Department of Labor Issues Updated Sex Discrimination Guidelines for Federal Contractors: OFCCP Revises Sex Discrimination Guidelines for the First Time Since 1970

Sullivan & Cromwell LLP - June 17, 2016

On June 14, 2016, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), which enforces anti-discrimination laws covering federal government contractors and subcontractors, issued a final rule (Rule) that significantly updates the agency’s existing guidelines on sex discrimination.  According to the OFCCP, the Rule seeks to align the guidelines—which had not been updated since they were first promulgated in 1970—“with current law and legal principles and address their application to contemporary workplace practices and issues.”

Significant changes to the guidelines include:

  • Expansion of the Definition of Sex Discrimination.  The term “sex” has been expanded to include “pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.”  41 C.F.R. § 60-20.2(a).  
  • Express Prohibition on Sexual Harassment.  The Rule expressly prohibits sexual harassment, including a hostile work environment.  The prior Guidelines did not address sexual harassment.  
  • Clarification on Pay Discrimination.  The Rule prohibits not only pay discrimination among similarly situated employees on the basis of sex, but also denial of access to increased earning opportunities, such as granting or denying overtime work, training, fringe benefits, or higher-paying positions because of a worker’s sex. 
  • Protections for Transgender Workers.  Transgender employees must be allowed access to restrooms, changing rooms, and showers or similar facilities designated for the gender with which they identify.  Employees or applicants cannot be treated adversely because they have received, are receiving, or plan to receive transition-related medical services.
  • Workplace Protections for All Caregivers.   If a covered employer provides job-guaranteed family leave to female employees (including paid leave), the employer must provide such leave to male employees on the same terms.
  • Prohibition on Employment Decisions Based on Sex-Based Stereotypes.  Covered employers may not make employment decisions based on sex-based stereotypes about how males and females are expected to look, speak, or act. 

The Rule will take effect on August 15, 2016.  The OFCCP estimates that the Rule will affect up to 500,000 federal contractors employing about 65 million employees.