Federal Contractors: Comment Period for OFCCP's Updated Gender Discrimination Rules
EXECUTIVE SUMMARY
Purpose of the Regulatory Action
The U.S. Department of Labor’s (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) is proposing regulations that would set forth requirements that covered Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors must meet in fulfilling their obligations under Executive Order 11246, as amended, to ensure nondiscrimination in employment on the basis of sex and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their sex. The OFCCP is charged with enforcing Executive Order 11246, as amended (“Executive Order”), which prohibits covered Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors (“contractors”) from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Executive Order also requires contractors to ensure equal employment opportunity for employees and applicants for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to the enumerated bases. OFCCP interprets the nondiscrimination provisions of the Executive Order consistent with the principles of title VII of the Civil Rights Act of 1964 (“title VII”), which is enforced, in large part, by the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for coordinating the Federal government’s enforcement of all Federal statutes, Executive orders, regulations, and policies requiring equal employment opportunity. The Sex Discrimination Guidelines at 41 CFR part 60-20 (“Guidelines”) set forth interpretations and guidelines for implementing the Executive Order’s nondiscrimination and affirmative action requirements related to sex. These Guidelines have not been substantively updated since they were first promulgated in 1970, and fail to conform to or reflect current title VII jurisprudence or to address the needs and realities of the modern workplace. Since 1970, there have been historic changes to sex discrimination law, in both statutory and case law, and to contractor policies and practices as a result of the nature and extent of women’s participation in the labor force. Because the existing guidelines are so outdated, they may cause some Federal contractors to incur unnecessary legal and/or management expenses to resolve confusion about possibly conflicting obligations; updating the regulations will reduce the costs that such contractors may now incur. It is long overdue for part 60-20 to be updated. Consequently, OFCCP proposes in this NPRM to revise the Sex Discrimination Guidelines to align the sex discrimination standards under Executive Order 11246 with developments and interpretations of existing title VII principles and OFCCP’s corresponding interpretation of the Executive Order.
***
Major Proposed Revisions
For the reasons stated above, OFCCP proposes to revise the Guidelines at part 60- 20 to create new sex discrimination regulations that set forth Federal contractors’ obligations under Executive Order 11246, in accordance with existing law and policy. This proposal updates the Guidelines to address current issues in the workplace, and clarifies existing title VII law as it relates to sex discrimination, including developments and interpretations of existing law by the EEOC and OFCCP’s corresponding interpretation of the Executive Order. It is intended to state clearly the existing principles applicable to a contractor’s obligation to refrain from discrimination in its employment policies and practices because of sex and to ensure equal employment opportunity on the basis of sex. The proposal removes a number of outdated provisions in the current Guidelines; restates, reorganizes, and clarifies others; and adds new ones that address legal developments that have arisen since 1970. Where current provisions of the Guidelines are uncontradicted by the proposed part 60-20, but are omitted because they are, as a practical matter, outdated, their omission does not mean that they are not still good law. For example, paragraph 60-20.2(b) currently states that “[a]dvertisement in newspapers and other media for employment must not express a sex preference unless sex is a bona fide occupational qualification for the job.” This is a correct statement of the law, but does not have much practical effect, because few job advertisements today express a sex preference. OFCCP seeks comments on whether any of the provisions proposed for deletion continue to be useful. The proposed amendments to part 60-20 offered herein do not in any way alter a contractor’s obligations under all other OFCCP regulations. In particular, a contractor’s obligations to ensure equal employment opportunity and to take affirmative action, as set forth in parts 60-1, 60-2, 60-3, and 60-4 of this title, remain in effect. Similarly, inclusion of a provision in part 60-20 does not in any way alter a contractor’s obligations to ensure nondiscrimination on the basis of race, color, religion, national origin, sexual orientation, and gender identity, under the Executive Order; on the basis of disability under Section 503 of the Rehabilitation Act of 1973 (“Section 503”); or on the basis of protected veteran status under 38 U.S.C. 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act.