Executive Summary: The OFCCP's final rule implementing President Obama's Executive Order (EO 13672) prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity takes effect April 8, 2015. In light of the upcoming compliance date, contractors covered by the rule should take steps now to ensure they are prepared to comply with its requirements.

Background

EO 13672 amends EO 11246 to add gender identity and sexual orientation to the protected categories listed in that EO. The Final Rule implements EO 13672 by replacing the words "sex, or national origin" with the words "sex, sexual orientation, gender identity, or national origin" throughout the EO 11246 implementing regulations. Thus, under EO 11246, the following categories are protected from discrimination in the workplace:  race, color, religion, sex, sexual orientation, gender identity and national origin. As discussed in our prior Alert, the OFCCP published its final rule on December 5, 2014, along with a list of Frequently Asked Questions regarding the rule.

Who is covered by the Rule?  EO 11246 applies to federal contractors and federally-assisted construction contractors and subcontractors that have federal government contracts of $10,000 or more.

What changes do contractors need to make? For contracts entered into or modified on or after April 8, 2015, contractors must include gender identity and sexual orientation as prohibited bases of discrimination in the Equal Opportunity Clause. The Final Rule does not impact existing contracts unless those contracts are modified on or after April 8. Additionally, contractors should ensure that applicants and employees are treated without regard to the sexual orientation and gender identity and should update the equal opportunity language used in job applications and solicitations.

Does the Final Rule impose any affirmative action obligations? The only affirmative action obligations impacted by the Final Rule are those contained in 41 CFR Part 60-1. The Rule does not require contractors to set placement goals on the basis of sexual orientation or gender identity, nor does the rule require contractors to collect and analyze data on these bases.

The Bottom Line:

Effective April 8, 2015, the OFCCP will begin accepting and investigating complaints of discrimination on the basis of sexual orientation and gender identity, as it does for complaints of discrimination based on the other protected categories identified in EO 11246.