Labor & Employment

DECEMBER 2014

DOL Issues Final Rule Protecting Workers from Discrimination Based on Sexual Orientation and Gender Identity

On December 3, 2014, the U.S. Department of Labor sexual orientation and gender identity; and by (DOL) released its final rule, implementing President updating the equal opportunity language used in Obama’s July 21, 2014 Executive Order 13672 (EO job solicitations and workplace notices. However, 13672), prohibiting discrimination on the bases of no changes are made to the reporting and sexual orientation and gender identity in the federal information collection affirmative action program contracting workforce. requirements. As such, the final rule does not require federal contractors to: EO 13672 tasked the DOL with updating the rules implementing Executive Order 11246 (EO • conduct any data analysis with respect to the 11246) to add protection from discrimination sexual orientation or gender identity of their based on gender identity and sexual orientation. applicants or employees; Specifically, the final rule provides that the EO • collect any information about applicants’ or 11246 implementing regulations replace the words employees’ sexual orientation or gender “sex or national origin” with the words “sex, sexual identity. However, the final rule does not orientation, gender identity, or national origin.” prohibit contractors from asking applicants and While 18 states and the District of Columbia offer employees to voluntarily provide this information, workplace protections to lesbian, gay, bisexual, although doing so may be prohibited by state or and transgender employees, EO 13672 was the first local law. federal action covering LGBT workplace equality concerns in the private sector. Further, the new rule does not alter EO 11246’s religious exemptions or the judicially created Pursuant to the final rule, the only affirmative “ministerial exception.” action requirements affected are those contained in 41 CFR part 60-1, which contains the full list According to the DOL, the final rule is scheduled to of protected characteristics. Contractors satisfy appear in the December 5 Federal Register, and will this obligation by including the updated equal become effective 120 days after publication. The final opportunity clause in new or modified subcontracts rule will apply to employers that enter into or modify and purchase orders; ensuring that applicants federal contracts on or after the effective date. More and employees are treated without regard to their information is available at www.dol.gov/ofccp/LGBT.

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