OFCCP Issues Directive Summarizing – But Not Providing Clear Standards – For The Protection of Religious Exercise

By: Connie N. Bertram

On August 10, 2018, OFCCP Acting Director Craig Leen issued Directive 2018-03 in an effort to harmonize OFCCP’s standards with “recent developments in the law regarding religion-exercising organizations and individuals."

Directive provides a summary of OFCCP's regulations, Executive Orders and court decisions addressing the standards that apply to religious organizations and claims of discrimination based on religious affiliation, noting the "duty to protect religious exercise – and not to impede it. At the end of the Directive, 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 states that OFCCP anticipates future rulemaking on this topic.

The new Directive may have been issued by OFCCP to address the concerns of religious organizations that contract with the federal government regarding the expansion of Executive Order 11246 to include sexual orientation and gender identity protections. However, given the absence of clear guidance in the Directive, it is unclear how this politically sensitive issue will be handled by OFCCP staff during compliance reviews. 

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