The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued final rules yesterday updating sex discrimination regulations for the first time in over 40 years. The new rules are intended to reflect the current state of the law and the "reality of a modern and diverse workforce". Updated rules on workplace sex discrimination will mean clarity for federal contractors and subcontractors (we'll see about the "clarity" claim in time) and equal opportunities for both men and women applying for jobs with or already working for, these employers.
The final rules, which implements the President's Executive Order 11246 updates OFCCP's sex discrimination regulations to make them consistent with current law. It makes explicit the protections against compensation discrimination, sexually hostile work environments, discrimination based on pregnancy, childbirth or related medical conditions; and discrimination based on unlawful sex stereotypes, gender identity and transgender status. The new regulations also promote fair pay practices.
The final rules are divided into eight sections and together, total nearly 200 pages. Not everyone is going to want to slog through 200 pages so it will most likely fall to the HR Departments to figure out implementation strategy. The first section covers the rule's purpose.
The second section sets forth the general prohibition of sex discrimination, including discrimination on the bases of pregnancy, childbirth, related medical conditions, gender identity, transgender status, and sex stereotypes. It also describes employment practices that may unlawfully treat men and women disparately. Finally, it describes employment practices that are unlawful if they have a disparate impact on the basis of sex and are not job-related and consistent with business necessity.
The third section covers circumstances in which disparate treatment on the basis of sex may be lawful - i.e. those instances when being a particular sex in a bona fide occupational qualification reasonably necessary to the normal operation of the contractor's particular business or enterprise. Presumably sperm banks would fall withing this category.
The fourth section covers sex-based discrimination in compensation and provides illustrative examples of unlawful conduct.
The fifth section deals with discrimination on the basis of pregnancy, childbirth, and related medical conditions. This section also discusses application of these principles to the provision of workplace accommodations and leave.
The sixth section sets out the general principle that sex discrimination in the provision of fringe benefits is unlawful, with pertinent examples, and clarifies that the increased cost of providing a fringe benefit to members of one sex is not a defense to a contractor's failure to provide benefits equally to members of both sexes.
The seventh section covers employment decisions on the basis of sex stereotypes and discusses four types of gender norms that may from the basis of a sex discrimination claim under the Executive Order; dress, appearance, and/or behavior; gender identity, jobs, sectors, or industries within which it is considered appropriate for women or men to work; and care-giving roles.
Finally, the eighth section concerns sexual harassment, including hostile work environments based on sex, articulates the legal standard for sexual harassment based on the EEOC's guidelines and relevant case law and explains that sexual harassment includes harassment based on gender identity; harassment based on pregnancy, childbirth, or related medical conditions; and harassment that is not sexual in nature but that is because of sex or sex-based stereotypes.
To all contractors and subcontractors out there that must implement these new regulations, good luck.
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