Proposed New Sex Discrimination Guidelines

Date: 3/25/15
Title: Proposed New Sex Discrimination Guidelines

 

On January 30, 2015, OFCCP published a Notice of Proposed Rulemaking (NPRM) to revise and replace its Sex Discrimination Guidelines. This NPRM would rescind OFCCP’s outdated guidelines (1970) on federal contractors’ obligations not to discriminate on the basis of sex under Executive Order 11246, as amended, and replace them with updated regulations.

The OFCCP proposed a broad scope sex discrimination regulation that impacts the following areas:

Compensation discrimination – prohibits paying different compensation to similarly situated employees on the basis of sex, and “steering” on the basis of sex.  OFCCP has indicated that the definition of “similarly situated” is case specific.   Those factors include “tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, and minimum qualifications.” The NPRM goes on to provide that employees may be similarly situated “where they are comparable on some of these factors, even if they are not similar on others.”

OFCCP is deleting all reference to the Equal Pay Act in the proposed regulation and aligning with Title VII.  This alignment will allow OFCCP flexibility in comparing jobs and determining similarly situated workers.  The NPRM also defines compensation as all monetary remunerations an employee may receive, from base pay to awards and stock options.  OFCCP provides an example which makes it clear that they view any personnel decision; such as work assignments, opportunity for training, and advancement, as reviewable to evaluate compensation discrimination.

OFCCP indicates that contractors must maintain data, conduct internal reviews, and monitor pay practices for potential discrimination.  However, there is no mention of the steps that contractors should be taking to ensure their internal reviews meet with OFCCP’s expectation of compliance.

Pregnancy, Childbirth and Related Medical Conditions

The proposed regulations states that contractors “must treat people with childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes…as other persons not so affected, but similar in their ability or inability to work.”

In other words, contractors would not be allowed to deny a pregnant employee an accommodation when the accommodation is provided to other employees whose abilities or inabilities perform their duties are similarly affected. 

 This aligns with the EEOC’s guidance that contractors must provide light duty to all pregnant employees regardless of whether an impairment substantially limits a major life activity.  The Supreme Court ruled on March 25th in favor of this requirement in Young v. UPS.  In addition, there is a prohibition on contractors imposing a shorter maximum amount of pregnancy leave as compared to the maximum time off allowed for other types of medical or short-term disability leave.

LGBT

The regulations raise a new requirement that contractors allow transgendered individuals to use the restroom of his or her choice.

Harassment and Hostile Work Environment

This regulations state that prohibited harassment includes that based on gender identity, pregnancy, childbirth and related medical conditions, and non-sexual harassment which is “because of sex,” such as harassment based on transgendered status. The Rule also suggests but does not mandate anti-harassment best practices for mitigating harassment liability.  These practices include communicating broadly that harassment will not be tolerated, providing anti-harassment training, and implementing procedures for promptly handling and resolving complaints of harassment and intimidation based on sex.

The NPRM provides many examples of the types of activities that will be considered sex discrimination.  Some include:

  • Making distinctions between married and unmarried persons that are not applied equally to both sexes.
  • Denying women with children an employment opportunity that is available to men.
  • Minimum height and/or weight requirements that are not necessary to the performance of the job.
  • Conditioning entry into an apprenticeship program based on a scored test that has not been validated according to the Uniform Guidelines.
  • Limiting a pregnant employee's job duties based solely on the fact that she is pregnant or requiring a doctor's note in order to continue to work when such notes are not required for similarly situated employees.
  • Making employment decisions on the basis of sex-based stereotypes such as how males or females are "expected to look, speak, or act." 

 

Disclaimer: The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the U.S. Department of Labor. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.