Gov’t Contractor Tips For Avoiding Gender Stereotype Claims

March 1, 2016Articles Law360

Executive Order 11246 prohibits federal contractors and subcontractors from engaging in discrimination on the basis of sex, among other protected categories, regardless of gender. Unfortunately this prohibition has failed to eliminate the steering of men and women into predetermined gender stereotypical roles in the workplace. To address this issue, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has recently made it a priority to aggressively enforce Executive Order 11246 against federal contractors who have steered applicants into gender stereotypical roles based on preconceived notions of what constitutes “men’s work” and “women’s work.”

A recent lawsuit filed by the OFCCP exemplifies why federal contractors should be concerned with implementing or failing to rescind hiring policies rooted in antiquated notions of gender in the workplace. In AmeriQual Group LLC, the OFCCP alleged that an Indiana-based manufacturer of portable meals for the U.S. Department of Defense, designated work assignments based on gender stereotypes rather than skill and experience. During its investigation, the OFCCP discovered that women were selected to perform light-duty table inspector jobs, whereas most of the males hired were tasked with more labor-intensive loader and utility positions, an area of the company with fewer job openings. This practice, which affected 237 male applicants, violated Executive Order 11246 as it resulted in a disproportionate selection of women over men despite the existence of a far larger male applicant pool. As a remedy for these violations, the OFCCP wants AmeriQual to offer the male applicants jobs and to provide them back pay.

The AmeriQual case was not unique among OFCCP enforcement actions. In November a large provider of branded uniform and facility services products reached a conciliation agreement with the OFCCP for numerous steering violations. During a four-year compliance review, the OFCCP uncovered that the company discriminated against 444 female employees in laborer positions by disproportionately assigning them to lower-paying, light-duty jobs while primarily reserving higher-paying job duties for male employees, even though females were equally qualified and able to assume these roles. Conversely, these gender-based hiring practices also prevented 2,327 male applicants from obtaining the general laborer positions at several company locations despite being at least equally qualified. Pursuant to the conciliation agreement, the company agreed to pay a total of $1,813,555 in back pay to members of the affected class and to extend 58 higher-paying job opportunities to the aggrieved female employees.

The company also agreed to conduct a thorough review of its hiring, placement and compensation practices as well as its job postings to ensure that they provide equal opportunity without regard to sex, among other bases. The agreement, moreover, required the company to conduct regular adverse impact and compensation analyses at locations where the OFCCP identified violations and to provide periodic compliance reports. Undeniably, the penalties imposed by the OFCCP for these “systemic hiring and pay discrimination violations” of Executive Order 11246 were substantial.

Similarly, in December 2014, in Hillshire Brands Co., the OFCCP required the company to compensate 2,474 rejected male applicants with $330,000 in back wages, interest and benefits as a result of hiring policies predicated on gender stereotypes. The company also agreed to make 73 job offers to the original class members as positions become available. Specifically, the investigation found that the company violated Executive Order 11246 by discriminating against men who applied for semi-skilled machine operator jobs at the company’s sandwich production plant. Male applicants at Hillshire were steered toward more labor-intensive dumpster/stacker jobs, whereas females were steered toward biscuit assembler jobs, notwithstanding the fact that both positions required equivalent qualifications.

Because more of the light-duty biscuit assembler jobs were available, significantly fewer males were ultimately hired by Hillshire. The OFCCP found that the distribution of labor was based on archaic ideas of “men’s work” and “women’s work.” In condemning these hiring policies, OFCCP Director Patricia A. Shiu noted that gender stereotypes become “harmful when they stand between qualified workers and good job opportunities.” As part of the remedy, the OFCCP required Hillshire to review and revise its selection process and provide better training to its hiring managers with the intention of eradicating employment practices that produce gender stereotyping.

To assist federal contractors in addressing potential gender steering issues at their workplaces, the OFCCP, on Jan. 28, 2015, issued a notice of proposed rulemaking designed to replace the existing Sex Discrimination Guidelines found at 41 C.F.R. part 60-20. The underlying rationale is to conform these guidelines to the extensive changes in both law and society since the guidelines were first adopted in 1970. Among the reasons cited by the OFCCP for the proposed guidelines include the need “to address current workplace practices and issues and to support the economic interests of women, families and others impacted by discrimination based on sex” and to eliminate sex-based stereotyping in employment.

The federal government will likely promulgate the final rule soon. In the meantime, contractors should refrain from enacting hiring policies based upon outdated ideas of workplace gender roles and take heed to the following nonexhaustive list of best practices:

  • Base 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;
  • Ensure that the allocation of occupational roles in your organization are not disproportionately stratified on the grounds of gender and if evidence exists of same, take immediate steps to discontinue these practices;
  • Advertise employment opportunities with equal visibility to both men and women;
  • Do not make assumptions about an applicant’s physical ability to perform a job because of his or her gender; and
  • Eliminate hiring and promotion practices arising from an assumption that women are not the primary wage earners of their respective households.

Those employers who implement the foregoing practices/policies will be a step ahead in navigating the OFCCP’s forthcoming “Discrimination on the Basis of Sex” regulations and, in the process, will reduce the risk of OFCCP classwide enforcement actions. Contractors seeking to review their hiring practices should seek guidance from counsel experienced in OFCCP compliance.

—By Kenneth A. Rosenberg and Asad Rizvi, Fox Rothschild LLP

Reprinted with permission from Law360. (c) 2016 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.