In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.
Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now must be included in the “Equal Opportunity Clause” in all covered federal contracts and subcontracts. The Equal Opportunity Clause may still be incorporated in contracts and notices to downstream contractors by reference, rather than setting it out in complete detail. Contractors who choose to use detailed equal employment language in job advertisements or solicitations must now include sexual orientation and gender identity. However, contractors are permitted, instead, as they have been in the past, to use the more general reference “equal opportunity employer.” The OFCCP intends to revise the mandatory “Equal Employment is the Law” federal poster but has not done so as yet.
Although sexual orientation and gender identity have been added to the classifications protected under affirmative action law, there are certain affirmative action law obligations which do not apply to these classifications. Contractors are not required to solicit self-identification from applicants or employees concerning sexual orientation or gender identity. Contractors are not required to do a statistical analysis of availability for or establish goals concerning sexual orientation or gender identity. Contractors are also not required to develop specific outreach or recruiting efforts concerning these classifications, though the OFCCP does encourage doing so as a means to expand the contractor’s pool of qualified candidates.
Here is a link to the OFCCP’s “Frequently Asked Questions” about the expanded protections.