The OFCCP's Proposed Regulations on Sex Discrimination and What They Mean for Contractors

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On January 30, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) published its proposed rule regarding updates to the current guidelines governing discrimination on the basis of sex. According to the OFCCP, the proposed changes will not actually change existing requirements for federal contractors but will, instead, replace the current sex discrimination guidelines (which have not been updated since they were first published in 1970) with new regulations that are more closely aligned with the present-day work environment and current law. For instance, the proposed rule notes that the following changes, among others, have occurred since 1970:
  • Female participation in the workforce has grown from 43% to 57% and the percentage of working mothers has grown from 47% to 70%;

  • Title VII has been amended four times (i.e., by the Equal Employment Opportunity Act in 1972, by the Pregnancy Discrimination Act in 1978, by the Civil Rights Act in 1991, and by the Lilly Ledbetter Act in 2009) to expand protections against sex-based discrimination;

  • The Family and Medical Leave Act (FMLA), which requires covered employers to provide employees unpaid leave in connection with their own serious health condition (including pregnancy and childbirth) or the serious health conditions of their covered family members, was enacted;

  • State laws barring women from working in certain occupations or restricting employment on the basis of sex have been repealed; and

  • The Supreme Court has expanded the scope of unlawful sex discrimination under Title VII to include the following: using sex as a factor to calculate retirement benefits, compensation discrimination, sex-based occupational exclusions, pregnancy-based discrimination, sexual harassment, “same sex” harassment, and sex stereotyping.
The OFCCP claims that these changes require updating of the Sex Discrimination Guidelines, both to eliminate provisions that are no longer applicable and to incorporate provisions that address current discriminatory practices and issues. Consequently, the proposed rule, if enacted, would:
  • Change the current Sex Discrimination Guidelines to regulations about discrimination on the basis of sex in order to make it clear that they are legal requirements;

  • Explicitly state that, for purposes of the regulations, the term sex includes pregnancy, childbirth or related medical conditions, gender identity, and transgender status, in addition to gender;

  • Make it clear that negative treatment of an employee because of gender stereotypes or assumptions about family caretaking responsibilities is discrimination and is prohibited;

  • Provide that negative treatment of employees because they do not conform to gender-based norms and expectations about appearance, attire, and behavior is also unlawful sex discrimination;

  • Clarify that leave for childcare, fringe benefits, and benefit contributions must be available to both men and women on the same terms;

  • Require that contractors provide women affected by pregnancy, childbirth, or related medical conditions with accommodations (e.g., extra bathroom breaks, light-duty assignments, etc.) that are comparable to the accommodations provided for workers with disabilities or occupational injuries who are similar to pregnant women in their ability or inability to work;

  • Clarify that compensation discrimination includes job segregation or classification and steering women into lower paying jobs and is not limited to unequal pay for equal work; and

  • Address sexual harassment and include the “best practice” recommendation that contractors develop and implement procedures to ensure a work environment free of sexual harassment.
In sum, for contractors who are already subject to Title VII and other federal anti-discrimination laws, the proposed rule does not impose many new obligations. However, with respect to the proposed rule’s provisions on protections for gender identity/transgender status and pregnancy-related accommodation, the proposed rule does go beyond what is presently required for private employers. Moreover, the proposed rule emphasizes that a focus on sex discrimination remains an important part of the OFCCP’s agenda and contractors would do well to review their policies and practices to ensure that they are in a position to comply with the proposed rule if it becomes law.

More information regarding the OFCCP’s proposed rule on sex discrimination can be found here. In addition, contractors who wish to comment on the proposed rule may still submit comments for consideration until March 31, 2015.