Discrimination by Employers

Americans United’s Agenda To Restore Religious Freedom: Protect Taxpayer-Funded Employees From Religious Discrimination

  Samantha Sokol

Editor’s Note: This week, “The Wall of Separation” blog continues its series of special posts examining the policy proposals in AU’s “Agenda to Restore & Protect Religious Freedom.” Developed by Americans United’s Public Policy Department, the agenda lists 10 proposals the incoming administration of Joe Biden and Kamala Harris can take to undo the damage done to church-state separation during the Trump years.

Today’s item on our Biden-Harris Administration Agenda to Restore Religious Freedom is a timely one: protecting employees in taxpayer-funded jobs from religious discrimination. It goes without saying that the government should never fund discrimination, and no one should be disqualified for a government job because they are the “wrong” religion.

But the Trump administration takes the opposite view. Yesterday, the lame duck Trump administration finalized nine federal agencies’ regulations that expand the existing religious exemption that allows religious organizations to accept grants and discriminate in employment with taxpayer funds. And just last week, Trump’s Department of Labor finalized a rule to allow federal contractors, even for-profit companies, to use religious litmus tests to hire or fire employees for jobs paid for with taxpayer dollars.

Of course, the Trump administration wanted these actions to be a Christmas present to their allies on the way out the door. We urge the incoming Biden administration to revoke policies like these right away and replace them with new policies that protect all employees who work in taxpayer-funded jobs from discrimination in the name of religion.

For decades, religious organizations have contracted with the government, or received government grants, to provide services to people in need – like job training, shelters for the homeless or programs for senior citizens and people with disabilities. Effective government partnership with faith-based groups, however, does not require the government to sanction taxpayer-funded religious discrimination. Government contractors and grantees should never be able to use a religious litmus test to hire or fire employees for jobs paid for with taxpayer dollars.

The Trump administration didn’t create every rule allowing taxpayer-funded religious discrimination, but it made existing policies worse. For example, President George W. Bush administration’s  Office of Legal Counsel (OLC) issued a memo that wrongly asserts that a 1993 federal law, the Religious Freedom Restoration Act, requires federal agencies to exempt religious organizations from nondiscrimination provisions tied to grant programs. With the Trump administration’s agency actions finalized in the past few weeks, they are building on this fundamentally flawed and harmful view and allowing more contractors and grantees (including even for-profit companies) to engage in more insidious discrimination. As a result, more applicants and employees could face discrimination. Countless peoples’ jobs are at risk because they do not share the religious views or meet the religious code of conduct of a government contractor.

To justify this, the Trump administration claims that federally funded employers have a religious freedom right to – get this – engage in religious discrimination. That turns the concept of religious freedom on its head. Religious freedom does not mean that you have the right to harm other people.

On day one, the Biden administration should immediately direct federal agencies to revoke the Trump regulations that have expanded religious discrimination against taxpayer-funded employees. President-elect Biden can right the wrongs of the Trump administration by proposing new rules that protect employees from discrimination. The Biden administration must also undo the harms of the past, including by revoking Bush’s OLC memo. With these actions, Biden can ensure that contractors and grantees in the future will never be able to discriminate against employees on the taxpayer’s dime.

You can help Americans United end these offensive forms of discrimination by joining us

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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