On January 30, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rulemaking (NPRM) that would rescind the existing Sex Discrimination Guidelines found at 41 C.F.R. part 60-20 and replace them with regulations that align contractors’ obligations with current law and legal interpretations and more effectively address current workplace practices. Federal contractors subject to Executive Order 11246 would be bound by the proposed regulations.
Referring to the existing Sex Discrimination Guidelines as “outdated and inaccurate,” the OFCCP seeks to eliminate the confusion and costs incurred by federal contractors by having to reconcile anachronistic and, in some instances, erroneous regulations with current statutory and case law.
Many of the proposed changes are technical, combining redundant provisions or moving certain subsections to different subsections for easier reference. One important technical change proposes changing the “Sex Discrimination Guidelines” to regulations regarding “Discrimination on the Basis of Sex.” The OFCCP seeks to make clear that these former “Guidelines” have the force and effect of law.
The proposed changes that seek to eliminate outdated provisions, revise provisions in accord with current law, and include new provisions addressing current problems would:
- Clarify that sex discrimination includes adverse treatment of an employee based on gender-stereotyped assumptions about caretaking responsibilities.
- Clarify that men are entitled to leave for childcare on the same terms as women enjoy.
- Confirm that covered contractors must provide workplace accommodations such as extra bathroom breaks and light-duty assignments to women affected by pregnancy, childbirth, and related medical conditions equivalent to the accommodations that contractors grant to other workers similar in their ability or inability to work, such as disabled workers or workers with occupational injuries.
- Clarify that compensation discrimination in violation of E.O. 11246 can result from job segregation or classification 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.
- Include as forms of sex discrimination both quid pro quo and hostile-environment sexual harassment.
- Clarify that unlawful sex discrimination includes adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior.
- Clarify that unlawful sex discrimination includes discrimination based on an individual’s gender identity.
- Provide best practice guidance encouraging contractors to develop and implement procedures to ensure all employees feel safe and welcomed in the workplace, are treated fairly, and are not harassed because of sex.
As noted, the OFCCP invites comments on these proposed regulations from contractors and other stakeholders through March 31, 2015. Although it did not indicate when it seeks to finalize the proposed rules, the OFCCP stated it will publish compliance assistance materials, host webinars, and conduct workshops for contractors and other stakeholders before the effective date.
We will continue to monitor the rule-making process to publish further guidance when the rules become final. Should you need further guidance, please contact Sarah Herman (701-271-8883), Rebecca Bernhard (612-492-6186), or any other Dorsey attorney.