We have made progress as a country in opening career opportunities for women that were, for decades, the province of men. Yet, there is more work that lies ahead to eradicate sex discrimination. This is why it is important that we bring these old guidelines from the ‘Mad Men’ era to the modern era, and align them with the realities of today’s workplaces and legal landscape.

Patricia A. Shiu, OFCCP Director

On June 14, 2016, the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its final rule establishing requirements that federal contractors and subcontractors must meet under Executive Order 11246 to ensure nondiscrimination in employment on the basis of sex. Up until this week, the OFCCP’s sex discrimination guidelines had gone unchanged since the 1970s.

The new rule specifically addresses sex-based employment issues present in today’s workplace, including compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy and related conditions, discrimination on the basis of gender identity and transgender status, family caregiving discrimination, and discrimination based on gender norm stereotypes.

The requirements under the rule are largely in line with Title VII and the Equal Employment Opportunity Commission’s interpretation of Title VII, and therefore requirements for federal contractors and subcontractors are largely unchanged by this rule. The rule is organized into eight sections and concludes with an appendix, which contains nonbinding “best practices” to prevent sex discrimination. These are some highlights of the rule.

Discrimination on the Basis of Pregnancy, Childbirth or Related Medical Conditions

The rule requires federal contractors to provide workplace accommodations for pregnancy and related conditions on the same terms as those provided to other employees who are similarly able or unable to perform their job duties. For example, contractors must provide extra bathroom breaks and light-duty assignments to an employee who needs such an accommodation due to pregnancy when the contractor provides similar accommodations to other workers with disabilities or occupational injuries.

Discrimination Based on Sex Stereotypes and Gender Norms

The rule prohibits adverse treatment of employees on the basis of failing to conform to particular gender norms and expectations about their appearance, attire or behavior. The rule also prohibits discrimination based on gender-stereotyped assumptions relating to family caretaking responsibilities, and it provides that leave for child care must be available to men and women on the same terms.

Discrimination on the Basis of Gender Identity

Contractors are prohibited from denying transgender employees access to restrooms, changing rooms and showers for use by the gender with which employees identify. In addition, contractors that provide health care benefits must make coverage available for transition-related services and must not otherwise discriminate in health benefits on the basis of gender identity or transgender status.

Fringe Benefits

The rule requires contractors to provide equal benefits and equal contributions for male and female employees participating in fringe benefit plans, including leave, profit-sharing and bonus plans. The greater cost of providing a fringe benefit to members of one sex is not a defense for a contractor’s failure to provide benefits equally to members of both sexes.

Discriminatory Compensation

The new rule promotes fair pay practices and prohibits contractors from denying opportunities for overtime, training, better pay or higher-paying positions based on an employee’s sex. For purposes of analyzing pay differences, the rule states that 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, according to the OFCCP, employees are similarly situated where they are comparable on some of these factors, even if they are not similar on others.

Sexual Harassment

The rule clarifies that sexual harassment includes (1) harassment based on gender identity or expression; (2) harassment based on pregnancy, childbirth or related medical conditions; and (3) sex-based harassment that is not sexual in nature but is because of sex or sex-based stereotypes.

The sex discrimination final rule becomes effective August 15, 2016. The OFCCP website has a page regarding the final rule.

Bottom Line

The OFCCP has finally updated its regulations concerning discrimination on the basis of sex. Other than OFCCP’s somewhat nebulous position concerning its view of the “outer limits” of gender-based pay discrimination, which in itself seemingly remains a “work in progress,” these new regulations contain nothing that will strike the federal contractor community as earthshaking and new.