nominee of President Donald Trump—writing the majority opinion. He was joined by Chief Justice John Roberts and the court’s liberal members, justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
“Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Gorsuch wrote. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
In his letter, Raskin said, “the Supreme Court ruled that prohibitions on discrimination on the basis of sex include discrimination on the basis of sexual orientation and gender identity.” He added, “The Department, therefore, should immediately reverse its systematic refusal to enforce LGBTQ+ rights. Furthermore, the Court’s clear affirmation of LGBTQ+ rights should prompt an examination of the Administration’s expansion of religious liberty exemptions to nondiscrimination requirements.”
Religious Rights Vs. LGBT Rights
His request, which cited House Oversight’s wide-ranging investigative authority, reflects the ongoing clash between religious liberties and the rights of lesbian, gay, bisexual, and transgender people, including at work—an issue that will once again come before the high court.
The DOL’s proposed rules also face a time crunch, with fewer than 80 days remaining before the presidential election. Raskin’s letter suggests that if the rules are finalized they could be subject to greater scrutiny from lawmakers if Democrats win the White House and control of the Senate in the November elections.
Raskin also asked Scalia to revisit the department’s decision to remove from its website a report on “Advancing LGBTQ Workplace Rights”; its publication of a directive that was a precursor to the plan to codify certain religious exemptions; and its publication of a final rule that exempted medical facilities participating in the TRICARE health-care program from the authority of the Office of Federal Contract Compliance Programs, or OFCCP, which enforces workplace civil rights laws among federal contractors.
“The Department of Labor, through the Office of Federal Contract Compliance Programs, has been and remains committed to enforcing Executive Order 11246, which prohibits discrimination against employees on the basis of sexual orientation and gender identity,” Labor Department spokesperson Edwin Nieves said in a statement emailed to Bloomberg Law responding to a request for comment on Raskin’s letter.
Scalia Pledges Adherence
The DOL’s religious-exemption proposed rule, in particular, drew alarm from LGBT advocates, who said it could be used as a justification for bias against LGBT workers. Religious advocates, such as the Freedom of Conscience Defense Fund, previously said it solidifies their ability to “operate in the public square” while retaining their beliefs.
The OFCCP, which published the proposed rule, audits very few religious organizations, according to Labor Department enforcement data. And while the sub-agency specifically protects against LGBT bias in the workplaces of federal contractors due to an executive order signed by then-President Barack Obama, its data for fiscal 2019 showed it received fewer than 100 worker complaints alleging LGBT bias.
Scalia addressed the Bostock decision the day after it was handed down. “We’re certainly reading through the court’s decision and what the court has ruled and we’ll adhere to that,” he said during a Bloomberg radio show. He didn’t specifically mention a particular proposal or policy.
“We’ll take a closer look and see what implications that has for our programs,” he added.
—With assistance from Ben Penn.