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OFCCP Announces Final Rule Protecting LGBT Workers

on Wednesday, 28 January 2015 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On July 21, 2014, President Obama signed Executive Order (“EO”) 13672 extending workplace protections to lesbian, gay, bisexual and transgender (“LGBT”) Americans in the federal contracting workforce. The order instructed the Department of Labor (“DOL”) to update the rules implementing EO 11246—which already protects workers employed by or seeking jobs with federal contractors and subcontractors from discrimination on the basis of race, color, religion, sex, or national origin—to add gender identity and sexual orientation to the classes it protects. On December 3, 2014, the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) issued its Final Rule.

Notably, the new rule does not require contractors to collect data on, or even take affirmative action in the employment of, LGBT individuals. Rather, the provisions merely require non-discrimination. With that said, the following action items will be necessary to ensure compliance:

  • Update EO Clause for Subcontracts/Purchase Orders. When contractors incorporate the Equal Opportunity Clause into subcontracts and purchase orders under EO 11246, they must revise the language to add “sexual orientation” and “gender identity.” With that said, contractors who incorporate the clause by reference may still do so and need not enumerate the protected bases.

    But don’t forget to still use the appropriate bolded EEO language required under Section 503 and VEVRAA. Those requirements are separate from (and in addition to) the EO 11246 requirement.

  • Update EEO Policies. Contractors should update all equal employment/affirmative action policies which list the protected bases against whom discrimination is prohibited to include “sexual orientation” and “gender identity.” This might require adjustment of statements posted on bulletin boards, in handbooks, or in a job advertisement/postings.
  • Modify Job Postings/Advertisements. For job postings, contractors may either state: “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin,” or simply use the phrase “an equal opportunity employer.”

    But don’t forget to add the “Vet/Disabled” language to comply with your obligations under Section 503 and VEVRAA.

  • Post New Poster. Contractors must notify applicants and employees of their non-discrimination policy by posting the “EEO is the Law” poster. We anticipate that the government will update this poster to include the two new categories in the near future.
  • Train Your People. Train your managers and decision-makers on the new protections.

While the rule does not impose any self-identification obligations, according to the OFCCP’s FAQs, the rule does not prohibit contractors from asking applicants and employees to voluntarily provide the information (where not prohibited by state or local law), so long as the information is not used to discriminate against the applicant or employee. We recommend against collecting this information, however, as it provides an employer with knowledge of a protected characteristic of which it might not otherwise be aware. In other words, for defensive purposes, it is easier for an employer to defend against a claim of discrimination where the employer had no knowledge of the protected basis, rather than to prove that such characteristic was not a factor in the decision.

The Final Rule becomes effective on April 8, 2015. It will apply to federal contracts entered into or modified after that date.

Kelli P. Lieurance

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