On July 21, 2014, President Obama, via Executive Order, charged the Office of Federal Contract Compliance Programs (“OFCCP”) with updating its regulations to prohibit discrimination on the basis of sexual orientation and gender identity. On December 3, 2014, the OFCCP announced a Final Rule, applying to federal contractors, that added sexual orientation and gender identity to the list of classifications that already are protected, such as race, color, religion, sex, and national origin. All of these protections apply both to active employees and to job applicants. The newest regulations regarding sexual orientation and gender identity are effective 120 days after the official publication of the Final Rule, and will apply to all applicable contracts modified or entered into after that date.
In light of this Final Rule, federal contractors must be aware of the following updated requirements. First, the Equal Opportunity Clause in applicable contracts must be amended to include sexual orientation and gender identity, though this modification may be incorporated by reference. In solicitations for new employees, federal contractors must state that qualified applicants will receive consideration for employment without regard to sexual orientation and gender, in addition to the already protected classes. Finally, when it is eventually posted on the OFCCP’s website, federal contractors must use a new supplement to the standard “EEO is the Law” poster. Notably, this newest Final Rule does not require any changes to written affirmative action programs governed by an earlier Executive Order, and these programs will remain limited to gender, race, and ethnicity.