当个人或群体的权利自由与他人发生冲突时，必须权衡各方利益以确定优先原则。宗教自由与就业非歧视原则之间的平衡关系，正由联邦法院重新审视并完善，相关议题可谓错综复杂。
关于劳工部联邦合同合规办公室（OFCCP）近期修订《第11246号行政命令》实施条例的提案——特别是联邦承包商平等机会条款的宗教豁免条款——近期流传着一些不准确且具有误导性的报道。 本文旨在剔除夸大其词的表述，客观剖析OFCCP修订提案的实质内容（及未涵盖内容），并阐明这些修订对联邦承包商雇主与雇员可能产生的影响（及潜在影响）。
争议中的平等机会条款载于《联邦法规汇编》第41卷第60-1.4节，禁止持有合格联邦合同的承包商雇主基于种族、肤色、宗教、性别、性取向、性别认同或国籍对雇员或求职者实施歧视。该条款与经修订的《1964年民权法案》第七章中的非歧视要求几乎完全一致 。 如后文将阐明，关键差异在于《第七章》未明确将性取向或性别认同纳入受保护类别。
自颁布之初，《第七章》便允许"宗教雇主"在雇佣"从事宗教活动"的员工时考虑宗教因素，尽管该法禁止在雇佣决策中考虑宗教因素。 换言之，在特定情形下，"宗教组织"的宗教自由权益必须优先于个人基于宗教不受歧视的权益。
作为《民权法案》执行机构的独立联邦机构——平等就业机会委员会（EEOC）——长期以来的指导意见明确了两种"类型"的宗教豁免：即"宗教组织"豁免与"牧师"豁免。
根据宗教组织豁免条款，"宗旨和性质主要为宗教"的机构可优先雇用本宗教成员。此类豁免适用范围最广（涵盖所有职位），但适用对象仍限于"宗教组织"，故实际适用范围较窄。
例如，联邦法院认定宗教组织豁免不适用于某营利性采矿设备制造商——尽管该公司通过在邮件中附赠福音单张、在商业文件印制圣经经文、资助宗教组织及每周举行敬拜活动等方式公开宣扬宗教教义，但因其既非教会附属机构亦未获教会资助，故豁免条款不适用。EEOC诉Townley工程制造公司案，859 F.2d 610, 618 (9th Cir. 1988)，上诉被驳回，489 U.S. 1077 (1989)。
相较之下，联邦法院认定宗教组织豁免条款适用于某教育机构——该机构创立时即为神学院校，年度预算的7%来自浸信会大会，且同时获得美国国税局与教育部认可的宗教教育机构资质。 《美国平等就业机会委员会诉卡美哈美哈学校案》，990 F.2d 458, 461-63 (第九巡回上诉法院)，最高法院驳回上诉，510 U.S. 963 (1993)。
……宗教组织的豁免权不能被用来为实施种族歧视性招聘行为辩护…… Note that even when the religious organization exemption applies, it only applies to hiring and discharge, does not apply to the terms, conditions, or privileges of employment such as wages and benefits, and discrimination on the basis of any other protected characteristic is still prohibited. So, for example, the religious organization exemption cannot be used to justify engaging in racially discriminatory hiring by asserting that a tenet of its religious beliefs is to not associate with people of other races.
The ministerial exemption is not actually based on the text of the statute. Rather, it is based on the First Amendment principle that government regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes “impermissible government entanglement.” Accordingly, federal courts have held that clergy members generally cannot bring claims under federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, and the Americans with Disabilities Act (ADA).
The ministerial exemption is much narrower than the religious organization exemption. It only applies to employees who perform essentially religious functions such as engaging in church governance, supervising religious order, or conducting religious ritual, worship, or instruction. However, the ministerial exemption does have its limits. For instance, a religious organization may not pay women less than men even if the organization’s policy is in accordance with its religious beliefs.
Over time, Congress has, among other things, broadened the definition of “religion” and added educational institutions to the list of entities eligible for the exemption. In 1978, the DOL imported Title VII’s religious exemption into its regulations implementing E.O. 11246 (see 41 C.F.R. § 60-1.5(a)(5)) and in 2002, President George W. Bush amended the underlying E.O. to expressly include Title VII’s religious exemption. Accordingly, Title VII and E.O. 11246 are closely tied with regard to providing a limited exemption from nondiscrimination provisions on religious grounds.
Recent developments in Supreme Court case law and the priorities of the current White House administration have compelled the OFCCP to propose revisions to the agency’s existing regulations regarding the scope and application of the religious exemption to align with current interpretations of Title VII. In many ways, if enacted, that is exactly what the OFCCP’s proposal would do. At the same time, however, the OFCCP’s proposal also distances the agency from federal jurisprudence where appropriate, and highlights the differences between Title VII as enforced primarily by the EEOC (and interpreted by the EEOC and the federal judiciary), and the Executive Order that is both interpreted and enforced by the OFCCP (where the agency’s determinations are rarely reviewed by the federal courts).
Recent reporting by prominent organizations have characterized the OFCCP’s proposal as being “aimed at” allowing employers to, for example, fire LGBTQ employees or unwed pregnant women on religious grounds. Such statements are a gross misrepresentation of the OFCCP’s proposal and have no basis in the proposal itself, the OFCCP’s statements about the proposal, the agency’s history of enforcing employment nondiscrimination with a religious exemption, or established case law or other interpretations.
For one thing, it is important to note that Title VII does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. The EEOC has held that discrimination on those bases is “sex discrimination” under Title VII, but federal appellate courts are split. The 1st, 6th, 7th, 9th, and 11th Circuit Courts of Appeal have upheld the EEOC’s interpretation while the 10th Circuit disagrees (the 2nd, 3rd, 4th, 5th, and 8th Circuits have not weighed in). One question now before the Supreme Court is whether or not Title VII’s prohibition against discrimination on the basis of “sex” should be interpreted to include sexual orientation and/or gender identity.
If the Supreme Court decides that it does, LGBTQ employees will be protected from discrimination on the basis of “sex” under Title VII, and sex discrimination is still prohibited under the religious organization exemption. The ministerial exemption would likely allow LGBTQ discrimination in hiring and firing, but that exemption is very narrow and would not apply to the vast majority of people we tend to think of when talking about “employees.”
If the Supreme Court decides that it does not, the effect on federal contractors is less clear because here Title VII and the Executive Order diverge in an important way. Where there is no explicit LGBTQ protection in Title VII (it must be “read-in” to the statute), the Executive Order does explicitly prohibit discrimination on the basis of sexual orientation or gender identity, and no further interpretation is necessary. If the Supreme Court holds this way and the OFCCP is again instructed to “align” its regulations with Title VII jurisprudence, there is no aligning to be done because even though Title VII and the Executive Order are closely tied, on this particular issue they are different and the Supreme Court’s holding does not apply. Nonfederal contractor employees might not be protected from discrimination based on their LGBTQ status, but federal contractor employees would.
With regard to pregnancy discrimination, the analysis is virtually the same. The Pregnancy Discrimination Act (PDA) amended Title VII to include pregnancy discrimination as constituting “sex” discrimination, and the OFCCP enforces the Executive Order accordingly. But here, there is no question regarding pregnancy discrimination before the Supreme Court that could lead to a change.
So, what would the OFCCP’s proposal actually do? On its face, not much. The OFCCP proposes to add definitions to several terms already used in existing laws and regulations such as “religion,” “particular religion,” “religious corporation, association, educational institution, or society,” “exercise of religion,” and “sincere.” By and large, these proposed definitions are taken directly from other, relevant legislation and/or established federal court jurisprudence. Some modifications are made to allow for clearer guidance and easier interpretation by largely non-lawyer agency staff, but none appear to be creating new law.
For example, the proposed definition of “religious corporation, association, educational institution, or society” does not change the criteria for determining whether or not an entity is a “religious organization” for exemption purposes. It is meant to clarify that corporations, associations, educational institutions, societies, schools, colleges, universities, and other institutions of learning can qualify as a religious organization, consistent with current law and interpretations. But they must still demonstrate that the entity was organized for a religious purpose, hold itself out to the public as carrying out a religious purpose, and exercise religion consistent with and in furtherance of a religious purpose.
The contours of the OFCCP’s definitions and potential ramifications are legitimately debatable and all should be encouraged to read the OFCCP’s proposal for themselves. It is chock full of background information and citations to relevant statutes and case law on which the agency relies. But to earmark the OFCCP’s proposal as a dramatic sea change in the religious exemption as we have known it for the past half century is, at the least, premature.
The most alarming proposal for skeptics of the agency’s intent is the paragraph the OFCCP proposes to add to its regulations establishing a rule of construction that provides for “the broadest protection of religious exercise permitted by the Constitution and laws.” That proposed provision is the result of a direct instruction from the White House reflecting current policy and priorities. Baking that policy directly into the OFCCP’s regulations would make it harder for the agency to shift, if or when the political winds change. And it is hard to say how that proposed provision would impact the agency’s enforcement policy in practical terms.
It is worth noticing, however, the number of times in the OFCCP’s proposal that the agency takes pains to note that the religious exemption has never been and still is not a license to discriminate on other bases. Often, the agency provides specific examples such as the intersection of religion and sex or race, and sends strong signals that the agency is on guard for “sham” claims of religious freedom as pretext to commit unlawful discrimination.
The largest effect of the OFCCP’s proposal could very well end up lying in the coverage of the proposal itself. The religious exemption under the Executive Order is a relatively obscure one and, according to the OFCCP, not often invoked, much less recognized. The proposal and discussions of it serve to remind federal contractor employers of its availability and could lead to a spike in organizations claiming the exemption. But written all over the OFCCP’s proposal is the agency’s intention to closely, but respectfully, scrutinize such claims and continue to methodically evaluate them as they always have.
The OFCCP’s proposal is available on the Federal Register website.
编者按：本文最初发表于 Circaworks.com。2023 年 4 月，Mitratech 收购了包容性招聘和 OFCCP 合规软件的领先供应商 Circa。此后，我们对内容进行了更新，以反映我们扩大的产品范围、不断发展的人才招聘合规法规以及人力资源管理的最佳实践。
