Department of Labor Expands Definition of “Sex Discrimination” for Employees of Federal Contractors

The Office of Federal Contract Compliance Programs (OFCCP) of the United States Department of Labor recently updated its sex discrimination rules applicable to federal contractors. The updated rules, which take effect August 15, 2016, had not been substantively revised since 1970. The updated rules define laws related to sex-based discrimination in pay and fringe benefits, sex stereotyping, gender identity, accommodations for pregnant employees, and discrimination for family caregiving responsibilities. The term “sex” has been expanded to include pregnancy, childbirth, or related medical conditions, gender identity, transgender status, and sex stereotyping.

Under the new regulations, transgender employees must be allowed to use restrooms, changing rooms, and showers designated for the gender with which they identify. Federal contractors may not make employment decisions based on stereotypes about how males and females are expected to dress, look, or act. Federal contractors must provide equal pay and benefits to employees that do the same job, and must ensure that men and women have the same opportunity to pursue and perform jobs for which they are qualified, including jobs that have previously been gender stereotyped. If a federal contractor provides family or caregiver leave to female employees, it must provide such leave to male employees. The complete updated Rule is available at the Federal Register by clicking here.

The updated ruling includes a “Best practices” guideline to help employers promote a non-discriminatory workplace. The recommended “Best practices” for federal contractors are:

1. Avoiding the use of gender-specific job titles such as ‘foreman’ or ‘lineman’ where gender-neutral alternatives are available;

2. Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral;

3. Providing, as part of their broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions;

4. Providing appropriate time off and flexible workplace policies for men and women;

5. Encouraging men and women equally to engage in caregiving-related activities;

6. Fostering a climate in which women are not assumed to be more likely to provide family care than men; and

7. Fostering an environment in which all employees feel safe, welcome, and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include:

(a) Communicating to all personnel that harassing conduct will not be tolerated;
(b) Providing anti-harassment training to all personnel; and
(c) Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.

While these guidelines are not mandatory requirements (at least yet) for federal requirements, employers should consider adopting similar practices. Implementing and adhering to such policies will reduce the risk of potential sex discrimination issues based on existing laws, whether on a federal, state, or local level.

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