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OFCCP's New Sex Discrimination Regulations

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OFCCP's New Sex Discrimination Regulations Publications OFCCP’s New Sex Discrimination Regulations Imposes a Few New Obligations on Employers By Laura A. Mitchell, Michelle E. Phillips, Patricia Anderson Pryor and F. Christopher Chrisbens June 17, 2016 Meet the Authors The Final Rule on Sex Discrimination from the Office of Federal Contract Compliance Programs recognizes the expanding interpretation of “because of sex” as a basis for discrimination, but does not impose on federal contractors new “equal pay” requirements, a new posting, new subcontract or purchase order updates, or a new tagline on job postings. Instead, the Final Rule updates OFCCP’s 1970’s-era sex discrimination guidelines to reflect changes in attitudes and Laura A. Mitchell changes in the law broadly defining “sex” as well as recent interpretations of the Principal OFCCP and the Equal Employment Opportunity Commission. (See, for example, Denver 303-225-2382 our article, EEOC Stresses Title VII Bars Discrimination against Transgender Email Workers, Including Regarding Bathroom Access.) The Rule, published in the Federal Register on June 15, 2016, and going into effect on August 15, 2016, addresses areas where OFCCP believes discrimination remains a “pervasive problem, such as in sex- based occupational segregation (known as “steering), wage disparities, discrimination based on pregnancy or family caregiving responsibilities, sex-based stereotyping, and sex harassment. The agency addresses those concerns with recommended “Best Practices, not specific new legal requirements. Michelle E. Phillips 21st Century Update of Definition of Sex The definition of “because of sex has evolved dramatically since 1970 (when the OFCCPs Sex Principal Discrimination Guidelines were first promulgated) beyond fixed ideas of gender based solely on New York Metro White Plains 914-872-6899 biological characteristics. Bringing federal contractor sex discrimination laws into the 21st century Email began with the “LGBT Executive Order 13672 (amending Executive Order 11246) to include “gender identity and “sexual orientation as protected statuses. The Final Rule adds “gender identity as well as “transgender status and “sex stereotyping to the definition of “because of sex. The Final Rule reflects current case law interpretations of Title VII of the Civil Rights Act. “Sexual orientation was not included in the Final Rule definition, however, because Title VII case law has not progressed that far. Restroom Debate That Really Isn’t The Final Rule addresses the “restroom debate escalated by North Carolinas controversial “HB-2 law Patricia Anderson Pryor and decisively resolves the issue for federal contractors. (HB-2 bars local government ordinances protecting LGBT employees and mandates restroom usage based on biological sex.) Principal and Office Litigation Manager Cincinnati 513-322-5035 The Final Rule makes clear that transgender employees cannot be denied access to the restroom Email “designated for use by the gender with which they identify. OFCCP removes any reference to the need for separate or single-user restrooms “to assure privacy between the sexes. Responding to a comment to the proposed rule, the Final Rule states in its preamble: This comment assumes that non-transgender employees will react to the presence of transgender employees based on the transgender employees birth-assigned gender, rather than on the gender with which they identify in their daily interactions with co-workers. It also assumes that non-transgender employees reactions will be based on fear, ignorance, or prejudice about transgender individuals. It is well established that private bias, prejudice, or fear “is not a legitimate basis for retaining the status quo. Non-transgender co-workers fears, ignorance, or prejudice about transgender individuals can no more be permitted to trump the right of transgender employees to equal workplace treatment than white co-workers prejudices against sharing restrooms or drinking fountains with black employees would have been permitted to trump black employees rights after the Executive Order and title VII went into effect 50 years ago. Comments to the proposed rule asked OFCCP to prohibit sex-specific, single-user restrooms. While acknowledging such a prohibition might prevent discomfort and harassment, OFCCP declined to prohibit sex-specific, single-user restrooms, but it suggests in Appendix A, “Best Practices, that designating sex-neutral, single-user restroom is best practice. F. Christopher Chrisbens Fair Pay, Not Equal Pay The Final Rule and the accompanying FAQs, Fact Sheet, and other documents from the OFCCP refer to Of Counsel the obligation to provide “fair pay (the proposed rule referred to the requirement of “equal wages). Denver 303-225-2381 Email “OFCCP agrees the term equal wages may create confusion about the legal framework relevant to sex- based compensation discrimination under E.O. 11246, the Final Rule states. OFCCPs Fact Sheet touts that the Final Rule “promotes fair pay practices. OFCCP acknowledges that Practices similarly situated employees need not be paid equally, but they must be paid fairly based on the gender-neutral, job-related factors (e.g., experience, education, and performance) that distinguish Affirmative Action, OFCCP and them. Government Contract Compliance Pregnancy Discrimination, Accommodation Industries The EEOC and many state legislatures have focused on pregnancy discrimination in recent years. (See, Government Contractors for examples, our articles, EEOC Releases Demanding New Pregnancy Discrimination Guidance, Colorado Expands Pregnancy Discrimination Law, and Nebraska to Require Reasonable Accommodations for Pregnant Workers.) Indeed, EEOC has issued resource documents for pregnant workers (and their doctors) on their legal rights and on how to obtain accommodations in the workplace (including altered break and work schedules, permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home). Like EEOCs Guidance published in 2015, the OFCCPs Final Rule explains that prohibited sex discrimination includes discrimination against pregnant employees because of their pregnancy, childbirth, or related medical conditions (including lactation). The Final Rules examples of pregnancy discrimination include: 1. Limiting a pregnant employees job duties based solely on the fact that she is pregnant; 2. Requiring a doctors note before allowing a pregnant employee to continue working; and 3. Providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth, or related medical conditions to the same extent covered for other medical conditions. In addition, failing to accommodate a pregnant employee in the same manner that a contractor would accommodate other employees may be discriminatory. Following up on a Supreme Courts decision and the EEOCs 2015 Guidance on Pregnancy Discrimination, the Final Rule states that it is unlawful for a contractor to deny an alternative job assignment, modified duty, or other accommodation to a pregnant employee if: 1. The contractor denies such assignments, modifications, or other accommodations only to employees affected by pregnancy, childbirth, or related medical conditions; 2. The contractor provides, or is required by policy or other relevant laws to provide, such assignments, modifications, or other accommodations to other employees whose abilities or inabilities to perform their job duties are similarly affected (which most employers would be required to do absent undue hardship under the Americans with Disabilities Act), and the denial of accommodations imposes a significant burden on employees affected by pregnancy, childbirth, or related medical conditions and the contractors asserted reasons for denying accommodations to such employees do not justify that burden; or 3. Intent to discriminate on the basis of pregnancy, childbirth, or related medical conditions is shown otherwise. Additionally, OFCCP reminds contractors that denying an accommodation also may be unlawful if it has a disparate impact on employees affected by pregnancy, childbirth, or related medical conditions. Disparate Impact Unlawful discrimination can include policies or practices that have a disparate impact because of sex. The Final Rule provides examples of policies or practices that OFCCP believes may have an unlawful disparate impact based on sex (even if there is no intent to discriminate). Examples include: 1. Denying accommodations to employees affected by pregnancy, childbirth, or related medical conditions (as mentioned above); 2. Height or weight qualifications that are not necessary to the performance of the job and that negatively affect women substantially more than men; 3. Strength, agility, or other physical requirements that exceed the actual requirements necessary to perform the job in question and that negatively affect women substantially more than men; 4. Conditioning entry into an apprenticeship or training program on performance on a written test, interview, or other selection procedure that has an adverse impact on women where the contractor cannot establish the validity of the selection procedure is consistent with the Uniform Guidelines on Employee Selection Procedures; 5. Relying on recruitment or promotion methods, such as “word-of-mouth recruitment or “tap-on- the-shoulder promotion, that adversely affect women where the contractor cannot establish that such methods are job-related and consistent
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