On January 28, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) announced proposed changes to its sex discrimination guidelines (“Guidelines”). The current Guidelines set forth the interpretations and guidelines for implementing the nondiscrimination and affirmative action requirements related to sex under Executive Order 11246. The Guidelines have not been updated since 1970. According to OFCCP, the proposed changes to the Guidelines will not impose any new obligations on federal contractors and subcontractors, but merely “align[s] OFCCP’s regulations with [the current law and interpretations under] Title VII of the Civil Rights Act of 1964, as interpreted by courts and the Equal Employment Opportunity Commission.”
The notice of proposed rulemaking addresses various issues, including pay, sexual harassment, failure to provide workplace accommodations for pregnancy and gender identity, and family caregiving. The highlights of the proposed Guidelines include:
- Adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination;
- Leave for childcare must be available to men on the same terms as it is available to women;
- Contractors must provide workplace accommodations to women affected by pregnancy, childbirth, and related conditions, ranging from extra bathroom breaks to light-duty assignments;
- Compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work;
- Contractors must provide equal benefits and equal contributions for both males and females participating in fringe-benefit plans;
- The Guidelines now include explicit prohibition of both quid pro quo and hostile work environment sexual harassment and encourage contractors to develop and implement procedures to “ensure an environment in which all employees feel safe …[and] are not harassed because of sex”;
- Adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination; and
- Discrimination based on an individual’s gender identity is unlawful sex discrimination.
OFCCP has included a new page containing FAQs and other resources related to changes proposed to the Guidelines. The proposed Guidelines are expected to be published in the Federal Register on January 30, 2015. Assuming it is published on that date, interested parties will have until March 31, 2015 to provide comments.