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OFCCP Proposes New Sex Discrimination Rules

on Wednesday, 15 April 2015 in Labor & Employment Law Update: Sarah M. Huyck, Editor

The Office of Federal Contract Compliance Programs (“OFCCP”) has announced the publication of a Notice of Proposed Rulemaking (NPRM) to revise and replace its Sex Discrimination Guidelines.

The NPRM would rescind OFCCP’s outdated guidelines on federal contractors’ obligations not to discriminate on the basis of sex under Executive Order 11246 (“E.O. 11246”), as amended, and replace them with updated regulations. The proposed rule addresses compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family caregiving discrimination—all topics that the OFCCP and EEOC have focused on of late.

E.O. 11246

As a refresher, Executive Order 11246 prohibits covered contractors and subcontractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. It also requires contractors to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. OFCCP interprets the nondiscrimination provisions of E.O. 11246 as being consistent with the principles of Title VII of the Civil Rights Act of 1964, which is enforced by the EEOC.

What Was Outdated?

According to the OFCCP, the current regulations (which would be rescinded) are outdated because they do not address “the realities of today’s workforce and workplaces.” For instance, the current guidelines prohibit sex-segregated want ads; yet, jobs are no longer advertised in sex-segregated newspaper columns (i.e., separate “Men” and “Women” job ads). Similarly, contractors today rarely adopt or implement explicit rules that prohibit hiring of women for certain jobs. Yet the current guidelines explicitly address facial “male only” hiring policies.

Other deficiencies in the current guidelines include (according to the OFCCP):

  • The current guidelines do not address the full range of discriminatory wage practices that contribute to the wage gap, even when differences in occupation, skills, job characteristics, and labor market experience are taken into account.
  • The current guidelines do not address accommodations for workers affected by pregnancy, childbirth, or related medical conditions.
  • The current guidelines do not address sex-based stereotyping related to caregiving.

The OFCCP further states that change is necessary, as the current guidelines do not reflect the significant changes that Congress and case law have made to Title VII since 1970. For example:

  • The current guidelines do not address pregnancy insurance issues. Yet, the Pregnancy Discrimination Act requires an employer to provide health or disability insurance to its employees for pregnancy-related conditions if it provides such insurance for other conditions.
  • The current guidelines make no reference to sexual harassment or hostile work environments.
  • The current guidelines allow, but do not require, equal contributions or equal benefits in fringe-benefit plans.

Proposed Rule

The rule proposes to eliminate current provisions that are outdated, revises others to align them with current law and interpretations, and includes new provisions that address contemporary problems. Specifically, the proposed rule would:

  • Clarify that adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities constitutes discrimination.
  • Clarify that leave for childcare must be available to men on the same terms as it is available to women.
  • Confirm that contractors must provide workplace accommodations, ranging from extra bathroom breaks to light-duty assignments, to women affected by pregnancy, childbirth, and related medical conditions comparable to the accommodations that they provide to other workers similar in their ability or inability to work, such as workers with disabilities or occupational injuries.
  • Clarify that compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work, and thus may violate E.O. 11246.
  • Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
  • Address both quid pro quo and hostile-environment sexual harassment, and include as a best practice that contractors develop and implement procedures to ensure an environment in which all employees feel safe and welcomed, are treated fairly, and are not harassed because of sex.
  • Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination.
  • Clarify that discrimination based on an individual’s gender identity is unlawful sex discrimination.Change the “Sex Discrimination Guidelines” to regulations about “Discrimination on the Basis of Sex” to make clear that they have the force and effect of law.

What does this mean?

For federal contractors and subcontractors already covered by Title VII (those employing at least 15 employees) or the Family and Medical Leave Act (those employing at least 50 employees), the new rules would basically implement or clarify existing case law or applicable requirements from other federal agencies to which contractors are already subject. For smaller contractors not otherwise subject to Title VII, the NPRM potentially imposes new rules on sex discrimination not previously applicable to them.

While the proposed changes allegedly bring the Sex Discrimination Guidelines more in line with subsequent case law and guidance since its original issuance, it is unclear the extent to which the OFCCP will use the guidelines during its compliance evaluations.

Kelli P. Lieurance

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