OFCCP Announces Intent to Publish Updated Sex Discrimination Rules
By: Recruiting Specialist
President Obama signed EO 13672 on July 14, 2014, extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender ("LGBT") community. He amended Executive Order 11246 to add sexual orientation and gender identity as protected characteristics. The OFCCP on December 9, 2014, without notice or an opportunity for public comment, issued its final rule implementing Executive Order 13672. It requires federal contractors to take affirmative action to ensure that applicants and employees are treated fairly without considering their sexual orientation or gender identity during their employment. The Rule is effective April 8, 2015, and applies to all new or modified federal contracts and subcontracts after that date.
The Rule highlights OFCCP's intention to focus on LGBT protections and is relatively straightforward. The Rule also places the following obligations on employers:
- Ensure that applicants and employees are not discriminated against based on their sexual orientation or gender identity.
- Update existing affirmative action plans and all equal opportunity, harassment, and nondiscrimination policies to reflect the additional protected categories.
- Make available to applicants and employees a revised version of the "EEO is the Law" poster that includes a notice regarding the protections for LGBT workers.
- Include "sexual orientation" and "gender identity" as protected traits in the equal opportunity job solicitation taglines. (OFCCP suggested in the Rule preamble that "equal opportunity employer" may be sufficient to cover all protected categories of EO 11246.)
- Incorporate the new categories into new or modified subcontracts and purchase orders.
- Report to OFCCP and the Department of State any suspicion that it cannot obtain a visa for an employee, from another country with which it does business, due to the employee's sexual orientation.
- Ensure that facilities (e.g., restrooms, locker rooms, and dressing areas) provided for employees are not segregated on the basis of sexual orientation and gender identity.
The Rule however, does not burden federal contractors with the same data collection and analysis obligations that are required with respect to females and minorities.
The OFCCP published a Notice of Proposed Rulemaking (NPRM) to update contractors' obligations to not discriminate on the basis of sex under EO 11246 to "reflect present-day workplace realities and align OFCCP's rules with current law under Title VII." The new rules will touch on "compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family caregiver discrimination, among other topics." This is an attempt to modernize these rules which has not been updated since 1970 and OFCCP seeks comment by March 31, 2015, before determining what form any final rules might take. Businesses that engage or plan to engage in contracting or subcontracting with the federal government should review the NPRM to familiarize themselves with the proposed rule changes, and consider whether they wish to comment on them.
Specifically, the OFCCP notes in the NPRM that the nature and extent of women's participation in the workforce has changed dramatically in the 45 years since the guidelines were first published. It also notice that several statutes related to sex discrimination, including the Pregnancy Discrimination Act and the Family Medical Leave Act, did not exist when the guidelines were published, nor did many of the regulations and guidance published by the Equal Employment Opportunity Commission (EEOC), which have a profound effect on employer decisions and policies.
In an effort to align its requirements with EEOC guidance and with recent case law, the OFCCP proposes to enforce new rules, including:
- A requirement that parental leave be made available for men and women on equal terms.
- A requirement that employers provide accommodations for women affected by pregnancy and childbirth.
- A clear prohibition on discrimination based on gender identity or sexual orientation.
- A prohibition on harassment and hostile work environments.
- A prohibition on making employment decisions on the basis of sex-based stereotypes.
- Clarification on how the OFCCP determines whether pay discrimination on the basis of sex has occurred.
The new rules, which will no longer be called "guidelines", make clear that they have the force and effect of law. The OFCCP also hopes that the new rules will advance the employment status of female employees by clarifying its rules concerning harassment, gender stereotyping, and benefits.
After the March 31, 2015, comment deadline has passed, the OFCCP will review comments it has received and likely issue a notice on the rules it plans to adopt.
The regulatory landscape for federal contractors saw many changes in 2014, and it seems 2015 is shaping up to be no different.