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DEPARTMENT OF LABOR • Mail: Debra A. Carr, Director, subcontractors and federally assisted Division of Policy, Planning, and construction contractors and Office of Federal Contract Compliance Program Development, Office of Federal subcontractors must meet in fulfilling Programs Contract Compliance Programs, Room their obligations under C–3325, 200 Constitution Avenue NW., 11246, as amended, to ensure 41 CFR Part 60–20 , DC 20210. nondiscrimination in employment on Receipt of submissions will not be the basis of sex and to take affirmative [01 14 15 OFCCP] acknowledged; however, the sender may action to ensure that applicants are request confirmation that a submission RIN 1250–AA05 employed, and that employees are has been received by telephoning treated during employment, without on the Basis of Sex OFCCP at (202) 693–0104 (voice) or regard to their sex. The OFCCP is (202) 693–1337 (TTY) (these are not toll- charged with enforcing Executive Order AGENCY: Office of Federal Contract free numbers). 11246, as amended (‘‘Executive Order’’), Compliance Programs, Labor. All comments received, including any which prohibits covered Federal ACTION: Notice of proposed rulemaking. personal information provided, will be Government contractors and available for public inspection during subcontractors and federally assisted SUMMARY: The U.S. Department of normal business hours at Room C–3325, construction contractors and Labor’s (‘‘DOL’’) Office of Federal 200 Constitution Avenue NW., subcontractors (‘‘contractors’’) from Contract Compliance Programs Washington, DC 20210, or via the (‘‘OFCCP’’) is proposing regulations that discriminating in employment on the Internet at http://www.regulations.gov. basis of race, color, religion, sex, sexual would set forth requirements that Upon request, individuals who require orientation, identity, or national covered Federal Government contractors assistance to review comments will be origin.2 The Executive Order also and subcontractors and federally provided with appropriate aids such as requires contractors to ensure equal assisted construction contractors and readers or print magnifiers. Copies of employment opportunity for employees subcontractors must meet in fulfilling this Notice of Proposed Rulemaking and applicants for employment without their obligations under Executive Order (NPRM) will be made available in the 11246, as amended, to ensure following formats: Large print, regard to race, color, religion, sex, nondiscrimination in employment on electronic file on computer disk, and , , or the basis of sex and to take affirmative audiotape. To schedule an appointment national origin and to take to ensure that applicants are to review the comments and/or to obtain action to ensure that applicants are employed, and that employees are this NPRM in an alternate format, please employed, and that employees are treated during employment, without contact OFCCP at the telephone treated during employment, without regard to their sex. This proposal would numbers or address listed above. regard to the enumerated bases. OFCCP interprets the nondiscrimination substantially revise the existing Sex FOR FURTHER INFORMATION CONTACT: provisions of the Executive Order Discrimination Guidelines, which have Debra A. Carr, Director, Division of consistent with the principles of title VII not been substantively updated since Policy, Planning and Program of the (‘‘title 1970, and replace them with regulations Development, Office of Federal Contract VII’’),3 which is enforced, in large part, that align with current law and legal Compliance Programs, 200 Constitution by the Equal Employment Opportunity principles and address their application Avenue NW., Room C–3325, to current workplace practices and Washington, DC 20210. Telephone: Commission (‘‘EEOC’’), the agency issues. Most of the proposed provisions (202) 693–0104 (voice) or (202) 693– responsible for coordinating the Federal in this NPRM would clarify well- 1337 (TTY). government’s enforcement of all Federal established case law or applicable statutes, Executive Orders, regulations, SUPPLEMENTARY INFORMATION: requirements from other Federal and policies requiring equal agencies and therefore would not Executive Summary employment opportunity.4 change existing requirements for entities Purpose of the Regulatory Action The Sex Discrimination Guidelines at affected by this rule. The NPRM’s 41 CFR part 60–20 (‘‘Guidelines’’) set approach with respect to pregnancy The U.S. Department of Labor’s forth interpretations and guidelines for accommodation is consistent with the (‘‘DOL’’) Office of Federal Contract implementing the Executive Order’s interpretation of the Pregnancy Compliance Programs (‘‘OFCCP’’) is nondiscrimination and affirmative Discrimination Act adopted by the proposing regulations that would set 1 action requirements related to sex. Equal Employment Opportunity forth requirements that covered These Guidelines have not been Commission (EEOC) and by the Federal Government contractors and substantively updated since they were Government in Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), 1 41 CFR 60–1.5 exempts certain Federal and federally assisted contractors and subcontractors 2 , issued on July 21, 2014, cert. granted (U.S. No. 12–1226, July 1, from coverage. That section exempts contracts and added sexual orientation and gender identity to 2014). subcontracts not exceeding $10,000 (§ 60–1.5(a)(1)); Executive Order 11246 as prohibited bases of DATES: To be assured of consideration, certain contracts and subcontracts for indefinite discrimination. It applies to contracts entered into quantities (§ 60–1.5(a)(2)); work performed outside on or after April 8, 2015, the effective date of the comments must be received on or before the by employees who were not implementing regulations promulgated thereunder. March 31, 2015. recruited within the United States (§ 60–1.5(a)(3)); 3 Title VII of the Civil Rights Act of 1964, 42 ADDRESSES: You may submit comments, contracts with certain religious entities and U.S.C. 2000e–2000e–17; U.S. Department of Labor, educational institutions (§ 60–1.5(a)(5) and (6)); Office of Federal Contract Compliance Programs, identified by RIN number 1250–AA05, specific contracts and facilities exempted by the Federal Contract Compliance Manual, ch. 2, by any of the following methods: Director of the OFCCP when required by ‘‘special § 2H01(c), available at http://www.dol.gov/ofccp/ • Federal eRulemaking Portal: circumstances in the national interest’’ (§ 60– regs/compliance/fccm/FCCM_FINAL_508c.pdf (last www.regulations.gov. Follow the 1.5(b)(1)) or because they are ‘‘separate and distinct accessed June 6, 2014) (hereinafter FCCM). 4 instructions for submitting comments. from activities . . . related to the performance of Executive Order 12067, 43 FR 28967, 3 CFR, • the contract or subcontract’’ (§ 60–1.5(b)(2); and 1978 Comp., p. 206. The U.S. Department of Justice Fax: (202) 693–1304 (for comments contracts determined to be essential to the national also enforces portions of title VII, as do state Fair of six pages or less). security (§ 60–1.5(c)). Employment Practice Agencies (FEPA).

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first promulgated in 1970,5 and fail to utilization of all available manpower’’). The requirements in Executive Order conform to or reflect current title VII Executive Order 11246 regulations 11246 generally apply to any business jurisprudence or to address the needs require government contractors to or organization that (1) holds a single and realities of the modern workplace. conduct outreach to broaden the Federal contract, subcontract, or Since 1970, there have been historic qualified applicant pool; to identify and federally assisted construction contract changes to sex discrimination law, in eliminate any discriminatory practices; in excess of $10,000; (2) has Federal both statutory and case law, and to to apply merit principles; to choose contracts or subcontracts that, contractor policies and practices as a applicants for employment without combined, total in excess of $10,000 in result of the nature and extent of regard to race, sex, or national origin; any 12-month period; or (3) holds women’s participation in the labor and to report their results. See, e.g., 41 Government bills of lading, serves as a force. Because the existing guidelines CFR 60–2.10, 60–2.11, 60–2.14, 60–2.16, depository of Federal funds, or is an are so outdated, they may cause some 60–2.17, 60–20.6. The sex issuing and paying agency for U.S. Federal contractors to incur unnecessary discrimination regulations proposed savings bonds and notes in any amount. legal and/or management expenses to herein outline the sex-discriminatory Pursuant to Executive Order 11246, resolve confusion about possibly practices that contractors must identify receiving a Federal contract comes with conflicting obligations; updating the and eliminate, and clarify how a number of responsibilities. Section regulations will reduce the costs that contractors must choose applicants for 202 of this Executive Order requires such contractors may now incur. employment without regard to sex. See, every covered contractor to agree to It is long overdue for part 60–20 to be e.g., proposed § 60–20.2 (clarifying that comply with all provisions of the updated. Consequently, OFCCP sex discrimination includes Executive Order and the rules, proposes in this NPRM to revise the Sex discrimination on the bases of regulations, and relevant orders of the Discrimination Guidelines to align the pregnancy, childbirth, related medical Secretary of Labor. A contractor in sex discrimination standards under conditions, gender identity, and violation of Executive Order 11246 may Executive Order 11246 with status, and that disparate be subject to suit for make-whole and developments and interpretations of treatment and disparate impact analyses injunctive relief and to having its existing title VII principles and OFCCP’s apply to sex discrimination); § 60–20.3 contracts canceled, terminated, or corresponding interpretation of the (clarifying application of the bona fide suspended or to debarment after the Executive Order. occupational qualification (BFOQ) opportunity for a hearing.7 Statement of Legal Authority defense to the rule against sex Major Proposed Revisions discrimination); § 60–20.4, § 60–20.5, Issued in 1965, and amended several For the reasons stated above, OFCCP § 60–20.6, and § 60–20.8 (clarifying that times in the intervening years— proposes to revise the Guidelines at part discrimination in compensation; including once in 1967, to add sex as a 60–20 to create new sex discrimination discrimination based on pregnancy, prohibited basis of discrimination, and regulations that set forth Federal childbirth, or related medical most recently in 2014, to add sexual contractors’ obligations under Executive conditions; discrimination in other orientation and gender identity to the Order 11246, in accordance with fringe benefits; and sexual harassment, list of protected bases 6—Executive existing law and policy. This proposal respectively, can be unlawful sex- Order 11246 has two purposes. First, it updates the Guidelines to address discriminatory practices); and § 60– prohibits covered Federal contractors current issues in the workplace, and 20.7(c) (clarifying that contractors must and subcontractors from discriminating clarifies existing title VII law as it not choose applicants based on sex against employees and applicants relates to sex discrimination, including stereotypes such as ‘‘a sex-based because of race, color, religion, sex, developments and interpretations of assumption that [a female employee] sexual orientation, gender identity, or existing law by the EEOC and OFCCP’s . . . will have . . . family caretaking national origin. Second, it requires corresponding interpretation of the responsibilities [that] will interfere with covered Federal contractors and Executive Order. It is intended to state her work performance’’). subcontractors to take affirmative action clearly the existing principles to ensure that applicants are employed, Each of these requirements ultimately applicable to a contractor’s obligation to and that employees are treated during reduces the government’s costs and refrain from discrimination in its employment, without regard to their increases the efficiency of its operations employment policies and practices race, color, religion, sex, sexual by ensuring that all employees and because of sex and to ensure equal orientation, gender identity, or national applicants, including women, are fairly employment opportunity on the basis of origin. The nondiscrimination and considered and that, in its procurement, sex. affirmative action obligations of Federal the government has access to, and The proposal removes a number of contractors and subcontractors cover all ultimately benefits from, the best outdated provisions in the current aspects of employment. qualified and most efficient employees. Guidelines; restates, reorganizes, and The requirements of the Executive Cf. Contractors Ass’n of E. Pa. v. Sec’y clarifies others; and adds new ones that Order promote the goals of economy of Labor, 442 F.2d 159, 170 (3d Cir. address legal developments that have and efficiency in Government 1971) (‘‘[I]t is in the interest of the arisen since 1970. Where current contracting, and the link between them United States in all procurement to see provisions of the Guidelines are is well established. See, e.g, Executive that its suppliers are not over the long uncontradicted by the proposed part Order 10925, 26 FR 1977 (March 8, run increasing its costs and delaying its 60–20, but are omitted because they are, 1961) (nondiscrimination and programs by excluding from the labor as a practical matter, outdated, their affirmative employment programs pool available minority workmen.’’). omission does not mean that they are ensure ‘‘the most efficient and effective The proposed regulations’ requirements not still good law. For example, to eliminate discrimination and to paragraph 60–20.2(b) currently states 5 35 FR 8888, June 9, 1970. The Guidelines were choose applicants without regard to sex reissued in 1978 without substantive amendment. that ‘‘[a]dvertisement in newspapers 43 FR 49258, October 20, 1978. also are consistent with the purposes of 6 Executive Order 13672, 79 FR 42971 (July 23, Title VII to eliminate discrimination in 7 Executive Order 11246, § 209(5); 41 CFR 60– 2014). employment. 1.27.

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and other media for employment must the NPRM will directly reduce the costs of their nondiscrimination obligations not express a sex preference unless sex that some contractors may now incur with respect to transgender employees is a bona fide occupational qualification when attempting to comply with part and would assure equality of for the job.’’ This is a correct statement 60–20. OFCCP requests comment on the opportunity for transgender employees, of the law, but does not have much amount of cost savings covered entities the vast majority of whom report that practical effect, because few job may realize because of this rule. they have experienced discrimination in advertisements today express a sex The NPRM would also benefit the the workplace.13 preference.8 OFCCP seeks comments on employees and job applicants of Federal Finally, the NPRM would benefit whether any of the provisions proposed contractors and subcontractors. In public understanding of the law. for deletion continue to be useful. general, by making it easier for Federal Removing an ‘‘outmoded’’ and The proposed amendments to part contractors to comply with the law, this ‘‘ineffective’’ rule from the Code of 60–20 offered herein do not in any way regulation would increase equality of Federal Regulations is in the public alter a contractor’s obligations under all employment opportunity for the interest. This public interest is reflected other OFCCP regulations. In particular, millions of women working for Federal in Section 6 of Executive Order 13563, a contractor’s obligations to ensure contractor establishments. Sixty-five which requires agencies to engage in equal employment opportunity and to million employees work for the Federal retrospective analyses of their rules take affirmative action, as set forth in contractors and other recipients of ‘‘and to modify, streamline, expand, or parts 60–1, 60–2, 60–3, and 60–4 of this Federal monies that are included in the repeal [such rules] in accordance with title, remain in effect. Similarly, General Service Administration’s what has been learned.’’ inclusion of a provision in part 60–20 System for Award Management (SAM) Costs of the Proposed Rule does not in any way alter a contractor’s database.11 Based on Bureau of Labor obligations to ensure nondiscrimination Statistics data showing that 47 percent A detailed discussion of the costs of on the basis of race, color, religion, of the workforce is female,12 OFCCP the proposed rule is included in the national origin, sexual orientation, and estimates that 30.6 million of the section on Regulatory Procedures, infra. gender identity, under the Executive employees who work for the Federal In sum, the proposed rule should create Order; on the basis of disability under contractors and other recipients of relatively minimal administrative and Section 503 of the Rehabilitation Act of Federal monies are women. other cost burdens for contractors. 1973 (‘‘Section 503’’); 9 or on the basis More specifically, the NPRM would The only new administrative burden of protected veteran status under 38 advance the employment status of the proposed rule would create for U.S.C. 4212 of the Vietnam Era female employees of Federal contractors contractors would be the one-time cost Veterans’ Readjustment Assistance in several ways. First, it would address of regulatory familiarization—the Act.10 both quid pro quo and hostile- estimated time it takes for contractors to environment sexual harassment. review and understand the instructions Benefits of the Proposed Rule Second, it would clarify that adverse for compliance—calculated at just under The proposed rule would benefit both treatment of an employee because of $26 million, or $52 per contractor Federal contractors and their employees gender-stereotyped assumptions about company, the first year. in several ways. First, by consolidating, family caretaking responsibilities is The only other new cost burden this updating, and clearly and accurately discrimination. It would clarify that rule would create for contractors would stating the existing principles of childcare leave must be available to be the cost of pregnancy applicable law, including developments fathers on the same terms as they are to accommodations, which OFCCP and interpretations of existing law by mothers. It would also confirm the calculates to be under $10 million the EEOC and OFCCP’s corresponding requirement that contractors provide annually, or $19 per contractor interpretation of the Executive Order, equal retirement benefits to male and company, per year.14 the proposed rule will facilitate female employees, even if doing so costs contractor understanding and more for one sex than the other. 13 Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, compliance and thus reduce contractor In addition, by clarifying when National Center for Transgender Equality & pregnant workers are entitled to National Gay and Task Force, Injustice at costs. As discussed above, the existing Every Turn: A Report of the National Transgender guidelines are extremely outdated and workplace accommodations, this Discrimination Survey, (2011), available at http:// therefore do not provide sufficient or rulemaking will protect pregnant transequality.org/PDFs/Executive_Summary.pdf even accurate guidance to contractors employees who work for Federal (last accessed Oct. 3, 2014) [hereinafter Injustice at regarding their nondiscrimination contractors from losing their jobs, Every Turn]. wages, and health care coverage. OFCCP 14 OFCCP estimates approximately 2,046,850 obligations. In fact, because OFCCP’s women in the Federal contractor workforce would interpretations of a contractor’s estimates that 2,046,850 women in the be pregnant in a year, of whom 21 percent work in nondiscrimination mandate on the basis Federal contractor workforce are likely job categories likely to require accommodations that of sex follow title VII principles, OFCCP to become pregnant each year. might involve more than a de minimis cost. Because Moreover, by clarifying that the incidence of medical conditions during no longer enforces part 60–20 to the pregnancy that require accommodations ranges extent that it departs from existing law. discrimination against an individual from 0.5 percent (placenta previa) to 50 percent Maintenance of these outdated and because of her or his gender identity is (back issues), OFCCP estimates that of the women inaccurate guidelines in the regulations unlawful sex discrimination, the NPRM in positions that require physical exertion or would ensure that contractors are aware standing, half may require some type of an may cause Federal contractors to incur accommodation or light duty. Based on a study unnecessary legal and/or management finding that the employers of 91 percent of pregnant expenses to resolve confusion about 11 U.S. General Services Administration, System women who needed and requested a change in possibly conflicting obligations. Thus, for Award Management, Legacy CCR Extracts Public duties such as less lifting or more sitting attempted (‘‘FOIA’’) Data Package, May 2014, available at to address their needs, the proposed rule would https://www.sam.gov/portal/public/SAM/ (last require covered contractors to accommodate the 8 Recruitment for individuals of a certain sex for accessed June 14, 2014). nine percent of women whose needs were not particular jobs, including recruitment by 12 Women in the Labor Force: A Databook 2, BLS addressed or would not have been addressed had advertisement, is covered in proposed § 60–20.2(g). Reports, available at http://www.bls.gov/cps/wlf- they requested accommodation. According to the 9 29 U.S.C. 793. databook-2012.pdf (last accessed Oct. 6, 2014) Job Accommodation Network, the average cost of an 10 38 U.S.C. 4212. [hereinafter Women in the Labor Force]. accommodation is $500. Therefore, OFCCP

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Together, these costs amount to under sex-based employment discrimination retirement for all employees with a few $36 million, or $71 per contractor and in contractors’ policies and exceptions.24 company, the first year; and under $10 practices governing workers. For Moreover, since 1970 the Supreme million, or $19 per contractor company, example: Court has determined that numerous each subsequent year. • Title VII, which generally governs practices which were not then widely recognized as discriminatory constitute Reasons for Amending the Current Sex the law of sex-based employment discrimination, has been significantly unlawful sex discrimination under title Discrimination Guidelines, 41 CFR 60– VII. See e.g., City of Los Angeles v. 20 amended four times: Once in 1972, by the Equal Employment Opportunity Manhart, 435 U.S. 702 (1978) (requiring The existing statement of the purpose Act; 18 once in 1978, by the Pregnancy equal retirement benefits for women and of the current Guidelines demonstrates Discrimination Act (‘‘PDA’’); 19 once in men, despite statistical differences in their outdated nature. As the ‘‘title and 1991, by the Civil Rights Act; 20 and longevity); County of Washington v. purpose’’ section of current part 60–20 finally in 2009, by the Lilly Ledbetter Gunther, 452 U.S. 161 (1981) (holding states, the Guidelines were first adopted Act.21 that compensation discrimination is not because sex discrimination was • State ‘‘protective laws’’ that had limited to unequal pay for equal work perceived as presenting ‘‘special explicitly barred women from certain within the meaning of the Equal Pay problems [of] implementation’’ that occupations or otherwise restricted their Act); Newport News Shipping & Dry required ‘‘a definitive treatment beyond employment conditions on the basis of Dock Co. v. EEOC, 462 U.S. 669 (1983) the terms of the [executive] order itself.’’ sex have been repealed or are (holding that employer discriminated on 41 CFR 60–20.1. Five sections, covering unenforceable.22 the basis of sex by excluding pregnancy- ‘‘recruitment and advertisement,’’ ‘‘job • In 1993, the Family and Medical related hospitalization coverage for the policies and practices,’’ ‘‘seniority Leave Act (‘‘FMLA’’) 23 was enacted, spouses of male employees while system,’’ ‘‘discriminatory wages,’’ and requiring employers of 50 or more providing complete hospitalization ‘‘affirmative actions,’’ currently follow employees to provide a minimum of 12 coverage for the spouses of female § 60–20.1. employees); Meritor Savings Bank v. weeks of annual, unpaid, job-guaranteed Since the Guidelines were Vinson, 477 U.S. 57 (1986) (recognizing leave to both male and female promulgated in 1970, there have been cause of action for sexually hostile work employees to recover from their own dramatic changes in women’s environment); Federal S. & L. serious health conditions (including participation in the workforce. Between Assn. v. Guerra, 479 U.S. 272 (1987) pregnancy, childbirth, or related 1970 and December 2013, women’s (upholding California law requiring up medical conditions), to care for a participation in the labor force grew to four months leave and reinstatement 15 newborn or newly adopted or foster from 43 percent to 57 percent. This to pregnant employees and finding law child, or to care for a child, spouse, or included a marked increase in not inconsistent with title VII); Price employment of mothers: The labor force parent with a serious health condition. • Waterhouse v. Hopkins, 490 U.S. 228, participation of women with children In 1970 it was not uncommon for 250 (1989) (finding sex discrimination under the age of 18 increased from 47 employers to require female employees on basis of sex stereotyping); Oncale v. percent in 1975 to 70 percent in 2013.16 to retire at earlier ages than their male Sundowner Offshore Servs., 523 U.S. 75, In 2013, both adults worked at least part counterparts. However, the Age 78 (1998) (recognizing cause of action time in 59 percent of married-couple Discrimination in Employment Act was for ‘‘same sex’’ harassment); Int’l Union, families with children under 18, and 73 amended in 1986 to abolish mandatory United Auto., Aerospace and Agr. percent of mothers heading single- Implement. Workers of Am. v. Johnson parent families with children under 18 18 Equal Employment Opportunity Act of 1972, Controls, Inc., 499 U.S. 187 (1991) worked at least part time.17 Public Law 92–261, 86 Stat. 103 (1972). (holding that possible reproductive Since 1970, there have also been 19 Amendment to Title VII of the Civil Rights Act of 1964 to Prohibit Sex Discrimination on the Basis health hazards to women of extensive changes in the law regarding of Pregnancy, Public Law 95–555, 995, 92 Stat. 2076 childbearing age did not justify sex- (1978). based exclusions from certain jobs); estimates that the cost would be $9,671,000 20 Civil Rights Act of 1991, Public Law 102–166, Burlington Industries, Inc. v. Ellerth, × × × × (2,046,850 21% 50% 9% $500). 1745, 105 Stat. 1071 (1991). 524 U.S. 742 (1998), and Faragher v. 15 U.S. Census Bureau, Civilian Population— 21 Lilly Ledbetter Fair Pay Act of 2009, Public Employment Status by Sex, Race, and Ethnicity: Law 111–2, 123 Stat. 5 (2009). City of Boca Raton, 524 U.S. 775 (1998) 1970–2009, The 2012 Statistical Abstract, available 22 See, e.g., Conn. Gen. Stat. § 31–18 (repealed (holding employers vicariously liable at http://www.census.gov/compendia/statab/2012/ 1973) (prohibition of employment of women for under title VII for the harassing activity tables/12s0588.pdf (last accessed Oct. 31, 2014); more than nine hours a day in specified of supervisors who create hostile Bureau of Labor Statistics, U.S. Department of Labor establishments); Mass. Gen. Laws ch. 345 (1911) working conditions for those over whom Statistics, Data Retrieval: Labor Force Statistics (repealed 1974) (outright prohibition of (Current Population Survey, Household Data, Table employment of women before and after childbirth); they have authority); and Burlington N. A–1, Employment status of the civilian population Rev. Code Ann. § 4107.43 (repealed 1982) & Santa Fe Railway Co. v. White, 548 by sex and age, available at http://www.bls.gov/ (prohibition of employment of women in specific U.S. 53 (2006) (clarifying broad scope of webapps/legacy/cpsatab1.htm (last accessed Oct. 3, occupations that require the routine lifting of more prohibition of retaliation for filing of 2014). than 25 pounds); see also Nashville Gas Co. v. Satty, 16 Bureau of Labor Statistics, U.S. Department of 434 U.S. 136, 142 (1977) (invalidating public charge of sex discrimination). Labor, TED: The Economics Daily, Labor force employer requirement that pregnant employees take In response to these legal and participation rates among mothers,, available at a leave of absence during which they did not economic changes, employment policies http://www.bls.gov/opub/ted/2010/ted_20100507_ receive sick pay and lost job seniority); and practices have also changed. data.htm (last accessed Oct. 3, 2014) [hereinafter Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) Contractors rarely adopt or implement Labor Force Participation: Mothers—2010]; Press (striking rules requiring leave from after the fifth Release, Bureau of Labor Statistics, U.S. Department month of pregnancy until three months after birth); explicit rules that prohibit hiring of of Labor, Employment Characteristics of Families— Somers v. Aldine Indep. Sch. Dist., 464 F. Supp. women for certain jobs; and jobs are no 2013 (April 25, 2014), available at http:// 900 (S.D. Tex. 1979) (finding sex discrimination longer advertised in sex-segregated www.bls.gov/news.release/famee.nr0.htm (last where school district terminated teacher for not newspaper columns. Women have made accessed Nov. 5, 2014) [hereinafter Employment complying with requirement that pregnant women Characteristics of Families—2013]. take an unpaid leave of absence in their third major inroads into professions and 17 Employment Characteristics of Families—2013, month or be terminated). supra note 16. 23 29 U.S.C. 2601 et seq. 24 29 U.S.C. 621–634.

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occupations traditionally dominated by leave for an employee’s own serious Likewise, women continue to be men. For example, women’s health condition and for pregnancy- underrepresented in higher level or representation among doctors tripled, related disabilities, and half extended more senior jobs within occupations. from nearly 12 percent in 1980 25 to 36 leave to care for a newborn child.29 For example, in 2013, women were percent in 2013.26 Executive suites are Eleven percent of employees have represented in only 38 percent of all no longer predominantly segregated by access to paid family leave, and most manager positions.33 Women also sex, with the executive positions all employees receive some pay during accounted for only 27 percent of chief being occupied by men and women family and medical leave due to paid executive officer positions.34 functioning as secretaries. Indeed, in vacation, sick, or personal leave or As mentioned above, in 2013, women many companies, it is hardly surprising temporary disability insurance.30 working full time earned 78 cents on the for women to be in positions of While these changes in policies and dollar compared with men, measured on considerable power and status. practices show a measure of progress, the basis of median annual earnings.35 Moreover, the female-to-male earnings there is no doubt that sex discrimination While this represents real progress, and ratio for women and men working full- remains a significant and pervasive discrimination may not be the cause of time, year-round in all occupations problem. Indeed, the percentage of total the entire gap, more than fifty years after increased from 59 percent in 1970 to 78 annual EEOC charges that allege sex passage of the Equal Pay Act, the size of percent in 2013.27 discrimination has remained nearly the gap is still unacceptable. At the In addition, employer-provided constant at around 30 percent since at current rate of progress, researchers insurance policies that explicitly least 1997.31 estimate it will take until 2057 to close provide lower-value or otherwise less Additionally, occupational sex the gender pay gap.36 comprehensive hospitalization or segregation remains widespread: The wage gap is also greater for disability benefits for childbirth than for In 2012, nontraditional occupations for women of color and women with other medical conditions are unlawful women employed only six percent of all disabilities. When measured by median for employers of 15 or more women, but 44 percent of all men. The same full-time weekly earnings, in 2013 employees.28 Generous leave and other imbalance holds for occupations that are African-American women made family-friendly policies are increasingly nontraditional for men; these employ only 5 approximately 69 cents and Latinas common. As early as 2000, even percent of men, but 40 percent of women. made approximately 61 cents for every employers that were not covered by the Gender segregation is also substantial in dollar earned by a non-Hispanic, white terms of the broad sectors where men and 37 FMLA routinely extended leave to their women work: Three in four workers in man. In 2013, median annual earnings employees for FMLA-covered reasons: education and health services are women, for women with disabilities were only Two-thirds of such employers provided nine in ten workers in the construction 47 percent of median annual earnings industry and seven in ten workers in for men without disabilities.38 25 American Medical Association, Women in manufacturing are men.32 Moreover, it appears that the narrowing Medicine: An AMA Timeline 4, available at of the pay gap has slowed since the https://download.ama-assn.org/resources/doc/wps/ 29 U.S. Department of Labor, Wage and Hour 1990’s.39 x-pub/wimtimeline.pdf (last accessed May 13, Division, The 2000 Survey Report ch. 5, Table 5– 2014). 1. Family and Medical Leave Policies by FMLA 26 gap-by-occupation-2/at_download/file/ (last Bureau of Labor Statistics, U.S. Department of Coverage Status, 2000 Survey Report available at accessed Oct. 3, 2014) [hereinafter IWPR Wage Gap Labor, Labor Force Statistics from the Current http://www.dol.gov/whd/fmla/chapter5.htm#5.1.1 By Occupation]. Population Survey, Table 11, Employed persons by (last accessed May 13, 2014). 33 BLS Labor Force Statistics 2013, supra note 26. detailed occupation, sex, race, and Hispanic or 30 Robert Van Giezen, Paid Leave in Private 34 Latino ethnicity, Household Data Annual Averages, Industry over the Past 20 Years, Bureau of Labor Id. available at http://www.bls.gov/cps/cpsaat11.htm Statistics, U.S. Department of Labor, Beyond the 35 U.S. Census Bureau, Income and Poverty in the (last accessed June 5, 2014) [hereinafter BLS Labor Numbers: Pay & Benefits Aug. 2013, available at United States: 2013, Current Population Reports 10 Force Statistics 2013]. http://www.bls.gov/opub/btn/volume-2/paid-leave- (2014), available at http://www.census.gov/content/ 27 U.S. Census Bureau, Income and Poverty in the in-private-industry-over-the-past-20-years.htm (last dam/Census/library/publications/2014/demo/p60- United States: 2013, Current Population Reports 10 accessed Oct. 3, 2014). In addition, most employees 249.pdf (last accessed Nov. 2, 2014). (2014), Table A–4, Number and real median taking family or medical leave had some access to 36 Institute for Women’s Policy Research, At earnings of total workers and full-time, year-round paid leave: ‘‘48% report[ed] receiving full pay and Current Pace of Progress, Wage Gap for Women workers by sex and female-to-male earnings ratio: another 17% receive[d] partial pay, usually but not Expected to Close in 2057 (April 2013), available at 1960–2013, available at http://www.census.gov/ exclusively through regular paid vacation leave, http://www.iwpr.org/publications/pubs/at- content/dam/Census/library/publications/2014/ sick leave, or other ‘paid time off’ hours.’’ Jacob currentpace-of-progress-wage-gap-for-women- demo/p60-249.pdf (last accessed Nov. 2, 2014). Klerman, Kelly Daley, & Alyssa Pozniak, Family expected-toclose-in-2057. 28 These practices, common before the PDA, were and Medical Leave in 2012: Executive Summary ii, 37 Bureau of Labor Statistics, U.S. Department of prohibited when that law became effective as to http://www.dol.gov/asp/evaluation/fmla/FMLA- Labor, Household Data, Annual Averages, Table 37. fringe benefits in 1979. As the EEOC explained in 2012-Executive-Summary.pdf (last accessed Oct. 3, ‘‘Median Weekly Earnings of Full-Time Wage and guidance on the PDA issued in 1979— 2014). Salary Workers By Selected Characteristics’’ A woman unable to work for pregnancy-related 31 This rate has varied from a low of 28.5 percent available at http://www.bls.gov/cps/cpsaat37.pdf reasons is entitled to disability benefits or sick leave in FY 2011 to a high of 31.5 percent in FY 2000. (last accessed Oct. 6, 2014). on the same basis as employees unable to work for U.S. Equal Employment Opportunity Commission, 38 Calculation from U.S. Census Bureau, other medical reasons. Also, any health insurance Enforcement and Litigation Statistics, Charge American Fact Finder, ‘‘Median earnings in the past provided must cover expenses for pregnancy- Statistics: FY 1997 Through FY 2013, available at 12 months (in 2013 inflation-adjusted dollars) by related conditions on the same basis as expenses for http://eeoc.gov/eeoc/statistics/enforcement/ disability status by sex for the civilian other medical conditions. charges.cfm (last accessed Nov. 2, 2014). In FY noninstitutionalized population 16 years and over Appendix to Part 1604—Questions and Answers 2013, the EEOC received 27,687 charges alleging with earnings,’’ available at http://factfinder2. on the Pregnancy Discrimination Act, 44 FR 23805 sex discrimination. census.gov/faces/tableservices/jsf/pages/product (Apr. 20, 1979), 29 CFR part 1604. EEOC’s recently 32 Ariane Hegewisch & Heidi Hartmann, Institute view.xhtml?pid=ACS_13_1YR_B18140&prod issued guidance echoes this earlier interpretation for Women’s Policy Research, Occupational Type=table (last accessed Nov. 6, 2014). and discusses recent developments on benefits Segregation and the Gender Wage Gap: A Job Half 39 From 1980 to 1989, the percentage of women’s issues affecting PDA compliance. U.S. Equal Done (2014), available at http://www.iwpr.org/ earnings relative to men’s increased from 60.2% to Opportunity Commission, Enforcement Guidance: publications/pubs/occupational-segregation-and- 66.0%; from 1990 to 1999, the percentage increased Pregnancy Discrimination and Related Issues I.C.2– the-gender-wage-gap-a-job-half-done (last accessed from 71.6% to just 72.2%. U.S. Census Bureau, 4 (July 14, 2014), available at http://www.eeoc.gov/ Oct. 3, 2014) (citations omitted); see also Ariane Historical Income Tables: People, Table P–40: laws/guidance/pregnancy_guidance.cfm (last Hegewisch et al., The Gender Wage Gap by Women’s Earnings as a Percentage of Men’s accessed Oct. 3, 2014). OFCCP welcomes comments Occupation, Fact Sheet #C350a, The Institute for Earnings by Race and Hispanic Origin, available at on the extent to which contractor-provided health Women’s Policy Research, available at http:// https://www.census.gov/hhes/www/income/data/ insurance plans comply with the PDA. www.iwpr.org/publications/pubs/the-gender-wage- historical/people/ (last accessed Nov. 2, 2014). See

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These disparities can be explained to dominated occupations at similar skill In addition, some pregnant workers some extent by differences in levels. But even within the same face a serious and unmet need for experience, occupation, and industry.40 occupation, women earn less than men workplace accommodations, which are However, decades of research show on average. For example, in 2012, full- vital to their uninterrupted, seamless, these wage gaps remain even after time women auditors’ and accountants’ and continued employment and, accounting for factors like the type of earnings were less than 74 percent of ultimately, to their health and that of work people do and qualifications such the earnings of their male their children. OFCCP is aware of a as education and experience.41 counterparts.44 Retail salespersons faced number of situations in which women Moreover, while some women may the largest wage gap, among whom have been denied accommodations with work fewer hours or take time out of the women made only 64 percent of what deleterious health consequences. For workforce because of family men made.45 Likewise, in the medical example: responsibilities, there is research profession, women earn less than their In one instance, a pregnant cashier in New suggesting that discrimination and not male counterparts. On average, male York who was not allowed to drink water just choices can lead to women with physicians earn 13 percent more than during her shift, in contravention of her children earning less; 42 to the extent female physicians at the outset of their doctor’s recommendation to stay well- that the potential explanations such as careers and as much as 28 percent more hydrated, was rushed to the emergency room type of job or amount of continuous eight years later.46 This gap could not be after collapsing at work. As the emergency labor market experience are also explained by practice type, work hours, room doctor who treated her explained, influenced by discrimination, the or other characteristics of employees’ because ‘‘pregnant women are already at ‘‘unexplained’’ difference may work situations.47 increased risk of fainting (due to high understate the true effect of sex Despite enactment of the PDA, progesterone levels causing blood vessel 43 dilation), dehydration puts them at even discrimination. women continue to report that they further risk of collapse and injury from Male-dominated occupations have experienced discrimination on falling.’’ Another pregnant worker was generally pay more than female- account of pregnancy. Between FY 1997 prohibited from carrying a water bottle while and FY 2011, the number of charges of stocking grocery shelves despite her doctor’s also Youngjoo Cha & Kim A Weeden, Overwork and pregnancy discrimination filed with the instructions that she drink water throughout the Slow Convergence in the Gender Gap in Wages, EEOC and state and local agencies was the day to prevent dehydration. She Am. Soc. Rev. 1–28 (2014), available at http:// experienced preterm contractions, requiring www.asanet.org/journals/ASR/ChaWeeden significant, ranging from a low of 3,977 June14ASR.pdf (last accessed Nov. 2, 2014); in 1997 to a high of 6,285 in 2008.48 A multiple hospital visits and hydration with Francine D. Blau & Lawrence M. Kahn, The U.S. 2011 review of reported ‘‘family IV fluids. . . . [Another] woman, a pregnant Gender Pay Gap in the 1990s: Slowing Convergence, retail worker in the Midwest who had 60 Indus. & Lab. Rel. Rev. 45 (2006) [hereinafter responsibility discrimination’’ cases developed a painful urinary tract infection, Slowing Convergence]. (brought by men as well as women) supplied a letter from her doctor to her 40 Equal Pay for Equal Work? New Evidence on found that low-income workers face employer explaining that she needed a short the Persistence of the Gender Pay Gap: Hearing ‘‘extreme hostility to pregnancy.’’ 49 bathroom break more frequently than the Before United States Joint Economic Comm., store’s standard policy. The store refused. Majority Staff of the Joint Econ. Comm., 111th 44 Cong., Invest in Women, Invest in America: A IWPR Wage Gap by Occupation, supra note 32. She later suffered another urinary tract Comprehensive Review of Women in the U.S. 45 Id. infection that required her to miss multiple Economy 80 (Comm. Print 2010), 80, available at 46 Constanca Esteves-Sorenson & Jason Snyder, days of work and receive medical http://jec.senate.gov/public/?a=Files.Serve&File_ The Gender Earnings Gap for Physicians and its treatment.50 id=9118a9ef-0771-4777-9c1f-8232fe70a45c (last Increase Over Time 1 (2011), available at http:// accessed Oct. 3, 2014) (statement of Randy Albelda, faculty.som.yale.edu/ConstancaEstevesSorenson/ ‘‘Pregnant workers in physically _ Professor of Economics and Senior Research documents/Physician 000.pdf (last accessed demanding, inflexible, or hazardous Associate, University of -Boston October 3, 2014). Center for Social Policy). 47 Id. A 2008 study on physicians leaving jobs are particularly likely to need 41 A March 2011 White House report entitled residency programs in State also found accommodations at some point during Women in America: Indicators of Social and a $16,819 pay gap between male and female their pregnancies to continue working Economic Well-Being, found that while earnings for physicians. Anthony T. LoSasso, Michael R. safely.’’ 51 Meanwhile, more women women and men typically increase with higher Richards, Chiu-Fang Chou & Susan E. Gerber, The levels of education, male-female pay gap persists at $16,819 Pay Gap For Newly Trained Physicians: all levels of education for full-time workers (35 or The Unexplained Trend Of Men Earning More Than Fired: Caregiver Discrimination Against Low-Wage more hours per week), according to 2009 BLS wage Women, 30 Health Affairs 193 (2011), available at Workers 2 (2011), available at http:// data. Potentially nondiscriminatory factors can http://content.healthaffairs.org/content/30/2/ worklifelaw.org/pubs/PoorPregnantAndFired.pdf explain some of the gender wage differences. See, 193.full.pdf+html (last accessed May 13, 2014). (last accessed Oct. 3, 2014). e.g., June Elliot O’Neill, The Gender Gap in Wages, 48 U.S. Equal Employment Opportunity 50 Brief of Health Care Providers, the National Circa 2000, Am. Econ. Rev. (May 2003). Even so, Commission, Pregnancy Discrimination Charges, Partnership for Women & Families, and Other after controlling for differences in skills and job EEOC & FEPAs Combined: FY 1997–FY 2011, Organizations Concerned with Maternal and Infant characteristics, women still earn less than men. available at http://www.eeoc.gov/eeoc/statistics/ Health as Amici Curiae in Support of Petitioner in Explaining Trends in the Gender Wage Gap, A enforcement/pregnancy.cfm (last accessed Nov. 2, Young v. United Parcel Service, supra, available at Report by the Council of Economic Advisers (June 2014); U.S Equal Employment Opportunity http://www.americanbar.org/content/dam/aba/ 1998). Ultimately, the research literature still finds Commission, Charge Statistics: FY 1997 Through publications/supreme_court_preview/BriefsV4/12- an unexplained gap exists even after accounting for FY 2013, available at http://www.eeoc.gov/eeoc/ 1226_pet_amcu_hcp-etal.authcheckdam.pdf, at 9– potential explanations, and finds that the narrowing statistics/enforcement/charges.cfm (last accessed 10, 11 [citations omitted]. See also Wiseman v. Wal- of the pay gap for women has slowed since the Nov. 2, 2014) (hereinafter ‘‘EEOC Charge Statistics: Mart Stores, Inc., No. 08–1244–EFM, 2009 WL 1980s. Joyce P. Jacobsen, The Economics of Gender FY 1997–2013’’). FY 2011 is the last year for which 1617669 (D. Kan. June 9, 2009) (pregnant retail 44 (2007); Slowing Convergence, supra note 39. comparable data are available. For FY 2012 and FY employee with recurring urinary and bladder 42 Shelley J. Correll, Stephen Benard, & In Paik, 2013, four percent of the charges filed with the infections caused by dehydration alleged she was ‘‘Getting a Job: Is There a Motherhood Penalty?’’ EEOC alleged pregnancy discrimination. OFCCP denied permission to carry a water bottle despite 112 American Journal of Sociology 1297 (2007). calculations made from data from U.S Equal doctor’s note), available at http://www.gpo.gov/ 43 Strengthening the Middle Class: Ensuring Equal Employment Opportunity Commission, Pregnancy fdsys/pkg/USCOURTS-ksd-6_08-cv-01244/pdf/ Pay for Women: Hearing Before H. Comm. on Educ. Discrimination Charges, FY 2010–FY 2013, USCOURTS-ksd-6_08-cv-01244-0.pdf. and Labor, 110th Cong. (2007), available at http:// available at http://www.eeoc.gov/eeoc/statistics/ 51 National Women’s Law Center & A Better www.cepr.net/index.php/strengthening-the-middle- enforcement/pregnancy_new.cfm (last accessed Balance, It Shouldn’t Be a Heavy Lift: Fair class-ensuring-equal-pay-for-women-testimony/ Nov. 2, 2014) and EEOC Charge Statistics: FY 1997– Treatment for Pregnant Workers 5 (2013), available (last accessed Oct. 3, 2014) (statement of Heather 2013. at http://www.nwlc.org/sites/default/files/pdfs/ Boushey, Senior Economist, Center for Economic 49 Stephanie Bornstein, Center for WorkLife Law, pregnant_workers.pdf (last accessed Dec. 30, 2014) and Policy Research). UC Hastings College of the Law, Poor, Pregnant and [hereinafter Heavy Lift].

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today continue to work throughout their based stereotyping may have even more welcomes comments on each of the pregnancies and therefore are more severe consequences for transgender, provisions discussed below. likely to need accommodations of some lesbian, gay, and bisexual applicants Title of the Regulations sort. Of women who had their first child and employees, many of whom report between 1966 and 1970, 49 percent that they have experienced The current title of part 60–20 is ‘‘Sex worked during pregnancy; of those, 39 discrimination in the workplace.56 Discrimination Guidelines.’’ OFCCP percent worked into their last month. With the marked increase of women proposes to change this title to For the period from 2006 to 2008, the in the labor force, the changes in ‘‘Discrimination on the Basis of Sex,’’ to proportion working increased to 66 employment practices, and numerous make clear that the provisions in part percent, and the proportion of those key legal developments since 1970, the 60–20 are regulations implementing working into the last month increased to ‘‘special problems . . . [of] Executive Order 11246 with the full 82 percent.52 implementation’’ of the Executive force and effect of law. In some ways, the nature of sex Order’s prohibition of sex Section 60–20.1 Purpose discrimination has also changed since discrimination referred to in current OFCCP promulgated the Sex § 60–20.1 have changed significantly as The NPRM proposes a few minor Discrimination Guidelines. Explicit sex well. As a result, many of the provisions changes to this section. First, it deletes segregation, such as the facial ‘‘male in the Guidelines are outdated, the words ‘‘Title and’’ from the heading only’’ hiring policies that part 60–20 inaccurate, or both. At the same time, of current § 60–20.1, because the specifically addresses, has been there are important and current areas of proposed section does not set out a title. replaced in many workforces by less law that the Guidelines fail to address Second, it deletes the second sentence overt mechanisms that nevertheless at all. For example, while the existing of current § 60–20.1, which explains the present real barriers. regulations touch upon leave for reason that this part was promulgated in One of the most significant barriers is childbearing, they are completely silent 1970, because the reasons for amending the role of sex-based stereotyping. about refusals to hire pregnant women this part are contained in the preamble Decades of social science research have or women of childbearing age, restricted of the NPRM. Finally, the proposal documented the extent to which sex- duty during pregnancy, health modifies the last sentence of current based stereotypes about the roles of insurance or other benefits, and other § 60–20.1, which notifies the public that women and men and their respective applications of the law prohibiting part 60–20 is ‘‘to be read in connection capabilities in the workplace can pregnancy discrimination. with existing regulations, set forth in influence decisions about hiring, part 60–1 of this chapter.’’ For training, promotions, pay raises, and Section-by-Section Analysis completeness and to prevent any other conditions of employment.53 As The NPRM recommends a quite confusion, this change clarifies that the Supreme Court recognized in 1989, different organization of the topics contractors are subject to all the relevant an employer engages in sex covered in current part 60–20. For parts related to the implementation of discrimination if its female employees’ example, discussion of the BFOQ Executive Order 11246, by listing them chances of promotion depend on defense is repeated in several different specifically. Therefore, the proposed whether they fit their managers’ sections of the current guidelines; the rule states that part 60–20 is to be read preconceived notions of how women proposal consolidates this discussion in conjunction with parts 60–1, 60–2, should dress and act.54 Research clearly into one section covering BFOQs. In 60–3, 60–4, and 60–30 of this title. demonstrates that widely held social addition, the proposal does not address Section 60–20.2 General Prohibitions attitudes and biases can lead to some topics that are addressed in discriminatory decisions, even where current part 60–20 but are outdated; OFCCP proposes removing current there is no formal sex-based (or race- includes some topics that are covered by § 60–20.2 entitled ‘‘Recruitment and based) policy or practice in place.55 Sex- the current guidelines but in revised advertisement,’’ which addresses both form to align them with current law; the nondiscrimination requirements 52 U.S. Census Bureau, Maternity Leave and and adds some provisions not contained related to recruiting and advertising and Employment Patterns of First-Time Mothers: 1961– the BFOQ defense. Unlawful practices 2008 4, 7 (2011), available at http:// in the current guidelines to address contemporary problems with related to recruitment and advertising www.census.gov/prod/2011pubs/p70-128.pdf (last contained in current § 60–20.2 are accessed Nov. 2, 2014) (tables 1 and 3). implementation. 53 See, e.g., Susan Fiske et al., Controlling Other This Section-by-Section Analysis subsumed in a new subparagraph of this People: The Impact of Power on Stereotyping, 48 identifies and discusses all proposed section. See proposed paragraph 60– a.m. Psychol. 621 (1993); Marzarin Banaji, Implicit changes in each section. OFCCP 20.2(b)(7). The BFOQ defense is now Social Cognition: Attitudes, Self-Esteem and addressed in proposed § 60–20.3. Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle In place of current § 60–20.2, OFCCP & Madeline Heilman, Formal and Informal Emily and Brendan More Employable Than Lakisha Discrimination Against Women at Work in and Jamal? A Field Experiment on Labor Market proposes a new section entitled Managing Social and Ethical Issues in Discrimination, 94(4) American Econ. Rev. (2004); ‘‘General prohibitions.’’ Paragraph (a) of Organizations 23 (Stephen Gilliland, Dirk Douglas Ian Ayres & Peter Siegelman, Race and Gender this new section articulates the general Steiner & Daniel Skarlicki eds., 2007); Susan Discrimination in Bargaining for a New Car, 85(3) prohibition against sex discrimination Bruckmu¨ ller et al., Beyond the Glass Ceiling: The Am. Econ. Rev. (1995); Marc Bendick, Charles Glass Cliff and Its Lessons for Organizational Jackson & Victor Reinoso, Measuring Employment in employment. Paragraph (b) expressly Policy, 8 Soc. Issues & Pol. Rev. 202 (2014) Discrimination Through Controlled Experiments, 23 prohibits disparate treatment (describing the role of sex-based stereotypes in the Rev. of Black Pol. Econ. 25 (1994). discrimination; subparagraphs (b)(1) workplace). 56 Injustice at Every Turn, supra note 13; Brad through (b)(10) apply the general 54 Price Waterhouse v. Hopkins, 490 U.S. 228 Sears & Christy Mallory, The Williams Institute, (1989). Men, too, can experience adverse effects Documented Evidence of Employment prohibition of disparate treatment from sex-based stereotyping. Discrimination & Its Effects on LGBT People (2011), discrimination to specific practices. 55 See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, available at http://williamsinstitute.law.ucla.edu/ Paragraph (c) prohibits discrimination Racial Discrimination in the Labor Market: Theory wp-content/uploads/Sears-Mallory-Discrimination- under disparate impact analysis. and Empirics (NBER Working Paper No. 17450, July-20111.pdf (last accessed Nov. 5, 2014). Further 2010), available at http://128.197.153.21/jee/Lang_ discussion of discrimination on the basis of sexual The general statement prohibiting sex Lehmann_jel_disc.pdf (last accessed Oct. 3, 2014); orientation and gender identity can be found infra discrimination in paragraph (a) clarifies Marianne Bertrand & Sendhil Mullainathan, Are in the passages on § 60–20.2(a) and § 60–20.7. that discrimination based on pregnancy,

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childbirth, or related medical conditions Many of the examples included in This proposed paragraph replaces is a form of sex discrimination. This this proposed section are presently current § 60–20.3(e), which requires principle has been the law since listed in § 60–20.3, ‘‘Job policies and contractors to provide ‘‘appropriate Congress enacted the Pregnancy practices,’’ of the current part 60–20. physical facilities’’ to both men and Discrimination Act amendments to title For instance, proposed paragraph 60– women ‘‘unless the employer is able to VII in 1978. This form of discrimination 20.2(b)(1) identifies making a show that the construction of the is also treated separately in proposed distinction between married and facilities would be unreasonable for § 60–20.5. unmarried persons that is not applied such reasons as excessive expense or In addition, paragraph (a) clarifies equally to both sexes as an example of lack of space.’’ Under existing law, that discrimination based on gender a sex-based discriminatory practice, and unreasonable cost is not acceptable as a identity or transgender status is also a proposed paragraph 60–20.2(b)(2) defense to sex discrimination in form of sex discrimination. See OFCCP provides that denying women with employment.60 Moreover, current § 60– Directive 2014–02, ‘‘Gender Identity and children an employment opportunity 20.3(e) is inconsistent with other Sex Discrimination’’ (August 19, 2014). that is available to men with children is OFCCP regulations, which require As Directive 2014–02 explains, ‘‘Under an unlawful sex-based discriminatory contractors to provide separate or current Title VII case law principles, practice. These proposed provisions can single-user restrooms and changing discrimination based on gender identity be found in current paragraph 60– facilities to assure privacy between the or transgender status . . . is 20.3(d). sexes without exception for cost or lack discrimination based on sex.’’ The Other examples of practices listed in of space. See 41 CFR 60–1.8 (supply and Directive relied on the EEOC’s decision this proposed rule that, absent a BFOQ, service contractors); 41 CFR 60–4.3(a) in Macy v. Holder, 2012 WL 1435995 would constitute sex-based 7n (construction contractors).61 (EEOC April 20, 2012), in which the discriminatory treatment include: Proposed paragraph 60–20.2(b)(10) EEOC commissioners unanimously Treating unmarried female parents describes another example of sex-based concluded that discrimination because a differently than unmarried male parents discriminatory practices: Denying person is transgender is sex (proposed paragraph 60–20.2(b)(3)); transgender employees access to the discrimination in violation of title VII, imposing differences in retirement age bathrooms used by the gender with by definition, because the or other terms, conditions, or privileges which they identify. discriminatory act is ‘‘related to the sex of retirement based on sex (proposed Proposed paragraph 60–20.2(b)(11) of the victim.’’ 57 The EEOC cited both paragraph 60–20.2(b)(4)); restricting job addresses discrimination against the text of title VII and the reasoning in classifications on the basis of sex transgender individuals who have Schroer v. Billington, 577 F. Supp. 2d (proposed paragraph 60–20.2(b)(5)); undergone, are undergoing, or plan to 293 (D.D.C. 2008), for its conclusion.58 maintaining seniority lines and lists undergo sex-reassignment surgery or See also Memorandum from Attorney based on sex (proposed paragraph 60– other processes or procedures designed General Eric Holder to United States 20.2(b)(6)); recruiting or advertising for to facilitate the adoption of a sex or Attorneys and Heads of Department members of one sex for a certain job, gender other than the individual’s Components (Dec. 15, 2014) (citing including through use of gender-specific designated sex at birth. Disparate EEOC’s decision in Macy v. Holder as terms for jobs (proposed paragraph 60– treatment for this reason has been support for DOJ’s positon that ‘‘[t]he 20.2(b)(7)); and distinguishing on the classified as both discrimination on the most straightforward reading of Title VII basis of sex in apprenticeship or other basis of sex-based stereotypes and as is that discrimination ‘because of . . . formal or informal training programs; in discrimination on the basis of sex. sex’ includes discrimination because an other opportunities such as networking, Schroer v. Billington, supra, at 304–08 employee’s gender identification is as a mentoring, sponsorship, individual (D.D.C. 2008) (concluding that an member of a particular sex, or because development plans, rotational employer’s decision to withdraw a job the employee is transitioning, or has assignments, and succession planning offer from a transgender applicant transitioned, to another sex’’). Note that programs; and in performance discrimination on the basis of gender appraisals that may provide the basis of CFR 60–4.3(a) 7n (‘‘Ensure that all facilities and subsequent opportunities (proposed company activities are nonsegregated except that identity or transgender status can arise separate or single-user toilet and necessary regardless of whether a transgender paragraph 60–20.2(b)(8)). Specific changing facilities shall be provided to assure individual has undergone, is enumeration of these types of programs privacy between the sexes.’’). undergoing, or plans to undergo sex- ensures that the forms of career 60 See Int’l Union, United Auto., Aerospace and development and advancement Agric. Implement Workers of Am. v. Johnson reassignment surgery or other processes Controls, Inc., 499 U.S. 187, 210–11 (1991), in or procedures designed to facilitate the opportunities that contractors currently which the plaintiff challenged defendant’s policy adoption of a sex or gender other than use are included. prohibiting women of childbearing age from the individual’s designated sex at birth. Proposed paragraph 60–20.2(b)(9) working in jobs involving exposure to lead because states that making any facilities or of potential health dangers to fetuses that they may be carrying. The Supreme Court held that the cost 57 Macy at *7. Macy also held that discrimination employment-related activities available of eliminating the health dangers cannot be a BFOQ on the basis of transgender status could be unlawful only to members of one sex is an that justifies the exclusion of women workers. under title VII as sex stereotyping. That form of sex example of an unlawful sex-based 61 In addition, OSHA regulations require stereotyping is separately addressed in proposed discriminatory practice, with the employers to provide employees with toilets, except § 20.7. condition that if a contractor provides for ‘‘mobile crews, which must have] 58 Consistent with Macy, this NPRM defines ‘‘transportation readily available to nearby toilet discrimination on the basis of gender identity as a restrooms or changing facilities, the facilities.’’ 29 CFR 1926.51(c) (OSHA construction form of sex discrimination. Gender identity is also contractor must provide separate or sanitation standard); OSHA Standard Interpretation a stand-alone protected category (along with sexual single-user restrooms or changing regarding 29 CFR 1926.51(c) (June 7, 2002), orientation) under Executive Order 13672. https://www.osha.gov/pls/oshaweb/owadisp.show_ facilities to assure privacy between the _ _ Executive Order 13672 amends Executive Order 59 document?p table=INTERPRETATIONS&p 11246 to add sexual orientation and gender identity sexes. id=24369 (interpreting the provision pertaining to as protected bases, and applies to contracts entered mobile crews as requiring prompt access to toilets into or modified on or after April 8, 2015, the 59 This provision aligns with an existing that are less than 10 minutes away and recognizing effective date of the implementing regulations affirmative action requirement applicable to Federal that women may need bathroom facilities more promulgated thereunder. and federally-assisted construction contractors at 41 often than men).

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constituted both sex-stereotyping (paragraph 60–20.3(h)). Current such differential treatment continues discrimination and sex discrimination paragraph 60–20.3(i) clarifies that today. in violation of title VII). The EEOC has differences in capabilities for job Current paragraph 60–20.3(i) states, in recognized this principle as well. Macy assignments among individuals may be its first sentence, that the Sex v. Holder, supra. recognized by the employer in making Discrimination Guidelines allow Finally, proposed paragraph 60– specific assignments. contractors to recognize differences in 20.2(c) provides that employment As explained earlier in the preamble, capabilities for job assignments in policies or practices that state a claim of OFCCP proposes moving the general making specific assignments. The disparate impact discrimination violate obligation to ensure equal employment second sentence reiterates that the Executive Order 11246 and the opportunity and the examples of purpose of the guidelines ‘‘is to insure regulations at 41 CFR part 60–20. discriminatory treatment to proposed that such distinctions are not based Proposed paragraph 60–20.2(c) § 60–20.2. To improve coherence and upon sex.’’ This paragraph is omitted identifies several examples of clarity, OFCCP proposes to move (and from the proposal because it is employment practices that may have an revise in some instances) the remaining unnecessary and because its second adverse impact on women. obligations set forth in paragraphs (e) sentence is repetitive of proposed § 60– Traditionally, disparate impact claims through (i) to their own separate 20.1. Implicit in the provisions have involved selection criteria that are sections or to incorporate them as prohibiting discrimination on the basis not necessary to the performance of the illustrations of discriminatory treatment of sex is the principle that distinctions job, but which instead reflect in proposed § 60–20.2. for other reasons, such as differences in stereotypical notions about the skills Specifically, current paragraph 60– capabilities, are not prohibited.62 required for the position in question. 20.3(e) regarding provision of physical Making distinctions among employees See, e.g., Blake v. City of Los Angeles, facilities is now addressed in proposed based on their relevant job skills, for 595 F.2d 1367 (9th Cir. 1979) (striking § 60–20.2. See the discussion earlier in example, does not constitute unlawful down height requirements by the Los this preamble for information regarding discrimination. Angeles police department because they this proposed provision. Proposed § 60–20.3 entitled ‘‘Sex as a were not job related and had a disparate Current paragraph 60–20.3(f), which bona fide occupational qualification’’ is impact on women, who in general are addressed state protective laws, has new and consolidates in one provision shorter than men); EEOC v. Dial Corp., been removed entirely because it is the current references to the BFOQ 469 F.3d 735 (8th Cir. 2006) (striking unnecessary and anachronistic. While defense available to employers in down a strength test used in a sausage in 1970 there may have been some legal paragraphs 60–20.3(b) and 60–20.3(f)(2), factory because the test was more question whether state protective laws and adopts the BFOQ language set forth physically demanding than the job in provided a defense to discriminatory in title VII, 42 U.S.C. 2000e–2(e). question and had a significant disparate employment policies, in 2014 it is OFCCP expects that this proposed impact on women). This sex beyond dispute that they do not. See reorganization will make the regulations discrimination analysis may also apply Int’l Union, United Auto., Aerospace more user-friendly and will help to policies or practices that are and Agr. Implement. Workers of Am. v. facilitate a better understanding of the unrelated to selection procedures. For Johnson Controls, Inc., supra (holding Executive Order requirements with instance, an employer policy requiring that possible reproductive health respect to sex discrimination. hazards to women of childbearing age crane operators to urinate off the back Section 60–20.4 Discriminatory did not justify sex-based exclusions of the crane instead of using a restroom compensation was held to be a neutral employment from certain jobs). Proposed paragraph policy that was not justified by business 60–20.2(b)(5), prohibiting sex-based job Current § 60–20.4 relating to seniority necessity and that produced an adverse classifications, clearly states the systems would be removed because its effect on women, who, the court found, underlying principle that no job, absent subject matter—the interaction of have ‘‘obvious anatomical and a job-specific BFOQ, is the separate seniority systems and sex biological differences’’ that require the domain of any sex. OFCCP invites discrimination—is addressed in use of bathrooms. Johnson v. AK Steel comment from stakeholders as to the proposed § 60–20.2 at paragraph (b)(6). Corp., 2008 WL 2184230, *8 (S.D. Oh. current scope of state protective laws, Proposed § 60–20.4 would replace the May 23, 2008). whether those that exist are enforced, current requirements related to and what practical effect, if any, they discriminatory wages in current § 60– Section 60–20.3 Sex as a Bona Fide have on contractors. 20.5. In general, the existing text focuses Occupational Qualification Current paragraph 60–20.3(g) on particular kinds of jobs and fact OFCCP proposes removing current regarding leave for childbearing is now patterns that may have posed significant § 60–20.3 entitled ‘‘Job policies and addressed in its own section: limitations on equal opportunity in practices,’’ which addresses a variety of discrimination on the basis of compensation at the time the Guidelines topics, including a contractor’s general pregnancy, childbirth, or related were adopted. However, the continued obligations to ensure equal opportunity medical conditions. See the discussion increase of women into the workforce, in employment on the basis of sex of proposed § 60–20.5 later in this their robust participation in a wide (paragraphs 60–20.3(a), 60–20.3(b), and preamble. variety of occupations and positions, 60–20.3(c)); provides examples of Current paragraph 60–20.3(h) ranging from entry-level to senior discriminatory treatment (paragraph 60– prohibits differential treatment between management, and the significant 20.3(d)); and sets forth contractor men and women with regard to representation of women in both the obligations with respect to the provision retirement age. It is restated and hourly and salaried workforce require a of physical facilities, including broadened, prohibiting the imposition more comprehensive statement bathrooms (paragraph 60–20.3(e)), the not only of sex-based differences in impact of state protective laws retirement age but also in ‘‘other terms, 62 Of course, discrimination based on other reasons that are independently prohibited by law— (paragraph 60–20.3(f)), leave for conditions, or privileges of retirement,’’ such as race, religion, color, national origin, childbearing (paragraph 60–20.3(g)), and in proposed paragraph 60–20.2(b)(4). disability, sexual orientation, gender identity, and specification of retirement age OFCCP invites comments on whether protected veteran status—is prohibited.

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addressing sex discrimination in wages forms of compensation.63 The section discrimination are barred by the and other terms of compensation. generally restates the agency’s case- Executive Order. Proposed amendments For example, paragraph (a) of current specific approach to evaluating to Section 60–1.3 to implement § 60–20.5 provides only a cursory contractor pay systems and practices for Executive Order 13655 would define description of sex discrimination in sex discrimination, where the agency compensation as follows: wages and other forms of compensation tailors the investigative and analytic Compensation means any payments made and fails to give useful guidance to methods to the facts of the case.64 This to, or on behalf of, an employee or offered to contractors in evaluating their may include conducting multiple an applicant as remuneration for compensation programs for potential regression analyses and applying other employment, including but not limited to sex discrimination. The one clarifying formal statistical tests as well as using salary, wages, overtime pay, shift example provided in the Note in current comparative and circumstantial differentials, bonuses, commissions, vacation evidence. As this approach is grounded and holiday pay, allowances, insurance and § 60–20.5(a) tracks the Equal Pay Act other benefits, stock options and awards, rather than title VII. OFCCP enforces the in well-established principles of title VII 65 profit sharing, and contributions to Executive Order’s nondiscrimination law, it also would apply when retirement. provisions, including the ban on evaluating contractor pay systems and That same definition would apply to compensation discrimination, practices for discrimination based on any assessment of compensation consistent with title VII. Courts have other protected categories. discrimination under EO 11246, concluded that title VII uses a broader Furthermore, OFCCP does not require including when evaluating sex and more flexible approach to anecdotal evidence to support a pay discrimination in compensation under comparing jobs and defining similarly violation. Identifying individuals this section. situated workers than the Equal Pay Act, harmed by pay discrimination is 66 To provide more guidance to see, e.g., Cnty. of Washington v. particularly difficult. Many workers 67 contractors about the kinds of practices Gunther, 452 U.S. 161 (1981); Miranda do not know that they are underpaid. they should review and analyses they v. B & B Cash Grocery, 975 F.2d 1518 If OFCCP finds evidence of pay should undertake to assess their (11th Cir. 1992). For that reason, the discrimination by Federal contractors compliance, new paragraphs (a), (b), and Note has the potential to create through its review of data, the agency (c) specify a variety of ways pay unnecessary confusion, and the should not permit that discrimination to discrimination may occur. For example, proposed rule omits it entirely. continue simply because the contractor had successfully hidden it from its proposed paragraph (a) states that Similarly, current paragraph (b) employees. Federal contractors have contractors may not pay different appears to contemplate only workplaces special obligations to avoid compensation to similarly situated that are completely or explicitly discrimination, monitor their pay employees on the basis of sex. Proposed segregated by gender. However, title VII practices and submit to reviews to make paragraph (b) prohibits contractors from, also bars other, more subtle forms of certain they are in compliance, among other things, granting or denying discriminatory compensation that can regardless of whether any individual training, work assignments, or other result from de facto job segregation or applicant or employee actually has opportunities that may lead to classification on the basis of sex. For knowledge of discrimination. advancement on the basis of sex, and example, a retail chain might Section 60–20.4 substitutes the proposed paragraph (c) states that disproportionately steer women into general and more modern term contractors may not provide or deny lower paying cashier jobs—even though ‘‘compensation’’ for the outdated term earnings opportunities because of sex, the women are qualified and available ‘‘wage schedules’’ and clarifies that both for example by denying women equal for higher paying positions—based on systemic and individual forms of such opportunity to obtain regular and/or the outdated, stereotypical notion that overtime hours, commissions, pay men, and not women, are the primary 63 Section 202 of Executive Order 11246, as increases, incentive compensation, or wage earners. These forms of amended; 41 CFR 60–1.12; 60–1.4; 60–2.17(b)–(d). any other additions to regular earnings. discriminatory compensation remain a 64 OFCCP’s case-by-case investigation procedures The revised text in proposed potential concern that should be, and implement the title VII principles applicable to paragraph (a) also addresses the enforcing discrimination in any employment are, addressed by the proposed practice under Executive Order 11246. The agency question of determining ‘‘similarly regulation. provides this very general description of its situated’’ employees for purposes of Current paragraph (c) has been approach for purposes of clarification and analyzing compensation differences. consistency with its other statements of policy in The determination of similarly situated superseded by the transfer of Equal Pay this area. Act jurisdiction to the EEOC and is 65 Interpreting Nondiscrimination Requirements employees is case specific. Relevant therefore removed. of Executive Order 11246 with Respect to Systemic factors in determining similarity may The proposed new text in § 60–20.4 Compensation Discrimination and Voluntary include tasks performed, skills, effort, Guidelines for Self-Evaluation of Compensation levels of responsibility, working provides a clearer general statement of Practices for Compliance with Nondiscrimination the contractor’s obligation to provide Requirements of Executive Order 11246 with conditions, job difficulty, minimum equal opportunity with respect to wages Respect to Systemic Compensation Discrimination: qualifications, and other objective Notice of Final Rescission, 78 FR 13508, Feb. 28, factors. In some cases, employees are and other forms of compensation. The 2013 (hereinafter Notice of Rescission). Executive Order and the implementing similarly situated where they are 66 Ledbetter v. Goodyear Tire & Rubber Co., 550 comparable on some of these factors, regulations specifically require U.S. 618, 645 (2007) (Ginsburg, J., dissenting). contractors to ensure pay equity. Thus, 67 On April 8, 2014, President Obama issued even if they are not similar in other Federal contractors have affirmative Executive Order 13655, which provides that a Federal contractor may not discharge or otherwise 68 In employment discrimination cases, courts duties to maintain data, conduct discriminate against any employee or applicant generally consider whether the workers being internal reviews, and monitor pay because such person has inquired about, discussed, compared are similar in aspects relevant to the case. practices for potential discrimination, as or disclosed the compensation of the person or See, e.g., McGuinness v. Lincoln Hall, 263 F.3d 49, well as comply with the Executive another employee or applicant. OFCCP published 53–54 (2d Cir. 2001); Ercegovich v. Goodyear Tire an NPRM on Sept. 17, 2014 to implement this and Rubber Co., 154 F.3d 344 (6th Cir. 1998); Order’s ban on discrimination in the executive order. 79 FR 55712. The comment period McNabola v. Chicago Transit Authority, 10 F.3d payment of wages, salaries, and other closed on Dec. 16, 2014. 501 (7th Cir. 1993).

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factors.68 For example, when evaluating Proposed paragraph (a) of this section leave. Unfortunately, insufficient job- a job assignment issue, workers are incorporates the principle set forth in protected leave, time-limited temporary similarly situated when their the Pregnancy Discrimination Act that disability insurance, and minimal sick qualifications are comparable, but they discrimination on the basis of sex leave often fail to cover the entire period are assigned to jobs at different levels.69 includes ‘‘because of or on the basis of of pregnancy-related work limitations. Employees are similarly situated when pregnancy, childbirth, or related Consequently, some pregnant workers they are comparable on factors relevant medical conditions.’’ It requires that who need reasonable accommodations to the compensation issues presented. contractors treat employees and job lose their jobs, wages, and health care Identification of similarly situated applicants of childbearing capacity and coverage.73 employees for purposes of an individual those affected by pregnancy, childbirth, The range of accommodations to analysis or review of a single specific or related medical conditions the same address the temporary limitations of a employment decision may be for all employment-related purposes as pregnant worker may include simple determined based on different criteria other persons not so affected but similar things that involve little or no cost, such than when conducting a systemic in their ability or inability to work and as permitting more frequent bathroom discrimination analysis. In analyzing defines the term ‘‘related medical breaks and allowing the pregnant compensation, title VII permits conditions.’’ Further, it incorporates the worker to sit down during a shift.74 comparing workers within the same or provision in the PDA, codified in 42 Other temporary limitations, however, similar jobs or within specific units or U.S.C. 2000e(k), that exempts employers may require a temporary light-duty locations, and also permits from having to pay for health insurance assignment to accommodate lifting or consideration of pay differences more benefits for abortion ‘‘except where the bending restrictions that a pregnant broadly—for example, across jobs or life of the mother would be endangered worker may have. locations or units—as long as the if the fetus were carried to term, or Denying an alternative job workers are comparable under the except where medical complications assignment, modified duties, or other employer’s wage or salary system.70 have arisen from an abortion,’’ and the accommodations to a pregnant New paragraph (d) prohibits further proviso that nothing in that employee who is temporarily unable to contractors from implementing exemption ‘‘preclude[s] a contractor perform some job duties because of compensation practices, including from providing abortion benefits or pregnancy, childbirth, or a related performance review systems, that otherwise affect[s] bargaining medical condition is sex discrimination discriminate on the basis of sex under agreements in regard to abortion.’’ when such assignments, modifications, the disparate impact analysis of Proposed paragraph (b) sets forth or other accommodations are provided, discrimination.71 New paragraph (e) some of the most common applications or are required to be provided, by a restates longstanding OFCCP principles of the general principle of contractor’s policy or other relevant regarding the circumstances under nondiscrimination on the basis of laws, to other employees whose abilities which pay discrimination is a pregnancy, childbirth, or related to perform some of their job duties are continuing violation under the medical conditions. These examples similarly affected (paragraph (b)(5)). Executive Order. include refusing to hire applicants Thus, for example, a contractor that because of pregnancy or childbearing permits light-duty assignments for Section 60–20.5 Discrimination on the capacity (paragraph (b)(1)); firing employees who are unable to work their Basis of Pregnancy, Childbirth, or employees or requiring them to go on regular assignments due to on-the-job Related Medical Conditions leave because they become pregnant or injuries or disabilities must also permit Current § 60–20.5 entitled have a child (paragraph (b)(2)); limiting light-duty assignments for employees ‘‘Discriminatory wages’’ has been a pregnant employee’s job duties based who are unable to work their regular revised and moved to § 60–20.4 as on pregnancy or requiring a doctor’s assignments due to pregnancy. The discussed earlier in the preamble. note in order for the employee to approach set forth here with respect to This proposed section is new; continue employment while pregnant pregnancy accommodation is intended however, it incorporates certain (paragraph (b)(3)); and providing to align OFCCP’s regulations obligations already set forth in the employees with health insurance that implementing Executive Order 11246 current part 60–20 at paragraph 60– does not cover hospitalization and other with EEOC guidance in this area and 20.3(g) regarding the provision of leave medical costs for pregnancy, childbirth, with the position taken by the Federal to employees who require time away or related medical conditions, including government in Young v. United Parcel from work on account of childbearing. contraception coverage, to the same Serv., Inc., 707 F.3d 437 (4th Cir. 2013), extent that such costs are covered for cert. granted (U.S. No. 12–1226, July 1, 69 See, e.g., Beckman v. CBS, 192 FRD. 608 (D. other medical conditions (paragraph 2014), a case currently before the Minn. 2000); Stender v. Lucky Stores, 803 F.Supp. (b)(4)). Supreme Court. Should the Supreme 259 (N.D. Cal. 1992); OFCCP v. St. Regis Corp. 78– Paragraph (b)(5) includes, as another Court rule contrary to our interpretation, OFC–1, ALJ’s Recommended Decision (Dep’t. of common example of discrimination OFCCP’s final rule will be revised Labor Dec. 28, 1984). consistent with the ruling. 70 Notice of Rescission, supra note 65, 78 FR at based on pregnancy, childbirth, or 13511–13513. related medical conditions, failure to The EEOC has long interpreted the 71 Lewis v. City of Chicago, 560 U.S. 205, 212 provide reasonable workplace PDA in this way, stating as early as 1979 (2010) (finding title VII places no limit on the types accommodations to employees affected of employment practices that may be challenged by such conditions when such 72 This is true even though ‘‘pregnancy itself is under disparate impact analysis). not an impairment within the meaning of the 72 This is true even though ‘‘pregnancy itself is accommodations are provided to other [Americans with Disabilities Act of 1990, 42 U.S.C. not an impairment within the meaning of the workers similar in their ability or 12101 et seq., as amended], and thus is never on [Americans with Disabilities Act of 1990, 42 U.S.C. inability to work.72 Without such its own a disability.’’ EEOC, Enforcement Guidance: 12101 et seq., as amended], and thus is never on workplace accommodations, many Pregnancy Discrimination and Related Issues, sec. its own a disability.’’ EEOC, Enforcement Guidance: II.A (July 14, 2014) (footnote omitted), available at Pregnancy Discrimination and Related Issues, sec. pregnant workers are forced to go on http://www.eeoc.gov/laws/guidance/pregnancy_ II.A (July 14, 2014) (footnote omitted), available at guidance.cfm (last accessed December 12, 2014). http://www.eeoc.gov/laws/guidance/pregnancy_ 70 Notice of Rescission, supra note 65, 78 FR at 73 Heavy Lift, supra note 51, at 1, 4, 6, 8, 9–10, guidance.cfm (last accessed December 12, 2014). 13511–13513. 11, 15, 18.

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that ‘‘[a]n employer is required to treat (1991) (‘‘[u]nless pregnant employees 1604 of 29 CFR) provide additional an employee temporarily unable to differ from others in their ability or instruction. perform the functions of her job because inability to work, they must be treated Proposed paragraph (c) addresses the of her pregnancy-related condition in the same as other employees for all provision of leave related to pregnancy, the same manner as it treats other employment-related purposes’’ (citation childbirth, or related medical temporarily disabled employees.’’ 29 and internal quotation marks omitted; conditions. Paragraph (c)(1) sets forth CFR pt. 1604, App. ¶ 5 (emphasis emphases added)); Ensley-Gaines v. the general title VII principle that added). It reaffirmed this position in its Runyon, 100 F.3d 1220 (6th Cir. 1996); neither family nor medical leave, 2014 PDA enforcement guidance. EEOC, Raciti-Hur v. Homan, No. 98–1218, 1999 including family or medical leave Enforcement Guidance: Pregnancy U.S. App. LEXIS 9551, 1999 WL 331650 related to pregnancy, childbirth, or Discrimination and Related Issues (6th Cir. May 13, 1999) (unpublished); related medical conditions, may be I.C.1.b (July 14, 2014), http:// Latowski v. Northwoods Nursing Center, denied or provided differently on the www.eeoc.gov/laws/guidance/ No. 12–2408, 2013 U.S. App. LEXIS basis of sex. Paragraph (c)(2) elaborates pregnancy_guidance.cfm; see also 9 25738, at *10–*11 (6th Cir. December on this general principle. Paragraph CFR pt. 1604, App. ¶ 5 (‘‘[a]n employer 23, 2013) (unpublished).76 is required to treat an employee The phrase ‘‘or are required to be (c)(2)(a) requires that employees affected temporarily unable to perform the provided by a contractor’s policy or by pregnancy, childbirth, or related functions of her job because of her other relevant laws’’ is included to medical conditions be granted medical pregnancy-related condition in the same cover the situation where a contractor’s leave, including paid sick leave, on the manner as it treats other temporarily policy or a relevant law (such as the same basis that such leave is granted to disabled employees.’’) (emphasis Americans with Disabilities Act of 1990, other employees unable to work for added); id. (‘‘If other employees 42 U.S.C. 12101 et seq., as amended other medical reasons. An employer temporarily unable to lift are relieved of (ADA), and section 503) would require may not impose requirements on these functions, pregnant employees an alternative job assignment or job pregnancy leave not imposed on other also unable to lift must be temporarily modification to be provided to an employees similar in their ability or relieved of the function.’’). employee not affected by pregnancy, inability to work. For example, As the Government has argued in its childbirth, or related medical condition employers may not impose a shorter brief before the Supreme Court in but who is similarly restricted in his or maximum amount of pregnancy leave as Young, nothing in the plain language of her ability to perform the job. In such compared to the maximum time off the PDA or any EEOC guidance suggests a situation, the existence of the policy allowed for other types of medical or that the underlying reason for the or law (e.g., the ADA and Section 503) short-term disability leave. Paragraph inability to work is relevant; as long as requiring reasonable accommodation or (c)(2)(b) requires that family leave be the employees are ‘‘similar in their job modifications for the one class of provided to men on the same terms that inability to work,’’ those affected by employees—employees with disabilities it is provided to women. pregnancy, childbirth, or related who are not affected by pregnancy, Consistent with the EEOC’s medical conditions must be provided childbirth, or related medical Guidelines on Discrimination Because the same accommodation as those not so conditions—requires that the contractor of Sex, 29 CFR 1604.10(c), and Section affected, regardless of the reasons for the similarly provide such accommodations I.B.2 of its recent enforcement guidance inability to work. See Brief for the to pregnant employees who are similar on pregnancy discrimination, proposed United States as Amicus Curiae in their ability or inability to work. paragraph (c)(3) applies disparate Supporting Petitioner in Young v. Failure to do so is disparate treatment impact analysis to contractor leave United Parcel Service, Inc., No. 12–1226 in violation of Executive Order 11246. policies that are inadequate such that (U.S.), 2014 WL 4536939, at *16 The list in § 60–20.5(b) is by no means they have a disparate impact on (‘‘Nothing in the PDA indicates that a exhaustive, but rather, contains a few members of one sex. Thus, a contractor pregnant employee faces discrimination illustrative examples. The relevant that provides workers who are . . . only when she receives less provisions of the EEOC’s 2014 temporarily unable to work due to favorable treatment than every other enforcement guidance on pregnancy pregnancy, childbirth, or related employee who is similar in his or her discrimination as well as its Guidelines medical conditions with no parental or ability or inability to work. The plain on Discrimination Because of Sex (29 medical leave at all, or with insufficient text of the statute prohibits treating CFR 1604.10) and Questions and leave, may be held liable for pregnant employees less favorably (for Answers on the Pregnancy discrimination based on sex, if such a any ‘employment-related purpose[ ]’) Discrimination Act (Appendix to part practice is found to have an adverse than ‘other persons not so affected but impact on such workers, unless the similar in their ability or inability to 76 Other Sixth Circuit opinions appear to suggest contractor can demonstrate that the work.’’’) (citation omitted); id. at *26 a different interpretation of the PDA. Reeves v. Swift failure to provide leave or sufficient (‘‘Recognizing that petitioner has Transp. Co., 446 F.3d 637 (6th Cir. 2006); Tysinger v. Police Dept., 463 F.3d 569 (2006). In addition, leave is job related and consistent with established a violation of the PDA is other circuits have held that the reason for business necessity. consistent with the longstanding employees’ inability to work does make a difference It should be noted that this provision position of the EEOC.’’).75 See also to the determination whether employees affected by is different from current § 60–20.3(g), International Union v. Johnson pregnancy, childbirth, or related medical conditions are similarly situated to those not so affected for which requires contractors to provide Controls, Inc., 499 U.S. 187, 204–05 purposes of receiving accommodations for their maternity leave whether or not their inability to work. Young v. United Parcel Serv., Inc., failure to do so has a disparate impact 75 The EEOC further explained its position in 707 F.3d 437 (4th Cir. 2013), cert. granted (U.S. No. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 12–1226, July 1, 2014); Serednyj v. Beverly on women. However, OFCCP has not 1184 (10th Cir. 2000) (decided on other grounds). Healthcare, LLC, 656 F.3d 540, 548–549 (7th Cir. enforced this requirement in § 60– The EEOC argued in Horizon that ‘‘the Charging 2011); Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 20.3(g) for some time. Instead, as was Parties are most appropriately compared to all 1312–1313 (11th Cir. 1999); Urbano v. Continental stated in its previous Federal Contractor temporarily-disabled, non-pregnant employees Airlines, Inc., 138 F.3d 204, 207–208 (5th Cir.), cert. whether they sustained their injuries on or off the denied, 525 U.S. 1000 (1998); Troupe v. May Dep’t Compliance Manual (FCCM), issued in job.’’ Id. at 1194–1195 (emphasis added). Stores Co., 20 F.3d 734, 738 (7th Cir. 1994). 1988, OFCCP has:

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consistent with the PDA, [current] 41 CFR Section 60–20.7 Employment U.S. 515, 533 (1996) (in making 60–1.4(a), and the EEOC Guidelines on Decisions Made on the Basis of Sex- classifications based on sex, state Discrimination Because of Sex, . . . Based Stereotypes governments ‘‘must not rely on implement[ed] the following policies: overbroad generalizations about the i. . . . This proposed section is new. It states the well-recognized principle that different talents, capacities, or ii. If the contractor’s leave policy, or lack preferences of males and females’’).81 thereof, has an adverse impact on employees employment decisions made on the of one sex and is not justified by business basis of stereotypes about how males Specific examples of such stereotyping necessity, it violates the Executive Order.77 and/or females are expected to look, follow in proposed paragraphs (a) speak, or act are a form of sex-based through (c). Similarly, the current FCCM requires Proposed paragraphs 60–20.7(a), (b), Compliance Officers to ‘‘examine employment discrimination. As the Supreme Court stated in Price and (c) address stereotyping based on an whether the contractor’s leave policy, or employee’s nonconformity with norms lack thereof, has an adverse impact on Waterhouse v. Hopkins, 490 U.S. at 251, ‘‘we are beyond the day when an about how people with the employee’s employees of one sex and is not justified assigned sex at birth should look, speak, by business necessity.’’ Section 2H01(b). employer can evaluate employees by assuming or insisting that they match and act. Paragraph (a) sets forth three Thus, proposed paragraph (c)(3) is examples of such stereotyping: in consistent both with OFCCP’s current the stereotype associated with their . . . [sex].’’ In Price Waterhouse, the Court proposed paragraph 60–20.7(a)(1), and long-standing practice. failure to promote female employee OFCCP welcomes comments from held that an employer’s failure to because she did not wear jewelry, make- stakeholders about current practices and promote a female senior manager to up, or high heels (see Price Waterhouse, policies regarding workplace partner because of the sex-stereotyped supra); in proposed paragraph 60– accommodations and leave for perceptions that she was too aggressive and did not ‘‘walk more femininely, talk 20.7(a)(2), harassment of a man because pregnancy, childbirth, or related he is too effeminate, (see Prowel v. Wise medical conditions; for care for more femininely, dress more femininely, wear make-up, have her hair Bus. Forms, Inc., supra); and in newborn or newly adopted or foster proposed paragraph 60–20.7(a)(3), children; and for an employee’s serious styled, and wear jewelry’’ was unlawful sex-based employment adverse treatment of an employee health conditions (other than those because he or she does not conform to related to pregnancy and childbirth). discrimination.79 The principle that sex- based stereotyping is a form of sex sex-role expectations by being in a Section 60–20.6 Other Fringe Benefits discrimination has been applied often, if not always, motivated by a desire to enforce Current § 60–20.6 entitled consistently in Supreme Court and heterosexually defined gender norms. In fact, ‘‘Affirmative action’’ has been removed lower-court decisions. See, e.g., Nevada stereotypes about are directly related because the requirements related to Dep’t of Human Res. v. Hibbs, 538 U.S. to our stereotype about the proper roles of men and affirmative action programs are set forth 721 (2003) (stereotype-based beliefs women.’’); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) (‘‘[A] jury in parts 60–2 and 60–4 of this title. about the allocation of family duties on could find that Cagle repeatedly harassed (and This proposed section is new and is which state employers relied in ultimately discharged) Heller because Heller did divided into three paragraphs. Proposed establishing discriminatory leave not conform to Cagle’s stereotype of how a woman paragraph (a) states the general policies held to be sex discrimination ought to behave. Heller is attracted to and dates under the Constitution); Chadwick v. other women, whereas Cagle believes that a woman principle that contractors may not should be attracted to and date only men.’’). The discriminate on the basis of sex in the Wellpoint, Inc., 561 F.3d 38 (1st Cir. EEOC has recognized in a long line of federal sector provision of fringe benefits. Proposed 2009) (making employment decision decisions that adverse actions taken on the basis of paragraph (b) defines ‘‘fringe benefits’’ based on the belief that women with sex stereotypes related to sexual orientation violate young children neglect their job Title VII. Castello v. U.S. Postal Service, EEOC broadly to encompass a variety of such Request No. 0520110649, 2011 WL 6960810 (Dec. benefits that are now provided by responsibilities is unlawful sex 20, 2011) (sex-stereotyping evidence entailed contractors. In proposed paragraph (c), discrimination); Prowel v. Wise Bus. offensive comment by manager about female OFCCP replaces the inaccurate Forms, Inc., 579 F.3d 285 (3d Cir. 2009) subordinate’s relationships with women); Veretto v. (harassment based on a man’s U.S. Postal Service, EEOC Appeal No. 0120110873, statement found at current § 60–20.3(c) 2011 WL 2663401 (July 1, 2011) (complainant that a contractor will not be considered effeminacy); Terveer v. Billington, 2014 stated plausible sex-stereotyping claim alleging to have violated the Executive Order if WL 1280301 (D. DC March 31, 2014) harassment because he married a man); Culp v. its contributions for fringe benefits are (hostile work environment based on Dep’t of Homeland Security, EEOC Appeal stereotyped beliefs about the 0720130012, 2013 WL 2146756 (May 7, 2013) (Title the same for men and women or if the VII covers discrimination based on associating with resulting benefits are equal. In 1978, the appropriateness of same-sex lesbian colleague); Couch v. Dep’t of Energy, EEOC 80 Supreme Court held that under title VII, relationships). Cf. U.S. v. Virginia, 518 Appeal No. 0120131136, 2013 WL 4499198, at *8 an employer must provide equal (Aug. 13, 2013) (complainant’s claim of harassment benefits to men and women, even if equal fringe benefits and/or not making equal based on his ‘‘perceived sexual orientation’’); contributions to insurance plans or pensions for Complainant v. Department of Homeland Security, doing so costs more for one sex than the men and women, this may constitute EEOC Appeal No. 0120110576, 2014 WL 4407422 other. City of Los Angeles v. Manhart, discrimination.’’ FCCM, ch. 2, § 2L03. The Previous (Aug. 20, 2014) (‘‘While Title VII’s prohibition of 435 U.S. 702 (1978); see also Ariz. FCCM also noted the discrepancy between OFCCP’s discrimination does not explicitly include sexual Governing Comm. v. Norris, 463 U.S. regulations and title VII law, providing (in chapter orientation as a basis, Title VII prohibits sex 3, § 3G01(h)(3)) that because— discrimination, including sex-stereotyping 78 1073 (1983). OFCCP’s policy is to interpret the discrimination and gender discrimination’’ and nondiscrimination provisions of the Executive ‘‘sex discrimination claims may intersect with 77 U.S. Department of Labor, Office of Federal Order consistent with Title VII principles..., if claims of sexual orientation discrimination.’’). Contract Compliance Programs Federal Contract [an OFCCP compliance officer] becomes aware of a 81 The U.S. Court of Appeals for the Seventh Compliance Manual (1988), ch. 3, § 3G01(h)(2) (on situation where a contractor is either not paying Circuit articulated this principle as early as 1971. file with OFCCP) (hereinafter Previous FCCM). A equal fringe benefits and/or not making equal Sprogis v. United Air Lines, Inc., 444 F.2d 1194, version of this Manual (dated 1993, but containing contributions to fringe benefits for men and women, 1198 (7th Cir. 1971) (‘‘In forbidding employers to the same language) is available at http:// the matter should be brought to the attention of discriminate against individuals because of their www.docstoc.com/docs/8387063/Federal-Contract RSOL [the Regional Solicitor of Labor]. sex, Congress intended to strike at the entire (last accessed Oct. 7, 2014). 79 Price Waterhouse, 490 U.S. at 235. spectrum of disparate treatment of men and women 78 Indeed, the FCCM follows current law, 80 See also Centola v. Potter, 183 F. Supp. 2d 403 resulting from sex stereotypes.’’) (emphasis added). providing that ‘‘if the contractor is not providing (D. Mass. 2002) (‘‘Sexual orientation harassment is

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relationship with a person of the same Equal Credit Opportunity Act,84 Rosa v. of one sex, may give rise to a violation sex (see Veretto v. U.S. Postal Service Park W. Bank & Trust Co., 214 F.3d 213, of title VII.86 Moreover, sexual and Castello v. U.S. Postal Service, 215–16 (1st Cir. 2000). harassment continues to be a serious supra note 80). Paragraph 60–20.7(c) addresses problem for women in the workplace 87 Paragraph (b) addresses disparate stereotyping based on specific and a significant barrier to women’s treatment based on gender identity. As expectations about the proper roles of entry into and advancement in many noted above, disparate treatment of a women and men regarding caregiving. nontraditional occupations, including transgender employee may constitute As noted above, the EEOC recognizes the construction trades and the discrimination because of the that adverse treatment of women computer and information technology individual’s non-conformity to sex- stemming from sex-based assumptions industries. Yet, current part 60–20 does based stereotypes. Barnes v. City of about ‘‘childcare responsibilities that not include any references to sexual , 401 F.3d 729 (6th Cir. 2005) will make female employees less harassment or hostile work (holding that transgender woman was a dependable than male employees’’ environments. Proposed § 20.8 remedies member of a protected class based on violates title VII.85 Even an employer’s this omission.88 her failure to conform to sex-based perceptions of a caregiver’s work Proposed paragraph 60–20.8(a) stereotypes and thus her title VII claim performance can, consciously or incorporates the provision of EEOC’s was actionable); Smith v. City of Salem, unconsciously, be affected by sex-based Guidelines relating to sexual harassment 378 F.3d 566, 574 (6th Cir. 2004) stereotypes that female caregivers are virtually verbatim. See 29 CFR (‘‘discrimination against a plaintiff who ‘‘less capable and skilled than their 1604.11(a). Inclusion of the EEOC is a transsexual [sic]—and therefore fails childless female counterparts or their language is intended to align the to act and/or identify with his or her male counterparts’’ (Caregiving prohibitions of sexually harassing gender—is no different from the Guidance, II.A.4). Moreover— conduct under the Executive Order with the prohibitions under title VII. discrimination directed against [the Gender-based stereotypes may also plaintiff] in Price Waterhouse who, in influence how male workers are perceived: Proposed paragraph 60–20.8(b) sex-stereotypical terms, did not act like ‘‘Stereotypes about women’s domestic roles defines harassment because of sex under a woman’’); Schroer v. Billington, supra, are reinforced by parallel stereotypes the Executive Order broadly to include at 305–06 (D.D.C. 2008) (withdrawal of presuming a lack of domestic responsibilities sexual harassment (including sexual a job offer from a transgender applicant for men. These mutually reinforcing constituted sex-stereotyping stereotypes created a self-fulfilling cycle of 86 U.S. Equal Employment Opportunity Commission Guidelines on Discrimination Because discrimination in violation of title VII). discrimination.’’ Stereotypes of men as ‘‘bread winners’’ can further lead to the of Sex, 41 CFR 1604.11 (1980) (provision on In addition to these appellate cases, perception that a man who works part time harassment); Harris v. Forklift Sys., 510 U.S. 17 ‘‘[t]here has likewise been a steady is not a good father, even if he does so to care (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 stream of district court decisions (1986); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. for his children. Thus, while working women 1977). recognizing that discrimination against have generally borne the brunt of gender- 87 In FY 2013, the EEOC received 7,256 sexual transsexuals [sic] on the basis of sex- based stereotyping, unlawful assumptions harassment charges (out of 93,727). U.S. Equal based stereotyping constitutes about working fathers and other male Employment Opportunity Commission, discrimination because of sex.’’ Macy v. caregivers have sometimes led employers to Enforcement & Litigation Statistics, Sexual Holder, supra. See also Glenn v. deny male employees opportunities that have Harassment Charges FY 2010—2013, available at been provided to working women or to http://www.eeoc.gov/eeoc/statistics/enforcement/ Brumby, 663 F.3d 1312 (11th Cir. 2011) _ _ subject men who are primary caregivers to sexual harassment new.cfm (last accessed Nov. 2, (termination of a transgender employee harassment or other disparate treatment. For 2014); U.S. Equal Employment Opportunity constituted discrimination on the basis Commission, Enforcement and Litigation Statistics, example, some employers have denied male Charge Statistics: FY 1997 Through FY 2013, of gender non-conformity and sex- employees’ requests for leave for childcare available at http://eeoc.gov/eeoc/statistics/ stereotyping discrimination under Equal purposes even while granting female enforcement/charges.cfm (last accessed Nov. 2, Protection Clause). Cf. Oncale v. employees’ requests. 2014). In FY 2011 (the last year for which combined Sundowner Offshore Servs., 523 U.S. 75, data is available), the EEOC and state and local fair Caregiving Guidance II.C [footnotes employment practices agencies together received 78 (1998) (same-sex harassment may be omitted]. just over 11,300 charges of sexual harassment. The sex discrimination); Prowel v. Wise Bus. In its introduction, the Caregiving average number of such claims filed per year from Forms, 579 F.3d 285 (3d Cir. 2009) Guidance also notes that discrimination FY 2000 through FY 2011 was 13,446. OFCCP (harassment of an ‘‘effeminate’’ man against caregivers may also fall under calculations from data in U.S. Equal Employment 82 Opportunity Commission, Enforcement & Litigation may be sex discrimination). This the ADA, which prohibits Statistics, Sexual Harassment Charges: EEOC & principle—that discrimination against a discrimination based on an employee’s FEPAs Combined: FY 1997—FY 2011, available at transgender individual is discrimination http://www.eeoc.gov/eeoc/statistics/enforcement/ association with an individual with a _ based on non-conformity to sex-based disability. The same is true of section sexual harassment.cfm (last accessed Nov. 2, 2014). stereotypes, and thus sex 88 The one reference to harassment in OFCCP’s 503. current body of regulations implementing Executive discrimination—has also been adopted Order 11246 is that construction contractors are under the Gender-Motivated Violence Section 60–20.8 Harassment and required to ‘‘[e]nsure and maintain a working Act,83 Schwenk v. Hartford, 204 F.3d Hostile Work Environments environment free of harassment, intimidation, and 1187, 1201–02 (9th Cir. 2000), and the coercion at all sites.’’ 41 CFR 60–4.3(a) (subsections This proposed section is new. It has 7(a) and (n) of the required Equal Opportunity been well-recognized for many years Clause for construction contracts). 82 See also Statement of Interest of the United that harassment on the basis of sex, In addition, in chapter 3, § 2H01(d), the FCCM States at 4, Apr. 4, 2014, in Burnett v. City of including the existence of a work recognizes that ‘‘[a]lthough not specifically Philadelphia, No. 09–4348 (E.D. Pa.) (‘‘Since Price environment that is hostile to members mentioned in the Guidelines, sexual harassment (as Waterhouse, in cases where the defendant’s action well as harassment on the basis of race, national had been motivated by the plaintiff’s failure to origin or religion) is a violation of the conform with sex-based stereotypes, every Federal 84 15 U.S.C. 1691. nondiscrimination provisions of the Executive circuit court of appeals that has addressed the 85 EEOC, Enforcement Guidance: Unlawful Order’’ and directs OFCCP compliance officers to question has recognized that disparate treatment Disparate Treatment of Workers with Caregiving ‘‘be alert for any indications of such harassment.’’ against a transgender plaintiff can be discrimination Responsibilities II.A.3 (last modified Feb. 8, 2011), It goes on to state that ‘‘OFCCP follows Title VII ‘because . . . of sex.’ ’’). http://www.eeoc.gov/policy/docs/caregiving.html principles when determining whether sexual 83 42 U.S.C. 13981. (last accessed Oct. 2, 2014). harassment has occurred.’’

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harassment based on gender identity), such activities, but it does encourage replaces them with new sex harassment based on pregnancy, employers to engage in them. discrimination regulations that childbirth, or related medical Regulatory Procedures accurately set forth a contractor’s conditions, and harassment that is not obligation not to discriminate on the sexual in nature but is because of sex Executive Order 12866 (Regulatory basis of sex in accordance with current (including harassment based on gender Planning and Review) and Executive title VII principles. (A more detailed identity). This aligns the meaning of Order 13563 (Improving Regulation and discussion of the need for the regulation ‘‘because of sex’’ for purposes of sexual Regulatory Review) is contained in Reasons for Amending harassment with its meaning under Executive Orders 12866 and 13563 the Current Sex Discrimination current title VII and Executive Order direct agencies to assess all costs and Guidelines, supra.) law. See proposed § 60–20.2, which benefits of available regulatory Discussion of Impacts includes discrimination on the bases of alternatives, and, if regulation is pregnancy, childbirth, or related necessary, to select regulatory medical conditions and gender identity In this section, OFCCP presents a approaches that maximize net benefits summary of the costs associated with discrimination as types of sex (including potential economic, discrimination. the new requirements in part 60–20. environmental, public health, and safety Comments are welcome on every aspect Proposed paragraph 60–20.8(c) effects, distributive impacts, and of the cost and burden calculations suggests as best practices procedures equity). including but not limited to the amount that contractors may develop and Executive Order 13563 directs of time contractors would spend on implement ‘‘to ensure an environment agencies to propose or adopt a complying with the proposals in this in which all employees feel safe, regulation only upon a reasoned NPRM, including those related to welcomed, and treated fairly . . . [and] determination that its benefits justify its accommodations for light duty. The are not harassed because of sex.’’ The costs; tailor the regulation to impose the estimated labor cost to contractors and suggested procedures are: Broad least burden on society, consistent with subcontractors is based on U.S. dissemination of the message ‘‘that obtaining the regulatory objectives; and harassing conduct will not be tolerated’’ in choosing among alternative Department of Labor, Bureau of Labor (paragraph 60–20.8(c)(1)); anti- regulatory approaches, select those Statistics (BLS) data in the publication harassment training (paragraph 60– approaches that maximize net benefits. ‘‘Employer Costs for Employee 20.8(c)(2)); and procedures for handling Executive Order 13563 recognizes that Compensation’’ issued in December and resolving complaints ‘‘about some benefits are difficult to quantify 2013, which lists total compensation for harassment and intimidation based on and provides that, where appropriate Management, Professionals, and Related 91 sex’’ (paragraph 60–20.8(c)(3)). and permitted by law, agencies may Occupations as $51.58 per hour. Contractors are not required to use such consider and discuss qualitatively There are approximately 500,000 procedures and will not be found in values that are difficult or impossible to contractor firms, employing violation of this part for not using such quantify, including equity, human approximately 65 million employees, procedures. We note, however, that dignity, fairness, and distributive registered in the SAM. Therefore, using such procedures may assist impacts. OFCCP estimates that 500,000 contractors in meeting their obligations This proposed rule has been contractor companies or firms may be with respect to harassment and hostile designated a ‘‘significant regulatory affected by the proposed new work environments. Procedures such as action’’ although not economically provisions.92 The SAM number results these are key to preventing harassment significant, under § 3(f) of Executive in an overestimation for several reasons: before it occurs. Order 12866. The NPRM is not the system captures firms that do not In addition, a contractor can avoid or economically significant, as it will not meet the $10,000 jurisdictional dollar reduce liability for certain sexually have an annual effect on the economy threshold for this proposed rule; it harassing acts committed by its of $100 million or more. The Office of captures inactive contracts, although supervisors if it can show that it has Management and Budget has reviewed OFCCP’s jurisdiction covers only active taken reasonable care to prevent and the NPRM. contracts; and it captures thousands of 89 correct harassment. The activities The Need for the Regulation recipients of Federal grants and Federal listed in paragraph 60–20.8(c) are the financial assistance, which are not OFCCP’s longstanding policy is to kinds of activities that would help a contractors.93 contractor in making that showing. For follow title VII principles when conducting analyses of potential sex example, taking reasonable care 91 Press Release, Bureau of Labor Statistics, U.S. ‘‘generally requires establish[ing], discrimination under Executive Order Department of Labor, Employer Costs for Employee disseminat[ing], and enforcing an anti- 11246. See Notice of Final Rescission, Compensation—December 2013, at 4, available at harassment policy and complaint 78 FR 13508, February 28, 2013. http://www.bls.gov/news.release/pdf/ecec.pdf (last procedure.’’ 90 The law does not require However, the existing Sex accessed Oct. 6, 2014). Discrimination Guidelines, unchanged 92 U.S. General Services Administration, System for Award Management, Legacy CCR Extracts Public 89 The Supreme Court established this affirmative since their initial promulgation in 1970 (‘‘FOIA’’) Data Package, May 2014, available at defense in Burlington Industries, Inc. v. Ellerth, 524 and re-issuance in 1978, are no longer https://www.sam.gov/portal/public/SAM/(last U.S. 742 (1998), and Faragher v. City of Boca Raton, an accurate depiction of current title VII accessed June 14, 2014). 524 U.S. 775 (1998). See also U.S. Equal principles. Title VII has been 93 In addition to these reasons to believe that the Employment Opportunity Commission, SAM data yield an overestimate of the number of Enforcement Guidance on Vicarious Employer significantly amended four times since entities affected by this rule, there is at least one Liability for Unlawful Harassment by Supervisors that time, and the Supreme Court has reason to believe the data yield an underestimate: (July 18, 1999), available at http://www.eeoc.gov/ issued several decisions clarifying that SAM does not necessarily include all policy/docs/harassment.html (last accessed Oct. 7, practices such as sexual harassment can subcontractors. But this data limitation is offset 2014) [hereinafter EEOC Guidance on Vicarious somewhat because of the overlap among contractors Liability for Unlawful Harassment]. be unlawful discrimination. In light of and subcontractors; a firm may be a subcontractor 90 EEOC Guidance on Vicarious Liability for these changes, this proposed rule on some activities but have a contract on others and Unlawful Harassment, supra note 89, § V(C). revises the current Guidelines, and thus in fact be included in the SAM data.

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Cost of Regulatory Familiarization regulations implementing Executive discrimination.95 Therefore no new Agencies are required to include in Order 11246. The title change does not burden or new benefit (beyond the burden analysis the estimated time incur burden. confusion reduction) is created by this it takes for contractors to review and The NPRM proposes minor edits to provision. understand the instructions for § 60–20.1, including deleting a sentence The NPRM proposes to address compliance. See 5 CFR 1320.3(b)(1)(i). explaining the reason for promulgating discrimination on the basis of In order to minimize this burden, this part of the regulation, and pregnancy, childbirth, or related OFCCP will publish compliance modifying the sentence notifying the medical conditions in Section 60–20.5. Subsection 60–20.5(a) prohibits assistance materials including, but not public that part 60–20 is to be read in discrimination on the basis of limited to, fact sheets and ‘‘Frequently connection with existing regulations. pregnancy, childbirth, or related Asked Questions.’’ OFCCP will also host These minor edits update the medical conditions, including webinars for the contractor community regulations and provide clarity. Because childbearing capacity. This clarifies that will describe the new requirements the edits do not cause additional action current law that discrimination based and conduct listening sessions to on the part of contractors, no additional on any of these factors is prohibited identify any specific challenges burden is associated with this section. under Executive Order 11246 and as contractors believe they face, or may Section 60–20.2, General Prohibitions, such does not generate new burden or face, when complying with the of the NPRM proposes removing the new benefits (with the exception of requirements. current section ‘‘Recruitment and reduced confusion). Based on its experience with Federal advertisement’’ section and replacing it Subsection 60–20.5(b) provides a non- contractors’ compliance with the laws with a section that articulates the exhaustive list of examples of unlawful OFCCP enforces, OFCCP believes that general prohibition against sex pregnancy discrimination, including human resources or personnel managers discrimination in employment. The refusing to hire pregnant applicants; at each contractor establishment or firm general prohibition against sex firing an employee or requiring an will become responsible for discrimination in employment is not a employee to go on leave because the understanding or becoming familiar new provision and as such does not employee becomes pregnant; limiting a with the new requirements. Therefore, require any additional action on the part pregnant employee’s job duties based on OFCCP estimates that it will take 60 of Federal contractors, subcontractors, pregnancy or requiring a doctor’s note minutes or 1 hour for a management or federally assisted construction in order for a pregnant employee to professional at each contractor contractors or subcontractors. Thus no continue employment; providing establishment to either read the burden is assessed for this provision. employees with health insurance that compliance assistance materials The NPRM proposes replacing the does not cover hospitalization and other provided by OFCCP or participate in an current § 60–20.3 (Job policies and medical costs related to pregnancy, OFCCP webinar to learn more about the practices) with ‘‘Sex as a bona fide childbirth, or related medical conditions new requirements. Consequently, the occupational qualification.’’ In this when hospitalization is provided for estimated burden for rule section, the NPRM proposes to other medical conditions; and denying familiarization is 500,000 hours consolidate in one provision the current an alternative job assignment, modified (500,000 contractor companies × 1 hour references to the BFOQ defense duties or other accommodations to a = 500,000 hours). Based on data from available to employers and update the pregnant employee when such the Bureau of Labor Statistics, which language set forth in title VII. This accommodations are provided or are lists total compensation for the reorganization is intended to make it required to be provided by a contractor’s Management, Professional, and Related easier for Federal contractors, policy or by other relevant laws to other Occupations group at $51.58,94 we subcontractors, and federally assisted employees whose abilities or inabilities calculate the total estimated cost as construction contractors and to work are similar. The clarification, $25,790,000 (500,000 hours × $51.58/ subcontractors to locate and understand including the examples provided in hour = $25,790,000) or $52 per the BFOQ defense. This section subsection 60–20.5(b), reduces contractor company. reorganizes existing information and contractors’ confusion by harmonizing Cost of Proposed Provisions does not incur additional burden. Thus OFCCP’s outdated regulations with no burden is assessed for this provision. The NPRM proposes revising the current title VII jurisprudence. Although current Sex Discrimination Guidelines Section 60–20.4 proposes to replace OFCCP believes that Federal contractors to replace them with regulations that set the current provision addressing are already required to provide forth requirements that Federal seniority systems with a section accommodations and light duty under contractors and subcontractors and addressing discrimination in title VII, because some courts disagree federally assisted construction compensation practices. The proposed with this interpretation, see supra note contractors and subcontractors must section provides clear guidance to 76 and accompanying text, it estimates meet in fulfilling their obligations under covered contractors on their obligation that there will be some burden Executive Order 11246, as amended, to to provide equal opportunity with associated with this provision for ensure nondiscrimination in respect to compensation. It provides contractors that did not provide employment on the basis of sex. In order guidance on determining similarly accommodations or light duty in the to reduce the burden and increase situated employees and confirms that past. To determine the burden of this understanding, the NPRM includes OFCCP follows title VII principles in accommodations provision, OFCCP first examples of prohibited employment investigating compensation estimated the number of workers who practices with each of the provisions. discrimination. The provisions do not may need an accommodation or light The NPRM proposes changing the create new requirements; rather, they title of the regulation to provide clarity clarify existing provisions regarding compensation discrimination, thus 95 The existing § 60–20.5 addressed that the provisions in part 60–20 are discriminatory wages. The proposed § 60–20.4 reducing confusion that may have incorporates that existing requirement and updates 94 See supra note 91 and accompanying text. resulted in the analysis of compensation it to be consistent with current title VII law.

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duty during pregnancy. No specific data Based on the above, OFCCP estimates experiences and the National Women’s sets detail the characteristics of Federal approximately 2,046,850 women (four Law Center on accommodating pregnant contractor and subcontractor workers women per SAM contractor firm) in the workers show that the costs associated relating to pregnancy. Thus OFCCP Federal contractor workforce would be with accommodating pregnant workers relied on the data sets available for the pregnant in a year.100 are minimal and generally involve general population and general labor Not every pregnant employee in the schedule adjustments or modified work force. OFCCP believes that the Federal contractor workforce will duties.103 One study found that when characteristics of the general labor force require an accommodation that might faced with a pregnancy-related need for are similar to the Federal contractor involve more than a de minimis cost. accommodation, between 62 percent workforce. Many will have no medical condition and 74 percent of pregnant women In estimating the burden associated associated with their pregnancies that asked their employer to address their with the accommodations provision, require such accommodation. Even for needs. The study further found that OFCCP determined that there are those who do have such conditions, the between 87 percent and 95 percent of approximately 65 million employees positions that require such the pregnant women who requested an who work for the Federal contractors accommodation generally involve adjustment to their work schedule or job and other recipients of Federal monies physical exertion or standing; such duties worked for employers that that are included in the SAM database. positions are likely to be found in the attempted to address those requests. The Because the data does not indicate job categories of craft workers, study specifically found that 63 percent gender demographics, OFCCP used data operatives, laborers, and service of pregnant women who needed a from the Bureau of Labor Statistics that workers. Based on data from the change in duties such as less lifting or indicates that 47 percent of the Employer Information Report EEO–1, more sitting asked their employers to workforce is female.96 According to OFCCP estimates that 21 percent of address that need, and 91 percent of National Center for Health Statistics women in the Federal contractor those women worked for employers that (NCHS) data, there were 6,127,000 workforce are in such job categories. attempted to address their needs.104 pregnancies among women ages 18 to 44 Thus, of the 2,046,850 women who may Based on this study, OFCCP believes in the United States in 2009 among the be pregnant, 429,839 are in positions in that most employers do provide some general population.97 When compared the job categories likely to require form of accommodation when to data from the U.S. Census for the accommodations that might involve requested. same time period, that number of more than a de minimis cost. To determine the cost of pregnancies reflects a pregnancy rate of Reports from NIH show that the accommodation or light duty imposed approximately 10.9 percent.98 incidence of medical conditions during by the proposed rule, OFCCP OFCCP further refined this rate to pregnancy that require accommodations considered the types of light duty or reflect pregnancies of working women. ranges from 0.5 percent (placenta accommodations needed. Generally, NCHS’s pregnancy rate did not previa) to 50 percent (back issues).101 providing light duty or accommodation distinguish between working and non- Thus, OFCCP estimates that of the for pregnancy involves adjusting work working women. Thus OFCCP turned to approximately 429,839 women in schedules or allowing more frequent data from the U.S. Census. U.S. Census positions that require physical exertion breaks. OFCCP believes that these American Fact Finder does not report or standing, half or 214,920 may require accommodations would incur little to on pregnancy, but does report on births. some type of an accommodation or light no additional cost. Census data also shows whether the duty. Additional accommodations may mother was in the labor force. As this The types of accommodations needed involve either modifications to work is the best data available, OFCCP used during pregnancy also vary. They range environments (providing a stool for the ratio of births among working and from time off for medical appointments sitting rather than standing) or to job non-working mothers to determine the and more frequent breaks to stools for duties—for example, lifting restrictions. pregnancy rate of women in the sitting and assistance with heavy In making such an accommodation, workforce. Thus, OFCCP determined lifting.102 Reports from the W.K. Kellogg Federal contractors have discretion that the pregnancy rate for women in Foundation on women’s child bearing regarding how they would make such the workforce is approximately 61 modifications. For example, a contractor percent of the rate for women in the B13012&prodType=table (last accessed Aug. 1, may provide an employee with an general population, translating to a 2014). The data table reports birth rates for women existing stool, or a contractor may have pregnancy rate of 6.7 percent of women in labor force at 5.1 percent, compared to women other employees assist when heavy 99 not in the labor force at 8.4 percent. Comparing the in the Federal contractor workforce. two rates (5.1 percent to 8.1 percent), the birth rate lifting is required. To determine the cost of women in the labor force was 61 percent that of of such accommodations, OFCCP 96 Women in the Labor Force, supra note 12, at women not in the labor force. Therefore, referred to the Job Accommodation 2. multiplying the pregnancy rate among women of Network (JAN). JAN reports that the 97 Centers for Disease Control and Prevention, working age, 10.9 percent, by 61 percent results in National Center for Health Statistics, NCHS Data a 6.7 percent pregnancy rate. average cost of accommodation is Brief No. 136: Pregnancy Rates for U.S. Women 100 Id. $500.105 Continue to Drop 2 (2013) available at http:// 101 S. Malmqvist et.al., Prevalence of low back As stated above, 63 percent of www.cdc.gov/nchs/data/databriefs/db136.pdf (last and pelvic pain during pregnancy (Abstract), J. pregnant women who needed a change accessed Oct. 6, 2014). Manipulative Physiological , National in duties related to less lifting or more 98 This may be an overestimation of the number Center for Biotechnology Information (2012), of pregnant workers because there is limited data available at http://www.ncbi.nlm.nih.gov/pubmed/ available regarding the age of employees of federal 22632586, (last accessed Oct. 6, 2014). 103 Heavy Lift, supra note 51, at 12. contractors. 102 Unlawful Discrimination Against Pregnant 104 Eugene Declerq et al., W.K. Kellogg 99 U.S. Census Bureau, American Fact Finder, Workers and Workers with Caregiving Foundation, Listening to Mothers III: New Mothers Women 16 to 50 Years Who Had a Birth in the Past Responsibilities: Meeting of the U.S. Equal Emp. Speak Out, 36, (2013). 12 Months by Marital Status and Labor Force Opportunity Comm’n 8 (Feb. 15, 2012) (statement 105 Beth Loy, Job Accommodation Network, Status, 2009 to 2011 American Community Survey of Dr. Stephen Benard, Professor of Sociology, Workplace Accommodations: Low Cost, High 3-Year Estimates, available at http:// Indiana University), available at http:// Impact, available at http://askjan.org/media/ factfinder2.census.gov/faces/tableservices/jsf/ www.eeoc.gov/eeoc/meetings/2-15-12/ lowcosthighimpact.html (last updated Sept. 1, 2014) pages/productview.xhtml?pid=ACS_11_3YR_ transcript.cfm (last accessed Oct. 6, 2014). (last accessed Oct. 6, 2014).

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sitting requested such an nondiscrimination in fringe benefits, on notice that OFCCP follows current accommodation from their employers. specifically with regard to application of law with regard to sex-based Thus, OFCCP estimates that 135,400 that principle to contributions to and stereotyping. The FCCM provides that: × women (214,920 0.63) would have distributions from pension and COs must examine whether contractor made such a request, and 91 percent, or retirement funds. The proposed section policies make prohibited distinctions in 123,214 of those requests (135,400 × reflects the current state of title VII law conditions of employment based on sex, 0.91) would have been addressed. In with regard to pension funds, imposing including the basis of pregnancy, childbirth addition, OFCCP assumes that of the 37 no additional burden on contractors or related medical conditions, or on the basis percent (79,520 women) who did not covered both by Executive Order 11246, of sex-based stereotypes, including those make such a request, had they made the as amended, and by title VII (which, related to actual or perceived caregiver request, the needs of 91 percent of them generally, covers employers of 15 or responsibilities. Contractors must not make (72,364 women) would also have been more employees) or by state or local employment decisions based on stereotypes 106 about how males and females are ‘‘supposed’’ addressed. Thus, this proposed rule laws that similarly prohibit sex to look or act. Such employment decisions would require covered contractors to discrimination (many of which have are a form of sex discrimination prohibited 108 accommodate the nine percent of lower coverage thresholds ). As to the by Executive Order 11246, as amended. women whose needs were not remaining contractors—those that have 110 addressed. Therefore, OFCCP estimates fewer than 15 employees as defined by FCCM, ch. 2, section 2H00(a). that the cost, accounting for those title VII, are not covered by state or local Thus, for these contractors as well, the pregnant women who made requests laws, and have at least $10,000 in proposed section imposes no additional and those additional women who could Federal contracts or subcontracts—as burden and generates no new benefits make requests, would be $9,671,000 noted in the discussion of this for their employees. The NPRM proposes a new section, ((135,400 ¥ 123,214) + (79,520 ¥ requirement elsewhere in the preamble, § 60–20.8, titled ‘‘Harassment and 72,364) × $500). Accounting for OFCCP’s publicly available FCCM has women’s requests that could be made put them on notice that OFCCP follows hostile work environments.’’ This but may not be made is likely an current law with regard to providing section explains the circumstances overestimation of the cost of this equal benefits and making equal under which sex-based harassment and accommodation. In addition, OFCCP contributions to pensions funds for men hostile work environments violate the believes that this cost estimate may also and women. Thus, as an existing Executive Order, reflecting principles be an overestimate because contractors requirement, this does not generate any established in Supreme Court title VII with 15 or more employees are covered new benefits (beyond reduced decisions beginning in 1986. This by a similar requirement found in title confusion) or additional burden. section clarifies that such VII and 36 states have requirements that The NPRM proposes a new section, discrimination includes ‘‘sexual apply to employers with fewer than 15 § 60–20.7, titled ‘‘Employment decisions harassment (including harassment based employees.107 Although OFCCP seeks made on the basis of sex-based on gender identity or expression), comments on all aspects of its stereotypes.’’ This section explains the harassment based on pregnancy, calculation of burden and costs, the prohibition against making employment childbirth, or related medical agency specifically seeks comments on decisions on the basis of sex-based conditions,’’ and sex-based harassment the burden associated with providing stereotypes, which the Supreme Court that is not sexual in nature but that is accommodations to pregnant workers. recognized in 1989 as a form of sex because of sex or where one sex is The NPRM proposes replacing the discrimination under title VII. This targeted for the harassment. The current § 60–20.6 (Affirmative action) section clarifies that such proposed section describes best with a new section titled ‘‘Other fringe discrimination includes disparate practices that contractors may follow to benefits.’’ The current section on treatment based on nonconformity to reduce and eliminate harassment and affirmative action is unnecessary stereotypical expectations about gender hostile work environments but because the requirements related to identity, gender expression, and sexual explicitly states that such practices are affirmative action programs are set forth orientation and stereotyping based on ‘‘not required by this part.’’ in parts 60–2 and 60–4. In the new § 60– specific expectations about the proper The proposed section reflects the 20.6, the NPRM proposes to clarify the roles of women and men regarding current state of title VII law with regard existing requirement of caregiving. The proposed section to sex-based harassment and hostile reflects the current state of title VII law work environments, imposing no 106 OFCCP arrived at 79,250 by multiplying the with regard to sex-based stereotyping, additional burden on contractors 214,920 women by 37 percent. imposing no additional burden on covered both by Executive Order 11246, 107 State laws covering employers with one contractors covered both by Executive as amended, and by title VII or by state employee: Alaska, , , , or local laws that similarly prohibit sex , , , , North Order 11246, as amended, and by title Dakota, , Oregon, South Dakota, Vermont, VII or by state or local laws that and Wisconsin; state laws covering employers with similarly prohibit sex discrimination, 110 Another section of the FCCM also covers sex- two employees: Wyoming; state laws covering many of which have lower coverage based stereotyping: employers with three employees: Connecticut; state thresholds.109 As to the remaining Sex-Based Stereotyping and Caregiver laws covering employers with four employees: Discrimination. Differential treatment for an Delaware, Iowa, , New Mexico, New York, contractors—those that have fewer than employment-related purpose based on sex-based Ohio, Pennsylvania, and Rhode Island; state laws 15 employees as defined by title VII, are stereotypes, including those related to actual or covering employers with five employees: California not covered by state or local laws, and perceived caregiving responsibilities, is a violation and Idaho; state laws covering employers with six have at least $10,000 in Federal of Title VII of the Civil Rights Act of 1964. For employees: Indiana, Massachusetts, Missouri, New example, it is prohibited to deny advancement Hampshire, and Virginia; state laws covering contracts or subcontracts—as noted in opportunities to similarly situated mothers that are employers with eight or more employees: , the discussion of this requirement provided to fathers or women without children, , and Washington; state laws covering elsewhere in the preamble, OFCCP’s based on stereotypes about mothers in the employers with nine or more employees: Arkansas; publicly available FCCM has put them workplace; it is also prohibited to deny to fathers state laws covering employers with 12 or more access to family-friendly policies like workplace employees: West Virginia. In addition, the District flexibility that employers provide to mothers, based of Columbia and Puerto Rico’s laws cover 108 See note 99, supra. on stereotypes about fathers’ roles in care giving. employers with one employee. 109 See note 99, supra. FCCM, ch. 2, section 2H01(e).

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discrimination (many of which have harassment and hostile work FCCM, Chapter 2, Section 2H01(d). lower coverage thresholds 111). As to the environments. The FCCM provides that: Thus, for these contractors as well, the remaining contractors—those that have Although not specifically mentioned in the proposed section imposes no additional fewer than 15 employees as defined by Guidelines, sexual harassment, as well as burden and generates no new benefits title VII, are not covered by state or local harassment based on race, color, national for their employees. laws, and have at least $10,000 in origin or religion is a violation of the The total first year cost of the Federal contracts or subcontracts—as nondiscrimination provisions of EO 11246. noted in the discussion of this regulation is estimated at $35,461,000 or During the onsite review, COs must be alert $71 per contractor company. Below, in requirement elsewhere in the preamble, for any indications of such harassment. OFCCP’s publicly available FCCM has OFCCP follows Title VII principles when Table 1, is a summary of the hours and put them on notice that OFCCP follows determining whether sexual harassment has costs: current law with regard to sex-based occurred.

TABLE 1—CONTRACTOR PROPOSED NEW REQUIREMENTS

Section Burden hours Costs

Estimated One-Time Burden: Regulatory Familiarization ...... 500,000 $25,790,000 Total One-Time Burden ...... 500,000 25,790,000 Estimated Recurring Burden: 41 CFR 60–20.5: Light duty or accommodation ...... 0 9,671,000 Total Annual Recurring Burden ...... 0 9,671,000

Total Burden ...... 500,000 35,461,000

Summary of Transfer and Benefits alternative, including OFCCP’s Court development, it is possible that assessment of the costs and benefits. contractors, especially new contractors If the proposed rule decreases sex- confronted for the first time with the Alternative 1: Maintaining the Current based compensation discrimination, conflict between the outdated Guidelines that effect may generate a transfer of provisions in the Guidelines, on the one value to employees from employers (if OFCCP considered maintaining the hand, and current title VII principles additional wages are paid out of profits) Sex Discrimination Guidelines with no and the FCCM, on the other, may still or taxpayers (if contractor fees increase changes. This alternative would impose be incurring legal fees or the cost of to pay higher wages to employees). no new costs and achieve no new human resource professionals’ time to Contractors may also transfer any costs benefits. However, as discussed above, reconcile this conflict. Moreover, of providing pregnancy the existing guidelines are extremely maintaining the Sex Discrimination accommodations to employees, by not outdated and therefore do not provide Guidelines with no changes would be increasing wages or reducing other sufficient or even accurate guidance to inconsistent with Section 6 of Executive benefits (to the extent not prohibited by contractors regarding their Order 13563, which requires agencies to the Davis-Bacon and Service Contract nondiscrimination obligations. Thus, engage in retrospective analyses of Acts). However, OFCCP does not retaining the existing guidelines would ‘‘rules that may be outmoded, currently have sufficient information to have the negative effect of continuing to ineffective, insufficient, or excessively reliably estimate the potential transfer impose compliance costs on compliant burdensome, and to modify, streamline, payments resulting from this proposed contractors. It is true that, as discussed expand, or repeal them in accordance rule, and it requests public comment on elsewhere in this preamble, the FCCM with what has been learned.’’ data and methods to do so. provides updated guidance in the areas of maternity leave, sex-based Alternative 2: Rescinding but Not Analysis of Rulemaking Alternatives stereotyping, sexual harassment, and Replacing the Current Guidelines pensions. But even in these areas, the OFCCP considered rescinding the Sex OFCCP considered a range of provisions of the Guidelines conflict Discrimination Guidelines but not regulatory alternatives that would with the FCCM and thus potentially sow proposing regulations to replace them. enable the agency to encourage confusion among the contractor This alternative would have the benefit voluntary compliance and effectively community. of removing from the Code of Federal enforce the prohibition against sex As mentioned above, current § 60– Regulations provisions that are discrimination. In addition to the 20.3(c) provides that a contractor will inconsistent with current title VII approach proposed in the NPRM, not be considered to have violated the principles, such as the fringe benefit OFCCP considered two alternative Executive Order if its contributions for provision discussed above. Contractors approaches. First, OFCCP considered fringe benefits are the same for men and would no longer need to expend maintaining the current guidelines with women or if the resulting benefits are resources to reconcile conflicts between no changes. Second, OFCCP considered equal. But in 1978, the Supreme Court the Sex Discrimination Guidelines and rescinding the existing guidelines held that under title VII, an employer the current requirements of title VII law. without proposing new regulations. must provide equal retirement benefits However, this alternative would create a Each of these alternatives is discussed to men and women even if the vacuum of guidance for contractors, in further detail below. OFCCP seeks contributions necessary to do so cost requiring them to expend resources for comments from stakeholders on the more for one sex than the other. While a different reason—for example, to pay proposal in the NPRM, as well as each the FCCM recognizes this Supreme for lawyers’ or human resource

111 See note 99, supra.

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professionals’ time to provide guidance estimates, and whether alternatives exist section analyzes the cost of complying regarding their nondiscrimination that will reduce burden on small with proposed requirements in the obligations. That ad hoc approach entities while still remaining consistent NPRM. would reduce consistency across with the objective of the proposed rule. Calculating Impact of the Proposed contractors’ practices and could Why OFCCP is Considering Action: Rule on Small Business Firms: OFCCP increase the incidence of unintended OFCCP is publishing this proposed rule must determine the compliance cost of noncompliance, potentially harming job in order to align its existing regulations this proposed rule on small contractor applicants and employees. related to sex discrimination with firms, and whether these costs will be current law and address their significant for a substantial number of Regulatory Flexibility Act and Executive application to current workplace small contractor firms (i.e., small Order 13272 (Consideration of Small practices and issues. business firms that enter into contracts Entities) Objectives of and Legal Basis for Rule: with the Federal Government). If the The Regulatory Flexibility Act of 1980 This proposed rule will provide estimated compliance costs for affected (RFA), 5 U.S.C. 601 et seq., establishes guidance on how to comply with the small contractor firms are less than ‘‘as a principle of regulatory issuance nondiscrimination requirements of three percent of small contractor firms’ that agencies shall endeavor, consistent Executive Order 11246, as amended. revenues, OFCCP considers it with the objectives of the rule and Compliance Requirements of the appropriate to conclude that this applicable statutes, to fit regulatory and Proposed Rule, Including Reporting and proposed rule will not have a significant informational requirements to the scale Recordkeeping: As explained in this economic impact on the small of the business organizations and proposed rule, the Sex Discrimination contractor firms covered by Executive governmental jurisdictions subject to Guidelines at 41 CFR part 60–20 set Order 11246. While OFCCP has chosen regulation.’’ Public Law 96–354. To forth interpretations and guidelines for three percent as our significance achieve that principle, the Act requires implementing Executive Order 11246’s criterion, using this benchmark as an agencies promulgating proposed rules to nondiscrimination and affirmative indicator of significant impact may prepare an initial regulatory flexibility action requirements related to sex. The overstate the significance of such an analysis (IRFA) and to develop guidelines have not been updated in impact, since the costs associated with alternatives whenever possible, when more than 40 years. This NPRM is prohibiting sex discrimination against drafting regulations that will have a intended to update the requirements to employees and job applicants are significant impact on a substantial reflect current statutory and case law. expected to be mitigated to some degree number of small entities. The Act The requirements in Executive Order by the benefits of the proposed rule. The requires the consideration for the 11246 generally apply to any business benefits are discussed more fully in the impact of a proposed regulation on a or organization that (1) holds a single preamble of this NPRM. wide-range of small entities including Federal contract, subcontract, or The data sources used in the analysis small businesses, not-for-profit federally assisted construction contract of small business impact are the Small organizations, and small governmental in excess of $10,000; (2) has Federal Business Administration’s (SBA) Table jurisdictions. contracts or subcontracts that, of Small Business Size Standards,114 the Agencies must perform a review to combined, total in excess of $10,000 in Current Population Survey (CPS), and determine whether a proposal or final any 12-month period; or (3) holds the U.S. Census Bureau’s Statistics of rule would have a significant economic Government bills of lading, serves as a U.S. Businesses (SUSB).115 Since depository of Federal funds, or is an impact on a substantial number of small Federal contractors are not limited to 112 issuing and paying agency for U.S. entities. If the determination is that it specific industries, OFCCP assessed the would, then the agency must prepare a savings bonds and notes in any amount. This NPRM contains several impact of this NPRM across the 19 regulatory flexibility analysis as industrial classifications.116 Because described in the RFA.113 provisions that could be considered to impose compliance requirements on data limitations do not allow OFCCP to However, if an agency determines that determine which of the small firms a proposed or final rule is not expected contractors. Generally, contractors are prohibited from making employment within these industries are Federal to have a significant economic impact contractors, OFCCP assumes that these on a substantial number of small decisions based upon gender, including decisions regarding compensation and entities, section 605(b) of the RFA 114 U.S. Small Business Administration, Firm Size provides that the head of the agency fringe benefits. The NPRM updates the Data, Statistics of U.S. Businesses, available at may so certify and a regulatory existing regulations to address, inter http://www.sba.gov/advocacy/849/12162#susb (last flexibility analysis is not required. See alia, discrimination on the basis of visited June 9, 2014). 5 U.S.C. 605. The certification must pregnancy, harassment, and 115 U.S. Census Bureau, Statistics of U.S. employment decisions made on the Businesses: Latest SUSB Annual Data, available at include a statement providing the http://www.census.gov/econ/susb/ (last accessed factual basis for this determination and basis of sex-based stereotypes. These June 9, 2014). the reasoning should be clear. revisions and updates are intended to 116 Agriculture, Forestry, Fishing, and Hunting OFCCP is publishing this initial bring OFCCP’s regulations at part 60–20 Industry (North American Industry Classification regulatory flexibility analysis to aid in line with the current standards of System (NAICS) 11, Mining NAICS 21, Utilities NAICS 22, Construction NAICS 23, Manufacturing, stakeholders in understanding the small title VII and thus reduce potential NAICS 31–33, Wholesale Trade NAICS 42, Retail entity impacts of the proposed rule and confusion among contractors, applicants Trade NAICS 44–45, Transportation and to obtain additional information on the and employees regarding which Warehousing NAICS 48–49, Information NAICS 51, small entity impacts. OFCCP invites requirement applies to a particular Finance and Insurance NAICS 52, Real Estate and Rental and Leasing NAICS 53, Professional, interested persons to submit comments situation. Scientific, and Technical Services NAICS 54, on the following estimates, including All small entities subject to Executive Management of Companies and Enterprises NAICS the number of small entities affected by Order 11246 would be required to 55, Administrative and Support and Waste the NPRM, the compliance cost comply with all of the provisions of the Management and Remediation Services NAICS 56, Educational Services NAICS 61, Healthcare and NPRM. Such compliance requirements Social Assistance NAICS 62, Arts, Entertainment, 112 See 5 U.S.C. 603. are more fully described above in other and Recreation NAICS 71, Accommodation and 113 Id. portions of this preamble. The following Food Services NAICS 72, Other Services NAICS 81.

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small firms are not significantly costs that may not have been included is proposing in this NPRM to eliminate different from the small Federal in this analysis. conflict with title VII and current case contractors that will be directly affected Estimating the Number of Small law. by the proposed rule. Businesses Affected by the Rulemaking: Alternatives to the Proposed Rule: As OFCCP used the following steps to OFCCP now sets forth its estimate of the described above, OFCCP considered two estimate the cost of the proposed rule number of small contractor firms alternatives. These alternatives would per small contractor firm as measured actually affected by the proposed rule. not be an effective or efficient way to by a percentage of the total annual This information is not readily enforce Executive Order 11246, as receipts. First, OFCCP used Census available. The best source for the amended. SUSB data that disaggregates industry number of small contractor firms that information by firm size in order to are affected by this proposed rule is Differing Compliance and Reporting perform a robust analysis of the impact GSA’s SAM. OFCCP used SAM data to Requirements for Small Entities: This on small contractor firms. OFCCP estimate the number of affected small NPRM provides for no differing applied the SBA small business size contractor firms since SAM data allow compliance requirements for small standards to the SUSB data to determine us to directly estimate the number of entities. In its implementation of the number of small firms in the small contractor firms. Federal Executive Order 11246, as amended, affected industries. Then OFCCP used contractor status cannot be discerned OFCCP does provide different reporting receipts data from the SUSB to calculate from the SBA firm size data. It can only requirements for small entities—for the cost per firm as a percent of total be used to estimate the number of small example, contractor companies with receipts by dividing the estimated firms, not the number of small fewer than 50 employees are not annual cost per firm by the average contractor firms. OFCCP used the SBA required to submit an EEO–1 Report or annual receipts per firm. This data to estimate the impact of the develop affirmative action programs. methodology was applied to each of the proposed regulation on a ‘‘typical’’ or See 41 CFR 1.7, 1.40, and 2.1. In industries, and the results by industry ‘‘average’’ small firm in each of the 19 addition, the record retention period for are presented in the summary tables industries. OFCCP then assumed that a smaller contractors is reduced. See 41 below (see Tables 2–20). typical small firm is similar to a small CFR 60–1.12. In sum, the increased cost of contractor firm. OFCCP believes that Clarification, Consolidation, and compliance resulting from the proposed this NPRM will not have a significant Simplification of Compliance and rule is de minimis relative to revenue at economic effect on a substantial number Reporting Requirements for Small small contractor firms, no matter their of small businesses. Entities: This NPRM was drafted to state size. All of the industries had an annual Based on the most current SAM data clearly the compliance requirements for cost per firm as a percent of receipts of available, if OFCCP defined ‘‘small’’ as far less than three percent. For instance, fewer than 500 employees, then there all contractors subject to Executive the manufacturing industry cost is are 328,552 small contractor firms. If Order 11246, as amended. The proposed estimated to range from 0.00 percent for OFCCP defined ‘‘small’’ as firms with rule does not contain any new reporting firms that have average annual receipts less than $35.5 million in revenues, or recordkeeping requirements. The of approximately $985 million to 0.02 then there are 315,902 small contractor compliance provisions apply generally percent for firms that have average firms. Thus, OFCCP established a range to all businesses covered by Executive annual receipts of under $500,000. of 315,902 to 328,552 as the total Order 11246, as amended; no rational Management of companies and number of small contractor firms. Of basis exists for creating an exemption enterprises is the industry with the course, not all of these contractor firms from compliance requirements for small highest relative costs, with a range of will be impacted by the proposed rule; businesses. OFCCP makes available a 0.00 percent for firms that have average only those contractor firms that have variety of resources to employers for annual receipts of approximately $2 active contracts of more than $10,000 understanding their obligations and million to 0.30 percent for firms that and are not otherwise covered by title achieving compliance. have average annual receipts of under VII or similar state or local anti- $24,000. Therefore, in no instance is the Use of Performance Rather Than discrimination laws will be impacted. effect of the NPRM greater than three Design Standards: This NPRM was Thus this range is an overestimate of the percent of total receipts, and in fact does written to provide clear guidelines to not exceed 0.3 percent. number of firms affected by the ensure compliance with the Executive Although OFCCP estimates the proposed rule. As the proposed Order requirements. Under the compliance costs are less than three regulation applies to contractors proposed rule, contractors may achieve percent of the average revenue per small covered by Executive Order 11246, compliance through a variety of means. contractor firm for each of the 19 OFCCP estimates that the range of small OFCCP makes available a variety of industries, OFCCP seeks data and firms impacted is from 315,902 to resources to contractors for feedback from small firms on the factors 328,552. understanding their obligations and and assumptions used in this analysis, Relevant Federal Rules Duplicating, achieving compliance. Overlapping, or Conflicting with the such as the data sources, small business Exemption from Coverage of the Rule industries, NAICS codes and size Rule: As discussed in the preamble above, OFCCP recognizes that title VII, for Small Entities: Executive Order standards, and the annual costs per firm 11246, as amended, establishes its own as a percent of receipts. OFCCP seeks like the Executive Order, prohibits employers from discriminating against exemption requirements; therefore, information about which data sources OFCCP has no authority to exempt should be used to estimate the number employees and job applicants on the small businesses from the requirements of Federal small subcontractors. OFCCP basis of sex. Thus some overlap exists 117 of the Executive Order. also seeks information about the between the two laws. In fact, OFCCP potential compliance cost estimates, 117 Unlike title VII, Executive Order 11246 are treated during employment, without regard to such as any differences in compliance contains the additional requirement that Federal their sex, as well as their race, color, religion, costs for small businesses as compared contractors engage in affirmative action to ensure sexual orientation, gender identity, or national to larger businesses and any compliance that applicants are employed, and that employees origin.

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Regulatory Flexibility Act and Executive Order 13272 (Consideration of Small Entities)

BILLING CODE 4510–CM–P

Table 2: Cost per small firm in the agriculture, forestry, fishing, and hunting industry.

Agriculture, Forestry, Fishing, and Hunting Tndust Small Business Size Standard: million ~ $275 million Average Number of Total Numbt'l' Number of Annual Cost Annual Rer<'ipts Firms per Finn

Fitms with sales 'n.:cciphkrcvcnuc bdo,.-v 5,1186 $71 $247.056,()(Kl $100,000 Firn1s with sall:!sd·e~eipts/revljnUt;; 8.939 $71 $2,231 ,355,00{) SHlO.OOO to $499.999

$71 $2620,344,000

$71 S4.975.U7KOOO

derived by

of $!(J(l,OOO to $499,999, the annml oost per lim> as a percent of receipts ((Ul:l percent)

ts )i:,'f fum ($249.620).

Table 3: Cost per small firm in the mining industry.

Mining Industry SmaH Bm:iness Size Stmdard: 500 ~mployecs A·,,.erage Annual Cost .. \vera~'t:' Numher of Total Numb€'r ~umlwr of Annual Cu~t Firm as Annual Receipts Receipts per Finns of Employees E:mplnyt'<$ per pet Firm of Firm 2 Firm1 Re.,.,in!s 3

Finns \V1th 0··4 employees 11.223 !7.874 1.6 $71 $6.809.517.000 $6!16,747 O.Ol~h

Finns \Vith 5~9 employees 3.186 21.314 6.7 $71 S6.30UHUlOO SL\178.911 \U)(l%

2,451 33344 13.6 $71 ~'9.092,457,000 '' 7!N r,

2.775 !117.447 38.7 S71 $;12.035.288,000 $11,544,248 0.00""

690 102,299 148.3 $71 $38,463.691.1000 $55,744.478 o.tlO"o

1 In the case of mining tlrms with 0-4 emp!oy..:s. the avts (Snn a percent of receipt' (0.01 percent) was derived by dividing the annnal cost per tirm {$7!) by the awrnge receipts per fim1 ($606, 7~7).

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Table 4: Cost per small Firm in the utilities industry.

Utilities Industry Small Business Size Standard: 250 · LOOO employe

Fi11:ns with ().4 ~'mployees :1,212 6.181 L9 $71 $7,238.51.9.000 $2.253,5&6

Firms 'with 5*9 G-mployees Ul20 6.546 6A $71 $4.373.888.000 $4,288,!25 0.

Firms with 10·19cmployocs 513 6.722 BJ $7] $5.65725 !.000 $1 Ul27.7SO O.Oil"·

Firms with 20~99 em-ployees 870 3K602 44A $71 s::nsl3.924,0M $31,625,200 0.00°

Films·with 100-499 employees 309 52,294 169,2 $71 $53.091,123,000 $!11.&15.932 O.OO~ol

Fitms \Vith -e:mp1oye-t.--s 1 199 512,412 2,574.9 $71 $475.894,489.000 $2.391.429.593 0.00" 1 'flte small husines~> size standard fOr !'levera1 suhsccton; within t11:e utilities industry is 750 or ] ,000 en1:ployoos: bov-vev.er. data are not disaggregated for ilrms \Vith more than 500 etnnlove"",

Table 5: Cost per small firm in the construction industry.

Constmction Industry Small Business Size Standard: $15 millkm $36.5 million Average AnnuaiCnsl Average !'\umb $1()(1,(1(10 Firms \\ilth ,.,,... ..,,~,, ;of 316,475 776,8116 2. S7l $8L 1 W,428.0!Xl $256,293 lHH"•i: SlOlUlOO to $499.999. Finn~ with :of 124,214 64282~ $708,687 S500Jl $15,000.000 to~'" ooo noo F'inns \Yith salcs 1rccciptsircvcnuc of 209.081 80.1 S71 :,754.00{) S2L803A29 tHlO"b $20,()(10,00\J to "~· 1 000 oclO Fim1s \V.ith sale:si'rcccipt_"','rcvermc of 93.{ $43,l!St720,00() ~~~ mn ~o ~~~·: nru1 rmn io <'1D rmo 0110 1,621 150.754 $71 O,OO?o Finns with salcsncccipts<"rm'cnuc of 1,171 121,928 104, $71 $36.84s,snooo $31,467,837 0.00% $30,000,\lOO to $34.999.999 F-inns with salt:s/n.::ceipts,'rcvenue of 83! 94,903 114.2 $71 $30.307,198,000 1.756 O.IJll% $35,000.0001<1 $39.999,999 IN/A.~ not available, not disclosed

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Table 6: Cost per small firm in the manufacturing industry.

Annual Cost Averag~~ ~urn bet· of per Firm as Annual Receipts Receipts por Firms Porcentof :Firm Ri.'c<'i ts Firms with 0-4 omployx:es

Finns. \Vith 5-9 employ-ees

Finns wi!h 10·19 employees 44,939

Finns with 2D~99 ~mployce:s 55,603

1 Firms witl1 500+ employcos

TIH;: small business size standard fhr many suhscctors '''ithin the manufacturing industry i-; 750, 1,000, or L500 employees~ hmvevet\ data ate not {tisaggregated tOr firms with more than 500 em

Table 7: Cost per small firm in the wholesale trade industry.

Wholesale Trade Industry Small Business Size Standard: 100 cmplovccs ,\nnnal Cost Average Number of Total Number .t\unual Cost Firm as ~~:~;;:~:,. Rect>ipts per Firms of Employ<*" FJnployees l"'t per Firm Firtn Firm

!90,153 325Al2 L7 $71 ~JQ7 '){;7 'II? WI SL56B07 0.00%

Firms with 5-9 empln)X:OS 377,841 6.6 $7! 't'MQ ~A') ')()ry ili\1 $4,355,233

Firms with JO. !9 emj>loyees ~9354 525,2!6 D.3 $71 $325,24.1,478.001 $8,264.560 O.Otl 0·o

Finns with 1.365,914 37.1 $71 $8Q9A4H43,00! S24A52,705 o.oo~.

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Table 8: Cost per small firm in the retail trade industry.

Retail Trade Industry Small Busin~ss Size Standard: $7,5 million~ $)8,5 million Avcraae Annual Cost Number of Total :"orumber Number of Annual Co,,t per Firm ns Annu li'irnts ofEmployet'S Employet•s per per Firm a! Hecoipts l R=~:~:g;er Prreenl of Finn Reccjpts 91!,659 N/A S7l $5.008,702Jl0t) $50.768 (l,l4% $100,000 Firms ,,-ith sales/i:cceipt.s:'rev\::mre of ~ 25!,71)5 727585 2,S $7! $67,380.242.(){~) 7.(i95 O,O.'l.% $100.000 to $499.999 IFirms with sales,-· receipts/revenue of 122.575 634.006 5.2 $71 $87.491. 736.()(){) $7!3.781 0.01°'(} ~lo$'99').999 of Firms with "'''"'" '"" 120.985 }.()!9.672 R4 $71 SEXJ,373,34UlOO $1.573,528 0Al0°"o $!.000,00(! to $2,499.\l<:J<) Firms -\,'lih ;:..u~;;~" oof 55)634 774,581 13.9 $71 $193,186,239.000 $3,472A49 (J.OO% 1!>2.500.000 to $4,999,999 Firn1s. with sales/receipts/revenue of !9.594 418.263 21.3 $7l Sll7.22.'t823.UOO $5,982.639 O.OO'?o $5.001JJlOO to $7,+99.999 oof ~;~~~;:;~,_, """ ~ 9.5S2 272, 28.5 $71 $80. 790,l4l.ll00 $8,431.449 o.oo•. Flrms with sa.lc:sin,..'x.:.eipts. 'revenue of 9,824 366, :17.3 $71 $115.236.3 B.OOO $1!. 73().[181 0.0011 0 $10,000,000 to $!4.999,999 Fim1s with salcsireccipts.irevcnuc of 5.3!0 256. 48.4 $71 $86.999,536,(100 $16.384.093 (l.()(l"<> Sl5.000.00tl to ~19909.999

Finns. \Vlth salesvrecelpts.lrevenue of 6 l1:1n non non to n• o

Table 9: Cost per small firm in the transportation and warehousing industry.

Trans ortation and Warehousin Industry Small Business Size Standard: S7.5 million- $3R5 million Ave-rage Annual Cost Number of Total :>lumbc1· Numb~r of i\rmmdCost pt>r Hrm ns Annual Rt•reipts Rt>Ct.>iph pt.•r Finns pa· Firm P{'\rcent of Firm Rccei ts 40.510 $71 $1,939.749.()( $47.883 tl15o of 67.987 181.924 $71 s 16.284.066. $239.517 of 22.377 151.019 $7! $15.756,895. $704.156 tlOl~o

().()()"

91.408

123.966

988 85.367

621 68.836 110.8

429 51.989 12!.2

3ll 45.274 1·15.6

235 32~922 !40.1 $25,117396 0.00%

not available~ not di14doscd

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Table 10: Cost per small firm in the information industry. Information Industry Srnall Busin~ss Siz0 Standard; $7.5 minion $38.5 million AY<:"rage Annual Cost Av~rag< Number of Total Number Number of Annual Cost l''irm us Annual Rcc~ipts Reeei pts pc1· f1'irms of Employee'S Em ploy'"" per pt•r Firm of llirm . Firm Rm•ipts Fifmg \Vith i\lalcsitcoolpt;;/rcvenuc be1o\v 15.960 };fi\ ,,,, $71 $767.642.000 S48Jl98 0.15°'() Slllil,tXlO Firms with ;of 7,67! ao,336 2.9 $71 $6.876,130.000 $243.433 ().()3'\ SHXl,OOO to S499.'J99 Firms \Vith ;of 10,3!1 67.954 6.6 S71 $7.260. 927Jl00 $704.192 (t01('{1 S500,000 to $999.999 Firms with sales/receipts/revenue of 9JW8 !20,49$ S7l $15248.992,000 1,75( ().(]()"(, $1.000.000 to $2,499.999 n3 Firms with .,1...,\<~Hu.:of 4.508 Hl0.331 22.3 $71 $15.4723BJl00 .19( O.OO~i S2.500Jli.lll to $4.999,999 Finns \Yitb :of 1.837 65,61)! 3U $71 $l0,856,89:i.ll(li.l $5.91!1.121 0.00°{) $5,0tll),OOO to $7.49'),999 F'inns with s-alcs;reccipts,'rc·venuc of !Jll8 46,846 46.0 $71 $8,447,070,000 $8,297,711 OJI0°b $7,500,000-$9,999,999 Firms with sale~Jreccip~/n;venue -of 1,09; 68,()58 62,2 $71 $ 12.3ili.l,328J)(I(! $!1.264.037 O.tXl 0 < $Hl,lli.lil,OOO to $14,999,999 IFirn'ls \vith sales/receipts/revenue of 61ll 49,Sl2 82.9 $71 $9,293,544.000 $15,463.468 0.00?' $15,000,000 to $19.999.999 Fimts '.Vith -salesin;~ro:-ipl•J:irevenut: of 389 37,522 %,5 $71 $7,616,666.0ili.l $19.580,118 ''"'" """ tw> to ,.,., ""o ooo o.oo• Finns \~J'itb sales/rcceipt'i/revenue of 270 3052"3 113.0 $71 $6.512265,000 $24.119.500 $25,000.000 tD $29,999.999 Firms with sah;:s/ret.:;e\pt'Frcvcnue uf 175 25.649 146.6 $71 $4,971.718.000 $28,409.817 $.10,\)(~l.OOO to $34,999.999 Films with ~ales/n;.-ccipt~rrevt:nue of . 1'16 21.553 15K5 $71 $4,082.897,{)()0 $30Jl2Uil1 $.15,000.\XlO to ~3

Table 11: Cost per small firm in the finance and insurance industry. Finance and Insurance Industi

Number of Annual \nsf Firms

Finns with srue~ireceipts/rcvc:nuc hek~VV' 61.54 $100,1)00

222.8:22

185.783

ll&,HlO

90,442

14K252 $7! Firms \\·.itll sales,'reccipts!revenue of I. 106.8% $71 $25.663.651),000 $15.000,000 to $!9,999.999

!, 87,611 $71 $2!.843,640.000

685 65.621 $71 $!7,478.694.000

515 58,481 $7! Sl5,619Jl23.000

41 5!,263 j;7[ Sl4.150.222,0UO

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Table 12: Cost per small firm in the real estate and rental and leasing industry. Real Estate and Rental and Leasing Industry Small Business Size Standard; $7.5 million $38.5 million Awrage Annual Cost Av'i::'ragc "umber of Total Number Number of Annual Cost Firm as Annual Receipts Receipts per }'inns of F:mployet'S Em p.lo~yt'i!S pc1· pt.•rFinn of Fkm Firm Re..'<'ints l,'irms \Vlth salcstrcceipts/n:r•t-"Cnue bctmv 86.219 /;\ N.·;\ $71 $4,165.673.000 $48..<15 0.15% SlOO,OOO Firms \vith sales/receipts/revenue of !24.9.1() 290.0-ll 2A $71 ,166,()()() $2HJ46 ().()3~', $100.000 to $499,999 Firms: with salcs/rcccipts."rcvcnut:: of 39.747 !91.958 4.8 $71 $27.836.936.0()0 $'10().353 ll"< $5011.000 to $999.999 Fim1s ·with of 29,7!7 269.366 9. S11 $45,164_417.000 $1,519,818 O.OO"o SI.OOOJl\lll to $2.499,999 Finns with ,.,f' 10,013 !8L600 18.! $7! $33.652."43,00" <;;; ;(,()()()'i ().(){)<\ S2.500.0(X) to $4,999.999

3,288 95.418 29.C S71 $Ill. $5.714,21!4 0.00"• Firms vvlth salcs::'rcceipts"rt,''Vttme uf !.553 6~4S:2 40.2 $71 $12, $7,869.442 (1.00?-o IS7,'>M O!X\-~1) <)()() <)()() Firms \Vith sales:reccipt::;.ire·v't.'1lU.;;: nf 1.518 81.675 53.8 $71 $16.329,83(),()()() $11!.757..164 1Hl0°o $10,000,000 to~'" <>tlllOOQ Firms w_ith salcs/rccdpt;;/rcvc-nuc of 771 48.442 62.8 $71 $li.037,708,0lXl $!4.3l6JJ9:l 0.00% S15Jl(){JJ100 to $19.999.999 Firms w-Ith salcs/rcc-eiptsirc\'cnue of 464 3!~318 78.3 $71 $1!,012.159,0()0 $17,267584 0,()0% $20lHl0,000 to $24.999,999 :Fim1s with salc~ireccipts/rcvenue of 365 32555 h'9.2 $71 ,190,000 $20.879,97:1 0.00% $25.000,()0() to ~~() OGO "'"' l::inns \Y:i1h salesirc.;_ciptslrcYcnue of 228 25.638 112.4 $30~rnl.rnmu>S:;4.~1.999;;~~-J~------~J!----~~;j------~~~------;~--:;~m~ "'"''·"' 17.743 110.2 $71 l 1 not [N/A, avai1able~ not disdos(;{d ~ Table 13: Cost per small firm in the professional, scientific, and technical services industry. Professional, Scientific and Technical Services Industry Small Business Size Standard: $7.5 million-~ $38.5 million Avcr.agt:o J\unual Cost Average 2\\untbcr or Total Number Nmuber of Annual Cost per Firm a.~ Annual Receipts Receipts per .Firms of l\mployec>s rmr Firm Perc.00"<>, $2,5(~).000 ti/rev~nut:. of 4,658 H3.530 1.5 $7! S53.578Jl44.000 $11.502.37! $10,000,000 lo $!4,99'1,999 Firms with sak~/reccipl~/n:.-•vcnue of ~ 2,338 211.940 90.7 $71 '1>36. 728. 134,()\}(l $!.5,709.210 (!,()()"'' Sl5.rnlo.ooo to ~1o ooo o<1<> Firms ':vith sales,'receipt-<;.''revenuc of !.381 +7.737 Hl7.0 $71 ~?7 ld~ 1011ilill $19,875,59! 0.00°h I~~" '""' non to $24.999,999 Finns \vith sal~s,'reveipts,'revenue of 954 122.039 127.9 $71 :.723,()01) $23,713,546 $25,000,000 to ~·Jo ooo ()()() Firms \Vith :salesiret.'Ciptsirevenuc of 603 91,258 151.3 S71 $15.961.4 !3.00() $26.470.(105 o.oo•, $30.000.000 to $34.999,999 Finns '\Nith salcsire-ceipt~ireYt:mue nf 51! 83.414 163.2 S7l $.15,94!,27~000 $31. 0.00% $35,000.000 to ~N QQQ Q'lll IN'i\_,, nnt available) not disdosed

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Table 14: Cost per small firm in the management of companies and enterprises industry.

Management of Companies and Enterprises Industry Small Busino" Siz<' Standard: $20.5 million Average Number of Total Nt.unbt"'f ~mnber of Annual Cost li'irms of Employees Employees pt>r Firm

4,529

5,082 rs.s29

26.723 $71 SL69K014,0\IO

28,312 16.5 $71 St855,703,0\Xl

22,469 17.9 $1.711,4M,(l(Kl

21.4 1>3, 120.558.11()0 Firms 1,1,:ith sale>&irccciptsirevcnue of 24,1 $!5.()00,000 to $!9.999.999 Firms with sales/rcceiptsin::\'cnuc of 28.4 $20,000,0i~llo

Table 15: Cost per small firm in the administrative and support and waste management and remediation services industry.

Annu:\1 Cost Annual Ret<'ip!s per Firm

Firms \Vith satcs:rcc.eiptsirevenue beto\v $71 $4500.981,000 $Hl0Jl00 Firms \vith sales/receipts, 'n;..-'\tcnuc of $7! ~31,66L&03,000 $l00,00(lto Firms \Vi1h sales.·rccx.:ipts/rcve,nuc Df $500,(1()0 to $999,999

OJJO•:

424,912 184. $71 $24,4 I2659Jl(l(l $!0,572, ll.OO~

292,501 2~1.0 $71 $17,408,483,000 $0,750, o.no•

724 208,9:19 288.6 $71 $12542,3 75,0lXl $17,323, (1.00? Finns with sates.'reooipts ,revenue nf 528 174,359 $25,000,000 to S29,999,999

402 173,953

267 122,013

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Table 16: Cost per small firm in the educational services industry.

Educational Services Industry Small Businc" Size Standard: $7.5 million S38.5 million Average Annual Cost AYerage Number of Tutal Number of Annual Cos! Firm as Annual Receipts per Finus of FAltploy('es Emp!oyt'<'li pet· !l"f Firm of Firm Receipts Fim1H \vitb t-Htle,~~ 2LS:ll 50.9% 2,? $HXUJOO $7~$].(10:1,9(lJ5 Firms with sates,'recdpts 27,938 158,913 5.1 $71 $lOOJlCIO to $499,999 Finns \Villi sales:'rcccip-tsirevunuc of ----~-----+------r----- 3,504 112,142 13.2 $71 $5,984,604. $7tl3,740 () $50(),0(10 to $999.999 = Finns with of 8A65 2LU86 25.: $1,000,000 to $2.499,999 Finns \Yith salcsin:~cciptr.;/reYt.-'1me of 4,302 209,778 41!.8 $71 $14.792.101,000 $3,438.424 $2,500,000 to $4,999,999 Firms \Vith salcs/re~-cipt<)/1\.,'Vcnuc of I.SSS 117.648 74.1 $71 $'9.314,307,000 $5,865,433 $5JJ!Xl,OOO to $7,490,99') }'irms vdth s.ales,t•ect.'.ipt·'i 1fCVcnue of 888 83.741 94.3 $71 $7,129. $8.029.244 $7,500,000·$9,999,999 Finns w·ith salcs.-·recciptsircvcmtc of 1.(103 127,781 127.4 $71 $! 1,306, Sl 1.272,191 (),()()" $llHl00,()(Xl to $14.999,999 Films wit11 salcs/reccipts:rcvenut:: of 461 79Jl59 l7L5 $71 $6,98~.007,000 $!5. 147521 $15.000.000 to $19,999.999 Finns with sales "rccc-ip"ffi/re.vt."'nu~: of 355 73JI45 205.8 $7! $6,992Jl60,01JO $19,695,944 0,()( $20,000,0(10 to $24,999.999

268 7tU9l 261.9 $71 $6,343.422.000 $2.',669.485 (),01 Firms with. sales ·rccciptsh·cvenuc of 172 60,202 350.( $71 S5.ll\U82.000 S29, 762.686 (),()! S30,iXJO,OOO to $:'14,999,999 Firms \Vith salcs/reccipts/tevl!nue- of 138 55.75.'\ 41:14.0 OJlt $:l5JlOOJJOO to $39,999.999

Table 17: Cost per small firm in the health care and social assistance industry.

Health Care and Social Assistance Indust:ry_ Small f3tL,ineos Size Standard: $7.5 million ~ $38.5 millioo Annual Cost . Averag:r Avera~ Number of Total Number Annual Cost per }'inn as Annual Receipts pet· Firms of F:mployces IEmployees per per .Firm Percent of" I , Flnn Receinls Finns \Vith salcs/rcc.eipts/:t'evcnuc below· lswo.ooo 107.112 162265 L5 $71 $5,064,756.000 $47,285 tU5" ~~~~~O~~tl:0 s~:~;~qJ!sirmenue of ~560 1,027.234 4.; $71 $60, 168,5'\LOllO ~78< 0,03~·< sales/recciptsirevenue of 12.5.095 1,(154.'185 SA $71 $88.227.442.000 $7()5,284 0.0!% $999,999 ~~~111:s \Vith sa1esJ~·e.ceiptt;.ireYenue of 84,361 1.466.391 17.4 $71 $!26,989.626.000 $!.505,312 O.OOQ,b ,000.0011 to $2.499,99'1 Firms with .sotles 'rec:e1)Jts/revenue of 26,466 U07,445 4L8 $71 $91.034,690,000 'i:'\ A'\<>1;8, O.OO"·i $2.500Jl00 to $4,999.999 Firm~ with '"f 9,453 712,840 75.4 $71 $56,54!,818,000 $5,98!,362 QJlO?' I~<""" lllll)to $7,499,991) Finns ·with salcs.,'receipts/n.."\/CfiUC of 0Jl0°iJ ie7 OOOQ 4,867 501.258 103.0 $71 S·l Ul63,9'66,000 $8.437,223 Fitms \vith salcs/rccciptsircv-enuc of i,198 760,60: 1463 $71 $6L !!6,459,000 l L757,681 o.oo•.

th sah;:s/r-ec~::ipl-.::/rev:.:;nuc of ~~'""'"'"' 2,4<)8 497.184 20L5 $71 $40,851.963,000 $16,552,659 O.(J()oo 000 to $19.990,999 th satcsi1'CCeij)f:sircvenue of $71 $29, 140.498,(!0() $2L208,5!4 0 l,'\74 3.47.358 252.8 o.oo• lXJO to ' """ """ 978 284,827 291.2 $7! $25Jl26, 728.0011 $25,589,701 O.tl!l% ~·~.-=~~··, <'JOOOOQOO rcccipb;J"fC\'Cnuc of 665 23036C 34{),4 $71 &7,268,(l(K s:o.n6,7!9 ()JlO"\ 34,999,999 rcccipt.

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Table 18: Cost per small firm in the arts, entertainment, and recreation industry.

Arts, Entertainment, and Recreation Industry Small Business Size Standard: $7.5 million· S3K5 million Average Annual Cost Average ;'\lumber of Total Number Ntunber of Annual Cost pt>r Firm as Annual Receipts Receipts per Firm.s or Enlplnyees t:mployees j>et per Pirm Percent of Firm Firm Roeeltlts Fim1:s with salesireceiptsireve:nue 33,186 5"'99+ L6 $71 SU69,733,000 $47,30! 0.!5"··· below $Hl!l.OOO Finns \\-itll salcsirccciptsit·evenue of 46,210 199,647 43 $71 $1 L295.277,ll00 $244.43-1 0.03% S!OO,OOO to $499,999 Firms vdth sa1esireceipts/r~venue of 15,493 162.._642 !05 $71 $10,894,947,000 !7 (tO!% $50(),000 to $999,999 Firn:xs '\vilh sal-e-srrccdptR-it'e·vcnue of 12,148 259A80 2!.4 $71 $18.53Ll41,000 $LS25A48 OJJO"o ISI,(l()(l,OOO to $2,499,999 Firms '"ith saks/receiptsit'eVt"1lUe nf 4,67~ 209.762 44.9 $71 $!6,040,448,000 S3A3U46 0.0~" S2500.000 to $4,999,999 Firms \'l:ith sales/receipts/revenue of 1,718 12ll,58(i 70.2 $71 S9,983,571,000 $5,8!1,159 O.O(l"<> 1~"1 ll ''"" '""' Fittns \\lith sales/rcceipts/rcl.:enue of ll5 281855 250.9 $71 $2,873,044,0()[) $24,982,991 tUlO% $30,000,000 to $34,~199,999 Finns with s:'ih:s/receipts_ireverme of 84 25,163 29'1.6 $71 $2,569,574,000 $30,590,167 !1.00'% $35,000,000 t<) $39,999,999

Table 19: Cost per small firm in the accommodation and food services industry.

Accommodation and Food Services Industry Small Business Size Standard: $7.5 million·~ $38.5 million Average Annual Cost An~ rage Number nf Total.Numb<>r N11mberof Annual Cost per Firm as Annual Hecelpls Receipts per J•~irrns of Employees Employees per twr- finn l"t>rcent Firm or "Firm R.reints Firms vvith sales/rccdptsircvcnuc 99,592 207,093 2.1 $71 $4,845.922,000 $48,658 0,15% bdow $100,000 Firms with saJ~s!r~ceipts"r~v~nue of 216,446 1,349,187 6.2 $71 $55,536,558,00() $256,584 ().03% SlOG.Ol)(l to 5499.999 Firms \Vith &.'lles./reccipts·reve:nue of 79,875 !,260,097 15.8 $11 $55.913.962.000 (t.01'\} $500,000 to $999,999 Firms 1vit!1 s.ales/re-e-t~ipts,'revenuc of 56,476 1,777.649 3L5 $71 $84,117,236.000 O.IJO~o SUJOO.lliJO to $2.499,999 ~ Firms \\'iti:t salcsJroccipts/rcvcnuc of 14Jl95 896.373 63.6 $71 $46,231,:100,000 $3,279,979 O.OO~·o k1 '""' '""l to $4,999,999 Firms \'Vith sal~sJr¢eeipts/revcnuc of 4tLl,866 108.6 $71 $21.249,810.000 $5,712,315 O,OO"i> $5,\lO(l,OOO to $7,499.999 •.no Firm~ \Vith salcs·'receipts/revenue of 1,621 244,77:? 15LO $71 $12,&35,230,000 $7,91&,094 0.00°0 l$7, ~nn 000-~9 999 999 Finns \\ith sah."tS,'rcceiptsfrcvcnuc of 1,628 j,I(J,74l 209.3 $71 $17,98U34,000 $1!,047,195 (H)(l"·o $10,000,000 to $14,999,999 Firms vvith s.alcs/r~cipts/rcvenue of 859 252,279 293.7 $71 SB.!l54,878,000 $l5,l\17,76.l (}J_)Q~~'o Sl5.000,000 to S19,999,999 Firms with "''V' •""' <>f 446 !70,201 38L6 $71 $8.420,579,000 :!:18,880,222 0.\~l"'o SZO.OOOJl()(l !o $24,999,999 Firms \Yith salesireccipts_!t·cvenuc of 363 153,594 423.1 $71 $7,987,1!0,0()0 $2Ul03,ll58 0.00~·0 $25.000,000 !o $29.999,999 Finns \\-iJh sa1es-'receipts/revenue of 241 115.452 479.1 $7] $6,405,()41,000 $26. 0.00% $30,\l!l!J,OO(J to $34,999,999 Finns with satt~sit\~t~eipts/revt:nue nf 170 90,301 531.2 $71 $4,832,335,0()[) $28,425,5001 O.OO~·o $35,\)(10,000 to~'""''" ooo

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BILLING CODE 4510–CM–C Paperwork Reduction Act of 1995, 44 proposed rule will not ‘‘have substantial Paperwork Reduction Act U.S.C. 3501 et seq. direct effects on the States, on the relationship between the national Small Business Regulatory Enforcement The Paperwork Reduction Act of 1995 government and the States, or on the Fairness Act of 1996 (44 U.S.C. 3507(d)) requires that OFCCP distribution of power and consider the impact of paperwork and This rule is not a major rule as responsibilities among the various other information collection burdens defined by Section 804 of the Small levels of government.’’ imposed on the public. According to the Business Regulatory Enforcement Executive Order 13175 (Consultation 1995 amendments to the Paperwork Fairness Act of 1996. This rule will not and Coordination With Indian Tribal Reduction Act (5 CFR 1320.8(b)(2)(vi), result in an annual effect on the Governments) an agency may not collect or sponsor economy of $100 million or more; a the collection of information, nor may it major increase in costs or prices; or This proposed rule does not have impose an information collection significant adverse effects on tribal implications under Executive requirement, unless it displays a competition, employment, investment, Order 13175 that would require a tribal currently valid OMB control number. productivity, innovation, or on the summary impact statement. The OFCCP has determined that there is ability of the United States-based proposed rule would not have no new requirement for information companies to compete with foreign- substantial direct effects on one or more collection associated with this proposed based companies in domestic and Indian tribes, on the relationship rule. This proposed rule clarifies and export markets. between the Federal government and updates current part 60–20 and removes Indian tribes, or on the distribution of Unfunded Mandates Reform Act of 1995 outdated provisions so that the power and responsibilities between the requirements conform to current sex For purposes of the Unfunded Federal government and Indian tribes. discrimination law. The information Mandates Reform Act of 1995, 2 U.S.C. Effects on Families collection requirements contained in the 1532, this NPRM does not include any existing Executive Order 11246 Federal mandate that may result in The undersigned hereby certifies that regulations are currently approved excess of $100 million in expenditures the NPRM would not adversely affect under OMB Control No. 1250–0001 by state, local, and tribal governments in the well-being of families, as discussed (Construction Recordkeeping and the aggregate or by the private sector. under section 654 of the Treasury and Reporting Requirements) and OMB General Government Appropriations Executive Order 13132 (Federalism) Control No. 1250–0003 (Recordkeeping Act, 1999. To the contrary, by better and Reporting Requirements—Supply OFCCP has reviewed this proposed ensuring that working mothers do not and Service). Consequently, this rule in accordance with Executive Order suffer sex discrimination in proposed rule does not require review 13132 regarding federalism, and has compensation, benefits, or other terms by the Office of Management and determined that it does not have and conditions of employment, and that Budget under the authority of the ‘‘federalism implications.’’ This working fathers do not suffer

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discrimination on the basis of sex-based PART 60–20—DISCRIMINATION ON (1) Making a distinction between stereotypes about caregiver THE BASIS OF SEX married and unmarried persons that is responsibilities, the NPRM would have not applied equally to both sexes; a positive effect on the economic well- Sec. (2) Denying women with children an being of families, especially of families 60–20.1 Purpose. employment opportunity that is headed by single mothers. 60–20.2 General prohibitions. 60–20.3 Sex as a bona fide occupational available to men with children; (3) Firing, or otherwise treating Executive Order 13045 (Protection of qualification. adversely, unmarried women, but not Children) 60–20.4 Discriminatory compensation. 60–20.5 Discrimination on the basis of unmarried men, who become parents; This NPRM would have no pregnancy, childbirth, or related medical (4) Imposing any differences in environmental health risk or safety risk conditions. retirement age or other terms, that may disproportionately affect 60–20.6 Other fringe benefits. conditions, or privileges of retirement children. 60–20.7 Employment decisions made on on the basis of sex; the basis of sex-based stereotypes. (5) Restricting job classifications on Environmental Impact Assessment 60–20.8 Harassment and hostile work environments. the basis of sex; A review of this NPRM in accordance (6) Maintaining seniority lines and with the requirements of the National Authority: Sec. 201, E.O. 11246, 30 FR lists based upon sex; Environmental Policy Act of 1969 12319, 3 CFR, 1964–1965 Comp., p. 339 as amended by E.O. 11375, 32 FR 14303, 3 CFR (7) Recruiting or advertising for (NEPA), 42 U.S.C. 4321 et seq.; the 1966–1970 Comp., p. 684; E.O. 12086, 43 FR individuals for certain jobs on the basis regulations of the Council on 46501, 3 CFR 1978 Comp., p. 230; E.O. of sex, including through use of gender- Environmental Quality, 40 CFR 1500 et 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. specific terms for jobs (such as seq.; and DOL NEPA procedures, 41 258; and E.O. 13672, 79 FR 42971. ‘‘lineman’’); CFR part 11, indicates the NPRM would (8) Distinguishing on the basis of sex not have a significant impact on the § 60–20.1 Purpose. in apprenticeship or other formal or quality of the human environment. The purpose of this part is to set forth informal training programs; in other There is, thus, no corresponding specific requirements that covered opportunities such as networking, environmental assessment or an Federal Government contractors and mentoring, sponsorship, individual environmental impact statement. subcontractors, including those development plans, rotational Executive Order 13211 (Energy Supply) performing work under federally- assignments, and succession planning assisted construction contracts programs; or in performance appraisals This NPRM is not subject to Executive (‘‘contractors’’),1 must meet in fulfilling that may provide the basis of Order 13211. It will not have a their obligations under Executive Order subsequent opportunities; significant adverse effect on the supply, 11246, as amended, to ensure (9) Making any facilities and distribution, or use of energy. nondiscrimination on the basis of sex in employment-related activities available Executive Order 12630 (Constitutionally employment. These regulations are to be only to members of one sex, except that Protected Property Rights) read in conjunction with the other if the contractor provides restrooms or regulations implementing Executive changing facilities, the contractor must This NPRM is not subject to Executive Order 11246, as amended, set forth in provide separate or single-user Order 12630 because it does not involve parts 60–1, 60–2, 60–3, 60–4, and 60–30 restrooms or changing facilities to implementation of a policy that has of this chapter. assure privacy between the sexes; takings implications or that could (10) Denying transgender employees impose limitations on private property § 60–20.2 General prohibitions. access to the bathrooms used by the use. (a) In general. It is unlawful for a gender with which they identify; and Executive Order 12988 (Civil Justice contractor to discriminate against any (11) Treating an employee or Reform Analysis) employee or applicant for employment applicant for employment adversely because of sex. The term sex includes, because he or she has undergone, is This NPRM was drafted and reviewed but is not limited to pregnancy, undergoing, or is planning to undergo in accordance with Executive Order childbirth, or related medical sex-reassignment surgery or other 12988 and will not unduly burden the conditions; gender identity; and processes or procedures designed to Federal court system. The NPRM was: transgender status. facilitate the adoption of a sex or gender (1) Reviewed to eliminate drafting errors other than the individual’s designated (b) Disparate treatment. Unless sex is and ambiguities; (2) written to minimize sex at birth. a bona fide occupational qualification litigation; and (3) written to provide a (c) Disparate impact. Employment reasonably necessary to the normal clear legal standard for affected conduct policies or practices that have an operation of a contractor’s particular and to promote burden reduction. adverse impact on the basis of sex, and business or enterprise, the contractor are not job related and consistent with List of Subjects in 41 CFR Part 60–20 may not make any distinction based on business necessity, violate Executive sex in recruitment, hiring, firing, Civil rights, Discrimination in Order 11246, as amended, and this part. promotion, compensation, hours, job employment, Employment, Equal Examples of policies or practices that assignments, training, benefits, or other employment opportunity, Government may violate Executive Order 11246 in terms, conditions, or privileges of procurement, Labor, Sex, Women. terms of their disparate impact on the employment. Such unlawful sex-based basis of sex include, but are not limited Patricia A. Shiu, discriminatory practices include, but are to: not limited to, the following: Director, Office of Federal Contract (1) Minimum height and/or weight Compliance Programs. qualifications that are not necessary to 1 This part also applies to entities that are the performance of the job and that For the reasons set forth in the ‘‘applicants’’ for Federal assistance involving a preamble, OFCCP proposes to revise 41 construction contract as defined in part 60–1 of this negatively impact women substantially CFR part 60–20 to read as follows: title. more than men;

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(2) Strength requirements that exceed increases, incentive compensation, or in order for a pregnant woman to the strength necessary to perform the job any other additions to regular earnings. continue employment while pregnant in question and that negatively impact (d) Contractors may not implement when doctors’ notes are not required for women substantially more than men; compensation practices, including employees who are similarly situated; (3) A policy prohibiting large performance review systems, that have (4) Providing employees with health equipment operators from using a an adverse impact on the basis of sex insurance that does not cover restroom while on the job, which and are not shown to be job related and hospitalization and other medical costs adversely impacts women, who may consistent with business necessity. for pregnancy, childbirth, or related require the use of restrooms more than (e) A contractor will be in violation of medical conditions, including men; and Executive Order 11246 and this part any contraceptive coverage, to the same (4) Conditioning entry into an time it pays wages, benefits, or other extent that hospitalization and other apprenticeship program on passing a compensation that is the result in whole medical costs are covered for other scored written test that has an adverse or in part of the application of any medical conditions; and impact on women where the contractor discriminatory compensation decision (5) Denying an alternative job cannot establish the validity of the test or other practice described in this assignment, modified duties, or other consistent with the Uniform Guidelines section. accommodations to a pregnant on Employee Selection Procedures, 41 employee who is temporarily unable to CFR part 60–3. § 60–20.5 Discrimination on the basis of perform some of her job duties because pregnancy, childbirth, or related medical conditions. of pregnancy, childbirth, or related § 60–20.3 Sex as a bona fide occupational medical conditions when such qualification. (a) Discrimination on the basis of assignments, modifications, or other Contractors may not hire and employ pregnancy, childbirth, or related accommodations are provided, or are employees on the basis of sex unless sex medical condition, including required to be provided by a contractor’s is a bona fide occupational qualification childbearing capacity, is a form of policy or by other relevant laws, to other (BFOQ) reasonably necessary to the unlawful sex discrimination. employees whose abilities or inabilities normal operation of the contractor’s Contractors must treat people of to perform their job duties are similarly particular business or enterprise. childbearing capacity and those affected affected. by pregnancy, childbirth, or related § 60–20.4 Discriminatory compensation. (c) Leave—(1) In general. To the medical conditions the same for all extent that a contractor provides family, Compensation may not be based on employment-related purposes, medical, or other leave, such leave must sex. Contractors may not engage in any including receipt of benefits under not be denied or provided differently on employment practice that denies equal fringe-benefit programs, as other the basis of sex. wages, benefits, or any other forms of persons not so affected, but similar in (2) Disparate treatment. (i) A compensation, or equal access to their ability or inability to work. Related contractor must provide job-guaranteed earnings opportunities, on the basis of medical conditions include, but are not medical leave, including paid sick sex, on either an individual or systemic limited to, lactation; disorders directly leave, for employees’ pregnancy, basis, including but not limited to the related to pregnancy, such as childbirth, or related medical conditions following: preeclampsia (pregnancy-induced high on the same terms that medical or sick (a) Contractors may not pay different blood pressure), placenta previa, and leave is provided for medical conditions compensation to similarly situated gestational diabetes; symptoms such as that are similar in their effect on employees on the basis of sex. For back pain; complications requiring bed employees’ ability to work. purposes of evaluating compensation rest; and the after-effects of a delivery. (ii) A contractor must provide job- differences, the determination of A contractor is not required to pay for guaranteed family leave, including any similarly situated employees is case health insurance benefits for abortion, paid leave, for male employees on the specific. Relevant factors in determining except where the life of the mother same terms that family leave is provided similarity may include tasks performed, would be endangered if the fetus were for female employees. skills, effort, levels of responsibility, carried to term or except where medical (3) Disparate impact. Contractors that working conditions, job difficulty, complications have arisen from an have employment policies or practices minimum qualifications, and other abortion, provided that nothing herein under which insufficient or no medical objective factors. In some cases, precludes a contractor from providing or family leave is available must ensure employees are similarly situated where abortion benefits or otherwise affects that such policies or practices do not they are comparable on some of these bargaining agreements in regard to have an adverse impact on the basis of factors, even if they are not similar on abortion. sex unless they are shown to be job others. (b) Examples of unlawful pregnancy related and consistent with business (b) Contractors may not grant or deny discrimination include, but are not necessity. higher paying wage rates, salaries, limited to: positions, job classifications, work (1) Refusing to hire pregnant people § 60–20.6 Other fringe benefits. assignments, shifts, or development or people of childbearing capacity, or (a) It shall be an unlawful opportunities, or other opportunities on otherwise subjecting such applicants or employment practice for a contractor to the basis of sex. Contractors may not employees to adverse employment discriminate on the basis of sex with grant or deny training, work treatment, because of their pregnancy or regard to fringe benefits. assignments, or other opportunities that childbearing capacity; (b) As used herein, ‘‘fringe benefits’’ may lead to advancement in higher (2) Firing a female employee or includes, but is not limited to, medical, paying positions on the basis of sex. requiring her to go on leave because the hospital, accident, life insurance and (c) Contractors may not provide or employee becomes pregnant or has a retirement benefits; profit-sharing and deny earnings opportunities because of child; bonus plans; leave; dependent care sex, for example, by denying women (3) Limiting a pregnant employee’s job assistance; educational assistance; equal opportunity to obtain regular and/ duties based solely on the fact that she employee discounts; stock options; or overtime hours, commissions, pay is pregnant, or requiring a doctor’s note lodging; meals; moving expense

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reimbursements; retirement planning (c) Adverse treatment of an employee nature constitute sexual harassment services; and transportation benefits. or applicant for employment based on when: (c) The greater cost of providing a sex-based stereotypes about caregiver (1) Submission to such conduct is fringe benefit to members of one sex is responsibilities. For example, adverse made either explicitly or implicitly a not a defense to a contractor’s failure to treatment of a female employee because term or condition of an individual’s provide benefits equally to members of of a sex-based assumption that she has employment; both sexes. (or will have) family caretaking (2) Submission to or rejection of such responsibilities, and that those conduct by an individual is used as the § 60–20.7 Employment decisions made on responsibilities will interfere with her the basis of sex-based stereotypes. basis for employment decisions work performance, is discrimination affecting such individual; or Contractors must not make based on sex. Other examples of such (3) Such conduct has the purpose or employment decisions on the basis of discriminatory treatment include, but effect of unreasonably interfering with sex-based stereotypes, such as are not limited to: an individual’s work performance or stereotypes about how males and/or (1) Adverse treatment of a male creating an intimidating, hostile, or females are expected to look, speak, or employee because he has taken or is offensive working environment. act. Such employment decisions are a planning to take leave to care for his (b) Harassment because of sex form of sex discrimination prohibited by newborn or recently adopted or foster includes sexual harassment (including Executive Order 11246, as amended. child based on the sex-stereotyped sexual harassment based on gender Examples of discrimination based on belief that women and not men should identity); harassment based on sex-based stereotyping include, but are care for children; pregnancy, childbirth, or related not limited to: (2) Denying opportunities to mothers medical conditions; and harassment that (a) Adverse treatment of an employee of children based on the sex-stereotyped is not sexual in nature but that is or applicant for employment because of belief that women with children should because of sex (including harassment that individual’s failure to comply with not or will not work long hours, based on gender identity). gender norms and expectations for regardless of whether the contractor is dress, appearance and/or behavior, such (c) Though not required by this part, acting out of hostility or belief that it is to ensure an environment in which all as: acting in the employee’s or her (1) Failure to promote a woman, or employees feel safe, welcome, and children’s best interest. treated fairly, it is a best practice for a otherwise subjecting her to adverse (3) Evaluating the performance of employment treatment, based on sex contractor to develop and implement female employees who have family procedures to ensure its employees are stereotypes about dress, including caregiving responsibilities adversely, wearing jewelry, make-up, or high heels; not harassed because of sex. Examples based on the sex-based stereotype that of such procedures include: (2) Harassment of a man because he women are less capable or skilled than is considered insufficiently masculine, (1) Communicating to all personnel their male counterparts who do not have that harassing conduct will not be or effeminate; and such responsibilities. (3) Adverse treatment of an employee tolerated; because he or she does not conform to § 60–20.8 Harassment and hostile work (2) Providing anti-harassment training sex-role expectations by being in a environments. to all personnel; relationship with a person of the same (a) Harassment on the basis of sex is (3) Establishing and implementing sex. a violation of Executive Order 11246, as procedures for handling and resolving (b) Adverse treatment of an employee amended. Unwelcome sexual advances, complaints about harassment and or applicant for employment because of requests for sexual favors, offensive intimidation based on sex. his or her actual or perceived gender remarks about a person’s sex, and other [FR Doc. 2015–01422 Filed 1–28–15; 11:15 am] identity or transgender status. verbal or physical conduct of a sexual BILLING CODE 4510–CM–P

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