In general, the courts have weighed the following factors in assessing whether this test is satisfied: (1) whether the entity operates for a profit (2) whether it produces a secular product (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose (4) whether it is owned, affiliated with, or financially supported by a formally religious entity such as a church or synagogue (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees (6) whether the entity holds itself out to the public as secular or sectarian (7) whether the entity regularly includes prayer or other forms of worship in its activities (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution and (9) whether its membership is made up by coreligionists. There are two principal questions at issue: Which employers can qualify as religious organizations that may exercise the exemption? And what is the scope of the exemption for qualifying employers?Īs to the first question, under established Title VII case law, an employer can qualify for the exemption if its purpose and character are primarily religious. Instead, it resulted in increased uncertainty about the religious exemption because of its divergence from the approach to the Title VII religious exemption taken by courts and the Equal Employment Opportunity Commission, as well as from OFCCP’s past practice. However, the 2020 religious exemption rule did not provide clarity. The rule that OFCCP promulgated in December 2020 purported to clarify the scope and application of the religious exemption. What prompted OFCCP to rescind the 2020 religious exemption rule? The Executive Order 11246 religious exemption expressly imports the religious exemption found in Title VII of the Civil Rights Act of 1964, which, as amended in 1972, permits qualifying religious corporations, associations, educational institutions, and societies to prefer in employment individuals of a particular religion.Ģ. What is the Executive Order 11246 religious exemption and what types of contractors may qualify?Įxecutive Order 11246 prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. How does the Religious Freedom Restoration Act (RFRA) interact with Executive Order 11246?.How does the “ministerial exception” interact with Executive Order 11246?.How can I sign up to participate in these educational events and opportunities?. What steps has OFCCP taken to educate the public on the rescission of the 2020 religious exemption rule (e.g., workshops, webinars, and the issuance of other guidance materials)?. Technical Assistance and Public Education
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