E.O. 13672 (Sexual Orientation and Gender Identity) is Now Effective

Date: 4/10/15
Title: E.O. 13672 (Sexual Orientation and Gender Identity) is Now Effective

E.O. 13672 went into effect on April 8, 2015 and amends E.O. 11246 to cover sexual orientation and gender identity. The executive order applies to all government contracts or subcontracts entered into or modified after the effective date. As identified in our previous compliance update, the following modifications are now required.

Add “sexual orientation” and “gender identity” to the list of protected categories in the following language:

  • EEO-AA policy statement
  • EOE clause in contracts
  • EEO tagline – if you identify all the bases in a detailed tagline, than you must include sexual orientation and gender identity.  OFCCP will be issuing a FAQ shortly.
  • EEO is the Law poster – Until a new EEO is the Law poster is finalized, OFCCP is preparing a supplement, which will be posted on their website.

Filing a Complaint based on sexual orientation or gender identity

All complaints will be simultaneously dual filed with OFCCP and EEOC under E.O. 11246 and Title VII of the Civil Rights Act of 1964.  Although sexual orientation and gender identity is not specified under Title VII, EEOC’s Strategic Enforcement Plan adopted in December 2012, lists "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions.” 

OFCCP will accept individual and class complaints along with complaints filed during routine compliance reviews.  All complaints must be filed within 180 days of the alleged act. 

Process for filing a complaint

  •  Individual can file themselves
  • An organization can file on an individual’s behalf
  • A person can file on behalf of someone else.

OFCCP’s Investigation Process:  (Note: OFCCP made it very clear that all of the timeframes identified below could be extended.)

OFCCP may handle the complaint themselves or conduct a joint investigation with EEOC.  OFCCP will consult with the Solicitor of Labor to determine the course of the investigation. 

  • OFCCP has 10 days to complete the initial review of the complaint.  The contractor may be contacted during this period.
  • Case is assigned to a compliance officer (CO) who will be the fact-finder.
  • Goal is to complete the investigation within 60 days.

Outcomes

If a violation is found:

  • Negotiate remedy and compel compliance
  • If no settlement, solicitor may bring case to court.
  • No private action under E.O. 11246; however, since the complaint is dual filled, a notice of a right to sue will be sent with the closure letter.  A case can only be filed in court under Title VII.

Remedies

Agency

Remedies

OFCCP – E.O. 11246

·         Make-whole relief including back pay with interest, reinstatement, and pay adjustments. 

·         Debarment or cancellation of existing contracts, future contracts or progress payments under existing contracts.  

·         No civil fines or criminal penalties.

·         No private right of action.

EEOC – Title VII

·         Make-whole relief including back pay with interest, reinstatement, pay adjustments, front pay, attorney’s fees, expert witness fees, and court costs.

·         Compensatory and punitive damages in cases of intentional discrimination.

·         Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (e.g. costs associated with a job search or medical expenses) and compensation for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life). 

·         Punitive damages may be awarded to punish an employer who has committed a malicious or reckless act of discrimination.

·         Private right of action.

For OFCCP Resources and FAQs

 


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.