Sex Discrimination Guidelines for Federal Contractors and Subcontractors Updated for the First Time in 40 Years

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By Michael A. Shadiack & Lauren F. Iannaccone

The gender pay gap has been a topic of conversation for many decades. In 1970, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) promulgated sex discrimination regulations applicable to federal government contractors and subcontractors and federally assisted construction contractors and subcontractors. Since 1970, there has been a dramatic change in women’s participation in the workforce and extensive changes in the law regarding sex-based employment discrimination, including contractor policies and practices governing workers. New regulations set to go into effect this summer aim to provide further protections.

The U.S. Department of Labor (USDOL) has determined that the existing regulations are “extremely outdated and fail to provide accurate or sufficient guidance to contractors regarding their nondiscrimination obligations.” Thus, the USDOL has updated the OFCCP’s sex discrimination regulations to make them consistent with current law and legal principles and to address their application to the contemporary workplace. The new regulations, which will go into effect on August 15, 2016, apply to employers with one or more federal contracts or subcontracts totaling $10,000 or more over a 12-month period. 
Covered federal contractors are required to identify and eliminate any employment practice that discriminates against an applicant or employee because of their sex, including pregnancy, childbirth or related medical conditions; gender identity; transgender status; or sex stereotyping. A federal contractor cannot rely upon these protected characteristics to make any distinction in hiring, firing, promoting, compensating, training or granting privileges to an employee. Further, contractors may not set requirements for jobs or training that are based on an applicant’s or employee’s sex unless the contractor can meet the high bar of demonstrating that such requirements are a bona fide occupational qualification.  The regulations also promote fair pay practices between men and women.

The USDOL offers best practices guidelines for contractors including: (1) avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available; (2) designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral; (3) providing, as part of their broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions; (4) providing appropriate time off and flexible workplace policies for men and women; (5) encouraging men and women equally to engage in caregiving-related activities; (6) fostering a climate in which women are not assumed to be more likely to provide family care than men; and (7) fostering an environment in which all employees feel safe, welcome and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex.

Employers are well-advised to establish policies and procedures to address discrimination and harassment in the workplace, and to conduct workplace harassment prevention training for all personnel.

For more information on how to comply with these new regulations, or assistance with drafting compliant policies and procedures, or applicable training, please contact our Labor and Employment practice group.