Contractors should be careful not to implement any policies or practices that may have a disparate, adverse impact on one sex unless they are job-related and consistent with business necessity.
The Office of Federal Contract Compliance Programs’ (OFCCP’s) revised rules on sex discrimination took effect on August 15. The rules, which have not been substantively updated since 1970, require covered employers to take certain steps to make sure that sex discrimination does not occur in the workplace.
According to OFCCP, the rules are designed to combat many issues faced by employees on account of sex, including pay discrimination, sexual harassment, lack of pregnancy and childbirth accommodations and stereotype-based discrimination.
While many provisions of the revised rules simply reaffirm what employers already know from EEOC guidance and court decisions, the rules also clarify new affirmative steps that federal contractors and subcontractors must take to ensure compliance with the law.
Who Must Comply?
The revised rules only apply to federal contractors and subcontractors that are considered “covered contractors” under Executive Order 11246, which prohibits discrimination against employees and applicants based on race, color, religion, sex, sexual orientation, gender identity or national origin.
Generally, to be a covered contractor, an employer must hold one or more federal contracts or subcontracts worth more than a total of $10,000 during any 12-month period.
What Is Sex Discrimination?
Sex discrimination “includes, but is not limited to, discrimination on the basis of sex; pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.”
Because OFCCP revised the regulations to comply with current Title VII and EEOC jurisprudence, contractors should already be avoiding many of the impermissible practices identified in the revised rules, including:
- Making distinctions between married and unmarried persons unless the distinction is applied equally to men and women
- Treating men and women differently with regard to flexible working arrangements
- Steering individuals into lower-paying or less desirable jobs on the basis of sex
- Paying similarly situated employees differently based on sex.
The NEW rules contain guidance on the treatment of transgender employees. Covered employers are now prohibited from treating employees or applicants adversely because they have received, are receiving or are planning to receive medical services related to gender transition.
Furthermore, if a contractor provides restrooms, changing rooms, showers or similar facilities, it must provide same-sex or single-user facilities. In addition, the contractor cannot deny transgender employees access to those facilities designated for use by the gender with which they identify. For example, if an employee transitioning from male to female identifies as a female, that individual must be permitted to use the women’s restroom.
Pregnant Worker Protection
The revised rules also make clear that a contractor cannot discriminate against employees because of pregnancy or pregnancy-related conditions and may not deny accommodations for pregnancy, childbirth or related medical conditions.
A contractor cannot deny an accommodation to a pregnant employee if the contractor provides the same accommodation to similarly situated nonpregnant employees—for example, offering light-duty work to employees injured on the job but not to pregnant women. However, if the contractor does not offer light-duty work to any employees, there is no obligation for the contractor to create light-duty positions.
Contractors also must provide job-guaranteed family leave, including any paid leave, for male employees on the same terms that family leave is provided for female employees.
To comply with the revised rules, contractors should be careful not to implement any policies or practices that may have a disparate, adverse impact on one sex unless they are job-related and consistent with business necessity.
It would violate the regulations to impose a strength, agility or other physical requirement that exceeds the actual requirements necessary to perform a job.
Do not treat women any differently because of a sex-based assumption that a woman has or will have family caregiving responsibilities. If an employee works in a high-pressure job and might be needed late at night, a female employee should not be denied the opportunity to work off hours due to a belief that she will need to tend to her children. Even well-intentioned actions can be considered impermissible sex-based stereotyping and a violation of the revised OFCCP rules.
Federal contractors and subcontractors can expect the OFCCP to focus on sex discrimination issues in future compliance audits.
To the extent they are not already complying with the above obligations, contractors would be best served by reviewing and revising their policies and practices to ensure that they are not unknowingly discriminating based on sex.