This final rule is brings OFCCP requirements in line with other federal legislation protecting against sex discrimination (Title VII and the EEOC’s interpretation of Title VII). It extends the prohibition of sex discrimination to include gender identity, transgender status, and sex stereotyping. There is no small business exception.
The Final Rule takes effect in less than a month, on August 15, 2016. Because the Final Rule aligns with existing legislation and Executive Orders, most contractors are already compliant with its requirements.
The updated guidelines provide a clearer understanding of what the OFCCP expects from federal contractors in the area of gender equality in the workplace. It’s also an indication of what the agency will be looking for when investigating sex discrimination complaints.
Be aware that employees can file individual complaints with OFCCP which can lead to debarment. OFCCP will be focusing on sex discrimination practices during compliance reviews.
During a recent webinar, OFCCP representatives acknowledged that the final rule doesn’t impose any new reporting or training requirements for federal contractors. However, you should not ignore it.
OFCCP’s Suggested Best Practices
Although not required, consider implementing these best practices. It’s another indication of what OFCCP expects contractors to embrace proactively.
- Avoid the use of gender-specific job titles (e.g. “foreman” or “lineman”) where gender-neutral alternatives are available;
- Create single-user restrooms, changing rooms, showers as gender-neutral;
- Provide light duty, modified job duties or assignments, or other reasonable accommodations to pregnant employees. Include those in a broader accommodations policy available to all employees;
- Provide appropriate time off and flexible workplace policies for men and women;
- Foster a culture in which women are not assumed to be more likely to provide family care than men. Encourage men and women equally to engage in caregiving-related activities;
- Foster an environment in which all employees feel safe, welcome, and treated fairly.
Takeaways for Contractors
Employment Decisions and Sex-Based Stereotypes
Stereotypes are views about how males and females are expected to look, speak, or act. Prohibited discrimination based on sex-based stereotypes may include adverse treatment of an employee or applicant because of the individual’s failure to comply with gender norms. Gender norms include expectations for dress, appearance, behavior.
Enhance Protection For Transgender Employees
When it comes to restrooms, changing room and showers, contractors must permit employees access to a restroom that is consistent with the employee’s gender identity. Employers should not require written justification or a medical note to allow for this to happen.
What’s New For Employees Affected by Pregnancy and Childbirth
The Final Rule provides examples of pregnancy discrimination:
- Limiting a pregnant employee’s job duties based solely on the fact that she is pregnant;
- Requiring a doctor’s note before allowing a pregnant employee to continue working;
- Providing employees with health insurance that does not cover hospitalization and medical costs for pregnancy, childbirth, or related medical conditions to the same extent covered for other medical conditions.
Note that the nondiscrimination requirement is tempered by the need to accommodate a pregnant employee in the same manner that employees with other medical conditions are accommodated. This include light duty, intermittent leave or adapted schedules.
Workplace Protections for Caregivers
The protection of family caregivers is a developing area of legislation. Adverse treatment of both male and female employees based on sex-based stereotypes regarding caregiver responsibilities is prohibited. If a contractor provides job-guaranteed family leave to female employees (including paid leave), leave must be available to male employees on the same terms.
Clarification on Pay Discrimination
The guidelines reflect the OFCCP’s broad perspective on pay discrimination to include pay raise, job classification, work assignment, shift and development opportunities. It acknowledges that similarly situated employees don’t have to be paid equally, but they must be paid fairly based on job-related factors (e.g., experience, education, and performance). The key is that those factors do not unintentionally discriminate against a group of employees. In this case, it’s discrimination under the concept of “disparate impact”.
Don’t Forget Fringe Benefits
The Final Rule mandates that coverage for health care services is made available on the same terms for all individuals when medically appropriate, regardless of the sex assigned at birth, gender identity, or recorded gender.
The denial of coverage for services that affect one gender may constitute a denial of equal access. For example, according to OFCCP, exclusions of coverage for all care related to gender transition is facially discriminatory because it excludes individuals from medical care on the basis of gender identity or transgender status.