On Tuesday (June 14, 2016) of this week, the White House Council on Women and Girls together with the Department of State, Department of Labor, the Aspen Institute, and Civic Nation held the Summit on the United State of Women. On that same day, the Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule updating the OFCCP’s sex discrimination guidelines. According to the OFCCP’s Fact Sheet, the revisions were to bring the guidelines, which are from what the OFCCP called the “Mad Men” era (1970’s), up to date.
The OFCCP published a Notice of Proposed Rulemaking on January 30, 2015 and received 553 comments on the proposed rule. The Final Rule will take effect on August 15, 2016.
The Final Rule applies to any business or organization that (1) holds a single federal contract, subcontract, or federally assisted construction contract or subcontract in excess of $10,000; (2) holds federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12-month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount.
Among the updates, the Final Rule defines “sex” as including gender identity and transgender status. The Rule provides specific examples of sex discrimination based on transgender status by making it unlawful to deny transgender employees access to the restrooms, changing rooms, showers, and similar facilities designated for use by the gender with which they identify. The Rule also prohibits employers from treating employees or applicants adversely because they have received, are receiving, or are planning to receive transition-related medical services designed to facilitate the adoption of a sex or gender other than the individual’s designated sex at birth.
Regarding the sections on discrimination on the basis of pregnancy, childbirth, or related medical conditions, the Final Rule adopts the language of the Pregnancy Discrimination Act and prohibits contractors from discriminating on the basis of pregnancy, childbirth, or related medical conditions. The Final Rule also requires contractors to treat people of childbearing capacity and those affected by pregnancy, childbirth, or other related medical conditions, the same for all employment-related purposes as other persons similar in their ability or inability to work.
In addition, the Final Rule adopts the Supreme Court’s Young v. UPS decision (we covered this in a previous blog post here) by specifying that denying accommodations for pregnancy, childbirth, or related medical conditions is unlawful where the contractor provides accommodations to other employees whose abilities or inabilities to perform their job duties are similarly affected.
Further, to the extent that a contractor provides family, medical, or other leave, such leave must not be denied or provided differently on the basis of sex.
The Final Rule also makes it clear that employment decisions made on the basis of stereotypes (including failure to conform to gender norms and expectations of dress, appearance, and/or behavior; actual or perceived gender identity or transgender status; and caregiver responsibilities) are a form of sex discrimination. This type of discrimination (known as sex stereotyping) has been the law for some time.
The Final Rule includes an appendix of best practices, which are non-binding. These include:
- Designating a single-user restroom or similar facilities as sex-neutral.
- Providing as part of broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions.
- Providing appropriate time off and flexible workplace policies for men and women.
The Final Rule is not anything new or “earthshattering” for contractors. Indeed, the OFCCP’s changes are intended to have the guidelines come into alignment with other agencies and case law on these topics, which contractors are likely already following.