OFCCP Updates Sex Discrimination Rule

From the Department of Labor.

On June 14, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced publication of a Final Rule in the Federal Register that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This Final Rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The Final Rule deals with a variety of sex–based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, failure to provide workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination.
The Final Rule becomes effective on August 15, 2016.

Read the final rule.

OFCCP Releases Final Rule on LGBT Non-Discrimination


Originally posted December 4, 2014 by Cara Crotty on ThinkHR.com

The Office of Federal Contract Compliance Programs announced yesterday that it is issuing a Final Rule implementing President Obama’s Executive Order that prohibits federal contractors from discriminating on the bases of sexual orientation and gender identity.

This Final Rule will be effective 120 days after publication in the Federal Register (which has not yet occurred) and will apply to federal contracts entered into or modified on or after that date.

What does the Final Rule change?

The EO Clause has been changed to include “sexual orientation” and “gender identity.” However, those contractors that incorporate the EO clause by reference will not need to physically alter their subcontracts or purchase orders.

Contractors must notify applicants and employees of their non-discrimination policy by posting the “EEO is the Law” poster. Presumably, the government will be updating this poster to include these two new categories.

Contractors are also obligated to expressly state in job advertisements that all qualified candidates will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. The Final Rule provides that employers can satisfy this requirement by including that verbiage or simply indicating that the company is an “equal opportunity employer.”

Although employees hired outside of the United States are not covered by the regulations, if a contractor is not able to obtain a visa of entry for an employee or potential employee to a country in which it is doing business, the regulations require the contractor to notify both the OFCCP and the U.S. Department of State if the contractor believes that the refusal of the visa is because of the individual’s protected characteristic. This requirement now applies to sexual orientation and gender identity status.

The section of the regulations regarding Placement Goals in AAPs has also been updated. Contractors are prohibited from extending preferences on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin due to specific placement goals.

What is not affected by the Final Rule?

The Final Rule does not change contractors’ reporting and information collection requirements, so contractors are not required to survey or report on the number of LGBT applicants or employees. The required components of Affirmative Action Plans are also not affected.

What should contractors do to comply?

The Final Rule simply adds sexual orientation and gender identity to the sections of the regulation where the other protected categories are listed, so the impact on federal contractors is limited. However, contractors should begin the process of determining whether and when they need to do the following:

  • Update the EO Clause in subcontracts and purchase orders;
  • Amend the EEO and AA policy to include sexual orientation and gender identity;
  • Obtain new “EEO is the Law” posters;
  • Modify their EEO tagline on job solicitations; and
  • Train appropriate personnel on the new protections.

In addition, the OFCCP has issued FAQs regarding its interpretation of the Final Rule. These will probably be updated periodically as contractors pose questions to the OFCCP.

Why no proposed rule?

You may be wondering whether you missed the Notice of Proposed Rulemaking on this issue. Actually, the OFCCP bypassed the notice and comment period, stating that the “Executive Order was very clear about the steps the Department of Labor was required to take, and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rules without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority, and does not have any discretion in doing so.” (The OFCCP must not have seen all the questions I had after reading the Executive Order.)


Senate approves workplace gay rights bill

Originally posted November 7, 2013 by Susan Davis on www.usatoday.com

The U.S. Senate approved, 64-32, a historic gay rights bill to ban workplace discrimination based on sexual preference or gender identity.

"It is time for Congress to pass a federal law that ensures all our citizens, regardless of where they live, can go to work unafraid to be who they are," said Senate Majority Leader Harry Reid, D-Nev.

Fifty-four Democrats and 10 Republicans supported the legislation.

Religious organizations and the U.S. military are exempt under the Employer Non-Discrimination Act, a stipulation that helped win GOP support. The bill applies to work sites with more than 15 people.

ENDA has been introduced in nearly every Congress since 1994. It came one vote shy of passage in 1996, but had not been given a full Senate vote since.

Existing federal laws ban employer discrimination based on race, color, sex, nationality, religion, age and disability.

The legislation is hitting a wall in the GOP-controlled House, where Speaker John Boehner's office said he does not plan to allow a vote. Boehner opposes the legislation because he says it will cost small-business jobs and increasing "frivolous" litigation.

In a statement, President Obama urged House leaders to bring it up for a vote. "One party in one house of Congress should not stand in the way of millions of Americans who want to go to work each day and simply be judged by the job they do," he said.

Opponents contend that the legislation is unnecessary because most private businesses, including the vast majority of Fortune 500 companies, have self-adopted policies that prohibit discrimination based on sexual orientation.

Twenty-two states and Washington, D.C., have already enacted laws prohibiting such discrimination.

A June 2013 Pew Research survey of lesbian, gay, bisexual and transgender adults reported 21% who said they have been treated unfairly at work because of their orientation.

Supreme Court rulings raise standards for proving discrimination at work

Originally posted by Judy Greenwald on https://www.businessinsurance.com

Employers scored two victories before the U.S. Supreme Court last week that legal experts say will enable them to more effectively defend themselves in employment lawsuits.

In its 5-4 ruling in Maetta Vance v. Ball State University et al., the high court narrowed the definition of supervisor for purposes of discrimination cases.

And plaintiffs will find it more difficult to prove retaliation after the high court's 5-4 ruling inUniversity of Texas Southwestern Medical Center v. Nassar.

In Vance, the court held that an employee is a supervisor for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she has the power to make “tangible” employment actions against the victim, such as hiring or firing. The court said even if there is no tangible employment action, the employer may escape liability by establishing it exercised reasonable care to prevent and correct any harassing behavior.

The court said in cases when co-workers are inflicting psychological injury, employees may still prevail by showing the employer was negligent in permitting the harassment to occur. Its majority ruling criticized the Equal Employment Opportunity Commission's broader definition of supervisor as a “study in ambiguity.”

The ruling, which affirmed a decision by the 7th U.S. Circuit Court of Appeals in Chicago, said, “Under the definition of "supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.

“The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply.”

The case involved an African-American food worker's allegations that she was the victim of racially based harassment by a white female whom she identified as a supervisor.

Bernard J. Bobber, a partner with Foley & Lardner L.L.P. in Milwaukee, who was not involved in the case, said the court accepted the 7th Circuit's definition of a supervisor and rejected the EEOC's definition, which employers do not like because the agency's definition “leaves lots of room for argument” about who is a supervisor.

“It's a good decision for employers” and “should provide some bright rules in those jurisdictions that aren't already required to follow that particular test,” said Steve A. Miller, a partner with Fisher & Phillips L.L.P. in Chicago, who was not involved in the case.

In its 5-4 ruling in Nassar, which involved a charge of discrimination and retaliation by a physician of Middle Eastern origin, the court held that a defendant is not liable for an action if he would have taken the same action anyway for other, nondiscriminatory reasons. It rejected the standard that requires a plaintiff to prove only that discrimination was a motivating factor for an adverse employment action.

Lessening the causation rules in cases of wrongful employer conduct prohibited by Title VII of the Civil Rights Act of 1964 could “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies and courts to combat workplace harassment,” said the majority opinion, reversing a decision by a panel of the 5th U.S. Circuit Court of Appeals in New Orleans.

“This case is a true watershed development in that it presents a dramatic shift in the court's approach to retaliation claims,” said Gregory Keating, a shareholder with Littler Mendelson P.C. in Boston.

The court's ruling has “adopted a very strict test” for establishing causation, unlike several other cases decided by the court in recent years that made retaliation easier to establish, said Mr. Keating, who was not involved in the case.

Russell Cawyer, a partner with Kelly Hart & Hallman L.L.P. in Fort Worth, Texas, said, while the ruling will not reduce the number of retaliation charges filed by plaintiff attorneys, defendants will be more successful in having these cases dismissed.

Costly Suits

Source: United Benefit Advisors
Employers dished out more than $400 million to settle discrimination cases with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2012. In the private sector, retaliation was the most common charge, followed by racial and sexual discrimination, respectively, the EEOC report found. The number of private-sector cases in 2012 reached 99,412, a slight dip from the previous year.