Transgender Bathroom Debate - Question about facilities compliance
I'm trying to stay current on this topic. Title VII (the EEOC's position on Title VII) and EO 13672 address discriminatory behaviors. Do either of these regulations talk specifically about the actual restroom facilities? Are there facility design elements required for compliance? For example, is there anything new regarding signage for restrooms.
You are correct that Title VII of the Civil Rights Act of 1964 and Executive Order 13672 both address sex discrimination broadly. However, Executive Order 13672 does include the following: “To comply with its obligations under the Order, a contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result.” It further continues by defining “facilities” as “waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms….” Facility design and signage are not specifically mentioned.
In addition, EEOC case law and guidance provided by EEOC, OFCCP, OSHA, and other federal government agencies all take the position that employers should provide employees access to restrooms consistent with their gender identity. In at least one discrimination case, EEOC ruled that “denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination.”
OFCCP also addressed this in one of their Frequently Asked Questions on E.O 13672 and stated that “contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee” and that “contractors must allow employees and applicants to use restrooms consistent with their gender identity.”
You can access further information and guidance on this topic in these publications:
EEOC’s Fact Sheet on Transgender Bathroom Access Rights
OFCCP’s Frequently Asked Questions on E.O. 13672
OFCCP’s Fact Sheet Defining Sexual Orientation and Gender Identity
OSHA’s A Guide to Restroom Access for Transgender Workers
As a federal government sub-contractor, is it required that everyone that works at our organization be a US Citizen? Or is it acceptable that they be "eligible to work in the US" and can pass e-verify with documents that verify that they are eligible to work in the US while not necessarily being a US Citizen?
It is not required that everyone be a U.S. citizen. You're correctly that your employees will need to be able to document they are able to legally work in the United States. However, there are numerous federal contractors and subcontractors that have employees in the U.S. who are foreign nationals here on H-1B or other visas.
Which EEO-1 Report to include for OFCCP Scheduling Letter
We are currently under audit with the OFCCP, and the scheduling letter asks for EEO-1's from the last 3 years. I have 3 work sites with less than 50 employees that I roll up into our corporate plan. Should I include those EEO-1's as well or just our main headquarters, which is the focus of the audit?
You should provide all EEO-1 reports that comprise the employee data for the AAP. If you exclude the locations that are rolled up, the data will not be consistent with the data in the AAP.
Blind Job Postings
We would like to review resumes for a possible position without actually posting the position to our website. Is there a way to do a blind posting with a staffing agency or post a position to a job board without sending the candidate to an online application and still be OFCCP compliant? Can we review resumes and contact candidates without having a requisition to tie the search to?
The primary issue here isn't whether you need a formal requisition or whether you need to follow your standard recruitment and selection practices. The primary issue here is that federal contractors and subcontractors are required to list open positions with the relevant Employment Service Delivery System (ESDS) office (i.e. the relevant state employment service office) under the affirmative action regulations for protected veterans. These regulations provide for only three exceptions in regard to positions which do not need to be listed with an ESDS office:
- Openings of three days or less
- Openings that will be filled internally
- Openings that involve "executive and senior management" positions as defined in the regulations
See 41 CFR 60-300.5(a)
This means that if you are filling a professional position that requires a high level of skill or experience, it still needs to be listed with an ESDS office.
The only way to effectively do a blind posting without involving your organization would be to have a staffing agency list the position with an ESDS office under the staffing agency's name, and then provide you with candidates. You would need to insist that the staffing agency provide you with copy of the ESDS listing in case it is requested during an OFCCP compliance review.
If you intend to do a blind posting on your own to various job boards, you will likely run into trouble with the ESDS listing requirement. You can certainly talk to a local veteran's rep at one of the ESDS offices to see how this situation might be handled so long as you know ahead of time that you aren't likely to be able to use an ESDS office to run a blind ad.
A secondary issue that you face is that federal contractors and subcontractors are required to make outreach efforts to recruit qualified minorities, females, veterans, and individuals with disabilities. You may find job boards or other recruitment sources that serve these groups that are willing to take your blind ad. However, the fact that you're running a blind posting does not relieve your organization of its outreach responsibilities.
A final note on process. As I said above, you can decide that in certain special circumstances, you will follow a different recruitment and selection process than your usual process. However, you will need to ensure that this process allows you to appropriately collect data, including demographic data on race, gender, veteran, and disability status, from qualified applicants. You will also need to ensure that the process gives appropriate treatment to all candidates during the selection process.
Here's the bottom line: it's hard to do a blind posting and remain compliant with the federal affirmative action regulations.
Follow up Question: Data Collection for VEVRAA and Section 503 AA Plans
While gathering data for our count of job openings and jobs filled, we have stumbled upon some questions regarding how to set the date parameters on our reports for this data.
In regards to these regulations, OFCCP's FAQs seem to define a "hire" as "applicants (both internal and external to the contractor) who are hired through a competitive process." By contrast, hires seem related to external applicants only in terms of EO 11246. Yet in both situations the hire date dictates whether or not a hire and the associated applicant pools should be included in the data for the AA plan.
Using this logic to count our number of openings, we concluded that the openings should also be counted based on the hire date. That is, a job opening would be a job opened at any time but filled or cancelled during the AA plan year. For example, a plan year runs from 1/1/15 - 12/31/15. A requisition is opened on 12/1/2015 and closed on 12/30/15, but the employee is not hired until 1/3/16.
For all other purposes, data related to this hire would be reported with the 2016 plan. However, it is unclear whether or not this should count as a job opening for 2015 or 2016. We are assuming that it would count as an opening for 2016 based on the hire date (as with all other data).
Is this correct, or should we instead be basing our parameters on the requisition open date and counting it as a 2015 opening? Does OFCCP offer any guidance on how date parameters should be set for this data, or is this left to the employer's best judgment? We are trying to keep our data consistent across all levels but are finding this to be an arduous task.
The FAQs issued by OFCCP in regard to how to count data for the data collection analyses in the veteran and disability AAPs are a serious problem.
We can start with the idea that the definitions used in these FAQs are inconsistent with other materials published by OFCCP. For example, the FAQs define a "hire" as an internal or external selection through a competitive process. Typically, we would call an internal selection through a competitive process a "promotion," not a "hire." In the Executive Order AAP, federal contractors and subcontractors are instructed to analyze data on both "hires" and "promotions," and the itemized listing that organizations receive at the start of an OFCCP compliance review asks for data on both hires and promotions. Thus, OFCCP appears to have a major inconsistency in what constitutes a "hire".
The question of "jobs opened" and "jobs filled" is somewhat simpler. "Jobs opened" are positions that were opened to candidates. Positions that were cancelled, filled in a subsequent AAP year, or otherwise unfilled where candidates were considered constitute "jobs opened." (I will leave the question of what is considered a "job filled" since your post does not ask about this issue, but I will say that the FAQs are not helpful on this issue.) Applicants who expressed interest in jobs opened but not filled would be included in the data collection analysis in the veteran and disability AAPs, while they would typically be excluded from data shown in the Executive Order AAP (i.e. the AAP for minorities and females).
The bottom line is this: the FAQs would cause employers to treat data in the AAPs for veterans and individuals with disabilities differently than the data in the Executive Order AAP. Data on applicants that would not be included in the Executive Order AAP personnel activity summaries may be included in the data collection analyses in the veteran and disability AAPs. Data on hires in the Executive Order AAP personnnel activity summaries would be different than data on "hires" in the veteran and disability AAPs.
As with so many things concerning OFCCP in the last few years, there is no clear answer here. OFCCP has provided little guidance on regularizing these two seemingly conflicting sets of standards. Thus, one choice is to follow the regulations for the Executive Order AAP and the FAQs for the veteran and disability AAPs, and realize you will have inconsistent data. Another choice to use the same rules in preparing data for inclusion in all AAPs, realizing that you will either not be following the FAQs for the veteran and disability AAPs or not following the regulations surrounding the Executive Order AAP.
Two things may be helpful here.
* First, FAQs are not law; they are interpretive guidance by OFCCP. OFCCP may be unhappy if you fail to follow its FAQs, but you would have a legitimate argument to suggest that OFCCP's FAQs are not a proper interpretation of the veteran and disability regulations.
* Second, on a purely practical level, it's not clear OFCCP is doing an in-depth review of the data submitted in the veteran and disability regulations. It's more important to get your applicant and hire data right for the Executive Order AAP than it is to get your data metrics right for the veteran and disability AAPs, since OFCCP certainly does continue to closely review the applicant and hire data on race, ethnicity, and gender.
Do we have to post any statement about Executive Order 11246 pay transparency on our website?
You need to make the pay transparency language provided by OFCCP available to applicants and employees. This probably means you do, in fact, need to make this language available on your website unless you have another way to reach all applicants.