On July 21, 2014, President Obama signed Executive Order 13672, entitled “Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity,” adding sexual orientation and gender identity to the list of prohibited forms of employment discrimination. This Executive Order amended prior Executive Orders 11246 (President Johnson, 1965) and 11478 (President Nixon, 1969), which prohibited discrimination on the basis of race, color, religion, sex, or national origin.
On April 10, 2015, the U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued an interim rule amending the Federal Acquisition Regulation (FAR) to implement the Executive Order 13672. The interim rule became effective the same day. The interim rule also implements the final rule issued by the Office of Federal Contract Compliance Programs (OFCCP) on December 9, 2014.
The interim rule adopts the definitions of gender identity and sexual orientation issued by OFCCP:
The term “gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.
“Sexual orientation” refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.
What does this mean for government contractors?
As with the other anti-discrimination policies, government contractors may expect that OFCCP audits will address whether the contractor is complying with this new rule. Contractors will also have to adjust their employment advertising to include the two new classes and post notices at their worksites about this policy. Finally, contractors should train their employees who make hiring decisions that they cannot now discriminate on the basis of sexual orientation and gender identity.
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