What To Know About DOL’s Contractor Discrimination Regs

June 21, 2016Articles Law360

Kenneth A. Rosenberg and Asad Rizvi authored the Law360 article, "What To Know About DOL's Contractor Discrimination Regs."

On June 14, 2016, the U.S. Department of Labor issued its much-anticipated final rule revising the Sex Discrimination Guidelines for federal contractors — an update more than four decades in the making. The new rule supersedes legal standards issued in 1970 and brings the guidelines from the “‘Mad Men’ era to the modern era,” according to Patricia A. Shiu, the director of the Office of Federal Contract Compliance Programs.

The new regulations, which will become effective on Aug. 15, 2016, will shape the way the OFCCP interprets and enforces Executive Order 11246 moving forward. EO 11246 prohibits federal contractors and subcontractors from engaging in discrimination on the basis of sex, among other protected categories. The final rules address a number of topics relating to sex discrimination that contractors often face including: sexually hostile work environments, discrimination based on pregnancy, childbirth or related medical conditions, as well as discrimination on the basis of unlawful sex stereotypes, gender identity and transgender status.

While the scope of the final rule is sweeping, there is good news for contractors as the regulations primarily conform to existing law and legal interpretations under Title VII of the Civil Rights Act of 1964. In addition, the final rule does not, in any way, alter a contractor’s existing obligations under any other OFCCP regulations.

In all likelihood, contractors will not find the revisions to the rules to be earth-shattering in nature. Indeed, as illustrated in the examples below, many of the revisions in the final rule are duplicative of the existing nondiscrimination obligations that contractors already have under Title VII and related state and federal anti-discrimination laws. These include:

  • The expansion of sex discrimination to include discrimination on the bases of pregnancy, childbirth, and related medical conditions, as well as gender identity, transgender status, and sex stereotypes (§ 60-20.1);
  • The inclusion of a section on sex-based discrimination in compensation with the adoption of the Lilly Ledbetter Fair Pay Act standard, which holds that compensation discrimination occurs “any time” a contractor “pays wages, benefits or other compensation that is the result in whole or in part of the application of any discriminatory compensation decision or other practice” (§ 60-20.4);
  • Articulating legal standards surrounding the practice of unlawful sex-based stereotyping in the workplace, including a discussion of four categories of gender norms that may violate EO 11246: (1) dress, appearance and/or behavior, (2) gender identity, (3) gender-appropriate jobs, sectors or industries and (4) caregiving roles (§ 60-20.7); and
  • The incorporation of a dedicated section concerning sexual harassment, including hostile work environments based on sex and the implementation of the sexual harassment legal standard set forth in the U.S. Equal Employment Opportunity Commission guidelines (§ 60-20.8).

The OFCCP has provided a set of best practices designed to assist contractors in their compliance efforts with the new rules, and include the following tips:

  1. Avoid using gender-specific job titles (i.e., foreman, lineman) where gender-neutral classifications are available;
  2. Designate single-user restrooms, changing rooms, showers or similar single-user facilities as sex-neutral;
  3. Provide, as part of a broader accommodation policy, 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;
  4. Provide appropriate time off and flexible workplace policies for men and women;
  5. Encourage men and women equally to engage in caregiving-related activities;
  6. Foster a climate in which women are not assumed to be more likely to provide family care than men;
  7. Foster an environment in which all employees feel safe, welcome and are treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex through such procedures as: (a) communicating to all personnel that harassing conduct will not be tolerated; (b) providing anti-harassment training to all personnel; and (c) establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.

In addition to the tips offered by the OFCCP, contractors should also consider implementing the recommendations outlined in our previous article, “Gov’t Contractor Tips For Avoiding Gender Stereotype Claims,” such as:

  • Basing hiring decisions on whether the applicant is sufficiently qualified to perform the functions of the job, without regard to sex, unless a demonstrable bona-fide occupational qualification mandates the consideration of sex;
  • Ensuring that the allocation of occupational roles in your organization are not disproportionately stratified on the grounds of gender and if evidence exists of same, taking immediate steps to discontinue these practices;
  • Advertising employment opportunities with equal visibility to both men and women;
  • Not making assumptions about an applicant’s physical ability to perform a job because of his or her gender;
  • Eliminating hiring and promotion practices arising from an assumption that women are not the primary wage earners of their respective households;
  • Examining benefit plans to ensure that they are provided in an equal manner without regard to sex, sexual orientation, gender identity and transgender status; and
  • Reviewing compensation systems with an eye toward eliminating sex-based disparities.

By taking these preventative steps now, contractors can reduce the likelihood that the OFCCP will deem them in violation of EO 11246 during a future compliance audit as it is likely the OFCCP will hold contractors to these rules prospectively. Accordingly, all contractors should examine their policies and procedures to determine if they are in line with the final rules and if not, bring their practices into conformity with them.

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