On December 9, 2014, the Office of Federal Contract Compliance Programs (OFCCP) published the final rule, implementing Executive Order (EO) 13672, which prohibits discrimination on the bases of sexual orientation and gender identity. The final rule modifies several sections of regulations, 41 CFR 60-1, 41 CFR 60-2, 41 CFR 60-3, and 41 CFR 60-4. They take effect 120 days from publication in the Federal Register (April 8, 2015). The revised regulations can be found at: http://www.gpo.gov/fdsys/pkg/FR-2014-12-09/pdf/2014-28902.pdf.
Although the revised regulations list gender identity as a separate basis of discrimination, the OFCCP had previously considered discrimination based on gender identity and transgender status as a form of sex discrimination. Directive 2014-02, effective August 19, 2014, clarified the OFCCP’s standpoint on this matter. The directive can be found at: http://www.dol.gov/ofccp/regs/compliance/directives/Directive_2014-02_508c.pdf.
The regulatory changes revise the EO 11246 impermissible bases of discrimination from “race, color, religion, sex, or national origin” to “race, color, religion, sex, sexual orientation, gender identity, or national origin”. The only affirmative action requirements affected by the revised regulations are found in 41 CFR 60-1.4(a). Contractors will become subject to the new regulations after modifying or entering into a covered contract on or after April 8, 2015. Contractors will satisfy the new requirements by including the updated EO 11246 Equal Opportunity Clause in covered subcontracts and purchase orders, updating the language used in job solicitations, and posting updated notices.
Contractors who incorporate the EO 11246 Equal Opportunity Clause by reference in their subcontracts and purchase orders will not need to make any updates. Keep in mind that the VEVRAA and Section 503 referenced text is different from the EO 11246 reference. Contractors that include the text of the Equal Opportunity Clause will need to update the language in covered subcontracts and purchase orders entered into on or after April 8, 2015. Similarly, contractors who do not list the EO 11246 impermissible bases of discrimination in job solicitations (referred to as “tag lines”) will not need to make any updates regarding sexual orientation and gender identity, however, contractors that do will need to update their language used in job listings made on or after April 8, 2015, if they have not already done so. Contractors will need to post the revised “EEO Is The Law” poster. The new poster, however, has not yet been released. OFCCP representatives stated during a webinar on the new regulations that they do not have an estimated release date.
Foreign government practices, found at 41 CFR 60-1.10, have also been revised to include sexual orientation and gender identity. If a contractor feels that they have been unable to obtain a visa of entry for an employee to a country where work is to be performed, due to one of the impermissible bases of discrimination, the contractor must immediately notify the Department of State and the OFCCP of the refusal. A visa denial notification based on the current protected categories has never been received by the OFCCP nor the current office directors or senior officials in the Department of State’s Bureau of Political-Military Affairs.
There will be no additional data collection, data analysis, or additional record keeping required by the revised regulations. The OFCCP has a page with links to the final rule, Executive Orders, an FAQ (Frequently Asked Questions) page, along with several other helpful links. The page can be found at: http://www.dol.gov/ofccp/LGBT.html.
Please contact us by calling (732) 446-2529 or sending us an e-mail at email@example.com if you are interested in discussing the revised regulations.