OFCCP Issues Notice of Proposed Rulemaking, Seeking to Update its Sex Discrimination Guidelines

By Martha J. Zackin

On January 28, 2015, the Office of Federal Contract Compliance Programs announced a Notice of Proposed Rulemaking, seeking to update its sex discrimination guidelines applicable to federal contractors and subcontractors covered by Executive Order 11246.

According to the press release published to announce its proposal, OFCCP’s “sex discrimination guidelines are woefully out of date and don’t reflect established law or the reality of modern workplaces.”  The proposed rule would rescind existing guidance, and align OFCCP’s regulations with those regulations applicable to Title VII of the Civil Rights Act of 1964.

In the Fact Sheet OFCCP published with its Notice of Proposed Rulemaking, OFCCP summarized its view on the need for the Proposed Rule by describing certain “discriminatory barriers to equal opportunity and equal pay” that current guidelines fail to address.  Specifically, according to OFCCP, the current guidelines do not address:

  • The full range of discriminatory wage practices that contribute to the wage gap.
  • Reasonable, low- or no-cost workplace accommodations for workers affected by pregnancy, childbirth, or related medical conditions.
  • Sex-based stereotyping related to caregiving responsibilities.

Highlights of the Proposed Rule include:

  • Application of gender-stereotyped assumptions about family caretaking responsibilities constitutes discrimination.
  • Confirm that federal contractors and subcontractors must provide workplace accommodations to women affected by pregnancy and related medical conditions comparable to other disability-related accommodations.
  • Encourage federal contractors and subcontractors to develop and implement procedures that address hostile-environment sex harassment.
  • Clarify that compensation discrimination can result from job segregation or classification on the basis of gender (job steering).
  • Clarify that adverse treatment of employees who fail to conform to gender norms and expectations, and adverse treatment based on gender identity, constitute unlawful sex discrimination.

The proposed rule (a copy of which can be found here) will be published in the Federal Register on January 30, and the public will have until March 31 (60 days) to provide comments.

Assuming that all or most of the changes set forth in Proposed Rule will become part of OFCCP’s regulatory arsenal, it is unclear how OFCCP will incorporate the Rule into its current audit and enforcement protocols.  Stay tuned.