OFCCP issued proposed updated rules on sex discrimination for federal contractors covered by EO 11246. They will be officially published tomorrow. Contractors and interested parties can submit comments until March 31, 2015.

The proposed rules largely align with the obligations already imposed by Title VII of the Civil Rights Act, which applies to most employers, and the Pregnancy Discrimination Act. According to OFCCP, the highlights of the changes are that they will:

  • Clarify that adverse treatment of an employee because of gender-stereotyped assumptions relating to family caretaking responsibilities is discrimination.
  • Clarify that leave for childcare must be available to men on the same terms as it is available to women.
  • Confirm that contractors must provide a variety of workplace accommodations, ranging from extra bathroom breaks to light-duty assignments, to women affected by pregnancy, childbirth, and related medical conditions comparable to the accommodations that contractors provide to other workers similar in their ability or inability to work, such as employees with disabilities or occupational injuries.
  • Clarify that unlawful compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work.
  • Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
  • Address both quid pro quo and hostile-environment sexual harassment, and identify as a best practice that contractors develop and implement procedures to ensure an environment in which all employees feel safe and welcomed, are treated fairly, and are not harassed because of sex.
  • Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about their appearance, attire, or behavior, is unlawful sex discrimination.
  • Clarify that discrimination against an individual because of her or his gender identity is unlawful sex discrimination.

(Taken directly from OFCCP’s FAQs on the proposed rules)

Most employers already comply with most of these obligations already. But the proposal to require that pregnant employees be afforded all the same accommodations a contractor would afford to disabled persons or persons injured at work remains controversial. Last year, the EEOC included such a provision in its updated pregnancy discrimination regulations, which generated dissents from two Commissioners. The extent to which employers must provide reasonable accommodations for routine pregnancies is also a question currently pending before the U.S. Supreme Court. It will be interesting to see how the Court rules on the issue and whether the decision has any impact on the OFCCP proposal.

If you are a federal contractor, we are having a complimentary webinar – Tips for Preparing your 2015 Affirmative Action Plans – on February 10. At this program, Mike Underwood and I will discuss the most important changes and best tips contractors should consider as they prepare AAPs in 2015. We will be addressing these new proposed rules and providing additional clarification for employers.  Click here for more details and to register for this program.