The OFCCP Did Something They Should Have Done a Long Time Ago

Most of you reading this article probably do not remember when the Office of Federal Contract Compliance Programs (OFCCP) previously drafted sex discrimination guidelines.  This is because the OFCCP has not revised its sex discrimination guidelines since 1970.  Yes, you read that correctly: 1970.  For those of you who are employed by a company that often works as a Federal contractor, these new guidelines will apply.  For everyone else, these guidelines will reflect a national trend regarding sex discrimination in the workplace, particularly pregnancy discrimination and transgender rights.  As the U.S. Department of Labor put it in their factsheet, we are moving from the “Mad Men” era to the Modern era.  Finally.

The key changes are focused on three issues:  (1) disparities between men and women in the workforce (e.g. pay, career development, opportunities, etc); (2) lack of accommodations offered to pregnant employees; and (3) LGBT discrimination and “sex stereotypes.” 

 Men = Women // Women = Men

Under the new OFCCP guidelines, contractors are expressly forbidden from paying workers differently based on sex.  Since part of the gender pay-gap is due to women receiving less opportunity to “rise in the ranks,” the OFCCP added language that also prohibits a contractor from denying an opportunity for more pay or career advancement based on sex (think: overtime, training, or seeking a higher position).  This would also include placing unnecessary job restrictions to limit the eligibility of a female (or male).    In other words, any height, weight, or strength requirements must be a bona fide occupational characteristic and be job-related and consistent with a business necessity. 

In addition to pay and advancement issues, the OFCCP also makes it clear that contractors cannot discriminate on the basis of sex when it comes to offering fringe benefits.  “Fringe benefits” include things like health benefits, life insurance, and retirement benefits.  There is also a clause that reiterates that sexual harassment will not be tolerated.

Pregnant Employees and Job Accommodations

While most pregnant employees are not “disabled” by the ADA definition of the word, many of them may qualify for an accommodation that permits them to continue doing their job.  Such a workplace accommodation could be as simple as extra bathroom breaks or light-duty assignments and must be evaluated based on each employee’s need.  This provision of the revised OFCCP guidelines also expands pregnancy discrimination to include “related medical conditions.”  If the same or similar accommodation would be (or legally should be) offered to a non-pregnant employee, then it must also be offered with the same consideration to a pregnant employee (or an employee suffering a medical condition related to pregnancy and/or childbirth). 

 LGBT and Transgender Employees = Employees

As we continue to witness laws like HB2, the Feds continue to counterattack by setting the example that LGBT discrimination should not be tolerated.  While the new OFCCP guidelines does not specifically address HB2, it certainly attempts to counteract the North Carolina law by requiring federal contractors to allow workers to use bathrooms, changing rooms, and showers that are consistent with the gender in which the worker identifies.   The OFCCP also goes a step further and states that excluding coverage for cases related to gender dysphoria or gender transition is facially discriminatory.  In other words, Federal contractors cannot discriminate based on gender identity or transgender status.

Since more and more LGBT employees are bringing Title VII discrimination claims through a “sex stereotype” theory, the revised OFCCP guidelines also state contractors cannot treat employees or applicants adversely because they fail to comply with social expectations of men and/or women.  Moving forward, referring to certain positions as a “man’s job” may not be the best idea. 

All that said, most of this should be a good review of Title VII, which applies to private employers, but these new OFCCP guidelines are certainly a product of trends seen in the world of employment law.  My guess is that more and more will be said about transgender employees in the next few years, as will more be said about pregnant employees and the gender wage-gap in the near future.