Rule Outlining Discrimination Policies for Contractors Published

The Office of Federal Contract Compliance Programs (OFCCP) on Wednesday, June 15, published a final rule outlining for federal contractors rules around discrimination on the basis of gender and affirmative action (i.e., treating all applicants and employees equally without regard to gender).

This is the first time since 1970 — when the OFCCP published its gender discrimination guidelines — that the agency has revised Executive Order 11246, which bars discrimination on the basis of gender and race. but had not previously revised them.  The new rule takes effect Monday, August 15.

Gender Discrimination

Under this revised rule, federal contractors:

  • Are prohibited from denying women with children employment opportunities available to men who have children
  • Are prohibited from denying access to any facilities based on gender, with the exception of same-gender or single-user restrooms, changing rooms, showers, or similar facilities
  • May not deny transgender employees access to same-gender facilities for use by the gender with which they identify

Compensation

Federal contractors must not base wages and other forms of compensation on a person’s gender. However, the OFCCP says that federal contractors, when determining compensation, can take into account tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, and minimum qualifications.

Pregnancy, Childbirth, and Related Conditions

  • Federal contractors can not discriminate against an employee due pregnancy, childbirth, or related conditions (e.g., breastfeeding).
  • Federal contractors must provide health insurance that covers medical costs for pregnancy, childbirth, or related medical conditions (if such costs are covered for employees with other medical conditions), as well as pregnancy-related accommodations (if they are provided to employees with other medical conditions).
  • Federal contractors are also encouraged to provide light duty assignments for women requiring accommodations for conditions related to pregnancy and childbirth.

Fringe Benefits

Federal contractors may not discriminate on the basis of gender with regard to fringe benefits, which has long been a requirement. However, the revised rule requires federal contractors’ medical plans to cover treatments, such as hormone therapy, such as to change transgender employees’ physical characteristics to match those of their gender identity.

Gender Stereotyping

Federal contractors cannot base employment decisions based on sex stereotypes, including in the instance of transgendered employees. For example, federal contractors cannot discriminate against a female employee who doesn’t wear jewelry or make-up, and cannot discriminate against a male employee who is perceived to be effeminate. The rule also cautions federal contractors not to treat employees or applicants adversely because of sexual orientation.

Sexual Harassment

The rule outlines what constitutes as sexual harassment — which is illegal. Sexual harassment, according to the rule, includes harassment based on gender identity, transgender status, pregnancy, childbirth, or related medical conditions, and harassment because of gender or gender-based stereotypes.

Best Practices

The OFCCP also includes in its revision “best practices,” which, though not binding, are recommended for federal contractors to put in place. These “best practices include changing gender-specific workplace language (e.g., foreman and lineman) to gender-neutral alternatives, and designating single-user restrooms, changing rooms, and showers as gender-neutral.

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