President Obama signed EO 13672 on July 14, 2014, extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community. He amended Executive Order 11246 to add sexual orientation and gender identity as protected characteristics. The OFCCP on December 9, 2014, issued its final rule implementing Executive Order 13672. It requires federal contractors to take affirmative action to ensure that applicants and employees are treated fairly without considering their sexual orientation or gender identity during their employment. The Rule is effective April 8, 2015, and applies to all new or modified federal contracts and subcontracts after that date. The Rule however, does not burden federal contractors with the same data collection and analysis obligations that are required with respect to females and minorities.
The new rules will touch on “compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family caregiver discrimination, among other topics.” This is an attempt to modernize these rules which has not been updated since 1970.
Several statutes related to sex discrimination, including the Pregnancy Discrimination Act and the Family Medical Leave Act, did not exist when the guidelines were published first in 1970, nor did many of the regulations and guidance published by the Equal Employment Opportunity Commission (EEOC), which have a profound effect on employer decisions and policies.
In an effort to align its requirements with EEOC guidance and with recent case law, the OFCCP proposes to enforce new rules, including:
- A requirement that parental leave be made available for men and women on equal terms.
- A requirement that employers provide accommodations for women affected by pregnancy and childbirth.
- A clear prohibition on discrimination based on gender identity or sexual orientation.
- A prohibition on harassment and hostile work environments.
- A prohibition on making employment decisions on the basis of sex-based stereotypes.
The new rules, which will no longer be called “guidelines”, make clear that they have the force and effect of law. The OFCCP also hopes that the new rules will advance the employment status of female employees by clarifying its rules concerning harassment, gender stereotyping, and benefits.