Compliance Alert 

OFCCP Announces Final Sex Discrimination Rule

Effective Date: August 15, 2016

 

On June 14, 2016, the Office of Federal Compliance Programs (OFCCP) published the final rule regarding its Sex Discrimination Guidelines in the Federal Register.  Not substantially updated since 1970, the OFCCP intends for these updated guidelines to align with current law.  Federal contractors should review their company policies to ensure compliance with the updated guidelines.

Final Rule Overview:

  • It is unlawful for a contractor to discriminate against any employee or applicant for employment because of sex. The term sex includes:  pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.  Below are some examples of unlawful practices.   60-20.2
    •  Denying transgender employees access to the restrooms, changing rooms, showers, and similar facilities designated for use by the gender with which they identify;
    • Treating employees or applicants adversely because they have received, are receiving, or are planning to receive transition-related medical services designed to facilitate the adoption of a sex or gender other than the individual’s designated sex at birth;
    • Restricting job classifications and maintaining seniority lines or lists on the basis of sex;
    • Recruiting or advertising for certain jobs on the basis of sex;
    • Imposing any differences in terms, conditions, or privileges of retirement on the basis of sex;
    • Imposing height, weight, or strength job requirements that are not job-related and consistent with business necessity; or
    • Relying on recruitment or promotion methods, such as “word-of-mouth” recruitment, that have an adverse impact on women where the contractor cannot establish that they are job-related and consistent with business necessity.
  • The final rule clarifies that contractors may not “pay different compensation to similarly situated employees on the basis of sex.” Compensation includes:  wages, benefits, or any other forms of compensation, as well as denial of access to earning opportunities.  Factors used to determine which employees are similarly situated may include:  tasks performed, skills, effort, responsibility, working conditions, job difficulty, or minimum qualifications.  60-20.4
  • Federal contractors are required to “treat people of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes, including receipt of benefits under fringe-benefit programs, as other persons not so affected, but similar in their ability or inability to work.” Below are some examples of unlawful practices.  60-20.5
    •  Refusing to hire pregnant workers or workers of childbearing capacity;
    • Requiring employees to go on leave because they become pregnant or have a child;
    • Requiring a doctor’s note in order for a pregnant employee to continue or resume working; or
    • Providing health insurance that does not cover  hospitalization and other medical costs for pregnancy, childbirth, or related medical conditions to the same extent that hospitalization and other medical costs are covered for other medical conditions
  • To the extent that a contractor provides family, medical, or other leave, such leave must not be denied or provided differently on the basis of sex. 60-20.5
    •  Contractors must provide job-guaranteed medical leave, including paid sick leave, for employee pregnancies, childbirth, or related medical conditions on the same terms that medical or sick leave is provided for medical conditions that are similar in their effect on employee ability to work; and
    • Contractors must provide job-guaranteed family leave, including any paid leave, for male employees on the same terms that family leave is provided for female employees.
  • Contractors that have employment policies or practices under which insufficient or no medical or family leave is available must ensure that such policies or practices do not have an adverse impact on the basis of sex unless they are shown to be job-related and consistent with business necessity. 60-20.5
  • Contractors may not discriminate on the basis of sex in the provision of fringe benefits, even if the cost of providing a fringe benefit to members of one sex is greater than the cost of providing it to members of the other sex. Denying or limiting access to benefits based on an employee’s gender identity or transgender status constitutes impermissible disparate-treatment discrimination.  Fringe benefits includes:  medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions, and privileges of employment. 60-20.6
  • Employment decisions may not be made on the basis of stereotypes, examples of which include: failure to conform to gender norms and expectations for dress, appearance, and/or behavior; actual or perceived gender identity or transgender status; and expectations for caregiver responsibilities.   60-20.7
  • Harassment because of sex includes: sexual harassment (including sexual harassment based on gender identity); harassment based on pregnancy, childbirth, or related medical conditions; and harassment that is not sexual in nature but that is based on sex or sex-based stereotypes.  60-20.8

Definitions:

  • Compensation includes: wages, benefits, or any other forms of compensation, as well as denial of access to earning opportunities.
  • Fringe benefits includes: medical, hospital, accident, life insurance, and retirement benefits; profit–sharing and bonus plans; leave; and other terms, conditions, and privileges of employment.
  • 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.
  • Sex discrimination includes: discrimination on the basis of sex; pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.
  • A transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth. Throughout this final rule, the term transgender status does not exclude gender identity; and the term gender identity does not exclude transgender status.

If you have any questions, or would like to discuss this Compliance Alert further, please feel free to contact me.

Maly Consulting, LLC – June 2016

 

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