Faith-Based Grantees: Few Have Sought Exemptions from Nondiscrimination Laws Related to Religious-Based Hiring
Released: 2017-11-06T00:00:00

Letter

Few Grantees Certified They Were Exempt from Statutory Restrictions on Religious-Based Hiring

Nine DOJ Grantees Certified They Were Exempt from Statutory Restrictions on Religious- Based Hiring

From 2007 to 2015, HHS, DOL, and DOJ awarded funding to at least 2,586 grantees through at least 53 grant programs that were subject to statutory restrictions on religious-based hiring. Specifically:

HHS identified one grant program subject to statutory restrictions on religious-based hiring for which nonprofits were eligible to be primary recipients—the Projects for Assistance in Transition from Homelessness (PATH) program, which is administered by the Substance Abuse and Mental Health Services Administration (SAMHSA). Generally, only states are eligible to be primary recipients for PATH grant awards. However, HHS may award PATH grants directly to public or nonprofit entities if a state does not submit an application or does not meet program requirements. From this program, no grants were awarded to nonprofit organizations and therefore no FBOs were awarded grants.

DOL identified 18 grant programs subject to statutory restrictions on religious-based hiring for which nonprofits were eligible to be primary recipients. All 18 of these grant programs were in DOL’s Employment and Training Administration (ETA). From these 18 programs, 931 grantees were awarded grants, including 19 we identified as potential FBOs.

DOJ identified at least 34 relevant grant programs administered by OVW, COPS, and six different program offices within OJP that were subject to statutory restrictions on religious-based hiring. The 34 relevant grant programs represent the minimum number of grant programs that were subject to nondiscrimination provisions and for which nonprofit organizations were eligible from fiscal years 2007 through 2015. The number of relevant grant programs could be higher. As discussed below, OJP was unable to identify the total number of relevant grant programs and total number grantees awarded grants under these programs, including potential FBOs. More specifically within DOJ:

OVW identified 20 grant programs subject to statutory restrictions on religious-based hiring. From these 20 programs, 604 grantees were awarded grants, including 25 that OVW identified as potential FBOs.

OJP identified at least 10 grant programs subject to statutory restrictions on religious-based hiring. According to officials, OJP was not able to readily identify grant solicitations that were available to nonprofit organizations from fiscal years 2007 to 2015 and subject to statutory restrictions on religious-based hiring. This effort, according to OJP, would have required a manual search of each grant solicitation. However, OJP was able to identify at least 10 grant programs subject to statutory restrictions on religious- based hiring. From these 10 programs, at least 1,113 grantees were awarded grants, including 74 we identified as potential FBOs.

COPS identified four grant programs subject to statutory restrictions on religious-based hiring. From these four programs, 57 grantees were awarded grants, none of which were potential FBOs.

Of the 117 potential FBOs we identified across the three agencies, nine faith-based grantees, all of which were awarded DOJ grants, certified that they were exempt from statutory restrictions on religious-based hiring (see figure 1). These 9 grantees were, therefore, allowed to consider a prospective employee’s religious faith when making employment decisions in connection with the grant. DOL and HHS reported that none of their grantees have sought exemptions from religious-based hiring provisions.

As shown in Table 1, 8 of the 9 faith-based grantees that certified that they were exempt were awarded funding through DOJ grant programs from fiscal years 2008 to 2010. The remaining exempted grantee received a funding award in 2015. The total funding awarded to the 9 grantees was approximately $3.2 million, which is less than 1 percent of the $804 million in grants that DOJ awarded that are subject to statutory restrictions from fiscal years 2007 to 2015. DOJ reported that 8 of these grantees received the awards on a noncompetitive basis because they were identified for funding in a DOJ appropriation or accompanying committee report.

Exempted Faith-Based Grantees Stated that Hiring Staff to Assist with Grant Activities on the Basis of Religion Was Critical to Their Mission

We interviewed 6 of the 9 grantees that certified that they were exempt from religious-based hiring restrictions. Each of the 6 grantees that we interviewed stated that: hiring individuals who share their religious beliefs to assist with grant activities was critical to their mission and organizational success; they include a “statement of faith” on their organization’s job application form and ask the applicant to attest to the statement of faith, or hired individuals of the same faith already employed within their organization; and had the RFRA exemption not been available to them, they likely would not have sought the grant or they would have had to seek executive- level approval within their organization to apply for the grant.

At least 3 of the 6 grantees stated that they were a recipient of other federal grant funding, but those grants were not subject to statutory restrictions on religious-based hiring, and therefore did not require an exemption to make hiring decisions based on religion. Based on grant award documentation, 6 of the 9 grantees used the funding to provide assistance to at-risk youth. However, other services that the remaining grantees provided included first responder training and programs to reduce homelessness, among others, and support and response efforts for victims of sexual assault.

As discussed earlier, we also selected 35 potential faith-based grantees that received funding in fiscal years 2014 and 2015 and that agencies reported had not filed a self-certification to be exempted from religious- based hiring restrictions. We interviewed 5 of these 35 grantees to discuss, among other things, whether the grantees were familiar with the exemption options. The five faith-based grantees said they did not recall seeing information about the exemption option in the grant application or grant award documentation, or were not looking for information about the exemption because they were not considering religion in their hiring decisions. Two of the faith-based grantees that did not certify as exempt told us that, while they ask that the applicant have an understanding of the traditions, culture, or languages of their religion, they do not require applicants to share the same faith.

Federal Agencies Primarily Use Grant Documentation to Notify Grantees of Restrictions on Religious-Based Hiring and Requirements for Demonstrating Eligibility for Exemptions

Agencies Notify Grantees of Statutory Restrictions on Religious-Based Hiring through Grant Materials that Identify Relevant Regulations

DOJ, DOL, and HHS inform grant applicants and recipients of statutory restrictions on religious-based hiring and processes for obtaining an exemption from such restrictions through grant announcements. The agencies also use additional methods that varied across all three agencies for providing this information to grantees.

DOJ specifically made this information available on agency web pages as well as in the documentation that is provided to grant recipients. DOJ’s Center for Faith-Based and Neighborhood Partnerships has a web page specifically for FBOs that have applied for or received grant funding. This web page includes a list of Frequently Asked Questions, including one that addresses hiring employees with federal grant funds. The Office for Civil Rights within OJP also provides information on its web page regarding how FBOs may certify that they are exempt from statutory restrictions on religious-based hiring. Additionally, it includes a link to a copy of DOJ’s exemption certification form. We interviewed representatives from four potential faith-based grantees that received a DOJ grant in fiscal years 2014 or 2015 and did not certify for an exemption. All four grantees said they could not recall seeing information in the grant application or award documentation about the exemption option or were not looking for it because they were not considering religion in their hiring decisions.

Similarly, DOL has a web page devoted specifically to explaining statutory restrictions on religious-based hiring to faith-based grant applicants and recipients, which also covers the process for seeking exemptions from the restrictions. The web page makes reference to DOL’s regulations related to religious-based hiring by FBOs and also has a link to the June 2007 OLC opinion. Additionally, DOL has prepared a guidance document—available from its grants program overview web page—that explains in detail the process for seeking exemptions and how they are reviewed and approved. A representative from the one potential FBO we interviewed that received a DOL grant in fiscal years 2014 or 2015 but did not certify that they were exempt could not recall seeing information about the exemption option.

Lastly, in addition to providing information in grant announcements, HHS provides all SAMHSA grant applicants seeking funds for substance abuse prevention and treatment services with a form that cites laws and regulations governing religious organizations that receive SAMHSA funding, including the regulation that outlines the exemption process. HHS requires the applicants to sign the form, and in doing so, the applicants are certifying that they are aware of and will comply with applicable laws that allow FBOs to provide SAMHSA-funded services without impairing their religious character and without diminishing the religious freedom of those who receive their services.

Agencies Rely on Grantees to Self-Certify that They Meet Eligibility Requirements for Exemptions from Statutory Restrictions on Religious- Based Hiring

DOJ, DOL, and HHS all require grantees that seek to make employment decisions based on religion to self-certify that they meet requirements to be eligible for an exemption from statutory restrictions on religious-based hiring, but vary in how they review and approve requests for exemptions.

Department of Justice

DOJ faith-based grantees that wish to demonstrate they are eligible for an exemption from statutory restrictions on religious-based hiring must complete and sign a “Certificate of Exemption for Hiring Practices on the Basis of Religion.” If an applicant is awarded a grant, it must submit a copy of the signed version of this form through DOJ’s Grants Management System. By signing the form, the grantee is certifying that: federally-funded services will be offered to all qualified beneficiaries without regard for the religious or nonreligious beliefs of those individuals; activities that contain inherently religious content will be kept separate from grant-related activities or offered to clients voluntarily; and the organization believes that the services provided are an expression of its religious beliefs, employing persons of a particular religion is important to its mission, and not being able to hire such persons would be a substantial burden to the organization.

DOJ does not review these self-certification submissions to approve or deny the requests. It only reviews them for any indication that the applicant may not be an FBO, in which case DOJ officials said they would follow up with the grantee to get clarification. Agency officials also said DOJ would review any self-certifications as part of grantee compliance reviews and in response to complaints from other parties. The self- certification form covers the entire grant award period, and can cover multiple DOJ grants as long as all of the grant programs are subject to the same statutory restrictions on religious-based hiring. There is no deadline for submitting the self-certification and DOJ officials told us that while it is understood that self-certifications should be submitted before grant funds are dispersed, grantees do not need to do so.

Department of Labor

DOL faith-based grantees that wish to demonstrate they are eligible for an exemption also self-certify, but are required to submit their request to DOL for review and approval by the Assistant Secretary responsible for issuing or administering the grant. In its request, the grantee must certify that: providing the services to be funded by the grant is an exercise of its without the grant, its ability to provide the services funded by the grant would be substantially diminished, and providing those services is demonstrably tied to the recipient’s religious beliefs; employing individuals of a particular religious belief is important to its religious identity, autonomy, or communal religious exercise; conditioning the grant award on compliance with the nondiscrimination provision creates substantial pressure on it, in providing the services being funded, to abandon its belief that hiring based on religion is important to its religious exercise; and it will comply with the requirements of 29 C.F.R. part 2, subpart D, Equal Treatment in Department of Labor Programs for Religious Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries.

The Assistant Secretary’s office then reviews exemption requests and approves them or provides a reason for denial. DOL has instituted a 30- day deadline to reply back to the grant applicant with its decision. DOL implemented this process in response to the 2007 OLC opinion. However, agency officials said they have never used this process because, as explained earlier in this report, DOL has not received any exemption requests. They also told us exemptions are only valid for the grant award period and new requests must be re-submitted if the grant is renewed. However, an exemption can cover multiple grants to the same grantee as long as those grants are received from the same DOL component. Lastly, the officials said that grant funds can be disbursed before the grantee has submitted an exemption request.

Department of Health and Human Services

HHS faith-based grantees seeking to demonstrate that they are eligible for an exemption from statutory restrictions on religious-based hiring must self-certify that they meet several requirements outlined in HHS regulations. To demonstrate its eligibility for an exemption, a grantee must certify that: it sincerely believes employing individuals of a particular religion is important to the definition and maintenance of its religious identity, autonomy, and/or communal religious exercise; it makes employment decisions on a religious basis in analogous programs; it believes the grant would materially affect its ability to provide the type of services in question; and providing the services in question is expressive of its values or mission.

Grantees must then submit their self-certification to HHS requesting an exemption, and maintain supporting justification documentation on file if needed for future review. However, as explained earlier in this report, there is currently only one HHS grant program that is subject to a statutory restriction on religious-based hiring and for which FBOs are eligible to be primary recipients—the PATH program. We did not identify any faith-based recipients of grants from this program from fiscal years 2007 through 2015, and HHS officials confirmed that no nonprofit entities received any grants from the program during this time.

Agency Comments

We provided a draft of this report to the Departments of Labor, Justice, and Health and Human Services. Although the agencies did not provide formal comments, the Departments of Justice and Health and Human Services did provide technical comments that we incorporated, as appropriate.

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Appendix I: GAO Contact and Staff Acknowledgments

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Staff Acknowledgments

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