DOL Announces Final Rule: Sexual Orientation and Gender Identity

OFCCP NEWSReleased on Wednesday, December 3, 2014, the U.S. Department of Labor announced a final rule prohibiting federal contractors from discriminating against applicants and employees on the basis of sexual orientation and gender identity.

Background: On July 21, 2014, President Obama signed Executive Order (EO) 13672. EO 13672 was created in efforts to provide a uniform policy for the contracting community on prohibiting discrimination against sexual orientation and gender identity. Essentially, this was the first government plan to ensure that the Lesbian, Gay, Bisexual & Transgender Community (LGBT) is given equal employment opportunity in the private sector. EO 13672 stated that within 90 days of July 21, 2014, the Secretary of Labor must prepare policies and procedures to implement the requirements of this Executive Order. This 90-day window is what led to Wednesday’s final rule.

Moving Forward: Patricia A. Shiu, Director of the Office of Federal Contract Compliance Programs (OFCCP), states, “This rule will extend protections to millions of workers who are employed by or seek jobs with federal contractors and subcontractors, ensuring that sexual orientation and gender identity are never used as justification for workplace discrimination by those that profit from taxpayer dollars.” Wednesday’s final ruling on preventing federal contractors from discrimination based on sexual orientation and gender identify will become effective 120 days after its publication in the Federal Register. Once effective, this policy will apply to federal contracts and subcontracts that are entered into or modified on or after the final effective date (to be announced).

Alongside the effective date, federal contracts and subcontracts will need to be modified to include sexual orientation and gender identity within the Equal Opportunity clause and job advertisements: All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

A common question that’s currently arising: what does this mean for the contracting community? Regarding the implementation of this new policy, OFCCP compliance evaluations will essentially remain the same, except the reviews will now include the modifications to the Equal Opportunity tag lines in job announcements and Equal Opportunity clauses in contracts and purchase orders. The OFCCP will continue to accept complaints based on gender discrimination, yet this will be broadened to include sexual orientation and gender identity. Federal contractors and subcontractors will not be required to collect/retain sexual orientation and gender identity information from employees and/or applicants.

OFCCP Resources: On December 9, 2014, the OFCCP will be conducting a live introductory webinar on EO 13672. Please refer to the following information to register for this webinar:

Topic: Implementing Executive Order 13672 Regulations
Presenters: Naomi Levin, OFCCP, Division of Policy and Program Development and Adam Pulver, DOL, Office of the Solicitor
Date: Tuesday, December 9, 2014
Time: 2:00 to 3:00 p.m., Eastern Standard Time
Registration Link: https://dolevents.webex.com/dolevents/onstage/g.php?MTID=e8d93d782b657190d96aba68652357dd9

Instructions for the Webinar:

  • Click “Register.”
  • On the registration form, complete all requested information and then click “Submit.”
  • Once your registration is approved, OFCCP will send you a confirmation email message instructing you how to join the event, including how to use the provided teleconference number and audio streaming link.

Biddle Consulting Group will keep you informed as we hear more information about the effective date of this final rule.

For further information, please visit: http://www.dol.gov/opa/media/press/ofccp/OFCCP20141942.htm. Additionally, please visit the OFCCP’s Frequently Asked Questions’ page for further assistance: http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html.

New OFCCP Directive on Gender Identity and Sex Discrimination

OFCCP News and Updates

From OFCCP Director Patricia Shiu:

OFCCP has posted Directive 2014-02,
Gender Identity and Sex Discrimination (DIR 2014-02).

On June 30, 2014, the Secretary announced that DOL is updating its enforcement protocols and nondiscrimination guidance to reflect that DOL provides the full protection of the federal nondiscrimination laws that it enforces to individuals with claims of gender identity and transgender status discrimination. In accordance with this announcement, as well as with the EEOC’s decision in Macy v. Holder and the Title VII case law on which it is based, DIR 2014-02 clarifies that under Executive Order 11246, as amended, discrimination on the basis of sex includes discrimination on the bases of gender identity and transgender status.

The directive reaffirms that in compliance evaluations and complaint investigations, OFCCP fully investigates and seeks to remedy instances of sex discrimination that occur because of an individual’s gender identity or transgender status. The directive explains that, when investigating such instances of potential discrimination, OFCCP adheres to the existing Title VII framework for proving sex discrimination, as outlined in OFCCP’s Federal Contract Compliance Manual.

DIR 2014-02 takes effect immediately.

The directive is available at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html.

President Obama to Sign Executive Order Protecting LGBT Individuals from Workplace Discrimination by Federal Contractors

 

Federal contractors, it’s time to review and update your EEO policy as it relates to LGBT employees and job applicants. President Obama announced yesterday that he will sign an executive order mandating Federal contractors to prohibit workplace discrimination based on sexual orientation and gender identity. His signature could come as early as this month.

According to research conducted by the UCLA Law Williams Institute,

  • As of May 2014, 86% of the top 50 federal contractors prohibited discrimination based on sexual orientation, and 61% prohibited discrimination based on gender identity.
  • All but two of the top 50 Fortune 500 companies prohibited discrimination based on sexual orientation (96%) as of May 2014, and 70% prohibited discrimination based on gender identity.

Review, and update your policies (if necessary), to ensure that your EEO policies, too, include specifically prohibiting employment discrimination against LGBT individuals.

Further reading: