OFCCP Issues Proposed Rule on Sex Discrimination for Federal Contractors

By: Karen L. Piper

On Friday, January 30, 2015, the Office of Federal Contract Compliance (OFCCP) published a notice of proposed rulemaking.  The notice lets federal contractors know that
OFCCP is rescinding its existing sex discrimination guidelines and issuing all new regulations.  The new regulations do not merely clarify OFCCP’s “anachronistic” 1970 rules, as claimed in Labor Secretary Patricia Sheer’s press release.  Entitled, “Discrimination on the Basis of Sex,” the new rules go beyond current case law and adopt the Equal Employment Opportunity Commission’s (EEOC) aggressive interpretation of sex discrimination in three areas: pregnancy accommodation, sex stereotyping and gender identity.

Pregnancy Accommodation.  OFCCP’s proposed rule will require contractors to accommodate a worker’s pregnancy, childbirth and related conditions.  Specifically, the new rules will require federal contractors to provide “alternate job assignment,” “modified
duties,” and light-duty work for employees temporarily unable to perform some job duties due to pregnancy.  A contractor also will be required to provide accommodation to a pregnant employee when it provides accommodation to other employees whose abilities to
perform their job duties are similarly affected by reasons other than pregnancy, or if an accommodation would be required under the Americas With Disabilities Act.

Sex Stereotyping.  The proposed rule will prohibit adverse treatment of an employee because the employee does not conform to “gender norms and expectations” regarding “appearance, attire and behavior.”  This includes adverse treatment of an employee
because the employee does not conform to “sex-role expectations.”  For example, being in a relationship with a person of the same sex would be considered nonconformance.  Nonconformance also includes the manner of dress adopted by transgendered employees if their manner of dress does not match their gender assigned at birth.  Adverse treatment based on employees’ nonconformance would be prohibited.

The proposed rule also covers sex stereotyping based on the proper roles of men and women regarding caregiving.  Contractors could not treat employees differently based on caregiving responsibilities.  The new rule also would require contractors to grant child care leave to male employees on the same terms as apply to female employees.

Gender Identity.  The proposed rule adopts “virtually verbatim” EEOC’s guidelines on sexual harassment.  Thus, they include traditional harassment -– quid pro quo and hostile environment harassment and harassment based on pregnancy.  They also prohibit harassment based on gender identity.

The proposed rule adopts Title VII’s defense to claims of harassment by a supervisor -– a contractor can avoid or reduce liability for some sexually harassing acts committed by supervisors if the contractor can show that it has taken reasonable care to prevent and correct harassment.

Comments on the proposed rule must be submitted by March 31, 2015.  When submitting
comments, use the identifier: RIN number 1250–AA05.  Submit comments by any of the following methods:

Federal eRulemaking Portal: www.regulations.govFollow the instructions for submitting comments.

Fax: (202) 693–1304 (for comments of six pages or less).

Mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C–3325, 200 Constitution Avenue NW., Washington, DC 20210.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of
Bodman PLC, located in its Troy MI office.  She can be reached at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information,
is included in the re-post of the article. February 2015.