In tandem with the Trump administration’s decision last week to expand exemptions from the Affordable Care Act’s contraceptive coverage mandate, US Attorney General Jeff Sessions issued a guidance memo on Friday instructing federal agencies on how to interpret and apply federal laws regarding freedom of religion. The main takeaway from the broad but ambiguously worded guidance is that employers are to be granted the discretion to make hiring decisions based on their religious beliefs, BuzzFeed reported:
The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer’s’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”
Several rights groups immediately expressed concern that the guidance effectively opened the door for employers to discriminate against women and LGBT employees:
The Human Rights Campaign, the country’s largest LGBT group, issued a statement calling the guidance a “sweeping license to discriminate that puts millions of LGBTQ Americans at risk.” … Louise Melling, deputy legal director at the American Civil Liberties Union, was still reviewing the guidance early Friday afternoon. But she told BuzzFeed News she was concerned it prioritizes employers over the individuals nondiscrimination policies are designed to protect — such as women seeking contraception coverage and LGBT workers.
“This guidance has principles that, in myriad ways, would allow religious freedom to be used to harm others,” she told BuzzFeed News, citing a provision that says harm to a third party doesn’t neutralize an entity’s religious defense. “You could imagine an employer arguing that the Religious Freedom Restoration Act allows them to not comply with a policy barring discrimination on the basis of sexual orientation and gender identity.”
These concerns are based in other decisions Sessions’ Justice Department has made in recent months, including its interventions in two federal discrimination cases, arguing in one that LGBT employees enjoy no protection under Title VII of the 1964 Civil Rights Act and in the other that a Colorado baker was within his rights to refuse to provide a cake for a same-sex wedding. Last week, in a decision timed to coincide with the contraceptive mandate rollback and the new guidance, Sessions reversed a policy adopted by the Obama administration stating that transgender employees were protected against discrimination under the Civil Rights Act, BuzzFeed reported on Thursday:
Sessions’ directive, obtained by BuzzFeed News, says, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court. …
But Sharon McGowan, a former lawyer in the Justice Department’s Civil Rights Division and now an attorney for the LGBT group Lambda Legal, countered that Sessions is ignoring a widespread trend in federal courts. “It’s ironic for them to say this is law, and not policy,” McGowan told BuzzFeed News. “The memo is devoid of discussion of the way case law has been developing in this area for the last few years. It demonstrates that this memo is not actually a reflection of the law as it is — it’s a reflection of what the DOJ wishes the law were.”
Employers unsure what to make of this shift in federal policy may be wise not to withdraw protections they have already added to their employee handbooks for transgender workers, Monte Grix, attorney in the Santa Monica, Calif., office of Hirschfeld Kraemer LLP, tells SHRM’s Kathy Gurchiek:
“For one, aside from California, 18 other states and the District of Columbia bar employment discrimination on the basis of gender identity. So employers need to be mindful of what jurisdictions they are doing business in,” he said.
“Additionally, … the letter does set the policy of the Department of Justice and other federal agencies, but it sets no legal precedent. Moreover, the federal outlook for transgender employment protections is far from settled.” It would be prudent, Grix advised, to take “a wait-and-see-approach.”