Times are a changing—especially for government contractors and sex discrimination
Bob Dylan’s 1964 hit song “The Times They Are a-Changin’” is called to mind upon reading the OFCCP’s final rule about sex discrimination. (The OFCCP is the Office of Federal Contract Compliance Programs, the agency within the U.S. Department of Labor that enforces various anti-discrimination policies imposed on government contractors.)
The new final rule has many changes from the previous version.
The current regulations are codified at 41 C.F.R. 60-20 (title 41, part 60-20 of the Code of Federal Regulations) and mostly date from 1978. The new regulations (also to be codified at 41 C.F.R. §§60-20) were announced on June 14 and will go into effect on August 14, 2016. Almost nothing in the old rules resembles the new rules. Even the name has been changed from “Sex Discrimination Guidelines” to “Discrimination on the Basis of Sex.” The new rules even have a best-practices appendix.
Highlights of the new rules
1. They address discrimination based on gender identity, transgender status, and sex stereotyping, none of which are mentioned in the old regulations. In fact, to remediate transgender discrimination, the best-practices appendix suggests the use of single-user bathrooms.
3. A large number of the new regulations address discrimination against transgendered persons and denying them the use of restrooms, changing rooms, showers, and similar facilities, especially when such persons are in transition from one sex to another.
3. They address disparate-impact discrimination. The old rules appear more concerned about intentional or systemic discrimination that requires direct proof and discriminatory intent. However, disparate impact may be just as significant in its effects on women and sexual minorities. Typically, disparate impact results from unintentional employment practices and is shown through the use of statistics.
4. They address hostile work environments as a form of discrimination. Rather than being initiated by the employer, hostile work environments are more often the result of attitudes of other workers toward those they harass. Federal contractors have a clear affirmative duty to prevent such environments.
5. Much more space is devoted to discriminatory compensation practices. In addition to the obvious discriminatory practice of paying men and women different rates, the compensation regulations address discrimination in development opportunities that can lead to higher paying jobs and compensation discrimination that leads to a disparate impact.
6. Much more space is devoted to pregnancy discrimination. The new regulations even identify medical conditions of pregnant women that can lead to potential discrimination: pregnancy-induced high blood pressure, back pain, placenta previa, and gestational diabetes, among others. The regulations specifically mention light duty as a way of addressing these conditions.
7. Discrimination against heterosexual men is addressed. For example, women are thought of as caretakers, but the new regulation points out that men can be discriminated against if they are not allowed to take care of a newborn child or allowed to avoid weekend overtime so that they can take care of an elderly parent.
A surprising omission
The new regulations never use the expression “sexual orientation.” This doesn’t mean, however, that federal government contractors are free to discriminate on the basis of sexual orientation. Rather the OFCCP noted that Executive Order 11246 already prohibits such discrimination. Furthermore, much of what constitutes sexual-orientation discrimination is based on same-sex harassment and sex stereotyping, both of which are clearly addressed by the new regulations.
Benefits to government contractors
At first glance, the new regulations may appear to be more complicated and extensive and, as a result, burdensome. But there is nothing really new in the regulations that isn’t currently the law with regard to federal government contractors; the new regulations merely describe the current state of the law—and therefore better alert federal government contractors—of the legal issues involved with sex discrimination.
In some cases, what is now sex discrimination doesn’t appear in the old regulations because the laws defining all the aspects of that form of discrimination had not even been passed in 1978, when these regulations were originally promulgated. Signed into law after 1978 are significant statutory changes to the law of sex discrimination:
- Age Discrimination in Employment Act (1986). (Before this law was passed, many companies required women to retire at a younger age than men.)
- Civil Rights Act (1991).
- Family and Medical Leave Act (1993).
- Lilly Ledbetter Fair Pay Act (2009).
Furthermore, the new regulations do a better job of warning federal government contractors about various legal pitfalls of sex discrimination, such as hostile work environments and disparate-impact discrimination. These pitfalls arise from court decisions interpreting these various federal laws.
In short, the new regulations are required reading for government contractors, their managers and supervisors, and their human resources personnel to stay up to date with the changing law of sex discrimination. And the best-practices appendix should help federal government contractors make their organizations compliant.
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