02 February 2015

OFCCP Proposes Updated Sex Discrimination Regulations

On January 28, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (DOL) announced a Notice of Proposed Rulemaking to replace its 40+ year old Sex Discrimination Guidelines.

The DOL proposed regulations would reinforce Executive Order 11246’s prohibition of sex discrimination in line with more recent developments in discrimination law. The DOL has referred to the current guidelines as “outdated” and the proposed rules as addressing “the realities of today’s workplaces.” Among other topics, OFCCP says the rules would address pay discrimination, sexual harassment, workplace accommodations for pregnancy, gender identity and family caregiving discrimination.

The DOL states that key provisions of the rules would:

  • Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about their appearance, attire, or behavior, is a form of unlawful sex discrimination.
  • Clarify that discrimination against an individual because of her or his gender identity is unlawful sex discrimination.
  • Clarify that adverse treatment of an employee because of gender-stereotyped assumptions relating to family caretaking responsibilities is discrimination.
  • Clarify that leave for childcare must be available to men on the same terms as available to women.
  • Confirm that contractors must provide a variety of workplace accommodations to women affected by pregnancy, childbirth, and related medical conditions, ranging from extra bathroom breaks to light-duty assignments. These must be comparable to the accommodations that contractors provide to other workers similar in their ability or inability to work, such as employees with work-related injuries.
  • Clarify that unlawful compensation discrimination can result from steering workers into certain job classifications on the basis of gender, not just unequal pay for equal work.
  • Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
  • Address both quid pro quo and hostile-environment sexual harassment, and identify as a best practice that contractors develop and implement procedures to ensure an environment in which all employees feel safe and welcomed, are treated fairly, and are not harassed because of sex.

The proposed rules were published in the Federal Register on January 30, 2015. Comments on the proposed regulations will be due by March 31, 2015.

If you have questions or would like more information, feel free to contact one of Miller Johnson’s Affirmative Action Practice Group attorneys.