Insights

On June 15, the U.S. Department of Labor (DOL) issued a final rule revising the Office of Federal Contract Compliance Programs' (OFCCP) long-standing sex discrimination regulations. According to the DOL, the rule "substantially revises the existing sex discrimination guidelines, which have not been substantively updated since 1970, to align them with current law and legal principles and address their application to contemporary workplace practices and issues."

The final rule is effective August 15, 2016, and applies to employers with federal contracts or subcontracts totaling $10,000 or more over a 12-month period, unless those employers are otherwise exempt. The final rule implements Executive Order 11246, which after amendments issued by President Obama, prohibits sex discrimination, including on the basis of sexual orientation and gender identity. The final rule implementing Executive Order 11246 includes explicit protections against pay discrimination, pregnancy discrimination, hostile work environments, and gender identity and transgender status discrimination. For example, the final rule provides:

• Sex-based compensation discrimination violates Executive Order 11246 and the final rule "any time [a contractor] pays wages, benefits, or other compensation that is the result in whole or in part of the application of any discriminatory compensation decision or other practice";
• Prohibitions on discrimination on the basis of pregnancy, childbirth, and related medical conditions, in accordance with the Pregnancy Discrimination Act of 1978 and interpretive case law;
• Requirements that workers be allowed to use the bathroom designated for the gender with which they identify; and
• Requirements that contractors provide "job-guaranteed medical leave, including paid sick leave, for employees' pregnancy, childbirth, or related medical conditions on the same terms…provided for other medical conditions" and "job-guaranteed family leave, including any paid leave, to male employees on the same terms that they provide such family leave to female employees."

In addition to the requirements it imposes on federal contractors, the final rule also provides a number of recommended best practices that "contribute to the establishment and maintenance of workplaces that are free of unlawful sex discrimination." Among these recommended practices, the DOL suggests:

• Avoiding the use of gender-specific job titles such as "foreman" or "lineman" where gender-neutral alternatives are available;
• Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral; and
• Providing 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.

The final rule is expansive and provides numerous examples useful to employers. Accordingly, employers with federal contracts subject to this rule should read the guidance and ensure that their policies and training are updated accordingly.