On August 10, 2018, OFCCP Acting Director Craig Leen issued Directive 2018-03 (the “Directive”), the purpose of which is to “incorporate recent developments in the law regarding religion-exercising organizations and individuals.”
Most of the Directive addresses OFCCP’s regulations regarding protection from discrimination on the basis of religion and recent Executive Orders and court decisions that address the federal government’s “duty to protect religious exercise – and not to impede it. The practical import of the Directive comes at the end, where it instructs OFCCP staff “to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.O. 11246.” The Directive also anticipates future rulemaking on this topic.
Key Takeaway: When President Trump was sworn into office, many worried that his Administration would undo President Obama’s amendment of E.O. 11246 to include gender identity and sexual orientation as protected characteristics. On January 31, 2017, the Trump Administration announced that E.O. 11246, as amended by E.O. 11478, would “remain intact .” As we reported at the time , the statement followed press reports that the Trump Administration was contemplating reversing the expansion or adding religious freedom provisions.
The new Directive appears aimed at addressing the concerns of religious organizations that contract with the federal government with the expansion of E.O. 11246 to include sexual orientation and gender identity protections.