In early February, several news outlets obtained a draft executive order with the innocent-sounding name “Establishing a Government-Wide Initiative to Respect Religious Freedom." The four-page order, if it sees the light of day and the president signs it, would dramatically expand the rights of workers to refuse to carry out routine tasks that they feel conflict with their religious beliefs in any way.
Note that this order is still a draft; the Trump Administration has not officially proposed it. Nevertheless, the thrust of the order is consistent with similar laws supported by social conservatives, including Vice President Mike Pence, who passed a "religious freedom" bill as governor of Indiana.
Because this order is still in draft format, it’s unclear what the reach would be. An executive order can apply to all federal agencies and government contractors, a group that includes well over two million workers. It is also possible that this order contains the blueprint for a legislative agenda to include laws applying to most private-sector workers as well.
If signed, the executive order could dramatically change the status quo on religion in the workplace, potentially creating a train wreck at businesses across the country. In its current form, the order would blow the doors off religious freedom claims at work, giving employees wide latitude to, on the basis of religious beliefs, refuse to carry out routine workplace functions.
Currently, individuals may refuse to carry out a workplace obligation because it conflicts with their religious beliefs only in a very limited set of circumstances. The Religious Freedom Restoration Action of 1993 (RFRA), signed into law by President Bill Clinton, states that “governments should not substantially burden religious exercise without compelling justification." A number of states have enacted similar laws on the state level. The First Amendment also provides government workers with a limited ability to refuse workplace directives that directly conflict with religious obligation or expression.
In 2014, the Supreme Court in Hobby Lobby v. Burwell greatly expanded the reach of RFRA, holding that it applies to many private businesses. In that case, the Court found that the mandate in the Affordable Care Act—that businesses provide health care coverage that includes contraception—violated RFRA.
Still, courts have not held that the law allowed individuals to unilaterally refuse to carry out workplace duties solely by claiming they conflict with their religious beliefs.
The draft Trump order would change that. It says that individuals shall not “forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with federal, state or local governments.” It also says that the government will not force individuals or organizations to engage in activities that may “violate their conscience.”
The order defines religious freedom in broad terms, specifically allowing faith-based objections to same-sex marriage, abortion, transgender rights, contraception and premarital sex.
In that same vein, the order protects the tax-exempt status of any religious organization or privately held company that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”
In essence, the draft order protects an employee who insists on acting at all times in accordance with these religious beliefs when “providing social services,” earning a living,” or “otherwise participating in the marketplace." It allows an employee to raise religious objections to any workplace activity that conflicts with beliefs against same-sex marriage, abortion, transgender rights contraception and premarital sex.
This is in sharp contrast to other federal laws on discrimination. Title VII of the Civil Rights Act of 1964, the primary federal anti-discrimination law, prevents discrimination on the basis of race, sex, national origin or religious belief and practice; thus Title VII prevents employers from discriminating against those who do not oppose same-sex marriage, abortion, transgender rights, contraception and premarital sex
Moreover, President Barack Obama signed an executive order in 2014 that protected federal contractors from discrimination on the basis of sexual orientation and gender identity.
The language of the draft Trump order is so broad it would, for instance, allow a federal employee to refuse to process Social Security payments to a same-sex couple because it conflicted with his "ability to earn a living." It could arguably allow an employee to refuse to work alongside a colleague who lived in a heterosexual relationship with a partner outside of marriage. It might even allow an employee to lawfully discriminate against a coworker who practices a different religion if he claimed the discrimination was based on a religious belief.
Of course, this order is a long way from becoming a law. It is unlikely that, in its current form, it will pass review by administration lawyers, since it almost certainly violates the First Amendment’s establishment clause, which prevents the government from favoring one type of religious expression over another.
Nevertheless, this order lays bare the desires of the Trump administration, ones that are—at least in some aspect—reflected in similar states laws. It is likely that the administration will end up issuing some type of religious freedom order that could affect many workplaces.
Founder of the Spiggle Law Firm in Washington D.C., Arlington, Va., and Nashville, Tenn., Tom Spiggle focuses on employment law, especially in the areas of sexual harassment in the workplace and wrongful termination.