As the OFCCP explained its objective:
OFCCP replaces in significant
part the Guidelines at part 60–20 with new sex discrimination regulations that
set forth Federal contractors’ obligations under E.O. 11246, in accordance with
existing law and policy. The final rule clarifies OFCCP’s interpretation of the
Executive Order as it relates to sex discrimination, consistent with title VII
case law and interpretations of title VII by the EEOC. It is intended to state
clearly contractor obligations to ensure equal employment opportunity on the basis
of sex.
The final rule removes outdated
provisions in the current Guidelines. It also adds, restates, reorganizes, and
clarifies other provisions to incorporate legal developments that have arisen
since 1970 and to address contemporary problems with implementation.
Sex is now
defined to include “pregnancy, childbirth, or related medical conditions; gender identity;
transgender status; and sex stereotyping.”
Except when “sex is a bona fide occupational
qualification reasonably necessary to the normal operation of a contractor’s
particular business or enterprise,”
discriminatory practices will include:
(12) Making any facilities and employment-related
activities available only to members of one sex, except that if the contractor
provides restrooms, changing rooms, showers, or similar facilities, the
contractor must provide same-sex or single-user facilities;
(13) Denying transgender
employees access to the restrooms, changing rooms, showers, or similar
facilities designated for use by the gender with which they identify; and
(14) Treating employees or
applicants adversely because they have received, are receiving, or are planning
to receive transition-related medical services designed to facilitate the
adoption of a sex or gender other than the individual’s designated sex at
birth.
Disparate impact discrimination by otherwise facially
neutral practices or policies is also prohibited and can include use of
recruitment or promotion methods, such as ‘‘word-of mouth’’
recruitment or ‘‘tap-on-the shoulder’’ promotion, that have an adverse impact
on women where the contractor cannot establish that they are job-related and
consistent with business necessity.
An entire subsection is devoted to discriminatory
compensation:
Contractors may not pay different compensation to similarly
situated employees on the basis of sex. For purposes of evaluating compensation
differences, the determination of similarly situated employees is case specific.
Relevant factors in determining similarity may include tasks performed, skills,
effort, levels of responsibility, working conditions, job difficulty, minimum
qualifications, and other objective factors. In some cases, employees are
similarly situated where they are comparable on some of these factors, even if
they are not similar on others.
As for
pregnancy discrimination, contractors may not, among other things, “[l]imit[]
pregnant employees’ job duties based solely on the fact that they are pregnant,
or require[e] a doctor’s note in order for a pregnant employee to continue
working.” Similarly, contractors must
accommodate employees “who are unable to perform some of their job duties
because of pregnancy, childbirth, or related medical conditions” in most
circumstances.
A contractor must provide
job-guaranteed medical leave, including paid sick leave, for employees’
pregnancy, childbirth, or related medical conditions on the same terms that
medical or sick leave is provided for medical conditions that are similar in
their effect on employees’ ability to work.
A contractor must provide job guaranteed
family leave, including any paid leave, for male employees on the same terms
that family leave is provided for female employees.
Employers are also required to maintain equality in fringe
benefits, including medical insurance programs.
In the lengthy preamble, OFFCP notes, among other things that:
some insurance plans have explicit exclusions of coverage for
all health services associated with gender dysphoria or gender transition. Such categorical exclusions are facially discriminatory
because they single out services and treatments for individuals on the basis of
their gender identity or transgender status, and would generally violate E.O.
11246’s prohibitions on both sex and gender identity discrimination.
The OFFCP notes, among other things, that:
Implicit in the provisions prohibiting discrimination on the
basis of sex is the principle that distinctions for other reasons, such as differences
in capabilities, are not prohibited. Distinguishing among employees based on
their relevant job skills, for example, does not constitute unlawful
discrimination.
The OFCCP recognized that some contractors may qualify for
exemptions based on religion or First Amendment grounds and deleted an explicit
requirement to provide contraception coverage on this ground:
OFCCP declines to implement a blanket exemption from these
provisions because claims under RFRA are inherently individualized and fact specific. There is no formal process for
invoking RFRA specifically as a basis for an exemption from E.O. 11246. Insofar
as the application of any requirement under this part would violate RFRA, such
application shall not be required.
If a contractor seeks
an exemption to E.O. 11246 pursuant to RFRA, OFCCP will consider that request
based on the facts of the particular case. OFCCP will do so in consultation
with the Solicitor of Labor and the Department of Justice, as necessary. OFCCP
will apply all relevant case law to the facts of a given case in considering
any invocation of RFRA as a basis for an exemption.
OFCCP also notes that
the Supreme Court has recognized that the First Amendment to the Constitution requires
a ‘‘ministerial exception’’ from employment discrimination laws, which
prohibits the government from interfering with the ability of a religious
organization to make employment decisions about its ‘‘ministers,’’ a category
that includes, but is not limited to, clergy. OFCCP follows this precedent.
Finally, OFCCP notes
that E.O. 11246 contains an exemption that specifically allows religiously
affiliated contractors (religious corporations, associations, educational
institutions, or societies) to favor individuals of a particular religion when
making employment decisions. The regulation implementing that exemption states
that the nondiscrimination obligations of E.O. 11246 ‘‘shall not apply to a
Government contractor or subcontractor that is a religious corporation,
association, educational institution, or society, with respect to the
employment of individuals of a particular religion to perform work connected
with the carrying on by such corporation, association, educational institution,
or society of its activities. Such contractors and subcontractors are not
exempted or excused from complying with the other requirements contained in
this Order.’’ OFCCP has already published guidance regarding the application of
the religious exemption in Executive Order 11246 in connection with the recent Executive
Order 13672 rulemaking. If, however, a contractor is unsure about whether its
employment practices are shielded by this exemption, it can seek guidance from
OFCCP.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
