OFCCP Issues Proposed Regulations Updating Sex Discrimination Rules

Updating 40-year old federal contractor sex discrimination guidelines, on January 30th, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published proposed updated sex discrimination guidelines in the Federal Register. The proposed regulations, which the OFCCP estimates would cover 65 million employees, set forth updated requirements that covered federal government contractors and subcontractors must meet in fulfilling their nondiscrimination and affirmative action obligations on the basis of sex under Executive Order 11246 (E.O. 11246), as amended.

E.O. 11246 prohibits covered federal contractors and subcontractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Just last year, President Obama issued an Executive Order amending E.O. 11246 to include sexual orientation and gender identity among the protected categories. (For more details on the 2014 amendments to Executive Order 11246, click here and here to see Winston’s client briefings.) The proposed rulemaking marks the first time the sex discrimination guidelines have been updated since they were issued in 1970.

For the most part, the guidelines bring the OFCCP’s rules into conformance with current judicial and legislative standards. Specifically, among other things, the proposed regulations:

• confirm that discrimination based on gender identity or nonconformance with gender norms is unlawful sex discrimination;
• require federal contractors to provide accommodations for female employees affected by pregnancy, childbirth, and related medical conditions;
• identify best practices for contractors to avoid quid pro quo and hostile-environment discrimination;
• require employers to make leave for childcare available to men and women on the same terms;
• clarify that job segregation or classification on the basis of sex constitutes unlawful compensation discrimination; and
• clarify that unequal benefits or contributions in fringe benefit plans constitutes unlawful discrimination.

Additionally, according to the OFCCP, the regulations “provide clear and consistent regulatory protection to transgender employees, the vast majority of whom report that they have experienced discrimination in the workplace.”

A public comment period is open until March 31, 2015. Comments can be submitted online, by fax, or via the mail. Details on how to submit comments are listed on the OFCCP website. For more information see the OFCCP’s proposed rule, Fact Sheet, and FAQ page.