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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: September 30, 2003

SUBJECT: Department of Labor (DOL); Exemption for Religious Entities from Affirmative Action and Nondiscrimination Obligations

SOURCE: Federal Register, September 30, 2003, Vol. 68, No. 189, page 56391

AGENCIES: Office of Federal Contract Compliance Programs (OFCCP), Employment Standards Administration, DOL

ACTION: Final Rule

SYNOPSIS: OFCCP is amending the regulations that implement Executive Order (EO) 11246 of September 24, 1965, Equal Employment Opportunity, to incorporate the exemption for religious entities prescribed by EO 13279, Equal Protection of the Laws for Faith-Based and Community Organizations. EO 13279 amends EO 11246 to exempt religious corporations, associations, educational institutions, and societies from certain nondiscrimination and equal opportunity requirements.

EDITOR'S NOTE: The DOL regulations that implement EO 11246 are in Title 41 of the Code of Federal Regulations (CFR), Public Contracts and Property Management; Chapter 60, Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor; Part 60-1, Obligations of Contractors and Subcontractors; Subpart A, Preliminary Matters; Equal Opportunity Clause; Compliance Reports.

For more on EO 13279, see the December 16, 2002, FEDERAL CONTRACTS DISPATCH "Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations."

Federal Acquisition Regulation (FAR) Subpart 22.8, Equal Employment Opportunity, is the contract-related implementation of EO 11246.

Today, several federal departments issued and proposed regulations to implement EO 13279 in their grants programs: Education, Health and Human Services, Housing and Urban Development, Justice, Labor, and Veterans Affairs.

EFFECTIVE DATE: October 30, 2003.

FOR FURTHER INFORMATION CONTACT: James I. Melvin, Director, Division of Policy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW, Washington, DC 20210; 202-693-0102; 202-693-1308 (TTY).

SUPPLEMENTAL INFORMATION: EO 11246 prohibits employment discrimination and establishes affirmative action requirements for nonexempt government contractors and subcontractors, and federally assisted construction contractors and subcontractors. Section 202 of Executive Order 11246 requires that every nonexempt contract and subcontract include an equal opportunity clause (FAR 52.222-26, Equal Opportunity) which specifies the nondiscrimination and affirmative action obligations each contractor or subcontractor assumes as a condition of its government contract or subcontract. Each nonexempt contractor and subcontractor agrees, as a condition of its government contract, not to discriminate on the basis of race, color, religion, sex, or national origin and to take affirmative action to insure that applicants for employment, and employees are treated during employment, without regard to their race, color, religion, sex, or national origin.

On December 12, 2002, President Bush issued EO 13279, and Section 4 of EO 13279 amends Section 204 of EO 11246 by adding an exemption for religious corporations, associations, educational institutions, and societies. The amendment to Section 204 of EO 11246 reads:

"(c) Section 202 of this Order [11246] shall not apply to a government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order."

This final rule amends paragraph (a) of 41 CFR 60-1.5, Exemptions, by adding a new paragraph (5) that consists of the Section 4(c) text, thus exempting contractors and subcontractors that religious corporations, associations, educational institutions, and societies from the provisions of EO 11246. (EDITOR'S NOTE: The text in 41 CFR 60-1.5 is slightly different than the text in Section 4(c) -- the phrase "Executive Order 11246, as amended" is substituted for "this Order" for clarity.)

The existing paragraphs (5) and (6) in 41 CFR 60-1.5(a) are retained but redesignated as paragraphs (6) and (7), respectively.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2003 by Panoptic Enterprises. All Rights Reserved.

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