Workplace Sex Discrimination Rule Fix

Barran Liebman
Oregon Law Firm

By Josephine Ko

The Office of Federal Contract Compliance Programs (“OFCCP”) has published its Final Rule modernizing the guidelines that prohibit sex discrimination in employment for covered federal contractors. This follows on the heels of Executive Order 11246, which broadly proscribes sex-based barriers in employment and compensation. Although sex discrimination was already prohibited, the guidelines had not been updated since 1970 despite the evolution of employment laws, the national workforce, and society over the last half century.

What are examples of “sexual harassment” and “sex discrimination”? The Final Rule prohibits sexual harassment and discrimination on the basis of sex, pregnancy, childbirth, or related medical conditions, gender identity, transgender status, and sex stereotyping. The Rule provides several examples including but not limited to:

– unwelcome sexual advances, requests for sexual favors, or offensive remarks about a person’s sex
– denying jobs to applicants because they do not conform to gender stereotypes
– denying transgender employees access to restrooms or other facilities designated for use by the gender with which they identify
– restricting job classifications and maintaining seniority lists on the basis of sex
– refusing to hire job applicants who are pregnant or who could become pregnant
– requiring employees to go on leave due to pregnancy or childbirth, or
– other employment practices that are not job-related or consistent with business necessity which have an adverse impact on the basis of sex.

What about pregnancy, childbirth, and related medical conditions? Covered employers must provide protected family, medical, or other leave for an employee’s pregnancy, childbirth, or related medical condition on the same terms as they would provide leave for another employee with a medical condition that has a similar effect on that employees’ ability to work. Also, protected family leave, employer-provided benefits, workplace accommodations, and job opportunities must be provided to male and female employees on the same terms and conditions without stereotypical assumptions about who does or does not bear childrearing responsibilities. The Final Rule makes clear that denying accommodations to employees affected by pregnancy, childbirth, or related medical conditions can constitute unlawful disparate treatment under certain circumstances.

What about compensation? Covered employers may not pay workers differently on the basis of sex. This means that all employees must be given equal opportunities for overtime work, training, better pay, promotion, and fringe benefits (e.g., medical insurance, retirement benefits, profit-sharing or bonus plans, etc.).

Are you a covered employer? The Final Rule generally applies to federal contractors who: (1) hold a single federal contract or subcontract in excess of $10,000, including federally-assisted construction contracts or subcontracts; (2) hold a total combination of federal contracts or subcontracts in excess of $10,000 in any 12-month period; or (3) hold government bills of lading, serve as a federal funds depository, or act as an issuing and paying agency for U.S. savings bonds and notes. This does not apply to federal grant recipients.

What should covered employers do? The Final Rule goes into effect on August 15, 2016. However, since the rule generally aligns with current law under Title VII as interpreted by courts and the EEOC, most contractors are already subject to many of its provisions. Non-federal contractors would also be smart to review the rule as it includes many examples of prohibited discrimination and offers best practices for the prevention of discrimination. This is a good time to consult with employment and benefits attorneys about compliance audits and ways to prevent discrimination.

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