OFCCP has announced the rescission of the Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption rule adopted in January 2021 by President Donald Trump. The rescission is to be posted in the Federal Register on March 1, 2023.
In November 2021 OFCCP published a proposal to rescind the rule on the basis the rule was inconsistent with Title VII. In its communications announcing the rescission, the Agency stated
the rescission ensures a return to the department’s prior policy and practice in place during the presidencies of George W. Bush and Barack Obama – of interpreting and applying the religious exemption in Executive Order 11246 consistent with Title VII principles and case law.
OFCCP Director Jenny Yang published a blog entitled Protecting Workers and Safeguarding Religious Freedom, coinciding with the rescission of the rule in which she explained
[t]he 2020 rule also weakened nondiscrimination protections for employees of federal contractors, objectives of Executive Order 11246 to ensure economy and efficiency in federal contracting and to promote equal employment opportunity. With the rescission of the rule, we are returning to a longstanding policy in place for more than 17 years, under the administrations of both George W. Bush and Barack Obama, to determine the applicability of the religious exemption by applying established case law and principles to the facts and circumstances of particular cases.
Director Yang’s blog went on to explain that the rescission of the entire rule means the Agency will return to its “prior approach of aligning the Executive Order 11246 religious exemption with Title VII case law as applied to the facts and circumstances of each case.” To be clear, the rescission of the rule preserves the Executive Order 11246 religious exemption and
does not change religious entities’ ability to pursue federal contracts.
OFCCP has created a landing page to house information about the rescission of the rule.