The DOL’s new regulation has three major components,
none of which is grounded in the law.
First, it broadens the definition of a “religious” contractor to encompass for-profit corporations, expanding the number of employers with a right to discriminate. Second, it allows these contractors to discriminate on the basis of an employer’s subject interpretation of “religious tenets.” Third, the rule makes it much more difficult for the Department of Labor to prove that a contractor discriminated unlawfully. Taken together, Scalia’s alterations would essentially eliminate executive protections for millions of employees in the U.S.