OFCCP Updates Sex Discrimination Rule



By:  Karen L. Piper


On January 15, 2015 the OFCCP, Office of Federal Contract Compliance Programs, issued a Notice of Proposed Rulemaking to update its 1970 rules on sex discrimination.  On June 14, 2016, the OFCCP issued its final rule.  The new final rule takes effect on August 15, 2016.

Much of the new rule adopts case law and EEOC Guidance on sex discrimination from the last 45+ years, most notably the rules on sex harassment.  The new rule also adopts the EEOC’s guidance on pregnancy discrimination issued following the U.S. Supreme Court’s decision in Young v UPS (2015).  For example, the new rule requires an employer to accommodate an employee’s limitations caused by pregnancy, childbirth or related conditions (e.g., lactation) if the employer accommodates similar limitations caused by conditions other than pregnancy.

The new rule does not expressly prohibit discrimination on the basis of sexual orientation or gender identity.  The OFCCP’s position is that such discrimination was expressly prohibited by executive order in July 2014.  The new rule does expressly prohibit discrimination on the basis of sex stereotypes such as stereotypes about how males and females are expected to look, speak or act.  Specifically, the new rule prohibits employment decisions based on an employee’s failure to conform to “gender norms and expectations” for dress, appearance and/or behavior, along with “actual or perceived gender identity, transgender status” and caregiver responsibilities.

In an appendix, the OFCCP provides “best practices” which are not mandatory, but recommended.  These include:

1. Avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available;

2. Designing single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral;

3. Providing, as part of their broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions;

4. Providing appropriate time off and flexible workplace policies for men and women;

5. Encouraging men and women equally to engage in caregiving-related activities;

6. Fostering a climate in which women are not assumed to be more likely to provide family care than men; and

7. Fostering an environment in which all employees feel safe, welcome, and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex.  Examples of such procedures include:

(a) Communicating to all personnel that harassing conduct will not be tolerated;

(b) Providing anti-harassment training to all personnel; and

(c) Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.

The new rule does not apply to all employers, only to federal contractors.  Questions about the new rule or federal contractor status should be referred to experienced employment counsel, such as the author.

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 Bodman PLC, which represents employers, only, in Workplace Law.  Ms. Piper can be reached at Bodman’s Troy office 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 are included in the re-post of the article. June 2016.