OFCCP Brings Sex Discrimination Rules into the 21st Century

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) released a final rule updating its prior guidance on Executive Order 11246, as amended (the “Order”), to modernize sex discrimination regulation and reflect current law.

The Order prohibits covered federal contractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.  While the Order was amended in 2014 to add sexual orientation and gender identity, the OFCCP had not updated its guidelines on sex discrimination since 1970.  According to the Department of Labor, the guidelines were “out of touch with current law and with the realities of today’s workforce and workplaces.”

Therefore, the OFCCP promulgated its final rule addressing, among other things, gender identity, transgender status, and the equal treatment of men and women in terms of leave and accommodations.  For example, the final rule expands protection against sex discrimination in the following ways.

Definition of Sex:  “sex” includes gender identity, transgender status, pregnancy, and sex stereotyping.

Sex Stereotyping:  employment decisions may not be based upon an employee’s failure to conform to gender norms and expectations for dress, appearance, and/or behavior; actual or perceived gender identity; or caregiver responsibilities.

Examples of Sex Discrimination:  denying transgender employees access to restrooms and similar facilities designated for use by the gender with which they identify; treating employees adversely because they have received or plan to receive transition-related medical services designed to facilitate the adoption of a particular sex or gender; and relying on recruitment or promotional methods, such as “word-of-mouth” recruitment, that have an adverse impact on women.

Additionally, the OFCCP includes several best practices for employers.  Recommended best practices include designating single-user restrooms or similar facilities as sex-neutral, and providing broader accommodations policies, light or modified duty, or other reasonable accommodations to employees unable to perform certain job duties because of pregnancy, childbirth or medical conditions.  Effective August 15, 2016, the final rule will amend title 41, part 60-20 of the Code of Federal Regulations.

If you have any questions regarding these issues raised in this client alert, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.

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