OFCCP Published NPRM for Revisions to the Sex Discrimination Guidelines

By | January 30, 2015

On January 30, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rule Making (NPRM) on revisions to the Sex Discrimination Guidelines in the Federal Register. The OFCCP has posted a fact sheet and several other helpful resources which can be found at: http://www.dol.gov/ofccp/SDNPRM/index.html. The proposed rule, which will be open to public comments for 60 days, can be found at: http://www.gpo.gov/fdsys/pkg/FR-2015-01-30/pdf/2015-01422.pdf.

The proposed revisions would rescind several outdated provisions, revise sections to bring them in line with current established case law, include new provisions addressing contemporary issues, and rename the regulations “Discrimination on the Basis of Sex”. There have not been major revisions to the Sex Discrimination Guidelines since they were first implemented in 1970 and as such, there are many outdated provisions included. For example, the current Sex Discrimination Guidelines prohibit advertising for positions in sex segregated newspaper columns. The proposed revisions would prohibit recruiting or advertising for individuals for certain jobs based on sex, including through the use of gender-specific titles (e.g. lineman) along with prohibiting distinguishing on the basis of sex in apprenticeship or other formal or informal training programs, networking, mentoring, sponsorship, individual development plans, rotational assignments, and succession planning programs.

The proposed revisions include clarification that adverse treatment based on gender-stereotyped assumptions about family caretaking is considered discrimination along with clarification that leave for childcare must be available equally for men and women. The revisions would also clarify that sex discrimination includes discrimination based on an individual’s gender identity or transgender status, which is in line with the OFCCP guidance found in Directive 2014-02, which can be found at: http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html. The proposed revisions would prohibit denying transgender employees access to the bathroom corresponding to the gender with which they identify and treating an employee or applicant adversely because they have, are currently, or are planning to undergo sex-reassignment surgery or any other processes or procedures designed to adopt a sex or gender other than that assigned at birth.

There are also new proposed sections addressing: discrimination based upon pregnancy, childbirth, or related medical conditions; equal pay and equal contributions for fringe benefits; discrimination based upon sex-based stereotypes; and harassment and hostile work environments.

Please contact us by calling (732) 446-2529 or sending us an e-mail at glennbarlett@gbcs.net if you are interested in discussing the NPRM.