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Critics Say New Trump Rule Gives Contractors More Freedom On Religious Discrimination

AUDIE CORNISH, HOST:

The Trump administration has issued a rule that gives federal government contractors more freedom to discriminate in who they hire. The rule, which was in the works for over a year, allows federal contractors that claim a religious mission to exclude job applicants who do not have particular religious beliefs.

Here now to help us understand what this could mean is NPR's Tom Gjelten. And, Tom, this is a rule from an outgoing administration. What's the story behind it?

TOM GJELTEN, BYLINE: Well, Audie, it's a story of a really thorny conflict, and here it is - should we as a country guarantee that everyone be treated equally when it comes to employment opportunity? Or do we as a country guarantee that, under the First Amendment, everyone should be free to exercise their faith and act in accord with their own religious beliefs? Both important principles - inevitably, they come into conflict.

CORNISH: Can you give an example?

GJELTEN: So you may have some employer with a religious identity saying, we shouldn't have to hire people who don't share our religious beliefs regarding sexuality and marriage. On the other side, in that situation, you could have LGBTQ people who would face discrimination. And it's been really difficult to reconcile this conflict through legislation. So what's happened is we've had presidents setting policy on their own through presidential orders. President Obama said federal contractors can't discriminate in their hiring on the basis of sexual orientation or gender identity. Now President Trump has basically reversed that order, saying some religious groups should be exempt from that order.

CORNISH: OK. Just so I'm clear, that is the new rule?

GJELTEN: Yeah. It's actually - as you suggested, it's been in the works for a while. I should also point out it's not entirely new. They're - even under Obama's anti-discrimination order, there was a religious exemption. For example, a Jewish charity that provides some government services could require that its director be Jewish. But this rule expands that exemption significantly. Now, even a for-profit business that simply claims a religious purpose qualifies. It could choose to hire only people that subscribe to a belief, for example, that marriage is the union of one man and one woman or that there are just two genders, male and female.

CORNISH: Is this something that could be challenged in the courts? I'm thinking of the Supreme Court this past summer ruling that employers can't discriminate against LGBTQ people.

GJELTEN: Well, interesting - this rule doesn't actually say contractors are allowed to discriminate against LGBTQ people. It says contractors can discriminate against people who don't share their religious beliefs, in this case, regarding sexuality. It's kind of a loophole. But, you know, it could be reversed.

CORNISH: As you say, the Trump administration essentially reversed orders that were issued under the Obama administration. Now we're going to have Joe Biden take office in January. Could a Biden administration turn around, reverse this Trump rule, issue a new rule of its own?

GJELTEN: The short answer is yes, but it won't be easy. This gets into administrative law. I called up an expert, Jennifer Nou. She teaches administrative law at the University of Chicago. She says when a government agency writes a new rule, it has to put that rule out for comment and leave it out for 60 days or more.

JENNIFER NOU: And then after that, the agency has to consider the comments. And in the final rule, lawyers will have to write something called a preamble, which basically responds to all the comments. Each of those steps takes time. And as a result, rule-makings these days can take up to a year.

CORNISH: And I expect there to be a lot of comments on this. That's NPR's Tom Gjelten. Thanks so much.

GJELTEN: You bet.

[POST-BROADCAST CLARIFICATION: Rule making, says Professor Nou, averages one year. But some takes much longer.] Transcript provided by NPR, Copyright NPR.