Compliance Alert 

Discrimination on the Basis of Sex

OFCCP Notice of Proposed Rule Making (NPRM)

U.S. Department of Labor

Office of Federal Contract Compliance Programs (OFCCP)


On January 30, 2015, the OFCCP published its latest NPRM in the Federal Register.  In the proposed Discrimination on the Basis of Sex Guidelines that would replace the current Sex Discrimination Guidelines, the Agency covers what it sees as a variety of sex-based barriers to equal opportunity and fair pay.

Included in the new Guidelines are the following clarified provisions:

Failure to provide workplace accommodations for pregnancy, childbirth and related medical conditions is unlawful.  Pregnancy accommodations range from extra bathroom breaks to light-duty assignments for women affected by pregnancy, childbirth, and related medical conditions and should be comparable to those provided for other workers similar in their ability/inability to work, such as employees with disabilities or occupational injuries.

Contractors need to keep a record of pregnancy and any other accommodations, recording what each accommodation involved and its outcome.  Accommodation records take on added importance during OFCCP compliance reviews.

Sex discrimination includes:

  • Disparate or adverse treatment on the basis of gender identity and family caregiving responsibilities, including denial or unavailability of adequate restroom facilities for transgender employees.
  • Disparate or adverse treatment on the basis of non-conformance to gender norms and expectations as to appearance, attire, or behavior.
  • Gender-stereotyped assumptions relating to family caregiving responsibilities.
  • Denying leave for childcare to men on the same terms as it is available to women.


Sexual harassment can occur in both quid pro quo and hostile-environment situations.  Contractors should develop and implement procedures that promote inclusiveness, fairness, and safety.

Compensation discrimination, in addition to unequal pay for equal work, includes gender-based job segregation or classification that results in lower pay.  Equal benefits and contributions must be provided without regard to gender for all employees participating in fringe benefit plans.


If you have any questions, or would like to discuss anything in this Compliance Alert, please feel free to contact me or your Maly consultant.

Maly Consulting, LLC – February 2015