New guidelines clarifying prohibitions against pay discrimination, sexual harassment, pregnancy bias and discrimination based upon sexual stereotypes, gender identity and transgender status were issued June 14 by the US Department of Labor (DOL). The Office of Federal Contract Compliance's final rule updated sex discrimination guidelines under Executive Order 11246 many of which have been in place for over 45 years and expanded the obligations of covered government contractors. The rule will go into effect August 15, 2016 and applies to all employers regardless of size with federal contracts or subcontracts totaling $10,000 or more during a 12-month period, unless they are otherwise exempt.

The new regulations require employers to review their current policies and insurance plans to ensure that:

  • Sick and family leave is available on the same terms to both mothers and fathers.
  • Health insurance plans provide for hospitalization or other medical coverage for pregnancy, childbirth or related medical conditions to the same extent that hospitalization and other medical costs are covered for other medical conditions.
  • Companies that provide "insufficient" or no medical or family leave must show that their policies do not have an adverse impact on the basis of sex unless they can show they are job-related and consistent with business necessity.
  • Employees who are unable to work because of pregnancy, childbirth or related medical conditions are provided the same accommodations offered to other employees (e.g., light duty) unless shown to be job-related and consistent with business necessity.
  • Employees are allowed to use bathrooms, changing rooms and showers consistent with the gender with which they identify.
  • Companies not treat applicants or employees differently because they have received or plan to undergo medical services for gender transition.
  • Reliance on "word-of-mouth" recruitment or "tap-on-the shoulder" promotion that has an adverse impact upon women is prohibited unless the contractor can establish that the action is job-related and consistent with business necessity.

The final rule also includes a section containing best practices suggesting employers avoid the use of gender-specific job titles where possible (e.g., foreman), designate single-user restrooms as sex-neutral, encourage men and women equally to engage in caregiving activities and provide "light duty" as an accommodation to employees unable to perform some job duties as a result of pregnancy or childbirth. The DOL also suggests that antiharassment training should be provided and a complaint resolution procedure should be implemented as best practices for avoiding sex bias in the workplace.

Reviewing your company policies and providing training on these new guidelines are strongly recommended.