Federal contractors and subcontractors are on the receiving end of updates to the U.S. Department of Labor’s sex discrimination regulations, which are under the enforcement of the Office of Federal Contract Compliance Programs, or OFCCP.
The proposed regulations were introduced at the end of January and will be implemented later this year. There is a 60-day public comment period, which ends March 31, for the public to share support, concerns or opposition to the regulations.
The original sex discrimination guidelines were enacted 45 years ago, in 1970.
“Our sex discrimination guidelines are woefully out of date and don't reflect established law or the reality of modern workplaces," said Patricia Shiu, OFCCP director.
“We owe it to the working women of America — and their families — to fix this regulatory anachronism so there is no confusion about how federal contractors must comply with their equal opportunity obligations.”
The U.S. Labor Department said the proposed rules address “a variety of barriers to equal opportunity that too many women face in the workplace today, including pay discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family care-giving discrimination.”
One of the biggest proposed regulation changes is the extension of light-duty accommodation to pregnant women.
Many employers have only extended light-duty assignments to employers injured on the job, but more recently conversations have revolved around whether refusing to provide light-duty assignments to a pregnant woman amounts to sex discrimination.
“This new regulation now specifically says that kind of accommodation is something they are going to expect to be provided to a pregnant employee, and if you don’t, it is going to be deemed sex discrimination impacting women,” explained Gary Chamberlin, attorney with Miller Johnson.
One interesting facet of the light-duty regulation is the U.S. Supreme Court will decide a case later this year dealing with this issue. Chamberlin said the Supreme Court’s decision would be the final word on how employers have to handle light-duty accommodations for pregnant employees.
“It’s interesting that the OFCCP has come out with this pronouncement when the Supreme Court is going to render a decision on this very issue,” he said.
“They have acknowledged the Supreme Court is going to decide this issue and they have said if the Supreme Court decides contrary to the federal government’s argument that an employer does not have to provide light duty to a pregnant woman … they say they will modify their proposed regulations.”
Including sexual orientation and gender identity under the umbrella of sex discrimination is also a big change and is reflective of today’s workplace and legal developments in more recent years.
Chamberlin said the proposed sex discrimination regulations come on the heels of President Barack Obama’s executive order extending non-discrimination protections to include sexual orientation and gender identity.
“These new sex discrimination guidelines are very integrated with sexual orientation and gender identity regulations from December,” Chamberlin said.
He noted the regulations prohibit discrimination based on someone’s appearance, attire, behavior or conduct as it relates to gender identity or perceived orientation.
Chamberlin said the new regulations would have a substantial impact.
“There are a lot of federal contractors out there,” he said. “The federal government spends probably $550 billion a year buying goods and services from the private sector. In the OFCCPs issuance of the sex discrimination guidelines, they estimate these new proposed rules would affect about 65 million American workers who are employed by federal contractors. It’s not a small slice, by any means.”
Chamberlin said the OFCCP would now be asking federal contractors whether they’ve added gender identity and sexual orientation to their employment policies. The organization will also be inquiring whether any requests for accommodation for a transgender employee have been made, such as to use the bathroom or locker room that fits their gender identity.
Because these regulations are the result of an executive order, the next president could come in and revoke the rules or make changes to them.
Chamberlin said revoking the regulations is unlikely and he expects a Republican president would more likely institute changes, such as adding a religious exemption to the gender identity or sexual orientation rule.
“I could see a Republican administration making some tweaks to add exceptions to some of this, but I think it would be unusual for it to be withdrawn or overruled by subsequent Republican administration,” he said.
“Once an executive order is in effect for awhile, it has a certain entrenchment or momentum so it’s difficult to overrule that and … it might be somewhat unpopular to come in and withdraw nondiscrimination protections against certain employees of America, saying we aren’t going to protect a certain slice of the American workforce from discrimination.”