In June, the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor issued a final rule revising prohibitions against sex discrimination (including pregnancy discrimination and sexual harassment) in guidelines for federal contractors. Though the law has dramatically developed over the years, these guidelines have largely remained unchanged since 1970 when Richard Nixon was in the second year of his first term as President.
The new guidelines expand protection from sex discrimination for employees of federal contractors and subcontractors. This update brings standards in line with federal antidiscrimination laws, reported Corporate Counsel. These new guidelines may impact up to 500,000 federal contractors employing about 65 million people.
New Rules Reflect Current Law and Push Some Boundaries
The guidelines went into effect on August 15. They update Executive Order 11246, which spells out the rights of employees in protected classes (including females and those who are pregnant) working for federal contractors. The administration took the opportunity to include protections beyond those explicitly stated in federal statutes as interpreted by the courts, including discrimination based on sex stereotypes and gender identity. The new rules prohibit gender-based discrimination in the following ways:
- They expanded the definition of sex discrimination. The term “sex” now includes “pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.”
- They explicitly prohibit sexual harassment, including creating a hostile work environment. Prior guidelines did not address sexual harassment.
- They forbid pay discrimination. The rules prohibit pay discrimination among similarly situated employees as well as the denial of better earning opportunities, like granting or denying overtime, training, fringe benefits, or higher-paying positions because of a worker’s sex.
- They protect transgender employees. Transgender employees must be allowed to use restrooms, changing rooms, showers, or similar facilities designated for the gender they identify with. Employers cannot treat employees or applicants differently because they received, are receiving, or plan to receive sex-transition medical services.
- They provide workplace protections for all caregivers. If a covered employer gives job-guaranteed family leave to female employees, it must also provide such leave to male employees on the same terms.
- They prohibit employment decisions based on sex-based stereotypes. Covered employers cannot make employment decisions based on sex-based stereotypes about how males and females are expected to look, speak, or act.
Other than these issues, much of the guidelines are in line with current law and modern human resources practices, so employers should not have difficulty adjusting to them.
Disparate Impact
The federal government can also review contractor employment practices if they have a disparate impact on women. A disparate impact occurs when rules appear neutral but, when applied, result in a disproportionately negative impact on a particular group. The OFCCP can investigate claims of “steering,” or encouraging a female candidate to seek a job that the company claims would be better for her based on management’s unconscious biases or stereotypes about female employees.
Best Practices
Though they do not have the force of law, the new guidelines include a list of “best practices for contractors.” They include the following:
- Avoid using gender-specific job titles.
- Designate single-user restrooms as well as sex-neutral facilities.
- Provide broad accommodation policies that include light or modified work or other reasonable accommodations for workers unable to perform some of their job duties due to pregnancy, childbirth, or related medical conditions.
New Rules Concerning Employees Who Are or Who May Become Pregnant
The updated guidelines also require contractors to treat women of childbearing ability and those affected by pregnancy, childbirth, or related medical conditions the same for all employment purposes, including fringe benefits, as male employees or female employees who are not pregnant or who have children, and who are similar in their ability or inability to work.
That means the rules prohibit denying alternate job assignments, modified duties, or other reasonable accommodations to workers only because they cannot fulfill their job duties due to pregnancy, childbirth, or related medical conditions. Denying these accommodations would also be illegal in certain other circumstances:
- the employer is required, by law or its own policy, to provide such accommodations to other employees who have similar limitations;
- the denial of accommodations imposes a significant burden on employees affected by pregnancy, childbirth, or related medical conditions; and
- the burden on the employee is not justified by the contractor’s claimed justifications for denying the accommodations.
If a contractor has a policy or practice of denying accommodations, it must make sure these policies or practices do not have a negative impact on employees due to their sex unless they are shown to be job-related and consistent with business necessity.
Summing It Up
Female employees of federal contractors and subcontractors should be aware of two things:
- Your protections include all protections included in federal law, in addition to some protections that go beyond current statutes, including the requirement to accommodate pregnant workers.
- Federal law for other employees currently provides that pregnant employees need not be accommodated unless they are suffering a disabling condition or their employer granted the accommodation sought to nonpregnant employees with similar limitations.
If you work for a federal contractor or subcontractor and feel that you have been discriminated against because of your sex or pregnancy, contact our office so we can talk about your situation, these new guidelines, the current law, and ways to protect your legal rights and interests.
