Affirmative Action Alert
OFCCP Proposes Updated Sex Discrimination Rules

January 30, 2015

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The Office of Federal Contract Compliance Programs announced a proposed rule to update the agency's sex discrimination regulations. The OFCCP's existing guidelines on sex discrimination were issued in 1970 and, admittedly, do not align with existing law and precedent in some areas.

The OFCCP's proposed rule would "eliminate current provisions that are outdated, revise[] others to align... with current law and interpretations, and include[] new provisions that address contemporary problems." For example, the OFCCP proposes to remove references to "male only" hiring practices, as employers rarely (hopefully, never!) use such language in job advertisements. Another outdated reference in the existing guidelines refers to sex-segregated newspaper columns, which no longer exist. (Thank goodness!)

As the OFCCP notes in its Fact Sheet, the agency "interprets the nondiscrimination provisions of [Executive Order] 11246 as being consistent with the principles of Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission." Thus, it is not surprising that the OFCCP's proposed rule parrots the EEOC's enforcement positions. Some of the new provisions highlighted by the OFCCP include the following:

• It is discrimination to treat an employee adversely because of gender-based stereotyped assumptions about family caretaking responsibility. (The EEOC addressed this several years ago.)

• Leave for childcare must be available to men on the same terms as it is available to women.

• Adopting the EEOC's recent guidance on pregnancy discrimination, contractors must provide workplace accommodations, such as extra bathroom breaks and light duty assignments, to pregnant women that are comparable to accommodations made for other workers similar in their ability -- or inability -- to work. (The OFCCP says that it will revise this provision, if needed, depending on the outcome of a case involving pregnancy discrimination and accommodation that is currently pending before the U.S. Supreme Court.)

• It is discrimination to treat an employee adversely because he or she does not conform to gender norms and expectations about appearance, attire, and behavior.

For the most part, the proposed rule is business as usual. The OFCCP does include a few provisions, however, that may raise some eyebrows. For example, the proposal would ban the use of "gender-specific terms for jobs (such as 'lineman')." This seems to address "political correctness" more than actual discrimination, as most such terms are treated as generic titles rather than references to gender.

The proposal would also expressly require that contractors provide transgender employees access to bathrooms used by the gender with which they identify. Although many employers currently do this, such a requirement has not been previously mandated by federal law.

The OFCCP is also proposing to add a discrete section to the regulations addressing compensation discrimination. The provisions largely incorporate the agency's controversial Directive on this topic. Although the agency says that compensation comparisons must be made between "similarly situated" individuals, the government's view of what constitutes "similarly situated" is broader than most employers' perspectives.

In addition, although the proposed rule does not specifically address a prohibition against sexual orientation discrimination, "[a]dverse treatment of an employee because he or she does not conform to sex-role expectations by being in a relationship with a person of the same sex" is classified as sex discrimination based on sex-based stereotypes. This goes well beyond any position taken by the EEOC or the OFCCP in its recent Directive outlining why discrimination on the basis of gender identity is discrimination on the basis of sex. However, this is of little import to federal contractors because the revised Executive Order prohibits discrimination on the basis of sexual orientation anyway.

What's the point?

Do federal contractors or the OFCCP really need these additional rules? After all, the EEOC has already pronounced its interpretations and enforcement positions on these topics, and the OFCCP interprets the prohibition on sex discrimination in E.O. 11246 the same way. Why do we need duplicative rules from the OFCCP? Furthermore, the OFCCP does not have regulations addressing race discrimination or national discrimination, so why issue this proposal?

One possible reason is that the EEOC has not issued regulations addressing many of these issues; the Commission simply issues Enforcement Guidance or Informal Discussion Letters in most cases. Although these statements of agency position have some weight and authority, they do not have the strength of a regulation issued after notice and an opportunity for comment. Thus, if the OFCCP finalizes these rules, they will carry greater weight and require more deference from courts than the EEOC's informal guidance does. The OFCCP specifically states that its final regulations will have "the full force and effect of law."

Could that be why the OFCCP has proposed these rules? Or is the government issuing meaningless and duplicative regulations that will have to be updated whenever the EEOC changes its position or the Supreme Court rules against the EEOC? Why isn't the best approach to simply rescind the existing OFCCP guidelines and rely on the EEOC's sex discrimination regulations and informal guidance instead of creating new and different regulations for federal contractors? Certainly, the federal contracting community will weigh in on these issues in comments to the agency. And we will continue to keep you updated.

Comments to the proposed rule are due March 31, 2015. If you have any questions, please contact any member of Strategic Affirmative Action Practice Group, or the Constangy attorney of your choice.

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