The Office of Federal Contract Compliance Programs (“OFCCP”) decided to seek public comment on its Final Rule for LGBT workers after being pressured by two Republic Congressmen over its rulemaking process. OFCCP had initially announced on December 3, 2014 its Final Rule implementing President Obama’s Executive Order 13672, which prohibits discrimination by federal government contractors and subcontractors on the basis of sexual orientation and gender identity.
OFCCP had initially intended to publish the new rule in the Federal Register on December 9, 2014 without notice and comment. After OFCCP’s Director Patricia Shiu received a letter from two Republican lawmakers, on December 8, 2014, OFCCP published a notice in the Federal Register seeking comments on the new regulations for a 60-day period. However, it is unclear if and how comments will impact the substance and effective date of the new regulations. The Final Rule is slated to become effective on April 8, 2015.
What Is New in the Final Rule
Under the Final Rule, contractors are prohibited from discriminating on the basis of sexual orientation and gender identity. The new regulations do not define “sexual orientation” or “gender identity”, but OFCCP notes that it uses the same definition used by Equal Employment Opportunity Commission and case law developed under Title VII. As of the effective date of the Final Rule, OFCCP will investigate complaints of discrimination on basis of sexual orientation and gender identity.
The Final Rule also requires contractors to update some of their technical compliance practices. The Final Rule modified the Equal Opportunity Clause, which must be flowed-down in all covered subcontracts that are entered or modified on or after the effective date. Contractors are still permitted to incorporate the Equal Opportunity Clause by reference. The Final Rule also requires contractors to update their job postings and advertisements to indicate that all qualified applicants will receive consideration for employment without regard to sexual orientation or gender identity in addition to the normal protected categories of race, color, religion, sex, national origin, veteran status, and disability status.
What Is Unaffected in the Final Rule
The Final Rule does not impact existing affirmative action plan requirements for females and minorities. Contractors are not obligated to solicit information from applicants or employees pertaining to sexual orientation or gender identity, nor report or analyze such data for applicants and employees. OFCCP’s Frequently Asked Questions specify that contractors may still choose to ask applicants and employees to voluntarily self-identify their sexual identity or gender identity, unless prohibited by state law.
What Contractors Should Do
Contractors should proactively review and update their job postings, job advertisements, and policies to prohibit discrimination on the basis of sexual orientation and gender identity. Although the Final Rule does not go into effect until April 8, 2015, OFCCP noted that gender identity is already prohibited by OFCCP’s laws based on their August 2014 directive. In addition, contractors who flow-down the entire Equal Opportunity Clause in covered subcontracts should update the clause to include the new language.