The Office of Federal Contract Compliance Programs (OFCCP) Publishes Final Rule Prohibiting Discrimination by Federal Government

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On December 9, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) published a Final Rule implementing President Obama’s Executive Order 13672, which incorporates “sexual orientation” and “gender identity” as protected classes and bars related employment discrimination by federal government contractors.  The Final Rule becomes effective on April 8, 2015 (120 days after publication in the Federal Register).  The Rule was initially expected to be published in the Federal Register on December 3, 2014, but a notice soliciting comments on the Rule pursuant to the Paperwork Reduction Act was issued instead, providing for a 60 day comment period. Despite this comment period, given that the OFCCP has already issued FAQs pertaining to the Rule, no substantive changes are expected.

The new Rule implements Executive Order 13672 by amending the implementing regulations under Executive Order 11246. The Rule will apply to contractors or subcontractors with more than $10,000 in federal government business and covers contracts entered into or modified on or after the effective date. The regulations do not define the terms “sexual orientation” or “gender identity.” As set forth in the OFCCP’s FAQs, the OFCCP utilizes the same definitions used by the Equal Employment Opportunity Commission and case law developed under Title VII of the Civil Rights Act.

What Does the New Rule Require?

Covered contractors and subcontractors must revise the Equal Opportunity Clause contained in new and modified contracts, subcontracts and purchase orders, and update the equal opportunity language in their Equal Employment Opportunity (“EEO”) policy statements, training materials, handbooks, and job solicitations to include “sexual orientation” and “gender identity,” or otherwise replace the phrase “sex, or national origin” with the phrase “sex, sexual orientation, gender identity, or national origin” throughout.
Covered contractors and subcontractors must post revised “EEO and the Law” posters that include sexual orientation and gender identity as protected classes and otherwise revise all posted EEO notices to include sexual orientation and gender identity.  A revised “EEO and the Law” poster has not yet been released by the OFCCP or EEOC.
Overall, covered contractors and subcontractors must ensure that applicants and employees are not discriminated against on the basis of their sexual orientation or gender identity.
What is Not Required by the New Rule?

The Final Rule does not require covered contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees.
The Final Rule does not contain any affirmative action program requirements, and thus does not change any of the written affirmative action plan requirements contained in 41 C.F.R. Part 60-2.
The Final Rule does not require covered contractors to establish placement goals for employing persons on the basis of sexual orientation or gender identity.
For more information on the new Rule and how it may apply to your business, please contact Connell Foley’s labor and employment law attorneys.