OFCCP to Rescind Regulation Expanding Religious Exemption for Federal Contractors

On February 9, 2021, the Biden administration took another step towards reversing the priorities of the Trump-era Office of Federal Contract Compliance Programs (OFCCP), by notifying the U.S. District Court for the Southern District of New York that it intended to rescind the Trump-era OFCCP January 2021 regulation broadening the religious exemption from Executive Order 11246’s nondiscrimination requirements. 

The notice came in litigation filed by 14 states and the District of Columbia challenging the issuance of the religious exemption regulation.  The notice indicates that OFCCP “intends to propose rescission of the rule,” and that this process will require notice-and-comment rulemaking that will take “several months.”  Beyond that statement and timeline, the notice did not provide insight into OFCCP’s intentions with respect to the religious exemption.  Contractors will have to await the issuance of a Notice of Proposed Rulemaking to learn if OFCCP intends to simply restore the religious exemption to its pre-January 2021 language, or propose a different, middle-ground approach.

This early shift indicates that the new administration will not prioritize issues of religious liberty to the same extent as the Trump OFCCP.  It remains to be seen whether the Trump OFCCP’s focus on disability and veterans issues will also be lessened under the new administration.  Contractors should expect additional changes at OFFCP as the new administration continues to pursue its priorities.